MEMORANDUM-DECISION AND ORDER
Plaintiffs John Kelsey ("Kelsey") and Timothy Wright ("Wright") (collectively "Plaintiffs") filed suit, individually and on behalf of others similarly situated, alleging that the Schoharie County Sheriff's Department ("SCSD") has an unconstitutional policy and/or practice of strip searching all individuals, including those charged with misdemeanors or held on civil matters, who enter the Schoharie County Jail ("SCJ") regardless of the crime with which they are charged. Compl. (Dkt. No. 1) at ¶ 1. Plaintiffs assert that Defendants John S. Bates, Jr. ("Bates"), Schoharie County Sheriff, and Lieutenant Jim Hazzard ("Hazzard"), SCJ Administrator, (collectively, with Schoharie County, "Defendants") promulgated the written procedures that govern the complained-of practices. Id.
Presently before the Court are two motions: (1) Plaintiffs' Motion that the Court certify this action as a class action, Dkt. No. 46, and (2) Defendants' Motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Dkt. No. 47. For the following reasons, the Court denies Defendants' Motion for summary judgment and certifies Plaintiffs' proposed class.
A. Facts Related to SCJ's Policies and Practices
SCJ is operated by the SCSD. Defts' Statement of Material Facts (Dkt. No. 48) at ¶ 1. Plaintiffs and Defendants agree that after all newly-admitted inmates/detainees are transported to SCJ's holding area, it is the jail's practice that all personal property and outer garments, belts, and shoes be surrendered and secured. Id. at ¶ 23. Additionally, a SCJ corrections officer ("CO") conducts an external pat search of the clothed inmate, with, on occasion, the assistance of a hand-held metal detecting wand. Id. A CO also conducts a booking interview of the inmate, including a "pedigree inquiry," suicide screen, and a tattoo inquiry. A CO also fingerprints and photographs the inmate. Id.
The parties agree that newly-admitted male inmates who are going to be housed in one of SCJ's housing units are routinely subjected to, what Defendants term, the "clothing exchange process" (hereinafter "exchange/strip search process"). Id. at ¶ 22. However, Defendants claim that SCJ'S Search Policy expressly states that strip searches and strip frisk searches "shall not be routinely conducted" and only authorizes such searches when reasonable suspicion is present. Id. at ¶¶ 7-8. Additionally, Defendants state that the exchange/strip search process "is not an official procedure described or defined by any written Policy or Order at the SCJ." Id. at ¶ 12. Finally, Defendants assert that "[n]o SCJ Correction Officer has been authorized to conduct any personal searches of newly-admitted inmates during the clothing exchange process in the absence of reasonable suspicion." Id. at ¶ 13. Nor, Defendants claim, has any CO been trained to conduct searches without reasonable suspicion. Id. at ¶ 14.
Defendants state that the exchange/strip search process begins with the CO providing the inmate with a 4-foot towel*fn1, facility-issued clothing, and other personal care items. Id. at ¶ 24. A CO then instructs the inmate, who is separated from the CO by a 42" x 48" masonry half-wall, to undress and place his personal clothes into a mesh bag, which is taken to the SCJ property room. Id. The CO then directs the inmate to shower in the semi-private shower stall located in the holding area and to dress in the facility-issued clothing. Id. The CO will inspect the inmate's street clothing for potential contraband in the property room, outside of the inmate's view, before having it laundered. Id. Defendants state that the exchange/strip search process concludes when "after the inmate has dressed himself, a CO returns to the Holding Area and transports the inmate to a housing unit." Id.
Plaintiffs dispute this characterization of the exchange/strip search process. Plaintiffs assert that SCJ does have a written policy governing what they term "a thorough personal search" and they point to particular sections of SCJ's "Inmate Management" policy in support. Plntfs' Statement of Material Facts (Dkt. No. 72, Attach 14) at ¶ 7 (emphasis removed). One section of SCJ's policies requires inmates to remove all personal clothes and footwear for washing and storage. Id.; see also SCJ Inmate Management Policy (Dkt. No. 72, Attach. 4, Ex. C) at ¶ B(4). In a separate section of the policy, listed under the Medical Screening Form section, the SCJ requires that "[a] visual analysis of the inmate will be conducted throughout the admission process." Id. at ¶ D. Plaintiffs argue that these two sections of the written policy read together cover, though "incompletely," the "strip search to which Plaintiffs were subjected." Plntfs' Statement of Material Facts (Dkt. No. 72, Attach. 14) at ¶ 7.
Furthermore, Plaintiffs state that it is Defendants' practice "to strip search all incoming pre-trial detainees who are not bailed out." Id. Plaintiffs state that "[a]lthough not completely described in any written SCJ policy or order, the 'clothing exchange' process is a common, repeated practice that defendant Hazzard has authorized and approved." Id. at ¶ 12 (citing Hazzard Deposition (Dkt. No. 72, Attach. 5, Ex. D) at 29-30.*fn2 ). Plaintiffs testified that they were directed to remove their clothes in front of the COs and away from the half-wall. See id. at ¶ 24. Plaintiffs also point to testimony by both current and former SCJ COs that they conducted exchange/strip searches of inmates in front of intake holding cells, also away from the half-wall. Id. Additionally, Plaintiffs note that there is no mention in SCJ's written policies that the half-wall is to be used at all, even for privacy purposes, during the exchange/strip search process. See id. Plaintiffs also state that their testimony and that of Defendants' Rule 30(b)(6) witness, Defendant Hazzard, demonstrates that the CO conducting the exchange/strip search "stand[s] in front of the detainee and hold[s] the bag out for the detainee to place his clothing in." Id. Furthermore, there is testimony in the record that COs do observe inmates removing their underpants as part of the exchange/strip search process.*fn3 See Kenyon Deposition (Dkt. No. 46, Attach. 11, Ex. H) at 23-25.
B. Plaintiffs' Individual Allegations
On September 5, 2003 at approximately 1:00 am, an Officer of the Cobleskill Police Department arrested Plaintiff Wright for driving while intoxicated. Defts' Statement of Material Facts (Dkt. No. 48) at ¶ 35. The Cobleskill Police subjected Wright to a pat search, but did not conduct any other personal searches. Id. at ¶ 39. The Cobleskill Police transported Wright to SCJ at approximately 3:30 am. Id. at ¶ 40. Wright was taken to the SCJ's Holding Area, where after completing the booking procedure, he was subjected to the exchange/strip search process. Id. at ¶¶ 42, 46-47.
Defendants state that during the exchange/strip process, Wright did not observe what the CO did while he undressed. Id. at ¶ 48. Plaintiffs deny this and state that Wright did testify that the CO was standing in front of him as he undressed. Plntfs' Statement of Material Facts (Dkt. No. 72, Attach. 14) at ¶ 48. Moreover, when asked what direction he was facing as he got undressed, Wright testified that, as best as he could recall, he was "at somewhat of an angle to [the CO] . . . It was like sort of facing towards the officer." Wright Dep. (Dkt. No. 50, Ex. J) at 79. Defendants state that Wright took a shower and used the facility-issued towel provided to him during and after the shower. Defts' Statement of Material Facts (Dkt. No. 48) at ¶ 51. Plaintiffs note that Wright did not use the towel during the shower, but did use it while walking to the shower and to dry himself off after he finished showering. Plntfs' Statement of Material Facts (Dkt. No. 72, Attach. 14) at ¶ 51. After finishing the shower, and before being transported to a SCJ housing unit, Wright was alone in the holding area and was allowed to dress himself in a facility-issued uniform. Defts' Statement of Material Facts (Dkt. No. 48) at ¶¶ 52-53.
The Albany County Sheriff's Department transported Plaintiff Kelsey from Albany County Jail, where he works as a CO, to SCJ on or about October 16, 2002. Id. at ¶ 71; Plntfs' Response (Dkt. No. 72, Attach. 13) at 2. Kelsey was arrested for a civil violation of the Family Court Act after appearing in Family Court on a child support matter. Plntfs' Response (Dkt. No. 72, Attach. 13) at 2. Upon his arrival at SCJ, Kelsey was escorted to SCJ's holding area and subjected to a booking interview; after which he was fingerprinted and required to sign various forms. Defts' Statement of Material Facts (Dkt. No. 48) at ¶¶ 73-74.
Before being transported to one of SCJ's housing units, Kelsey was subjected to SCJ's exchange/strip search process. Id. at ¶ 76. Defendants claim that Kelsey was not asked to expose his buttocks or to expose and manipulate his testicles at any time while he was at SCJ. Defts' Statement of Material Facts (Dkt. No. 48) at ¶¶ 88-89. However, Plaintiffs again dispute this characterization; they note that Kelsey was ordered to undress while standing in front of a CO, and, as a result, Kelsey's buttocks and testicles were exposed and viewed by the CO. Plntfs' Statement of Material Facts (Dkt. No. 72, Attach. 14) at ¶ 88-89.
A. Defendants' Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)).
Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
1. Defendants' Official Liability Pursuant to the Existence of a Policy, Custom, or Practice
Defendants argue that Plaintiffs' claims against Schoharie County and Defendants Bates and Hazzard, in their official capacities, fail because SCJ does not have any policy, practice, or custom of conduct that requires personal searches of all newly-admitted inmates. Defts' Summ. Judgment Mem. of Law (Dkt. No. 49) at 10. Pursuant to 42 U.S.C. § 1983, Government defendants are responsible for constitutional violations inflicted by their employees or agents when those injuries are the result of the execution of a policy or custom made by lawmakers or those whose edicts or acts may fairly be said to represent official policy. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). In support of their assertion, Defendants state that the plain language of SCJ's policy limits body searches to pat searches and to strip/strip frisk searches when there is reasonable suspicion. Defts' Summ. Judgment Mem. of Law (Dkt. No. 49) at 11. Moreover, Defendants assert that "the SCJ Clothing Issuance Policy does not authorize any inmate searches or inspections of inmates' bodies during clothing exchanges." Id. at 12. Additionally, Defendants argue that the evidence in the record demonstrates that SCJ's actual practices and procedures do not include inspection of ...