The opinion of the court was delivered by: Gerard E. Lynch, District Judge
In a continuation of this putative class action for federal civil rights violations arising from policies or practices of the New York City Department of Corrections ("DOC") applied at New York City jails, intervenor-plaintiffs move for partial summary judgment and to certify a damages class of pre-trial detainees who were charged with certain narcotics- or weapons-related misdemeanors and who, after arraignment, were strip-searched pursuant to a mandatory and indiscriminate intake policy. Intervenor-plaintiffs also move for summary judgment, preliminary injunctive relief, and class certification with respect to all pre-trial detainee misdemeanants who have been or will be affected by DOC's Housing and Exit Policies, or, in the alternative, to reopen discovery. Defendants oppose intervenor-plaintiffs' motions and cross-move for summary judgment.
The principal issues raised by these cross-motions for summary judgment are twofold: first, whether arraignment on a narcotics- or weapons-related misdemeanor offense is, in itself, sufficient to evoke reasonable suspicion that a detainee may be concealing weapons or contraband at intake despite the fact that the offense was not known to the searching officer at the time of the search; and second, whether DOC's Housing and Exit Policies, under which all pre-trial misdemeanants are routinely strip-searched throughout their stay at DOC, is controlled by the holding of Shain v. Ellison, which requires that searching officers have an individualized reasonable suspicion that a misdemeanant is secreting weapons or contraband. See 273 F.3d 56, 66 (2d Cir. 2001). For the reasons set forth below, the motions will be granted in part and denied in part.
Much of the lengthy history of this case is laid out in this Court's opinions certifying the original class of plaintiffs (the "McBean Settlement Class"), see McBean v. City of New York ("McBean I"), 228 F.R.D. 487, 489-91 (S.D.N.Y. 2005), and approving the parties' stipulation to injunctive relief and additional class certifications, see McBean v. City of New York ("McBean II"), No. 02 Civ. 5426, 2007 WL 2947448 (S.D.N.Y. Oct. 5, 2007). Nevertheless, the instant motions require a detailed recitation of that history, as intervenor-plaintiffs seek not only to certify a class of plaintiffs who were specifically excluded from the McBean Settlement Class on account of their narcotics- and weapons-related misdemeanors,*fn1 but also to challenge strip searches conducted under DOC's Housing and Exit policies. In particular, intervenor-plaintiffs allege that these post-intake searches are constitutionally identical to those conducted prior to intake, and thus require individualized reasonable suspicion under Shain, 273 F.3d at 66. Whether Shain controls these post-intake searches, however, is a matter of first impression that, in turn, compels the Court to decide whether plaintiff-intervenors' pursuit of post-intake strip-search claims impermissibly expands the scope of this litigation. Because resolution of this issue implicates both procedural and substantive issues, a thorough explication of the history of this litigation is warranted.
I. The Original McBean Plaintiffs
The original McBean plaintiffs were female pre-trial detainees who were strip-searched and allegedly subjected to nonconsensual gynecological examinations on admission to Rikers Island Correctional Facility.*fn2 In their complaint they alleged that the blanket policy of strip-searching every detainee newly admitted to DOC's facilities, including those charged with misdemeanors and lesser offenses (the "Prior Admission Policy"), was unconstitutional because it was substantially similar to the policy struck down by the Second Circuit in Shain as violative of the Fourth Amendment. (Pl. Original Compl. ¶¶ 9-14; Pl. First Am. Compl. ¶¶ 10-15.) As in Shain, the plaintiffs alleged that they were strip-searched absent reasonable suspicion that they were concealing weapons or other contraband.*fn3
On October 11, 2002, plaintiffs amended their complaint to add additional named plaintiffs, at least one of whom was male, and to propose two separate classes: first, a class of all newly-admitted pre-trial detainees, without regard to gender, who were strip-searched under DOC's Prior Admission Policy; and second, a class of newly-admitted female detainees subjected to forced gynecological examinations. (Pl. 2d Am. Compl. ¶¶ 5-6.)
Just one week after the suit was filed, DOC issued a new intake policy, Operations Order 08/02, which purported to abandon -- as required by Shain -- the practice of strip-searching misdemeanor detainees absent reasonable suspicion. The policy specifically provided that "[p]ost-arraignment detainee inmates incarcerated for Misdemeanor and/or Violation Offenses shall not be made the subject of a strip search during the new admission process unless there is reasonable suspicion that the inmate is in possession of contraband." (Int.-Pl. R. 56.1 ¶¶ 34, 36.) On October 17, 2002, plaintiffs moved for a preliminary injunction and for class certification, claiming that, in spite of the purported policy change, DOC had not ended its unlawful practices. (Letter of Richard J. Cardinale to the Court, dated Dec. 9, 2002, at I.) On December 18, 2002, the Court, believing that principles of judicial restraint and the letter and spirit of the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626 et seq., cautioned against intrusive court supervision, accepted DOC's representations that, whatever its past derelictions, there would be no future violations. (See 12/18/02 Hr'g Tr. 24:18-26:8.) Accordingly, the Court denied plaintiffs' preliminary injunction motion in an oral opinion, and deferred decision on plaintiffs' class certification motion pending the completion of discovery on certain issues material to certification and resolution of defendants' motion to disqualify plaintiffs' counsel.*fn4
Following its denial of defendants' motion to disqualify plaintiffs' counsel, see McBean v. City of New York, No. 02 Civ. 5426, 2003 WL 21277115 (S.D.N.Y. June 3, 2003), the Court again postponed its decision on the certification motion pending the outcome of settlement negotiations. Those negotiations yielded a proposed settlement class that differed from the one suggested in plaintiffs' amended complaint. In particular, the proposed settlement class specifically excluded pre-trial detainees arraigned on certain narcotics- and weapons-related charges and consisted of only those "pre-trial detainees who, during the class period [July 15, 1999 through July 22, 2002], were arraigned on certain misdemeanors, violations, and misdemeanor charges of civil contempt, and non-felony warrants regarding same, and who, after arraignment, were strip-searched in DOC jails." (Stipulation and Order of Class Action Stlmt. ("Proposed McBean Stlmt."), Def. Cert. Opp. Mem., Ex. A, ¶ 1.)*fn5
On February 18, 2004, just prior to the conclusion of the settlement negotiations, putative class members Joel Ramos, Foster Thomas, Daniel Velazquez, and Kenneth Williams, all of whom were represented by Emery, Celli, Brinckerhoff & Abady LLP, moved to intervene as of right in the case.*fn6 The putative intervenor-plaintiffs, one of whom had been charged with a misdemeanor narcotics offense, claimed their interests would be adversely affected by various terms of the proposed settlement, including plaintiffs' decision to narrow the intake class to exclude misdemeanor arrestees charged with certain narcotics- or weapons-related offenses. In their Intervenor Class Action Complaint, the putative intervenor-plaintiffs purported to bring suit on behalf of an intake class of "all persons who have been or will be arraigned on misdemeanor or non-criminal offenses and then were or will be strip-searched pursuant to City and DOC policy, practice, and custom." (Int.-Pl. Compl. ¶ 21.) This formulation endeavored to restore the broader class originally proposed by the McBean plaintiffs in their October 2002 motion for class certification. McBean I, 228 F.R.D. at 490.
After further briefing, the Court granted the motion to intervene and directed the original plaintiffs to file an amended motion for certification of the narrower class as defined in the proposed settlement. Intervenor-plaintiffs opposed certification of the narrower class, and cross-moved for certification of the broader class, appointment of intervenor-plaintiffs as class representatives, and appointment of Emery, Celli, Brinckerhoff & Abady LLP, as class counsel. Presented with competing motions for class certification and appointment of class counsel, the Court granted the original plaintiffs' certification motion on April 27, 2005, finding that "plaintiffs' decision to narrow the class in order to obtain relief for a subset of the original plaintiffs . . . [left] unimpaired the rights of those excluded to pursue their claims separately," and that the narrowing of the class would permit members of the class who were clearly entitled to relief to obtain speedy compensation, while avoiding delay occasioned by litigating the claims of other detainees as to whom the defendants vigorously contested liability. See McBean I, 228 F.R.D. at 504-05. Finding no reason to take the case out of the hands of the attorneys who had initiated and prosecuted the action up until that point, the Court appointed counsel for the original plaintiffs class counsel. Id.
With a class in place, the original McBean plaintiffs settled, providing damages to misdemeanor detainees not arraigned on the excluded offenses (the "McBean Settlement Class").*fn7 The settlement was preliminarily approved by this Court on June 21, 2005, and finally approved in McBean v. City of New York, 233 F.R.D. 377 (S.D.N.Y. 2006) (approving of the settlement, the payments to class representatives, and the attorneys' fees).
II. The Intervenor-Plaintiffs
Following the Court's preliminary approval of the McBean Settlement Class, intervenor- plaintiffs pursued discovery concerning a number of claims relevant to their First Amended Complaint, which was filed on April 7, 2005.
Discovery revealed that, contrary to DOC's representations, on which the Court had relied in denying injunctive relief, Operations Order 08/02 had never been implemented. Indeed, for the five years following its announcement that the 08/02 directive had ended the practice of strip-searching misdemeanor detainees -- and even after it had agreed to pay substantial damages to settle this action with the original class of plaintiffs -- DOC continued to strip-search virtually all misdemeanor detainees per the Prior Admission Policy.
Following a period of intense negotiation, the parties arrived at a settlement in response to this revelation, in the form of a stipulation of facts and preliminary injunctive relief. The stipulation, subsequently put into place by the Court's Order of October 4, 2007, provided that DOC would implement Operations Order 08/02 (the "Current Admission Policy"), allow certification of certain classes for purposes of damages or injunctive relief, and refrain from "subject[ing any misdemeanor detainees] to a strip search upon admission into DOC custody without reasonable suspicion." (Stipulation and Order 4, § II, ¶ 1, Oct. 4, 2007); see McBean II, 2007 WL 2947448 at *2-3. The Current Admission Policy requires that when any detainee enters a DOC facility, a designated officer will review the detainee's securing order(s) to determine whether a detainee has been charged with a felony, a misdemeanor, or a violation. (Int-Pl. R. 56.1 ¶ 38.) If the detainee has not been charged with a felony, and does not meet any of the other, limited conditions,*fn8 the detainee "shall not be made the subject of a strip search during the new admission process unless there is reasonable suspicion that the inmate is in possession of contraband." (Int-Pl. R. 56.1 ¶ 36.) Detainees in this category -- which include pre-trial detainees charged with narcotics- or weapons-related misdemeanors -- are given a disposable medical gown so that the detainee is not naked during the intake search. The Court appointed a Special Master to supervise the implementation of the intake procedures, and to report on DOC's compliance with the October 4, 2007, Order.
III. Intervenor-Plaintiffs' Housing and Exit Search Claims
In addition to pursuing discovery on behalf of narcotics and weapons midemeanants, intervenor-plaintiffs also pursued discovery with respect to claims raised in their First Amended Complaint concerning post-intake searches conducted pursuant to the Housing and Exit Policies. Under the Housing Policy, detainees are strip-searched whenever their living quarters are searched, which occurs "regular[ly] and frequent[ly]." (Int.-Pl. R. 56.1 ¶¶ 84, 89, 99.) Detainees are also strip-searched when they exit a DOC facility (the "Exit Policy"), except when insufficient staff, room, or time is available to conduct the searches. (Int-Pl. R. 56.1 ¶¶ 56, 64.) These searches take place regardless of whether a particular detainee has recently been searched or has been in continuous custody since his last search.*fn9 (Int.-Pl. R. 56.1 ¶¶ 71, 113.)
With respect to intervenor-plaintiffs' Housing and Exit claims, they now move for summary judgment, for preliminary injunctive relief, and to certify a class of all pre-trial detainee misdemeanants who have been or will be affected by DOC's Housing and Exit Policies, or, in the alternative, to reopen discovery.
I. Motions for Summary Judgment
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the "burden of showing that no genuine issue of material fact exists and that the undisputed facts entitle it to judgment as a matter of law." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). However, when moving against a party who will bear the ultimate burden of proof on an issue, "the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim."
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("The moving party is entitled to judgment as a matter of law [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.") (internal quotation marks omitted).
Once the moving party has satisfied its burden, the burden then shifts to the nonmoving party to come forward with affidavits, depositions, interrogatories, or other sworn evidence sufficient to create a genuine issue of material fact for trial. See Fed. R. Civ. P. 56(e)(2); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The nonmoving party may not satisfy this burden simply by "show[ing] that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992) (holding that a non-movant cannot defeat a motion for summary judgment "merely . . . on the basis of conjecture or surmise"), quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (internal quotation marks omitted). Rather, the non-movant must advance "enough evidence to support a jury verdict in its favor." Trans Sport, Inc., 964 F.2d at 188. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587.
These standards apply with equal force where, as here, the parties have filed cross-motions for summary judgment. See Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). In such a situation, "a court need not enter judgment for either party. Rather, each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Id. (citation omitted).
II. The Narcotics and Weapons Misdemeanants: Liability
The first principal issue raised by these cross-motions for summary judgment is whether arraignment on a narcotics- or weapons-related offense is sufficient to evoke reasonable suspicion that a detainee may be concealing weapons or contraband at intake, despite the fact that the nature of the detainee's alleged offense was not known to the searching officer at the time of the search.*fn10 Intervenor-plaintiffs argue that it cannot and urge the Court to grant partial summary judgment finding that the Prior Admission Policy was unconstitutional,*fn11 and to certify a damages class pursuant to Fed. R. Civ. P. 23(b)(3) of all pre-trial detainees charged with non-felony narcotics and weapons offenses who were either excluded from the McBean Settlement Class or the subject of the October 4, 2007, Stipulation and Order.
As the Second Circuit recently noted in Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir. 2009), it is "long-standing precedent" that before a misdemeanant may be lawfully strip-searched on intake, the Fourth Amendment requires an individualized "reasonable suspicion that [he] is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest." Id., quoting Hartline v. Gallo, 546 F.3d 95, 100-101 (2d Cir. 2008); see also Shain, 273 F.3d at 66 ("[P]ersons charged with a misdemeanor and remanded to a local ...