The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER and PERMANENT INJUNCTION
Plaintiffs Paul Marriott ("Marriott"), Barbara Davis ("Davis"), and Andy Rivera ("Rivera") (collectively "plaintiffs") filed suit individually and on behalf of a class of others similarly situated, alleging that the policy of the Montgomery County Jail ("the Jail") providing for the search of all persons admitted to the Jail constitutes a strip search in violation of the Constitution of the United States. Plaintiffs' motion to certify the class pursuant to Rule 23 was granted on March 25, 2005, and defendants were preliminarily enjoined from conducting the search at issue. Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005) ("Marriott I"). The Second Circuit affirmed on November 22, 2005. Marriott v. County of Montgomery, No. 05-1590-CV, 2005 WL 3117194, at *1 (2d Cir. Nov. 22, 2005) ("Marriott II").
On October 14, 2005, defendants' motion to dismiss plaintiffs' complaint against defendant Montgomery County Sheriff's Department and defendants Michael Amato ("Sheriff Amato"), Jeffrey Smith ("Smith"), Kevin Snell ("Snell"), John Pecora ("Pecora"), and Sue Buddles ("Buddles") in their official capacities was granted, as the County of Montgomery ("the County") is liable for the acts of the Montgomery County Sheriff's Department and the above defendants in their official capacities as employees of the County.*fn1 The claims against Sheriff Amato, Smith, Snell, Pecora, and Buddles in their individual capacities remain. Additionally, defendants' motion for partial summary judgment dismissing plaintiffs' claims for compensatory damages, punitive damages, and attorney fees was denied.*fn2
Plaintiffs, on behalf of the certified class, now move for partial summary judgment against the County and Sheriff Amato on the issue of liability. They also seek a permanent injunction against defendants, as well as interim attorneys' fees for plaintiffs' counsel. Further, plaintiffs move to preclude the testimony of defendants' expert witness, George M. Camp ("Camp"). Defendants oppose, and move for a certificate of appealability, pursuant to 28 U.S.C. § 1292(b), regarding the October 14, 2005, denial of their motion for partial summary judgment dismissing plaintiffs' claims for compensatory damages, punitive damages, and attorney fees. Plaintiffs oppose.
Oral argument was heard on December 15, 2005, in Utica, New York. Decision was reserved.
The Jail has a specific, written policy that provides procedures for admitting/booking inmates into the Jail. This admissions policy, which has been in effect since July 1, 1996, provides for an initial pat-down search of admittees upon their entrance into the facility. (See generally Docket No. 90, Pls.' Ex. D, ¶ 12.) The Jail has a separate policy which defines the different types of searches that may be conducted by a Corrections Officer ("CO") and delineates the circumstances in which each search should be used.
Upon a determination that an admittee would be housed at the Jail (i.e., would not make bail), the admissions policy provides for an officer to facilitate the admittees' change from street clothes into Jail attire, as follows: the booking officer will escort the inmate to the shower area where the inmate will disrobe and place all clothes in the bag provided by the officer, and be required to take a shower. A. All persons and personal property shall be searched in accordance to the law. Solely to prevent the introduction of contraband to the facility . . .
Id. Defendants refer to this portion of the admission process as a "change-out" procedure. Pursuant to the "change-out" procedure, when an admittee was being processed for housing at the Jail, a CO (who is the same sex as the admittee) directs the admittee to remove his or her clothing and place it in a bag; the admittee must then shower. During the "change-out," the CO would conduct a visual inspection of the admittee's naked body. (Docket No. 90, Pls.' Ex. I, Pecora Dep. at 42, 65.)*fn3 After showering, the admittee dried off, then donned the prison garb that was provided. The admissions policy, hence the "change-out" procedure, applies to everyone who is admitted to the Jail.
The representative plaintiffs in this case - Marriott, Davis, and Rivera - were all arrested on misdemeanor charges and subjected to the written Jail "change-out" procedure.*fn4
While Marriott and Davis allege that in addition to the shower and visual inspection of their naked bodies, they were directed to submit to various commands while naked, including bending over in front of the CO and spreading the lobes of their buttocks, at a minimum, they all were forced to remove their clothing and shower in view of the CO conducting their "change-out" procedure. They brought suit on behalf of themselves, as well as those similarly situated, claiming that the "change-out" procedure was an unconstitutional policy, practice, and custom of conducting strip searches of admittees arrested for misdemeanor offenses, absent reasonable suspicion that the admittee was concealing weapons or contraband. They sought class certification pursuant to Federal Rule of Civil Procedure 23, as well as a preliminary injunction enjoining defendants from performing the "change-out" procedure absent reasonable suspicion. Defendants cross-moved for summary judgment.
On March 25, 2005, defendants' cross-motion for summary judgment was denied, and plaintiffs' motion for class certification was granted.*fn5 See Marriott I, 227 F.R.D. 159. The Jail's "change-out" policy was found to be a strip search. Id. at 175. Plaintiffs' certified class was defined as follows:
All persons in the United States who have been or will be placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, and were or will be strip searched upon their entry into the Montgomery County Jail pursuant to the policy, custom and practice of the Montgomery County Sheriff's Department and the County of Montgomery. The class period commences on April 29, 2000, and extends to the date on which the Montgomery County Sheriff's Department and/or the County of Montgomery are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the proposed class are Defendants, and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
Id. Further, as the "change-out" procedure was tantamount to a strip search, and conducted absent reasonable suspicion, defendants were PRELIMINARILY ENJOINED from conducting a strip search, as set forth in the Jail's change-out procedure, with regard to all persons being placed into the custody of the Montgomery County Jail after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions or other minor crimes, or held on civil matters, without reasonable suspicion that such persons are secreting contraband and/or weapons.
Id. The Second Circuit affirmed, holding that "plaintiffs have shown a substantial likelihood of establishing that the Jail's current strip search policy is unconstitutional." Marriott II, 2005 WL 3117194, at *1.
A. Plaintiffs' Motion for Partial Summary Judgment
When considering a motion for summary judgment, evidence is viewed in the light most favorable to the non-moving party, and all reasonable inferences are drawn in her favor.
Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002). It is well settled that summary judgment must be granted only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999). An issue is "genuine" if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, 477 U.S. at 248-49, 106 S.Ct. at 2510-11.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact, as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). Once the moving party has met this burden, the party opposing the motion for summary judgment must produce specific evidence establishing the existence of a genuine factual dispute that a reasonable jury could find in its favor. Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. It cannot rest upon "mere allegations or denials" asserted in its pleadings. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1999).
To withstand a summary judgment motion, sufficient evidence must exist upon which reasonable factfinders could resolve the issue in favor of the non-movant. Liberty Lobby, 477 U.S. at 248-49, 106 S.Ct. at 2510; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the non-moving party's case." ...