The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
In accordance with this Court's order dated July 10, 2009, plaintiffs filed a renewed motion for class certification (Item 235). Defendants responded, and filed a cross-motion (Item 247) to strike certain matters from plaintiffs' certification motion papers. The Court heard oral argument of these motions on March 24, 2010. For the reasons stated, plaintiffs' motion for class certification is granted, and defendants' cross-motion to strike is granted.
This action was filed in July 2004 by proposed representative plaintiffs Adam Pritchard and Edward Robinson*fn1 seeking injunctive relief, money damages and attorneys' fees pursuant to 42 U.S.C. § 1983, individually and on behalf of a putative class of post-arraignment pre-trial detainees charged with misdemeanors or other minor crimes who entered the Erie County Holding Center in downtown Buffalo (ECHC) or the Erie County Correctional Facility in Alden (ECCF) between July 22, 2001 and May 1, 2004. Plaintiffs allege that, beginning in 2001, the Sheriff's Department implemented a policy to conduct an invasive strip search of every such detainee at the time they changed from street clothes to a prison uniform (a procedure called "change-out"), without regard for the severity of the offense alleged and without individualized reasonable suspicion of possession of weapons or contraband, in violation of the Fourth Amendment. Named as defendants are the County of Erie; Patrick Gallivan, former Erie County Sheriff; Timothy Howard, former Undersheriff; Donald Livingston, Superintendent of the ECCF; Robert Huggins, former Deputy Superintendent of the ECCF; and H. McCarthy Gipson, former Superintendent of the ECHC.
The County, along with individual defendants Gallivan, Howard, Livingston, and Huggins (referred to collectively as the "County defendants"), filed an answer generally denying the existence of a policy to conduct strip searches without regard to individualized suspicion or the offense alleged, and asserting several affirmative defenses. Defendant Gipson filed a separate answer with the same or substantially similar denials and defenses.
By their renewed motion, plaintiffs seek certification of the following class: All persons who have been placed into the custody of the Erie County Correctional Facility and/or the Erie County Holding Center after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Erie County Correctional Facility and/or the Erie County Holding Center pursuant to the policy, custom and practice of the Erie County Sheriff's Department and the County of Erie. The class period commences on July 22, 2001 and extends until May 1, 2004. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. (Item 239, pp. 1-2). Plaintiffs request that the Court certify this action as a money damages class action under Rule 23(b)(3). In the alternative, plaintiffs seek partial certification under Rule 23(c)(4).
Defendants respond that a class cannot be certified in this case because plaintiffs have failed to come forward with proof that the County's facially valid search policy was unconstitutional. Defendants also argue that the proposed representative plaintiffs are inadequate and atypical of the proposed class because Mr. Pritchard (the only proposed class representative searched at the ECCF) was a parole violator, which carries a different legal status than an arrestee on a misdemeanor or other minor crime, and that Mr. Robinson (the only proposed representative searched at the ECHC) was searched outside the class period (see Item 245).*fn2
The County defendants have also filed a cross-motion (Item 247) seeking an order striking certain exhibits and unsupported allegations from the plaintiffs' motion papers. Each motion is discussed in turn.
I. Motion for Class Certification
The certification of class actions is governed by Rule 23, which provides in pertinent part:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds 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 5 adjudicating ...