The opinion of the court was delivered by: Hurley, Senior District Judge
The purpose of this memorandum is to address the applicability of the recovery limitation of the Prison Litigation Reform Act of 1997 ("PLRA"), 42 U.S.C. § 1997e(e) to the present case,*fn1 a class action consisting of "all persons arrested for misdemeanors or non-criminal offenses in Nassau County who thereafter were strip searched at the Nassau County Correctional Center [NCCC] pursuant to defendants' blanket policy, practice and custom which required that all arrestees be strip-searched upon admission to the facility, from May 10,1996 until and including June 1, 1999." (Jan. 16, 2007 Order at 2.)
A history, albeit abbreviated, of the instant action is in order.
These consolidated actions were commenced in 1999 seeking damages due to the blanket policy of the NCCC of strip searching newly admitted, misdemeanor detainees. Extensive pretrial motion practice ensued, including numerous attempts to achieve class certification. In response thereto, defendants conceded liability, acknowledging that the strip searches of the class members for non-felony offenses were conducted - with a few possible exceptions - absent reasonable suspicion to believe that such arrestees had contraband on their persons upon admission to the facility. Based on that concession, this Court deleted liability from the certification analysis and denied class treatment. On appeal, the Second Circuit reversed and directed this Court "to certify a class on the issue of liability . . . and consider anew whether to certify a class as to damages as well." In re Nassau County Stip Search Cases, 461 F.3d 219, 231 (2d Cir. 2006). Accordingly, the Court certified a class as to liability, entered summary judgment on liability in favor of the class and each of its members (Jan. 16, 2007 Order at 2), and sought input from the parties concerning damages certification. As a result of that input, the Court concluded that the general damages sustained by each class member attributable to the affront to human dignity necessarily entailed in being illegally strip searched satisfied the predominance requirement of Fed. R. Civ. P. 23(b)(3) and thus extended class certification to include damages. (See Memorandum and Order dated March 27, 2008 reported at 2008 WL 850268). A non-jury trial*fn2 on the issue of general damages sustained by class members as a result of being unconstitutionally strip searched at the NCCC was held in November and December 2009, with post trial briefing thereon completed in April 2010; that matter is the subject of a separate Memorandum and Order being issued this date.
The PLRA's Limitation on Recovery
The PLRA provides in pertinent part:
(e) Limitation on recovery
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
42 U.S.C. § 1997e(e)*fn3.
Defendants maintain that 42 U.S.C. § 1997e(e) "limits the recovery by some or all of the plaintiff class to nominal and/or punitive damages as the general dignitary injury here is an emotional rather than a physical injury for PLRA purposes and plaintiffs have not alleged an accompanying actual physical injury." (Defs.' Brief on the Applicability of the Prison Reform Litigation Act ("Defs.' Br.") at 4(emphasis in original).) More particularly, defendants urge this Court to hold that the PLRA's limitation on recovery applies whether or not plaintiffs were incarcerated or detained at the time these lawsuits were filed (id. at 11-14)and that the general damages attributable to the affront to human dignity are recompense for "mental or emotional" injuries requiring a showing of physical injury (id. at 5-11).
Plaintiffs counter that the PLRA's recovery limitation does not apply to individuals who are not incarcerated when the action is commenced and, as to class members that were incarcerated at that time, the limitation does not apply because the named plaintiffs were not then incarcerated. (Pls.' Memorandum in Opposition to Defs.' Motion Under the PLRA ("Pls.' Mem.") at 7-11.) Plaintiffs also argue that the PLRA does not limit class members' recovery of general damages because the general damages arising from the Fourth Amendment violation at ...