The opinion of the court was delivered by: Hurley, Senior District Judge
The captioned case, a class action,*fn1 was tried before me, non-jury, on the issue of general damages sustained by class members as a result of being unconstitutionally*fn2 strip searched at the Nassau County Correctional Center ("NCCC") following their arrests for non-criminal offenses and/or misdemeanors.
The purpose of this decision is to provide my Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52.
After extensive pretrial motion practice, including numerous unsuccessful efforts to achieve class certification, plaintiffs, proffering a reconfigured proposed class definition, requested certification pursuant to Fed. R. Civ. P. 23(b)(3) or, in the alternative, for partial certification as to liability pursuant to then Fed. R. Civ. P. 23(c)(4)(A). Defendants countered by conceding liability, acknowledging that the strip searches of the class members for non-felony offenses were conducted - with a few possible exceptions which were never pursued -- absent reasonable suspicion to believe that such arrestees had contraband on their persons upon admissions to the NCCC.
Based on defendants' concession, I deleted the liability issue from the certification analysis and found that the damages sustained by the various class members required individual analysis, i.e. did not lend themselves to class treatment. My resulting orders denying the requested relief, as well as reconsideration of that denial - dated September 23, 2003 and November 7, 2003 - were appealed by plaintiffs to the Second Circuit Court of Appeals. The Circuit, by decision dated August 24, 2006, reversed those orders "to the extent they denied certification as to the issue of liability," In re Nassau County Strip Search Cases, 461 F.3d 219, 222 (2d Cir. 2006), and directed me "to certify a class on the issue of liability pursuant to the definition set forth in the September 23 decision . . . [and] consider anew whether to certify a class as to damages as well." Id. at 231. Accordingly, I certified a class as to liability as directed, and also sought input from counsel concerning the damages certification issue.
As a result of that process, the Court, as detailed in its March 27, 2008 Memorandum and Order, reported at 2008 WL 850268, 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.
A jury trial was scheduled to begin on November 30, 2009 on the issue of general damages with the special injuries sustained by individual class members to be resolved in a subsequent damages phase or phases of the proceeding. On November 26, 2009, counsel for plaintiffs and defendants contacted chambers indicating that their respective clients waived the right to a jury trial to the extent of placing the general damages determination in my hands. The trial was held on November 30, December 1, 2, 3, 7, 8, 9, 10, 14, 15, and 16, 2009, with counsels' post-trial submissions being finalized via the filing of Defendants' Amended Reply to Plaintiffs' Proposed Findings of Fact on April 23, 2010.
Evidence at trial was presented in various forms including the testimony of multiple class members describing the strip searches to which they were subjected upon admission to NCCC, and of numerous correction officers detailing their procedures in conducting, cumulatively thousands of such searches during the class period, with the goal being to provide me with an understanding of the steps involved in the process as well as the surrounding circumstances.
Initially my Findings of Fact will be provided, followed by Conclusions of Law including the general damages awarded per strip search.
1. Each class member was stripped searched by a correction officer ("CO") upon admission to NCCC following an arrest for a misdemeanor or non-criminal offense absent reasonable suspicion to believe that he or she harbored contraband;*fn3 some class members, due to more than one such admission, were strip searched on more than one occasion.
2. All strip searches of new admittees took place in the operations area on the first floor of the D Building at the NCCC in either the Male Clothing Room ("MCR") or Female Clothing Room ("FCR") depending upon the gender of the new admittee. (Tr. at 784:19-25.)
3. It is undisputed that a correction officer of the same gender as the inmate conducted each search.
4. The parties agree that about 15% of the strip searched new admittees were female and 85% male. (Tr. at 1909:1-1911:9.)
5. There was no written procedure or policy in effect at the NCCC governing the manner in which strip searches were to be conducted, nor was the topic a subject of in-house training. (See, e.g., Tr. at 943:7-944:19, 951:4-24, 1055:25-1057:3, 1058:12-15, 1186:6-9, 1187:6-9, 1301:10-12, 1803:11-14, 1873:20-25, 1876:22-25; Pound Dep. Tr. (Court Ex. 4) at 106:19-107:2.)
The Court is mindful that in some of the above cited testimonial references provided in support of these two factual findings, the CO witnesses - some of whom conducted hundreds of strip searches of new admittees during the relevant time frame (Tr. at 826:22-25, 967:17-19, 1142:11-14) - did not recall ever seeing a written document or having received in-service training on strip searches as distinct from denying their existence. However, the pervasiveness of the failure to recollect such institutional guidance being furnished, viewed in conjunction with the absence of convincing, countervailing evidence causes me to conclude that neither was provided. Moreover, managerial oversight as to the manner in which strip searches were conducted appears to have been nonexistent. (Id. at 944:16-25.)
6. Not only was there an absence of in-service training, none of the testifying COs recalled receiving training at the Police Academy on the subject. (See, e.g., Tr. at 1057:21-25, 1298:15-18, 1649:5-7.) Some officers believed they learned the procedure from colleagues (id. at 1058:16-21, 1624:4-7, 1717:25-1718:3) and, in any event, all testified that they developed their own procedure over time which was in the main consistently followed subject to occasional modifications based primarily on such factors as the age and/or physique of the subject being searched. (See, e.g., id. at 827:5-12, 938:7-13 (Cpl. Keith Jorgensen: "Everyone has their own method of doing it"); id. at 942:7-25, 1240:11-13, 1414:24-1415:1.)
7. Not surprisingly, given the absence of a written procedure or formal training, the manner in which the strip searches were conducted varied from class member to class member although there were common core elements. For example, class member Mary P.*fn4 described the search to which she was subjected on February 16, 1998 thusly: she was directed to, and did remove her clothes (Tr. 61:16-62:3), and then, as ordered by the CO, she "lifted [her] arms" (id. at 63:8-21), "lifted and moved her breasts up and then side to side" (id. at 64:1), "r[a]n [her] fingers through [her] hair" (id. at 64:17-18), "squat[ted]," "cough[ed]," "wiggled her toes," "ben[t] over," "cough[ed again]," and "spread [her buttock] cheeks," as well as "st[u]ck out [her] tongue [and] move[d] it side to side." (Id. at 64:23-65:6.) For class member Heidi K., parts of the search occurred while she was clothed, with the CO beginning the process by checking her hair (id. at 292:1-10) and visually examining her opened mouth (id. 292:14-16). Heidi K. then, as directed, "undress[ed]," "st[ood] with [her] legs apart and lift[ed her] arms above [her] head," "turn[ed] around . . . ben[t] over and spread [her] buttocks." (Id. at 292:18-293:18.)
The strip searches of male inmates again differed inter se (both as to the number of steps and, to a lesser extent, the sequence in which shared steps were performed), and from those experienced by their female counterparts primarily because of physiological differences. Thus, for example, class member Stuart S. detailed the steps of his strip search upon admission to NCCC as beginning with the instruction to "get completely undressed," followed by directions to "run [his] fingers through [his] hair," "flip [his] ears over," "raise his hands straight up" and then "turn around, . . . bend over, and . . . spread [his] cheeks." (Tr. at 407:19-409:25.) Class member Gregg W. reported that, after removing all his clothing as directed, the CO "instructed [him] to go through a series of movements . . . [which he did starting with] run[ning his] fingers through [his] hair," "raising [his] arms above [his] head," "open[ing his] mouth, rais[ing his] tongue [and] run[ning] [his] fingers between [his] gum and . . . lips," and then "turn[ing] around . . . exposing the bottoms of [his] feet," and "grab[bing] . . . and spreading [his buttock] cheeks." (Id. at 550:16-552:1.) Class member Christopher W.'s strip search testimony partially parallels that of Greg W.'s but he, unlike Greg W., was asked to "squat," not bend over or "spread [his] butt cheeks."*fn5 (Id. at 1389:18-1390:21.)
Although the steps involved in the strip searches varied during the class period based on, inter alia, the inmate's gender, physique, and the identity of the officer conducting the search, each class member was made to endure the gross indignity of being required "to undertake certain movements while he [or she was] naked" (Tr. at 938:21-24), under the scrutiny of the searching officer to assure - as explained in footnote 10, infra, - that no contraband was secreted in any of the inmate's orifices or elsewhere.
8. There is no credible evidence that a CO ever touched a class member during the search process. In making that determination, I recognize that class members Heidi K. and Michael F. testified to the contrary with Heidi K. reporting that during her search on October 7, 1996, the officer "put her hands through my hair" (Tr. at 292:9-10), and Michael F. testifying vis-a-vis the search of his person on July 29, 1997 that the officer "fluffed [his] hair . . ., patted underneath [his] arms [a]nd . . . pushed . . . each of the ears forward" (id. at 653:1-15). Although that testimony dovetails with one of the steps in the 1997 Lesson Plan to be discussed infra,*fn6 given the absence of like testimony from any other search victims, and the credible testimony provided by the officers of having never touched an inmate during a search process (see, e.g., id. at 831:20-25, 1007:14-18, 1631:7-19), I find it is far more probable than not that the recollections of class members Heidi K. and Michael F. of what transpired regarding those particulars over a decade before are incorrect.*fn7
9. Strip searches were conducted during all three tours at the correctional facility, those being the morning, afternoon, and evening tours. The "vast majority of . . . searches occurred on the 1430 to . . . 2300 tour," i.e. "the afternoon tour." (Tr. at 1163:5-11.) During that tour, it was not unusual in the MCR for two, or possibly on "extremely rare" occasions, three officers to be conducting strip searches of a like number of male inmates simultaneously or with a partial overlap in the procedures. (Id. at 1170:2-11; see also id. at 996:6-12, 1807:1-5.) It was far less likely that more than one search would be underway at any given time in the FCR (id. at 1370:23-1371:2), or that more than one CO would be present in the room during a search (id. at 1254:22-25).
For both sexes, a CO only strip searched one inmate at a time. (Tr. at 996:20-997:8, 1253:13-19, 1370:19-24.)
10. For males, Cpl. Jorgensen testified, and I so find, that the searches occurred while the inmate was located in a three sided stall, the rear of which was the search room wall, with the two side partitions being 5' 10" in height. (Tr. 807:15-18.)*fn8 The searching officer stood in front of, and typically several feet from the stall opening during the search process (id. at 1005:20-22, 1388:4-14, 1630:15-21), thereby partially shielding the inmate from the view of others who may have been in the room during the search.
The situation for females was essentially the same as for the males as to the size of the stalls (Tr. at 808:4-7) and as to the searches being conducted while the inmate was in a stall.
11. In reaching the conclusion that strip searches were conducted while the inmate was standing alone in a stall, I considered the contrary testimony given by some of plaintiffs' witnesses. Although such class members as Heidi K. (Tr. at 291:21-25, 293:21-294:3, 295:12-16), Greg W. (id. at 564:15-17, 568:21-23), and Christopher W. (id. at 1386:14-17), testified that they were strip searched while in a stall - consistent with the testimony of all defense witnesses to whom the subject was broached - class member Kevin M. testified to having been searched while standing in front, not within a stall. (Id. at 173:8-174:22.) At the time, according to Kevin M., three or four other inmates were going through the same process at the same location in his presence. (Id. at 178:19-22.)*fn9 And class member Mary P. reported, on direct, that she and a "Spanish woman" (id. at 55:9-11) were both directed simultaneously, by the same correction officer (id. at 67:6-8), to remove their clothing while both inmates were "right next to each other" in "a very small stall" (id. at 62:9-25 (emphasis added)). To my inquiry as to whether she and the other woman were in the "same stall," she responded in a somewhat convoluted fashion thusly: "[w]e were right next to each other" separated by "6 inches," coupled with the comment "[j]ust like a board . . . [t]hat's all . . . [no] door." (Id. at 67:21-68:4.)
On cross examination, Mary P. explained that the "board" was a partition separating two stalls (Tr. at 84:25-85:4) and that she was not claiming - notwithstanding her earlier testimony that "[w]e were in a stall, a very small stall" (id. at 62:25) - that both women were searched in the same stall. In any event, given, inter alia, the lack of clarity as to this critical part of her testimony, I do not accept as accurate her rendition as to what transpired when she was strip searched including where she was searched in relation to both the stalls in the FCR and to other women under discussion, or that one CO orchestrated both searches simultaneously.
Kevin M.'s testimony about himself and four others being stripped while positioned side by side in front of the stalls is similarly not convincing. It fails to dovetail with other evidence in the record I found to be credible, such as the testimony of Cpl. Weisdorfer and of Cpl. Jorgensen each of whom testified that he invariably used the stalls for their intended purpose, viz. to house an inmate during the strip search process. (See Tr. at 1003:1-10, 829:4-9.) To do otherwise would serve no constructive purpose,*fn10 and would raise the specter of a tense scenario becoming more so with a likely diminution of the officer's control of the situation.
In sum, I find that the subject strip searches occurred in MCR or FCR stalls, i.e. not in front of or otherwise outside the stalls.
12. Notwithstanding my finding that the searches occurred within the stalls, I reject the notion advanced by the defense that "the stall provided complete privacy from everyone other than [the] C.O. conducting the search." (Defs.' Proposed Findings of Fact and Conclusions of Law ("Defs.' Prop. Findings") at 3.) From the evidence it is more likely than not that other COs if in the room (as certainly would not be unusual, for example, during a MCR afternoon search), as well as inmate workers and/or other new admittees upon entering or leaving the area, saw class members in various states of undress. That evidence includes not only testimony of various witnesses concerning the layout of the strip search areas and the usual locations of the strip search participants, but also a number of the photographs in evidence such as defendants' UU5 (Tr. at 1667:1-22, 1672:8-13), as supplemented by my personal inspection, with counsel, of those areas during the course of the trial. Under the attendant circumstances, surely some of the class members were viewed while being strip searched by others besides the officer conducting the search. (See also, e.g., id. at 297:2-6 (given that class member Heidi K. could see the CO at the desk during the strip search presumably that officer could also see her); id. at 1635:3-25 (CO Rogers testified that he has seen inmate workers sitting at the desk in the MCR during the strip search process, i.e. being at the same vantage point as the CO referenced in Heidi K.'s testimony); id. at 1665:13-23, 1667:17-22.)
13. Although it is clear to me that class members were surely observed by individuals besides the searching COs for the reasons provided in the prior paragraph, I do not accept as credible the testimony of Oscar A. concerning that subject. His testimony was less than a model of clarity. Initially he seems to say that upon entering the MCR (Tr. at 467:4-5; see also id. at 486:6-9) he observed an "underdressed" inmate (id. at 467:10) in "the corner of the room" (id. at 486:11) and was told that the naked inmate was being punished, coupled with a warning that the same punishment would be inflicted on "whoever want[s] to be funny, you go, stand up naked in the corner of the room." (Id. at 495:4-14.) Later, Oscar A. explained that he saw the naked inmate before he, Oscar A., entered the room, while he was in the "frame of the door." (Id. at 492:5-6.) Oscar A. also explained that when he spotted the naked inmate in the corner, he saw another man, apparently at the end point of being strip searched, "five feet" from the first, so that the two were naked simultaneously. (Id. at 489:19-23.) As noted in footnote 9, supra, Oscar A. did not recall that the MCR had stalls, nor was his recollection refreshed upon being shown photographs of the room.
The scenario portrayed by Oscar A. is devoid of any support elsewhere in the record, and is directly at odds with the credible testimony provided by CO Rogers (Tr. at 1638:8-10), who signed Oscar A.'s clothing card (id. at 1636:1-1637:3), and accordingly, may, but not necessarily, have been the searching officer or at least one of the officers on duty at the time. Simply put, having observed Oscar A.'s demeanor and viewing this portion of his testimony in the context of the total evidence, I find that plaintiffs have not established that this incident occurred or, incidentally, that a strip search was ever conducted during the relevant time frame at NCCC to punish an inmate.
14. In addition to not accepting the above discussed portions of Oscar A.'s testimony, Mary P.'s testimony about her observing three men in the large room looking at her while she was undressed with respect to a later transportation search is not found to be credible.
Not only is the relevance of what may have occurred during a post-admission transportation search problematic with respect to the issue of general damages caused by class members being illegally strip searched upon their admission to NCCC, but, as noted earlier, I have significant reservations as to this witness's credibility.
I find that no credible evidence has been presented to establish that one or more class members were likely to be, or were observed by a member of the opposite sex while being strip searched upon admission to NCCC.
15. Several of the plaintiff class members objected to the language and/or tone of voice used by the COs during the strip search process. (See, e.g., Tr. 179:22-180:1-20, 728:11-16.)
Class member Kevin M. testified that as he spread his buttock cheeks, as directed during his strip search on March 29, 1997, the CO conducting the search said "that the boys are going to love this" (Tr. at 179:22-180:1-13), to which Kevin M. responded "you must really love your job" (id. at 180:14-18). The exchange ended with the CO supposedly saying: "Shut the F up and get dressed." (Id. at 180:19-20.) Kevin M. was arrested and strip searched again at NCCC on April 23, 1998. (Id. at 199:17-200:12.) The CO at that time, unlike his counterpart a year earlier, was reported by the witness to have conducted the strip search in a professional manner, free of rude comments or remarks. (Id. at 272:25-273:5.)
As previously explained, I do not believe Kevin M.'s testimony as to having been strip searched together with other inmates while positioned in front of stalls in the MCR.
My reservations concerning his testimony as to that critical issue carries over to his testimony vis-a-vis the purported verbal exchange. Simply put, plaintiffs have not established by a fair preponderance of the credible evidence that the CO who conducted that search used the language ascribed to him by Kevin M.
As to the tone of voice employed by COs, the evidence fails to indicate that it was inappropriate given the context. Even Kevin M., while unconvincing complaining as to what was said, explained that the general tone of the CO's comments, i.e. "bark[ing] orders," was akin to the practice "in the military" of issuing "quick commands." (Tr. at 276:2-24.) That Mary Beth P. perceived the "demeanor or tone" of the female CO in her case as being "offensive" in the sense "she was talking down to [her]" is certainly understandable under the circumstances, that perception, while arguably germane to the special damages portion of her claim, is insufficient to suggest that the tone utilized by the COs was more authoritative than required and, thus, should be deemed an aggravating factor relevant for purposes of assessing general damages. To the contrary, I find based primarily on the credible evidence provided by the testifying COs, that the subject searches were conducted in a professional, business like manner. (See also id. at 350:11-25 (class member Heidi K. acknowledges COs demeanor as being professional albeit "very authoritative and commanding"); id. at 426:9-25, 588:17-25; id. at 698:24-699:11 (class member Michael F. describes CO's "abrupt" demeanor as being a "no nonsense" approach).)
16. Class member Michael F. testified that the CO who strip searched him utilized a flashlight "to look in [his] mouth and ears." (Tr. at 657:16-20, 700:19-701:1.) Although that testimony dovetails with one of the steps in the 1997 Lesson Plan to be discussed infra, none of the COs who testified said they were familiar with the 1997 Lesson Plan either as a result of his or her training at the Police Academy*fn11 or otherwise, and all the witnesses - both those searched (except Michael F.) and those conducting the searches - either did not mention or denied that an officer used a flashlight during a search. Moreover, a review of the record listing Michael F.'s personal property at the time he was admitted to the facility includes a flashlight, suggesting he saw a flashlight that day but not in the hands of a CO. (Id. at 887:3-7.) That fact, coupled with, inter alia, his several earlier arrests and accompanying strip search or searches (id. at 686:16-25, 689:21-691:8), as well as the time lapse between the search now under discussion and the time of his testimony, causes me not to accept this portion of what he had to say.
17. Several male class members testified that they were required to lift their scrotums during the course of being strip searched. (See, e.g., Tr. at 2017:10-13, 2051:15-21.) None of the testifying COs testified that that step was included in his search procedure. However, it will be recalled that none of the COs were able to definitively identify a particular class member that he searched. The testifying class members similarly could not identify the CO who strip searched them. There is no reason to believe that the testifying COs were the only officers who searched male new admittees to NCCC during the class period. Although I have found that the COs who testified endeavored to accurately depict their respective search procedures, any lack of synchronization between their testimony and that of class members does not mean that either necessarily fabricated what transpired. Based on the trial evidence, I conclude that although a requirement that a male inmate lift his scrotum during a strip search was not the standard practice, it did occur with some frequency. In reaching that conclusion, I have considered the April 3, 2000 Declaration of Jerome P. Donahue, ("Donahue") a Deputy Undersheriff in the Nassau County Sheriff's Department. Therein Donahue avers that "[t]he strip search procedure for all inmates charged with misdemeanors or less consisted of the inmate being asked by the Corrections Officer to run both hands' fingers through his hair to dislodge any ...