MEMORANDUM
Presently before the Court is Plaintiffs Motion for Class Certification. (Doc. 30). Roneld Logory (“Plaintiff’) seeks class certification on behalf of a class of others similarly situated against the County of Susquehanna. Plaintiff specifically maintains that (1) the Jail’s delousing policy is unreasonable under the Fourth Amendment; and (2) the Jail’s delousing policy violates the detainees’ Fourteenth Amendment rights to refuse unwanted medical treatment. (Doc. 42 at 4). This action is seeking declaratory and injunc-tive relief against these delousing procedures as well as compensatory damages.
I. Background
Roneld Logory was arrested for a misdemeanor offense on June 19, 2008. He was detained at Susquehanna County Correctional Facility (“SCCF”) where he was subjected to a strip search and a delousing agent upon his arrival. As a result of that treatment, Plaintiff filed his Complaint on August 24, 2009, complaining that SCCF had implemented “a blanket policy of delousing, showering and strip-searching all individuals who enter the custody of the [SCCF] regardless of the
On September 21, 2010, the Third Circuit held that blanket search policies of arrestees held over in prison populations were inherently reasonable and thus not violative of the Fourth Amendment. Florence v. Bd. of Chosen Freeholders of Burlington,
1) The Fourth Amendment Class — All persons who have been placed into custody of the Susquehanna County Jail as pretrial detainees who were deloused upon their entry into the Susquehanna County Jail. The Class period commences on or about July 24, 2007 and extends to the date on which the Defendant is enjoined from, or otherwise ceases, enforcing its unconstitutional policy, practice and custom of de-busing detainees absent reasonable suspicion. Specifically excluded from the Class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
2) The Fourteenth Amendment Class— All persons who have been placed into custody of the Susquehanna County Jail after being sentenced or as pre-trial detainees who were debused upon their entry into the Susquehanna County Jail. The Class period commences on or about July 24, 2007 and extends to the date on which the Defendant is enjoined from, or otherwise ceases, enforcing its unсonstitutional policy, practice and custom of de-busing detainees absent reasonable suspicion. Specifically excluded from the Class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
(Doc. 42 at 4).
Specifically, pursuant to 42 U.S.C. § 1983, Plaintiff is seeking declaratory relief that the SCCF debusing policies are unconstitutional, injunctive relief against the continuance of these policies, and compensatory damages for himself and other class members, as well as attorney fees and costs.
II. Discussion
A. Legal Standard
Rule 23 of the Federal Rules of Civil Procedure provides for class action certification. Under Rule 23(a), class cеrtification may be appropriate if the following requirements are met:
(1) the class is so numerous that joinder of all members is impracticable [ (“numerosity”) ], (2) there are questions of law or fact common to the class [(“commonality”)], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [ (“typicality”) ], and (4) the representative parties will fairly and adequately protect the interests of the class [ (“adequacy of representation”) ].
Fed.R.Civ.P. 23(a); In re Mercedes-Benz Antitrust Litig.,
A court may certify a class action only if it “is satisfied, after a rigorous analysis, that the [requirements of Rule 23] have been satisfied.” Gen. Tel. Co. of the Sw. v. Falcon,
B. Certification Under Rule 23(a)
Here, the Plaintiff seeks to certify both classes under Rule 23(b)(3), or (b)(2) in the alternative. Therefore, as the moving party, the Plaintiff bears the burden of first showing that the requirements of Rule 23(a) are satisfied, and then demonstrating that the elements of subsections (b)(2) or (b)(3) are met. See Amchem Prods., Inc. v. Windsor,
The “threshold requirements” of Rule 23(a) are referred to as (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Amchem,
(1.) Numerosity
Numerosity under Rule 23(a)(1) requires only that the class be “so numerous that joinder of all members is impracticable.” Unfortunately, “[n]o single magic number exists satisfying the numerosity requirement.” Florence v. Bd. of Chosen Freeholders, No. 05-3619,
All SCCF detainees who were strip searched were subjected to delousing procedures. Defendant admits that its “delousing procedure is, in fact, part of its strip search process.” (Doc. 49 at 14). Therefore, it is necessary to determine how many such detainees were strip searched over the period in question in order to determine whether numerosity is satisfied in the instant case. From the record, it is uncleаr how many detainees actually entered the SCCF since July 24, 2007, much less how many of those were subjected to a strip search. However, it is clear that between June 2007 to March 25, 2010, at least one hundred and seventy (170) pre-trial detainees charged with summary offenses and misdemeanors were strip searched out of five hundred and seven total pre-trial detainees over that period. (Doe. 38-3 at 2-3).
As the Fourth Amendment Class would be comprised of pre-trial detainees who were deloused upon entry to the jail, the Court concludes by a preponderance of the evidence that this number easily exceeds forty (40) and thus numerosity is satisfied. Moreover, as the Fourteenth Amendment Class would be even broader in including pre-trial detainees as well as sentenced prisoners, it is further apparent that this Class also easily satisfies numerosity.
Plaintiff further avers that traditional join-der would be especially impractical in this action as “Class members are likely dispersed over a large geographic area, with some members residing outside of Susquehanna County and this Judicial District. Furthermore, many members of the Class are low-income persons, may not speak English, may not know of their rights and likely would have great difficulty in pursuing their rights individually.” (Doe. 1 at 4). The Court agrees with this assessment and finds
(2.) Commonality
Commonality requires that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2); Danvers Motor Co. v. Ford Motor Co.,
However, the Supreme Court has recently opined that commonality is not the mere existence of a classwide question, but instead the potential for a “classwide resolution.” Wal-Mart Stores, Inc. v. Dukes, — U.S.-,
(a) The Fourth Amendment Class
The Fourth Amendment class seeks to represent solely pre-trial detainees who were subjected to delousing upon their entry to the SCCF. Specifically, Plaintiff is attempting to enjoin this delousing as an impermissible Fourth Amendment search.
Reasonableness under the Fourth Amendment considers “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish,
Plaintiff argues that the recent decision in Florence v. Board of Chosen Freeholders of Burlington should have no effect on the viability of the Fourth Amendment Class.
An overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes if necessary to determine whether a class certification requirement is met. In re Hydrogen Peroxide Antitrust Litig.,
Moreover, there is no component of the SCCF’s debusing procedure that would somehow aggravate the invasiveness of the strip search that Florence deemed acceptable. While the Court agrees below that, for certification purposes, there is merit to the claim that such procedures could present unwarranted medical treatment, combining a debusing treatment with a strip search does very little to broaden the scope of that particular intrusion — the search of the naked body. The debusing procedure itself does not inherently increase the exposure or duration of a strip search, and while the Plaintiff never specifies, the Court is hard-pressed to determine exactly how debusing functionally exaggerates the scope of the approved strip search. While perhaps a medical treatment, to characterize debusing as an extension of the strip search appears redundant.
Therefore, relying on the Third Circuit’s holding that suspicionless searches of pre-trial detainees including a debusing procedure is permissible absent particularized suspicion, the Court finds no viable Fourth Amendment claim in the instant case. As it cannot be said that there is a common question of law as to the Fourth Amendment class, that Class fails on the commonality prong and will not be certified.
(b) The Fourteenth Amendment Class
The Fourteenth Amendment Class seeks to include all pre-trial and sentenced detainees who were subjected to debusing procedures upon their entry to the SCCF.
Within the class of detainees subjected to strip search procedures, commonality is high as each was subjected to the very same debusing procedure. There is no evidence in the record that there was any differentiation whatsoever in the debusing process. In fact, after a rigorous analysis of the facts, the Court agrees by a preponderance of the evidence that the SCCF employed a policy of debusing each inmate who was strip searched.
Defendant maintains that at the time of Plaintiffs intake, the SCCF had a policy in effect requiring “individualized, reasonable suspicion before a detainee may be strip searched.” (Doc. 49 at 8). The factors contributing to such a determination included:
the appearance and demeanor of the detainee, the nature of the charges pending against the detainee, the detainee’s conduct during the period of confinement, the detainee’s prior arrest record if known, and any other reasonable suspicion based upon specific circumstances that leads the corrections officer the suspect that the detainee is concealing weapons, evidence of a specific crime, controlled substances or other contraband.
As such, a common, if not identical, set of facts applies to each member of this Class, comprised of detainees who were automatically subjected to a debusing “regardless of whether there is reason to believe that detainees have a medical condition that would benefit from this medical treatment and without advising detainees of the scope of the medical procedure or providing them with the opportunity to decline to undergo the procedure.” (Doc. 42 at 2). Unlike Dukes, where commonality was destroyed where therе was no “common mode of exercising discretion that pervade[d] the entire company,”
Flowing from these common facts is a common question of law — whether it was reasonable for the Defendant to automatically delouse all individuals who were strip searched. Even more importantly under the Dukes holding, this common question will be wholly satisfied by a singular answer.
The Due Process clause of the Fourteenth Amendment confers the “right to refuse unwanted medical treatment, and ... the right to sufficient information to intelligently exercise those rights.” White v. Napoleon,
Defendant cites a Seventh Circuit opinion for the proposition that debusing is clearly an allowable procedure tied to a jail’s legitimate interest in sanitary conditions. Russell v. Richards,
Unlike the Fourth Amendment claims, whether debusing absent necessity and without consent provides a triаble issue under the Fourteenth Amendment. Therefore, as there are common questions of fact and law to the Fourteenth Amendment Class, the commonality qualification is satisfied.
(3.) Typicality
Rule 23(a)(3) requires that “the claims or defenses of the representative par
Plaintiff Logory’s interests are squarely aligned with those of the putative class. For all intents and purposes, Logory’s claims arise out of the same exact course of conduct as that of all of the other putative class members — a policy that strip searches necessitate delousing regardless of any specific determinations. In fact, the class is defined as a function of being subjected to identical treatment by SCCF employees. While Plaintiff Logory’s alleged state of intoxication at his intake may have rendered him atypical as to his initial claim of being subjected to a strip search absent cause, Plaintiff now only pursues claims against the delousing procedure, and his status at intake is no longer relevant. There is no evidence that he, or any detainee entering the facility, was deloused based on any particularized determination of necessity. Furthermore, while Plaintiff seeks to represent all inmates, both pre-trial and incarcerated, there is no indication that his delousing experience as a pre-trial detainee differs in any regard frоm that of an incarcerated inmate.
As such, the Court concludes that Plaintiff Logory’s claim is highly typical of those of the class generally, and this element of Rule 23(a) is satisfied.
(4.) Adequacy of Representation
Rule 23(a)(4) requires that “the representative part[y] will fairly and adequately protect the interests of the class.” This requirement has been interpreted to analyze “the qualifications of the counsel to represent the class” and “to uncover conflicts of interest between named parties and the class they seek to represent.” Barnes v. American Tobacco Co.,
Upon investigation of their credentials, Plaintiffs counsel appears to be “qualified, experienсed, and generally able to conduct the proposed litigation.” Wetzel v. Liberty Mut. Ins. Co.,
The Court also finds that the named Plaintiff will adequately protect the interests of the class. Plaintiff Logory has sufficient interest in challenging the procedure and obtaining compensation and his interests in no way diverge from those of the putative class. Therefore, the Court finds representation of this class adequate, and the requirements of Rule 23(a) are fully satisfied in respect to the Fourteenth Amendment Class.
C. Certification Under Rule 23(b)
Plaintiff is primarily seeking class certification under the Federal Rules of Civil Procedure Rule 23(b)(3). (Doc. 50 at 3). However, in the alternative, Plaintiff seeks to certify this class pursuant to Rule 23(b)(2).
(1.) Rule 23(b)(3)
Under Rule 23(b)(3), the Court must find that “questions of law or fact common to class members predominate over any questions affecting only individual members, and
(a) Predominance
“Predominance tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation.” In re Hydrogen Peroxide Antitrust Litig.,
“[T]he task for plaintiffs at class certification is to demonstrate that the еlement of [their claim] is capable of proof at trial through evidence that is common to the class rather than individual to its members. Deciding this issue calls for the district court’s rigorous assessment of the available evidence and the method or methods by which plaintiffs propose to use the evidence to prove impact at trial.” Id. at 311-12.
Following these standards, predominance is met in the instant case. The nature of Plaintiffs claim is precisely that all detainees inducted into the SCCF were treated exactly the same. From the factual record, it is evident that each detainee who was strip searched was wholesale deloused, including those who evidently did not require the procedure.
Importantly, this claim is easily capable of proof at trial through evidence common to the class. As the allegation is that all detainees were treated similarly unconstitutionally, this action especially lends itself to proof that is common to the class, and Plaintiff will attempt to prove this case in the form of prison policies and sworn testimony. Factual questions as to the exact nature of this policy, its implementation, and its effects will be the same for each class member and will thus predominate to a very high degree.
Other cases have met the predominance requirement on very similar theories. In Florence, the defendants argued that predominance was not satisfied under strip search claims as they believed each potential class member would be required to present individualized proof of their specific damages. Florence v. Board of Chosen Freeholders of County of Burlington, No. 05-3619,
Finally, predominance also requires “that the alleged damages are capable of measurement on a class-wide basis using common proof.” Behrend v. Comcast Corp.,
(b) Superiority
Pertinent to a finding of superiority is: “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Fed.R.Civ.P. 23(b)(3). Specifically, the superiority requirement asks a trial court to “balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.” Danvers Motor Co. v. Ford Motor Co.,
Allowing the instant action to proceed as a class action is a far superior method of adjudication. In fact, this is exactly the sort of claim that is best-suited to class action litigation. “In a case like this one, where the plaintiffs claims attack the same course of defendants’ conduct, proceeding as a class action is far superior to allowing piecemeal litigation of the exact same claims in countless lawsuits potentially occurring throughout the country.” Stanford v. Foamex L.P.,
Moreover, “class certification is preferred where the recovery being sought by each of the plaintiffs is not sufficiently large to render individualized litigation a realistic possibility.” Bizzarro v. Ocean County, No. 07-5665,
Finally, the Court is not aware of any claims pending by or against class members on this matter, and notes that such an action is most sensibly brought within the same judicial district in which the SCCF is located. Therefore, for the foregoing reasons, the Court finds superiority satisfied in the instant case.
(2.) Rule 23(b)(2)
Certification as a Rule 23(b)(2) class may be warranted where “the party opposing the class has acted or refused to act on grounds
As the Court is prepared to certify this Class pursuant to Rule 23(b)(3), it is not necessary to endeavor on a lengthy analysis of the merits of a Rule 23(b)(2) certification. However, such actions are not appropriate where, as here, the Plaintiff is seeking monetary damages. In his Prayer for Relief, Plaintiff specifically requests compensatory damages for himself and “each member of the proposed Class in an amount to be determined by a jury and/or the Court on both an individual and a class-wide basis.” (Doc. 1 at 10). The Supreme Court has recently clarified Rule 23(b)(2) actions in holding that “individualized monetary claims belong in Rule 23(b)(3).” Wal-Mart Stores, Inc. v. Dukes, — U.S.-,
D. Notice to Potential Class Members
Federal Rule of Civil Procedure 23(e)(2)(B) provides that in any action maintained under Rule 23(b)(3), the Court must direсt notice to all members that can be identified through reasonable effort. As such, the Court will order the parties to formulate a plan for such notice to be presented to the Court.
E. Appointment of Class Counsel and Class Representative
As the Court finds Plaintiff Roneld Logory will fairly and adequately represent the interests of the class, he will therefore be appointed as Class Representative.
Rule 23(g)(1) further requires the Court to appoint class counsel. As noted above, the Court finds Plaintiffs counsel to be “qualified, experienced, and generally able to conduct the proposed litigation.” Wetzel v. Liberty Mut. Ins. Co.,
III. CONCLUSION
For the foregoing reasons, the Court will certify the Fourteenth Amendment Class as a Federаl Rule of Civil Procedure Rule 23(b)(3) class action. The Fourth Amendment Class will not be certified. An appropriate order follows.
ORDER
NOW, this 5th day of October, 2011, IT IS HEREBY ORDERED that Plaintiffs Motion for Class Certification (Doe. 30) is GRANTED IN PART; and IT IS FURTHER ORDERED that the class hereby certified as a class action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(3) on behalf of the following class:
All persons who have been placed into custody of the Susquehanna County Jail after being sentenced or as pre-trial detainees who were deloused upon their entry into the Susquehanna County Jail. The Class period commences on or about July 24, 2007 and extends to the date on which the Defendant is enjoined from, or otherwise ceases, enforcing its unconstitutional poliсy, practice and custom of delousing detainees absent reasonable suspicion. Specifically excluded from the Class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees.
IT IS FURTHER ORDERED that the parties shall submit in writing their joint plan of class notice that complies with the requirements of Federal Rules of Civil Procedure Rule 23(c)(2)(B) within twenty-one (21) days of the date of this Opinion & Order; and
IT IS FURTHER ORDERED that Plaintiff Roneld Logory is designated Class Representative on behalf of the Class; and
IT IS FURTHER ORDERED that Plaintiffs attorneys Charles J. LaDuca and Alexandra C. Warren of Cueno Gilbert & LaDu-ca, LLP; Beverly Steinberg-Sporn; and Daniel Levin of Levin Fishbein Sedran & Berman; are designated as Class Counsel.
Notes
. Plaintiff offers these amended class definitions through his reply brief. (Doc. 42). This is "procedurally appropriate, as the Court retains jurisdiction to modify the class until there is a decision on the merits.” Jordan v. Commonwealth Fin. Sys.,
. In her deposition, Corrections Officer Smith denied that there would be reason to suspect that someone who was strip searched was more likely to have lice. Smith Dep., 44:22-45:1, June 25, 2010. Of course, the record well establishes that all strip searched detainees were deloused. Con-igliaro Dep., 86:2-6, Feb. 24 2010; Stewart Dep., 94:5-95:11 (affirming that for those detainees who get strip searched, "there’s no attempt to determine whether they might be carrying parasites that will require them to be deloused”); Hunsinger Dep., 18:8-11, April 13, 2010.
. Deposition testimony indicates that individualized determinations were actually disregarded. In his testimony, Corrections Officer Stewart affirmed that there was "no attempt to obtain reasonable suspicion to determine whether [inmates were] carrying parasites prior to delousing them” and that the SCCF policy was "to delouse everyone regardless or what their answer to the [medical questions] may be.” Stewart Dep. 94:23-95:11. Defendant acknowledges that “the testimony ... clearly establishes that there is no separate delousing policy at the Susquehanna County Jail; no one is deloused unless he is strip searched.” (Doc. 49 at 15).