Opinion
Case Number 02-10313-BC
April 1, 2004
OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO CERTIFY CLASS
This case is now before the Court on the motion by the plaintiffs to certify the matter as a class action under Federal Rule of Civil Procedure 23. The named plaintiffs all have been pretrial detainees or prisoners in the Saginaw County Jail who claim that the defendants subjected them to an unlawful disrobing procedure when the jail inmates were required to change from their personal clothing to jail garb while awaiting arraignment, or inmates who were forced to undergo a strip search in violation of Michigan's strip search statute. The plaintiffs' federal claims in this Court are based on 42 U.S.C. § 1983. The plaintiffs also have alleged state law claims for gross negligence, invasion of privacy, and violations of Michigan statutory law. They seek both monetary damages and injunctive relief. The Court heard oral argument on March 16, 2004 during which the plaintiffs' attorney clarified his proposed definition of the two subclasses to be certified. The Court finds that none of the named plaintiffs would fit within the proposed subclass definitions, and therefore the plaintiffs have failed to demonstrate that their claims are typical of either of the subclasses and that they are proper representatives of the subclasses. The motion for class certification, therefore, will be denied.
I.
The plaintiffs in this case are challenging two policies that allegedly have been part of the jail administration plan at Saginaw County. The first policy, according to the plaintiffs, entails strip searching both male and female pre-arraignment detainees who are unable to post bond and then are required to change from their own clothing into jail uniforms before they are lodged. The plaintiffs contend that during this process, detainees are subject to viewing, touching and searching by jail personnel of the opposite gender. The second subclass consists of male prisoners who have been convicted and sentenced and who are allowed to leave the jail facility during the day on work release programs. The plaintiffs allege that these inmates are routinely strip searched, sometimes by female guards, when they return to the jail at the end of the day. The plaintiffs assert that the strip searches conducted pursuant to these policies take place regardless of the existence of reasonable suspicion or probable cause. They contend that these practices violate their rights under the Fourth, Eighth, and Fourteenth Amendments.
The named plaintiffs in this case are Nancy Whitthum, Craig Mason, Amanda Shinaver, Sylvia Braddock, and Tenisha Johnson. All of the plaintiffs save Whitthum also are named as plaintiffs in another case against Saginaw County pending in this Court, which challenges the practice of removing the clothing of inmates at the jail whenever they are placed in administrative segregation. All of the named plaintiffs purport to represent the first putative subclass. See Second Amended Complaint, ¶¶ 8-9. Mason is the only plaintiff who claims to represent the second putative subclass. See id. at ¶ 10.
It appears to be undisputed that the Saginaw County Jail holds 525 inmates, and that jail personnel process — or "book" — between 40 and 60 individuals per day, booking between 12,000 and 14,000 people per year. Over 100 male prisoners participate in the work-release program. The plaintiffs allege that at least 30 women have been unlawfully strip searched as part of the defendants' policy.
In their brief in support of the motion to certify the class, the plaintiffs offer the following definitions of two subclasses:
A class and/or subclass of both male and female pre-arraignment detainees of the Saginaw County Jail who were or will be subjected to strip searches violative of their constitutional and statutory protected rights subjecting the detainees to unnecessary viewing and touching by correction officers, at times by those of the opposite sex, while they are unnecessarily changed from their personal attire to jail garb while awaiting arraignment.
A class and/or subclass of male prisoners of the Saginaw County Jail who were or will be subjected to group, cross-gender strip searches, violative of their constitutionally protected rights.
Pls' Brief in Support of Pls' Motion for Class Certification at 1. During the hearing, the Court observed that members of the second subclass could be inmates convicted of either felonies or misdemeanors since a felon who receives a sentence of one year or less under Michigan law generally serves that time in a county jail rather than the state prison system. The Court also noted that the Sixth Circuit has held that strip searches of jail detainees who have been arrested on felony charges are constitutional even absent reasonable suspicion. See Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir. 1983) (citing Bell v. Wolfish, 441 U.S. 520 (1979)). The plaintiffs' attorney then proposed to refine the subclass definitions by limiting the first subclass to all persons forced to change into jail clothes because they were unable to post bond, and narrowing the second subclass solely to misdemeanor prisoners, not felons.
The defendants oppose the motion on the ground that the plaintiffs have failed to establish that they have met any of the requirements for class certification under Rule 23. At the hearing, the defendants raised the claim that none of the named plaintiffs fall into the definition of either subclass. The Court allowed both parties to supplement the record with the depositions of the putative class members on this question. The Court took the matter under advisement and, after reviewing the depositions furnished, concludes that the matter is ready for decision.
II.
According to Federal Rule of Civil Procedure 23, a matter may proceed as a class action in the name of representative parties if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims and defenses of the representative parties are typical of the claims and defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (citing Fed.R.Civ.P. 23(a)); Olden v. LaFarge Corp., 203 F.R.D. 254, 268 (E.D. Mich. 2001). These factors normally are referred to as numerosity, commonality, typicality, and adequacy of representation.
Evaluating these factors, the Sixth Circuit has affirmed in an unpublished opinion an order certifying a class in a challenge to a jail policy authorizing the strip search of persons arrested for nonviolent petty offenses. See Eddleman v. Jefferson Cty., No. 95-5394, 1996 WL 495013 (6th Cir. Aug. 29, 1996). The plaintiffs here place heavy reliance on this decision; however the Court finds features of the present case that track in a different direction.
The Court is satisfied that the numerosity requirement has been satisfied here. The named plaintiffs have identified at least 100 male prisoners who participated in the work release program and at least 30 women who were strip searched pursuant to the challenged policy. "The numerosity requirement is met when plaintiffs demonstrate that the number of potential class members is large, even if plaintiffs do not know the exact figure." In re Consumers Power Co. Sec. Litig., 105 F.R.D. 583, 601 (E.D. Mich. 1985). The Court may consider many factors, including "class size, ease of identification of members of the proposed class, geographic distribution of class members, and the ability of the class members to pursue individual actions." Krieger v. Gast, 197 F.R.D. 310, 314 (W.D. Mich. 2000). The number of potential claimants identified by the named plaintiffs indicates that joinder of all of them would be impractical. In addition, the amount of each claim, perhaps no more than a few hundred dollars, is a relatively small amount suggesting that a class action may be the only effective remedy.
The second prerequisite for class certification, commonality, simple means that "there are questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). This provision does demand that all questions of law and fact raised in the complaint are common. "The standard is not demanding. `Rule 23(a) simply requires a common question of law or fact.'" Rockey v. Courtesy Motors, Inc., 199 F.R.D. 578, 583 (W.D. Mich. 2001) (quoting Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997)). In a case such as this, where it is alleged that all the class members challenge the same administrative policy of allowing strip searches absent reasonable suspicion, commonality can be readily established. However, the concept of commonality, which, according to Sixth Circuit precedent, tends to merge with the typicality requirement, see Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir. 1998), calls for an assessment of the claims of the larger group in light of the claims asserted by the named plaintiffs; that analysis impacts the question of adequacy of representation as well. The Sixth Circuit has explained that the requirements of commonality and typicality "[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Ibid, (emphasis added) (quoting Gen. Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n. 13 (1982)). In this case, the record presently before the Court indicates that none of the named plaintiffs fall within either of the subclasses that they propose. None of the female plaintiffs were strip searched because they were lodged over night when they could not post bail. For instance, at her deposition, Amanda Shinaver testified as follows:
Q. What happened at the Saginaw County Jail in 2001?
A. Well, I was taken from the police car to the holding tank, and then from the holding tank to the processing area to be fingerprinted and photographed. And then I was taken into a room, I'd say to the right of the processing area, where a female officer stripped me and searched me and told me that I had to shower because I had to wash off my makeup and my hair spray.
Q. And how soon was this after you were brought into the police department that you were asked to go to the room to the right of the processing area?
A. That was approximately an hour after I had been there.
Q. And then did you change into some other clothes?
A. Yes.
Q. What other clothes did you change into? Did you change into jail clothes?
A. Yes.
Q. What color were they?
A. I don't recall.
Q. And then what happened?
A. I was put back in the holding tank.
Q. Then what happened? How long where you there?
A. I don't recall. I think it was over eight hours.
Q. Then did you get out of there?
A. How did I get out of there?
Q. Yes. How did you get out of there?
A. My dad posted bail for me.
Deposition of Amanda Shinaver at 18-21 attached as Ex. H to Pls.' Supplemental Attachments. Shinaver does not fall within the defined class because she was not subjected to a strip search while changing from personal attire to prison garb while awaiting arraignment. Moreover, her father posted bond so she was not required to strip because of a policy requiring all overnight visitors to change into jail uniforms.
Nor is Nancy Whittum an adequate class representative. She stated:
Q. The Saginaw County Jail records show that you arrived at 4:30 and you were bonded out at 5:01. Is that your memory, too?
A. Bonded out at 5:01, no. My memory was more like I got home at seven.
Q. Do you remember being in the county jail for a total of a half an hour?
A. No.
Q. How long do you think you were there?
A. About three hours.
. . .
A. Yep, and the sheriffs. And after being in that cell for awhile, having my named called. The lady came over and she asked me to follow her. She brought me to this room over to the right of the cell that had a table, some chairs, an orange chair. And she asked me to take my clothes off, and my shoes and my socks. I put my shoes on the ground, pulled my socks inside out, lifted my bra up and my boobs.
Q. You did this yourself or she did?
A. I had to do this. Then I had to pull down my pants and panties and bend over and cough for her, and then I had to do it again.
. . .
Q. What happened after that?
A. And she told me to get dressed. So I got dressed and she took me back to the cell and locked me up.
Q. You said it seemed like hours and then afterward, you were taken and booked?
A. Yes. Then after I was photographed and printed, they told me to wait over on the side. And then he said I could call someone if I want to to [sic] come and get me. My boys were already there.
Deposition of Nancy Whittum at 41, 43, 45 attached as Exhibit I to Pls' Supp. Att. Whittum also does not fall within the defined class because she was not subjected to a strip search while changing from personal attire to prison garb while awaiting arraignment, nor was she required to strip because of a policy requiring all overnight visitors to change into jail uniforms, as her testimony clearly demonstrates.
The parties have not furnished the deposition of Sylvia Braddock. There is no evidence before the Court indicating that her claim is typical of the other members of the subclasses defined by the plaintiffs' counsel. The parties have advised the Court that Tenisha Johnson is no longer a party to this action.
Craig Mason is not an adequate representative for a subclass of misdemeanants in the work release program because he was incarcerated after he was convicted of a felony: drunken driving, third offense (known as operating under the influence of intoxicating liquor, or OUIL). See Mich. Comp. Laws § 257.625(9)(c). Mason testified:
Q. And then since 2000, where else have you been incarcerated?
A. Just the Saginaw County Jail.
Q. And you were there from April of 2001 to February of 2002?
A. Yep.
Q. And you brought in on an OUIL, per se, third?
A. Third one.
Q. What was your sentence on that?
A. That was a year.
Deposition of Craig Mason at 10, 29 attached as Ex. J to Pls' Supp. Att.
Nor do the named plaintiffs satisfy the typicality requirement. Typicality requires that a "sufficient relationship exist between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct." Stout v. Byrider, 228 F.3d 709, 717 (6th Cir. 2000) (citation omitted). Here, there is a disconnect between the definitions of the putative subclasses and the conduct about which the named plaintiffs complain. Although the named plaintiffs base their federal cause of action on the same legal theories as the putative class, their own characterization of the defendants' conduct toward each of them places them outside the class. The named plaintiffs' claims are not "typical" because they do not "arise from the same event or practice or course of conduct that gives rise to the claims of other class members." In Re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996).
For these same reasons, the named plaintiffs are not adequate class representatives. They do not fall within the definition of either of the putative subclasses. At least one of the proposed class members must be an adequate class representative to satisfy Rule 23(a)(4). In addition, the Court must consider whether the named plaintiffs' participation in a similar lawsuit against these same defendants challenging another jail administration policy calling for the removal of inmates' clothing allegedly for security reasons might cause a conflict that might undermine the loyalty of these representatives to the broader class. See Kurczi v. Eli Lilly Co., 160 F.R.D. 667, 678-79 (N.D. Ohio 1995) (noting that the named plaintiffs' participation in a parallel state court lawsuit alleging the same defect in the same product created a potential conflict of interest because of the possible disincentive to vigorously represent the interests of the absent class members). Indeed, "adequacy of representation" requires the court to determine whether the class members have interests that are antagonistic to the other class members. Stout, 228 F.3d at 717.
Aa previously mentioned, all of the named plaintiffs except Nancy Witthum are participating in another lawsuit challenging jail policies against these same defendants. The potential exists for a compromise of all of the named parties' claims against Saginaw County as part of a global settlement, which may not serve the interests of the entire class and its absent members. This potential conflict of interest, coupled with the named plaintiffs falling outside the subclasses, compel the conclusion that the plaintiffs have failed to satisfy Rule 23(a)(4).
III.
The plaintiffs have not satisfied the requirements of Rule 23(a). If they had, they also would have had to satisfy at least on of the requirements of Rule 23(b). Olden, 203 F.R.D. at 270. Because of the determination that Rule 23(a) is not satisfied, the Court need not assess the plaintiffs' motion under the standards of Rule 23(b).
The plaintiffs have not established the prerequisites for class certification.
Accordingly, it is ORDERED that the plaintiffs' motion to certify the class [dkt # 29] is DENIED.