90 A.D.3d 729 90 A.D.3d 729

(Cite as: 90 A.D.3d 729, 934 N.Y.S.2d 351)

Poverud v Kwartler
90 A.D.3d 729, 934 N.Y.S.2d 351 NY ,2011.

90 A.D.3d 729, 934 N.Y.S.2d 351, 2011 WL 6224519, 2011 N.Y. Slip Op. 09106

Jeremy K. Poverud et al., Respondents
v
Joyce E. Kwartler, Appellant. Supreme Court, Appellate Division, Second De- partment, New York

December 13, 2011 CITE TITLE AS: Poverud v Kwartler

Craig P. Curcio, Middletown, N.Y. (Bryan R. Ka- plan of counsel), for appellant.
Dupée & Monroe, P.C., Goshen, N.Y. (James E. Monroe of counsel), for respondents.

In an action to recover damages for personal injur- ies, etc., the defendant appeals from so much of an order of the Supreme Court, Orange County (Cohen, J.), dated September 22, 2010, as denied her cross motion for summary judgment dismissing the complaint on the ground that the plaintiff Jeremy K. Poverud did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as ap- pealed from, with costs.

The evidence submitted by the defendant in support of her cross motion failed to eliminate all triable is- sues of fact as to whether the plaintiff Jeremy K. Poverud sustained a “fracture” to his right patella as a result of the subject motor vehicle accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Olic v Pappas, 47 AD3d 780, 780 [2008]; see generallyInsurance Law § 5102 [d]). Since the defendant failed to meet her prima facie burden, it is unnecessary to determine whether the plaintiffs,

Page 1

in opposition to the defendant’s cross motion, raised a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Accordingly, the Su- preme Court properly denied the defendant’s cross motion for summary judgment dismissing the com- plaint.

In light of our determination, we need not reach the parties’ remaining contentions. Dillon, J.P., Angi- olillo, Florio and Dickerson, JJ., concur.

Copr. (C) 2012, Secretary of State, State of New Y ork

NY ,2011.
Poverud v Kwartler
90 A.D.3d 729, 934 N.Y.S.2d 351934 N.Y.S.2d 351 (Mem)6022011 WL 62245199992011 N.Y . Slip Op. 091064603, 934 N.Y .S.2d 351934 N.Y .S.2d 351 (Mem)6022011 WL 62245199992011 N.Y. Slip Op. 091064603, 934 N.Y .S.2d 351934 N.Y .S.2d 351 (Mem)6022011 WL 62245199992011 N.Y. Slip Op. 091064603

END OF DOCUMENT

© 2012 Thomson Reuters.

No Claim to Orig. US Gov. Works.

49 A.D.3d 604 49 A.D.3d 604

(Cite as: 49 A.D.3d 604, 856 N.Y.S.2d 134)

Harden v Tynatishon
49 A.D.3d 604, 856 N.Y.S.2d 134 NY ,2008.

49 A.D.3d 604, 856 N.Y.S.2d 134, 2008 WL 669881, 2008 N.Y. Slip Op. 02111

Gerald Harden, Respondent
v
William Tynatishon, Appellant. Supreme Court, Appellate Division, Second De- partment, New York

March 11, 2008 CITE TITLE AS: Harden v Tynatishon

HEADNOTE

Negligence
Maintenance of Premises

In action to recover damages sustained by plaintiff tenant as result of exposure to lead paint during period from 2000 to 2004, defendant landlord was not entitled to summary judgment dismissing com- plaint—defendant failed to establish that he lacked constructive notice of hazardous lead condition at premises prior to receiving notice from County De- partment of Health (DOH) in 2002; moreover, there were questions of fact as to whether defendant re- tained right of re-entry and assumed duty to make repairs at property, and whether he was aware of presence of children and of dangers of lead paint; in addition, defendant failed to demonstrate that he took reasonable precautionary measures to remedy hazardous *605 lead condition after he received ac- tual notice thereof from DOH, or that plaintiff did not sustain any additional injuries after defendant received notice of this condition.

Dupée & Monroe, P.C., Goshen, N.Y. (Peter W. Green of counsel), for appellant.
Lucchese & D’Ammora, LLP (Pollack, Pollack,

Page 1

Isaac & De Cicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondent.
In an action to recover damages for personal injur- ies, the defendant appeals from an order of the Su- preme Court, Orange County (Owen, J.), dated March 14, 2007, which denied his motion for sum- mary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiff was diagnosed with lead pois- oning in early 2002 when he and his family were tenants in a house owned by the defendant. The Or- ange County Department of Health (hereinafter the DOH) inspected the premises on June 6, 2002, and, by notice dated June 12, 2002, informed the de- fendant that there were “conditions conducive to lead poisoning” at the house. The plaintiff’s family members subsequently repainted the house.

The plaintiff commenced this action against the de- fendant to recover damages as a result of his expos- ure to lead paint during the period from 2000 to 2004. The defendant moved for summary judgment dismissing the complaint on the grounds that he lacked constructive notice of any dangerous lead- paint condition prior to receiving the DOH notice, and that any lead-paint condition had been remedied by the tenants before he received that no- tice. The Supreme Court denied the defendant’s mo- tion for summary judgment. We affirm.

“[A]bsent controlling legislation, a triable issue of fact is raised when a plaintiff shows that **2 the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apart- ment” (Chapman v Silber, 97 NY2d 9, 15 [2001]).

On his motion for summary judgment, the defend-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

49 A.D.3d 604 Page 2 49 A.D.3d 604

(Cite as: 49 A.D.3d 604, 856 N.Y.S.2d 134)

ant failed to meet his prima facie burden of estab- lishing that he lacked constructive notice of a haz- ardous lead condition at the premises (see Molina v Belasquez, 1 AD3d 489 [2003]). Moreover, the de- fendant failed to demonstrate the absence of triable issues of fact, since the deposition testimony of the tenants and of the defendant, submitted on the mo- tion, presented questions of fact as to whether, inter alia, the defendant retained a right of re-entry and assumed a duty to make repairs at the property, and whether he was aware of the presence of children and of the dangers of lead paint (see Molina v Be- lasquez, 1 AD3d 489 [2003];Vidal v Rodriquez, 301 AD2d 517 [2003]).*606

In addition, the evidence presented by the defend- ant failed to demonstrate that he took reasonable precautionary measures to remedy the hazardous lead condition after he received actual notice there- of from the DOH, or that the plaintiff did not sus- tain any additional injuries after the defendant re- ceived notice of this condition (see Griffin v Tautel, 301 AD2d 499 [2003];Bellony v Siegel, 288 AD2d 411 [2001]). Thus, the Supreme Court properly denied the defendant’s motion for summary judg- ment dismissing the complaint. Lifson, J.P., Ritter, Florio and Carni, JJ., concur.

Copr. (C) 2012, Secretary of State, State of New Y ork

NY ,2008.
Harden v Tynatishon
49 A.D.3d 604, 856 N.Y.S.2d 1346022008 WL 6698819992008 N.Y . Slip Op. 021114603, 856 N.Y.S.2d 1346022008 WL 6698819992008 N.Y. Slip Op. 021114603, 856 N.Y.S.2d 1346022008 WL 6698819992008 N.Y. Slip Op. 021114603

END OF DOCUMENT

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

36 A.D.3d 681, 829 N.Y.S.2d 143, 2007 N.Y. Slip Op. 00288

(Cite as: 36 A.D.3d 681, 829 N.Y.S.2d 143)

Supreme Court, Appellate Division, Second De- partment, New York.
Corazon RAMSEY, et al., plaintiffs,
v.
Alan KASZUBA, defendant. (Action No. 1). Dana Lennane, respondent,
v.
Alan Kaszuba, appellant, et al., defendant. (Action No. 2).

Jan. 16, 2007.

Background: In second of two related personal in- jury actions arising out of a motor vehicle accident, defendant appealed order of the Supreme Court, Or- ange County, Horowitz, J., which denied his motion for summary judgment.

Holding: The Supreme Court, Appellate Division, held that summary judgment evidence was insuffi- cient to establish that plaintiff’s injury was not seri- ous within meaning of the No-Fault Law.

Affirmed.

West Headnotes

Automobiles 48A 251.19

48A Automobiles
48AV Injuries from Operation, or Use of High-

way
48AV(D) Effect of No Fault Statutes

48Ak251.19 k. Evidence and Fact Ques- tions; Instructions. Most Cited Cases

Judgment 228 185.3(21)

228 Judgment
228V On Motion or Summary Proceeding

228k182 Motion or Other Application 228k185.3 Evidence and Affidavits in

Particular Cases
228k185.3(21) k. Torts. Most Cited

Cases

Summary judgment evidence was insufficient, in personal injury action arising out of a motor vehicle accident, to establish that plaintiff’s injury was not serious within meaning of the No-Fault Law; reports prepared by, among others, plaintiff’s treating physicians, indicated that she exhibited re- stricted ranges of motion in her cervical spine, and that her injuries were the result of the accident. McKinney’s Insurance Law § 5102(d).

*143 Boeggeman, George, Hodges & Corde, P.C., White Plains, N.Y. (Lisa M. Rolle of counsel), for appellant.

Dupée & Monroe, P.C., Goshen, N.Y. (William J. Garvin of counsel), for respondent.

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO and JOSEPH COVELLO, JJ.

In two related actions to recover damages for personal injuries, Alan Kaszuba appeals, as limited by his brief, from so much of an order of the Su- preme Court, Orange County (Horowitz, J.), dated September 27, 2005, as, upon reargument, denied his motion for summary judgment dismissing the complaint in Action No. 2 insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of In- surance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

While we affirm the order insofar as appealed from, we do so on grounds other than those relied upon by the Supreme Court. Contrary to the Su- preme Court’s holding, the appellant failed to show on his motion for summary judgment dismissing the complaint in Action No. 2 that the plaintiff in that action (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance

Page 1

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

36 A.D.3d 681, 829 N.Y.S.2d 143, 2007 N.Y. Slip Op. 00288

(Cite as: 36 A.D.3d 681, 829 N.Y.S.2d 143)

Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In support of his motion, the appellant submitted reports prepared by, among others, the plaintiff’s treating physicians indicating that the plaintiff exhibited restricted ranges of motion in her cervical spine, and that the injuries which the plaintiff sustained were the result of the *144 subject motor vehicle accident (see Brown v. Motor Vehicle Acc. Indemnification Corp., 33 A.D.3d 832, 822 N.Y.S.2d 784; Campbell v. Vakili, 30 A.D.3d 457, 818 N.Y.S.2d 134; Mc- Cluskey v. Aguilar, 10 A.D.3d 388, 781 N.Y.S.2d 130). Under these circumstances, we need not con- sider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact (see Brown v. Motor Vehicle Acc. Indemnification Corp., supra; Campbell v. Vakili, supra; McCluskey v. Aguilar, supra; Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

N.Y.A.D. 2 Dept.,2007.
Ramsey v. Kaszuba
36 A.D.3d 681, 829 N.Y.S.2d 143, 2007 N.Y. Slip Op. 00288

END OF DOCUMENT

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2

372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

United States District Court,
S.D. New York.
Romus ATKINS, Mark Bellotto, Dawn Brown, Jane Brown, Michael J. Croci, Jr., Michael P. Kracht and Robert Grassfield, Plaintiffs,
v.
COUNTY OF ORANGE, Chris Ashman, Commis- sioner of Mental Health, sued in his individual and official capacities, Donna Dominick, Robert Cur- reri, David Serrano, Paul Weissinger, Michael Zap- polo, Kathleen Ferreri, Arthur Conklin, Keith Pelton, Jennifer Sergi, Kandi Jones, Kristy Kelly, Michael Andricut, Daniel Figueroa, Edward Craven, Richard Russell, Bryce Sotelo, Lou Pastor, Vincent Dichairo, Lawrence Catletti, Robert Tichy and Gerald Kehlenbeck, Defendants.

No. 01 CIV. 11536(WCC). June 3, 2005.

Background: Jail inmates brought § 1983 action against county, county’s Commissioner of Mental Health, and various corrections officers, alleging violations of their Eighth and Fourteenth Amend- ment rights based on defendants’ alleged indiffer- ence to inmates’ mental health needs and mistreat- ment of some of those inmates. Defendants moved to preclude expert testimony, for partial summary judgment, and severance for separate trials.

Holdings: The District Court, William C. Conner, Senior District Judge, held that:
(1) alleged deficiencies in expert witness report offered by inmates did not warrant preclusion of re- port;

(2) fact issues existed as to some inmates’ claims of excessive force;
(3) fact issues existed as to whether corrections of- ficials deliberately deprived one inmate of water and basic hygiene products;

(4) claims alleging failure to intervene were not stated with sufficient particularity; and

(5) County and Commissioner were not deliberately indifferent to inmates’ serious medical needs.

Granted in part and denied in part.

See also 251 F.Supp.2d 1225. West Headnotes

[1] Federal Civil Procedure 170A 1274

170A Federal Civil Procedure
170AX Depositions and Discovery

170AX(A) In General 170Ak1272 Scope

170Ak1274 k. Evidentiary Matters. Most Cited Cases

An expert witness’s report is deficient, under rule governing pretrial disclosure of experts and their proposed testimony, if report fails to include any of the underlying conclusions on which the ex- pert’s ultimate opinions are based; bald conclusions on the ultimate issues do not alone amount to a de- tailed and complete written report of the expert’s expected testimony. Fed.Rules Civ.Proc.Rule 26(a)(2)(B), 28 U.S.C.A.

[2] Federal Civil Procedure 170A 1274

170A Federal Civil Procedure
170AX Depositions and Discovery

170AX(A) In General 170Ak1272 Scope

170Ak1274 k. Evidentiary Matters. Most Cited Cases

An expert witness’s report is deficient, under rule governing pretrial disclosure of experts and their proposed testimony, if it fails to set forth a complete statement of the basis and reasons for the expert’s opinions. Fed.Rules Civ.Proc.Rule 26(a)(2)(B), 28 U.S.C.A.

[3] Federal Civil Procedure 170A 1278

Page 1

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

170A Federal Civil Procedure
170AX Depositions and Discovery

170AX(A) In General
170Ak1278 k. Failure to Respond; Sanc-

tions. Most Cited Cases
The exclusion of undisclosed information, as a

sanction for failing to disclose information required by expert witness rule, is automatic, and the non- disclosing party has the burden to demonstrate that the failure to disclose was substantially justified or that the failure was harmless. Fed.Rules Civ.Proc.Rules 26(a), (e)(2), 37(c)(1), 28 U.S.C.A.

[4] Federal Civil Procedure 170A 1278

170A Federal Civil Procedure
170AX Depositions and Discovery

170AX(A) In General
170Ak1278 k. Failure to Respond; Sanc-

tions. Most Cited Cases
The imposition of sanctions under civil proced-

ure rule authorizing sanctions when party does not comply with discovery rules is discretionary, and preclusion of expert witness testimony for failure to comply with expert disclosure rule is not generally ordered. Fed.Rules Civ.Proc.Rules 26(a), (e)(2), 37(c)(1), 28 U.S.C.A.

[5] Federal Civil Procedure 170A 1278

170A Federal Civil Procedure
170AX Depositions and Discovery

170AX(A) In General
170Ak1278 k. Failure to Respond; Sanc-

tions. Most Cited Cases
Alleged deficiencies in expert witness report

offered by jail inmates prior to trial, in § 1983 ac- tion against county and other defendants alleging violations of their constitutional rights in connec- tion with alleged indifference to inmates’ mental health needs, did not warrant preclusion of report; although defendants claimed report was neither de- tailed nor complete, and contained only conclusory statements by expert, defendants did not raise any objection to report, or seek supplementation of re- port, even though they had report in their posses-

sion for over a year, nor did they seek to depose the expert, and witness’s testimony was essential to in- mates’ case. 42 U.S.C.A. § 1983; Fed.Rules Civ.Proc.Rules 26(a), (e)(2), 37(c)(1), 28 U.S.C.A.

[6] Sentencing and Punishment 350H 1435

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(A) In General

350Hk1434 Scope of Prohibition 350Hk1435 k. In General. Most Cited

Cases

An Eighth Amendment claim of cruel and un- usual punishment consists of two components: (1) a subjective component which focuses on the defend- ant’s motive for his conduct; and (2) an objective component which focuses on the conduct’s effect. U.S.C.A. Const.Amend. 8.

[7] Sentencing and Punishment 350H 1435

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(A) In General

350Hk1434 Scope of Prohibition 350Hk1435 k. In General. Most Cited

Cases

Sentencing and Punishment 350H 1438

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(A) In General

350Hk1434 Scope of Prohibition 350Hk1438 k. Wantonness. Most

Cited Cases

The subjective component of an Eighth Amendment claim of cruel and unusual punishment requires a showing that the defendant had the ne- cessary level of culpability, shown by actions char- acterized by wantonness in light of the particular circumstances surrounding the challenged conduct.

Page 2

© 2012 Thomson Reuters.

No Claim to Orig. US Gov. Works.

372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

U.S.C.A. Const.Amend. 8.

[8] Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1548 k. Use of Force. Most Cited

Cases

In excessive force cases alleging cruel and un- usual punishment, “wanton” conduct sufficient to satisfy the subjective component of the Eighth Amendment inquiry involves force that is applied maliciously and sadistically to cause harm as op- posed to force that is applied in a good-faith effort to maintain or restore discipline. U.S.C.A. Const.Amend. 8.

[9] Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1548 k. Use of Force. Most Cited

Cases

To determine whether defendants acted mali- ciously or wantonly, as would satisfy subjective component of cruel and unusual punishment claim under the Eighth Amendment, a court must exam- ine several factors including: the extent of the in- jury and the mental state of the defendant, as well as the need for the application of force; the correla- tion between that need and the amount of force used; the threat reasonably perceived by the defend- ants; and any efforts made by the defendants to temper the severity of a forceful response. U.S.C.A. Const.Amend. 8.

[10] Sentencing and Punishment 350H 1435

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(A) In General

350Hk1434 Scope of Prohibition 350Hk1435 k. In General. Most Cited

Cases

The objective component of an Eighth Amend- ment violation claim requires that the violation be sufficiently serious by objective standards; the ob- jective component is contextual and responsive to contemporary standards of decency. U.S.C.A. Const.Amend. 8.

[11] Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1548 k. Use of Force. Most Cited

Cases

When prison officials maliciously and sadistic- ally use force to cause harm, contemporary stand- ards of decency always are violated, thus satisfying objective component of cruel and unusual punish- ment claim under the Eighth Amendment. U.S.C.A. Const.Amend. 8.

[12] Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1548 k. Use of Force. Most Cited

Cases

A showing of extreme injury is not required to bring an excessive force claim against prison offi- cials; however, de minimis uses of physical force, provided that the use of force is not of a sort repug- nant to the conscience of mankind, are not action- able as a violation of the Eighth Amendment. U.S.C.A. Const.Amend. 8.

[13] Civil Rights 78 1358

78 Civil Rights
78III Federal Remedies in General

78k1353 Liability of Public Officials

Page 3

© 2012 Thomson Reuters.

No Claim to Orig. US Gov. Works.

372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

78k1358 k. Criminal Law Enforcement; Prisons. Most Cited Cases

Defendant corrections officers were not liable for beating of jail inmate during manic/psychotic episode, for purpose of inmate’s § 1983 claim of cruel and unusual punishment in violation of the Eighth Amendment, where officers were not work- ing on day that alleged beating occurred. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[14] Civil Rights 78 1335

78 Civil Rights
78III Federal Remedies in General

78k1334 Persons Liable in General
78k1335 k. In General. Most Cited Cases

Absent personal involvement, an individual de- fendant cannot be liable under § 1983. 42 U.S.C.A. § 1983.

[15] Civil Rights 78 1358

78 Civil Rights
78III Federal Remedies in General

78k1353 Liability of Public Officials 78k1358 k. Criminal Law Enforcement;

Prisons. Most Cited Cases
Corrections officer’s alleged acts of assaulting

jail inmate “maliciously,” yanking inmate out of cell after inmate tried to hang himself, and accom- panying other officers as they transported inmate to mental health unit did not constitute sufficient per- sonal involvement by officer in alleged excessive force underlying § 1983 claim asserted by inmate against other officers who allegedly beat inmate while transporting him to mental health unit, in vi- olation of the Eighth Amendment. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[16] Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1548 k. Use of Force. Most Cited

Cases

Excessive force does not, in and of itself, es- tablish malice or wantonness for Eighth Amend- ment purposes. U.S.C.A. Const.Amend. 8.

[17] Prisons 310 124

310 Prisons
310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

310k124 k. Use of Force. Most Cited

Cases

(Formerly 310k13(4))

Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1548 k. Use of Force. Most Cited

Cases

Severe pain in inmate’s shoulder which lasted three to five days, though apparently not serious, was not de minimis injury as matter of law, for pur- pose of inmate’s § 1983 claim against corrections officers alleging excessive force in violation of the Eighth Amendment. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[18] Prisons 310 124

310 Prisons
310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

310k124 k. Use of Force. Most Cited

Cases

(Formerly 310k13(4))

Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

Page 4

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

350Hk1548 k. Use of Force. Most Cited

Cases

Corrections officers’ alleged conduct of beating inmate as they were transporting him to mental health unit, following apparent suicide attempt by inmate, violated contemporary standards of de- cency, thus satisfying objective component of in- mate’s resulting § 1983 claim alleging excessive force in violation of the Eighth Amendment. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

170AXVII(C) Summary Judgment 170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in General. Most Cited Cases

Genuine issue of material fact as to whether in- juries suffered by jail inmate while he was being transported to mental health unit following apparent suicide attempt were result of purposeful acts by defendant corrections officers, or were accidental in nature, precluded summary judgment for officers on their defense of qualified immunity in inmate’s § 1983 action alleging cruel and unusual punishment in violation of the Eighth Amendment. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[22] Civil Rights 78 1376(6)

78 Civil Rights
78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith and Probable Cause

78k1376 Government Agencies and Of-

ficers

78k1376(6) k. Sheriffs, Police, and Other Peace Officers. Most Cited Cases

Law enforcement officers are generally entitled to qualified immunity for alleged constitutional vi- olations if: (1) their conduct does not violate clearly established constitutional rights; or (2) it was ob- jectively reasonable for them to believe that their acts did not violate those rights.

[23] Civil Rights 78 1376(6)

78 Civil Rights
78III Federal Remedies in General

78k1372 Privilege or Immunity; Good Faith and Probable Cause

78k1376 Government Agencies and Of-

ficers

78k1376(6) k. Sheriffs, Police, and Other Peace Officers. Most Cited Cases

Freedom from the use of excessive force is a clearly established constitutional right, for purpose of law enforcement officers’ claim of qualified im- munity in § 1983 action alleging Eighth Amend-

[19] Federal Civil Procedure 170A

170A Federal Civil Procedure 170AXVII Judgment

170AXVII(C) Summary Judgment 170AXVII(C)2 Particular Cases

2491.5

Page 5

170Ak2491.5 k. Civil Rights Cases in General. Most Cited Cases

Genuine issues of material fact as to amount of force used by corrections officers in transporting jail inmate, following inmate’s apparent suicide at- tempt, to mental health unit, and as to officers’ in- tent, precluded summary judgment for officers in inmate’s § 1983 action alleging cruel and unusual punishment in violation of the Eighth Amendment. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[20] Federal Civil Procedure 170A

170A Federal Civil Procedure 170AXVII Judgment

170AXVII(C) Summary Judgment 170AXVII(C)2 Particular Cases

2491.5

170Ak2491.5 k. Civil Rights Cases in General. Most Cited Cases

Complaints alleging excessive force, in viola- tion of the Eighth Amendment, will not be dis- missed at the summary judgment stage if conflicts exist in the record regarding the degree and justific- ation of force. U.S.C.A. Const.Amend. 8.

[21] Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure 170AXVII Judgment

© 2012 Thomson Reuters.

No Claim to Orig. US Gov. Works.

372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

ment violation. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[24] Prisons 310 124

310 Prisons
310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

310k124 k. Use of Force. Most Cited

Cases

(Formerly 310k13(4))

Sentencing and Punishment 350H 1548

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1548 k. Use of Force. Most Cited

Cases

“Bruising” on jail inmate’s arm, which was documented by nursing notes, was not injury that would support § 1983 claim alleging excessive force in violation of the Eighth Amendment, partic- ularly where inmate did not recall the incident that led to the bruising. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[26] Sentencing and Punishment 350H 1532

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1532 k. In General. Most Cited

Cases

Eighth Amendment prohibition against cruel and unusual punishment requires that prison offi- cials provide humane conditions of confinement in- cluding adequate food, clothing, shelter, and medic- al care. U.S.C.A. Const.Amend. 8.

[27] Sentencing and Punishment 350H 1532

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1532 k. In General. Most Cited

Cases

To prevail on a claim that conditions of con- finement constitute cruel and unusual punishment, a plaintiff must demonstrate that the conditions of confinement fell below the minimal civilized meas- ure of life’s necessities; the prisoner must show ex- treme deprivations, because routine discomfort is part of the penalty that criminal offenders pay for

Page 6

[25] Federal Civil Procedure 170A

170A Federal Civil Procedure 170AXVII Judgment

170AXVII(C) Summary Judgment 170AXVII(C)2 Particular Cases

2491.5

their offenses against society. Const.Amend. 8.

U.S.C.A.

170Ak2491.5 k. Civil Rights Cases in General. Most Cited Cases

Genuine issues of material fact as to whether corrections officers used excessive force against jail inmate by placing her in a restraint chair after she allegedly threw urine and feces from her cell pre- cluded summary judgment for defendant correc- tions officers in inmate’s § 1983 action alleging cruel and unusual punishment in violation of the Eighth Amendment. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[28] Sentencing and Punishment 350H 1533

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1533 k. Deliberate Indifference in General. Most Cited Cases

A plaintiff alleging that conditions of confine- ment constitute cruel and unusual punishment must show that the prison officials acted with a suffi- ciently culpable state of mind, which requires a showing of deliberate indifference. U.S.C.A. Const.Amend. 8.

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[29] Prisons 310 157 Genuine issues of material fact as to whether corrections officials deliberately deprived jail in-

310 Prisons
310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

310k157 k. Food and Drink. Most Cited

Cases

(Formerly 310k17(3))

Sentencing and Punishment 350H 1540

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1540 k. Food. Most Cited Cases Corrections officials’ alleged act of serving food to jail inmate on a napkin or paper towel on one occasion did not amount to constitutional deprivation, as would support inmate’s Eighth Amendment claim challenging conditions of her confinement, as such conduct did not present imme- diate danger to inmate’s health and well being.

U.S.C.A. Const.Amend. 8.

[30] Sentencing and Punishment 350H 1540

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1540 k. Food. Most Cited Cases Eighth Amendment entitles prisoners to nutri- tionally adequate food that is prepared and served under conditions which do not present an immedi- ate danger to the health and well being of the in-

mates who consume it. U.S.C.A. Const.Amend. 8.

mate of water despite her complaints of resulting injury to her health precluded summary judgment for officials, in inmate’s action alleging that denial of water was cruel and unusual punishment violat- ing the Eighth Amendment. U.S.C.A. Const.Amend. 8.

[32] Federal Civil Procedure 170A 2491.5

170A Federal Civil Procedure 170AXVII Judgment

170AXVII(C) Summary Judgment 170AXVII(C)2 Particular Cases

170Ak2491.5 k. Civil Rights Cases in General. Most Cited Cases

Genuine issue of material fact as to whether fe- male jail inmate was denied basic hygiene products such as toilet paper, toothbrush, and sanitary nap- kins precluded summary judgment for defendant corrections officials on inmate’s claim that such deprivation was cruel and unusual punishment viol-

Page 7

ating the Eighth Amendment. Const.Amend. 8.

U.S.C.A.

[31] Federal Civil Procedure 170A

170A Federal Civil Procedure 170AXVII Judgment

170AXVII(C) Summary Judgment 170AXVII(C)2 Particular Cases

2491.5

[33] Sentencing and Punishment 350H 1539

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1539 k. Sanitation. Most Cited

Cases

The failure to regularly provide prisoners with toilet articles including soap, razors, combs, tooth- paste, toilet paper, access to a mirror, and sanitary napkins for female prisoners constitutes a denial of personal hygiene and sanitary living conditions, for purpose of claim challenging conditions of confine- ment as violating the Eighth Amendment. U.S.C.A. Const.Amend. 8.

170Ak2491.5 k. Civil Rights Cases in General. Most Cited Cases

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

[34] Civil Rights 78 78 Civil Rights

1088(2)

372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

78I Rights Protected and Discrimination Prohib- ited in General

78k1088 Police, Investigative, or Law En- forcement Activities

78k1088(2) k. Use of Force in General. Most Cited Cases

Law enforcement officers’ affirmative duty to intervene in face of alleged excessive force exists only where a person’s constitutional rights have been violated.

[35] Civil Rights 78 1395(7)

78 Civil Rights
78III Federal Remedies in General

78k1392 Pleading
78k1395 Particular Causes of Action

78k1395(7) k. Prisons and Jails; Pro- bation and Parole. Most Cited Cases

Federal Civil Procedure 170A 1838

170A Federal Civil Procedure 170AXI Dismissal

170AXI(B) Involuntary Dismissal 170AXI(B)5 Proceedings

ment. Most Cited Cases
To successfully bring a claim under § 1983 for

a violation of the Eighth Amendment for inad- equate medical treatment, a plaintiff must establish that defendants were deliberately indifferent to his serious medical needs. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

[37] Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral

Page 8

350HVII(H) Conditions of Confinement 350Hk1546 k. Medical Care and Treat-

ment. Most Cited Cases
To establish constitutional claim that govern-

ment defendants were deliberately indifferent to jail inmate’s serious medical needs, alleged deprivation of care must be sufficiently serious in objective terms such that the inmate’s condition presents a condition of urgency, one that may produce death,

170Ak1837 Effect
170Ak1838 k. Pleading Over. Most

Cited Cases

Jail inmates’ claims alleging that defendant cor- rections officers failed to intervene in face of con- stitutional violations by others was not pleaded with sufficient particularity, in that inmates failed to name which defendants were allegedly liable for failure to intervene with respect to each particular incident, thus requiring dismissal of such claims, although inmates would be permitted to amend their complaint to name the proper defendants.

[36] Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1546 k. Medical Care and Treat-

[38] Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1546 k. Medical Care and Treat- ment. Most Cited Cases

Whether a defendant acted in a deliberately in- different manner, with respect to a plaintiff’s seri- ous medical condition, in violation of the Eighth Amendment, is to be judged subjectively, as well as objectively; the subjective element requires the plaintiff to establish that the defendants were aware of plaintiff’s serious medical needs and consciously disregarded a substantial risk of serious harm. U.S.C.A. Const.Amend. 8.

[39] Sentencing and Punishment 350H 1546 350H Sentencing and Punishment

degeneration, or Const.Amend. 8.

extreme pain.

U.S.C.A.

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372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

350HVII Cruel and Unusual Punishment in Gen- eral

350HVII(H) Conditions of Confinement 350Hk1546 k. Medical Care and Treat-

ment. Most Cited Cases
Under subjective element of claim that govern-

ment official was deliberately indifferent to jail in- mate’s serious medical needs, in violation of the Eighth Amendment, a finding of deliberate indiffer- ence cannot be made unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that substantial risk of serious harm exists, and he must also draw the inference. U.S.C.A. Const.Amend. 8.

[40] Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1546 k. Medical Care and Treat- ment. Most Cited Cases

Mere negligence, medical malpractice, or dif- ferences of opinion regarding medical treatment of an inmate do not give rise to an Eighth Amendment violation; however, medical malpractice in some cases may rise to the level of deliberate indifference where it involves culpable recklessness, that is, an act or failure to act that evinces a conscious disreg- ard of a substantial risk of serious harm. U.S.C.A. Const.Amend. 8.

[41] Judgment 228 567

228 Judgment
228XIII Merger and Bar of Causes of Action

and Defenses
228XIII(A) Judgments Operative as Bar

228k567 k. Judgment by Confession or on Consent or Offer. Most Cited Cases

Judgment 228 581

228 Judgment

228XIII Merger and Bar of Causes of Action and Defenses

228XIII(A) Judgments Operative as Bar 228k581 k. Judgment Vacated or Re-

versed. Most Cited Cases
Jail inmates’ claims relating to alleged viola-

tions of consent decree reached in separate class ac- tion, which was brought to secure better medical and mental health care at jail, as well as improved living conditions, were barred by res judicata, where stipulation of settlement and order that va- cated consent decree expressly settled “all issues and/or claims that were or could have been raised concerning the termination of the Consent Judg- ment and the compliance of the defendants with the Consent Judgment.”

[42] Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1546 k. Medical Care and Treat- ment. Most Cited Cases

Although an Eighth Amendment violation arising from deliberate indifference to plaintiff’s serious medical needs may be based upon exposure to an unreasonable risk of future harm, the absence of present physical injury will often be probative in assessing the risk of future harm. U.S.C.A. Const.Amend. 8.

[43] Prisons 310 194

310 Prisons
310II Prisoners and Inmates

Page 9

310II(D) Health and Medical Care
310k191 Particular Conditions and Treat-

ments

310k194 k. Psychological Conditions and Treatment. Most Cited Cases

(Formerly 310k17(2))

Sentencing and Punishment 350H 1547

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372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1547 k. Psychological and Psychi- atric Treatment. Most Cited Cases

County and its Commissioner of Mental Health were not deliberately indifferent to serious medical needs of jail inmate, in violation of the Eighth Amendment, despite claim that medications given to inmate were a “woefully inadequate dosage,” and that inmate was not treated in timely manner, where medical records revealed that inmate was seen by mental health unit and a psychiatrist within one day of admission to the jail and was on “close watch” until mental health could see him. U.S.C.A. Const.Amend. 8.

[44] Prisons 310 194

310 Prisons
310II Prisoners and Inmates

County and its Commissioner of Mental Health were not deliberately indifferent to serious medical needs of jail inmate who was allegedly prescribed wrong mediation for her mental illness, and given inadequate care while she was acutely manic and psychotic and dangerous to herself and others, in violation of the Eighth Amendment; record demon- strated that inmate was provided with mental health care upon each admission to jail and, if she could not immediately be seen by the mental health clinic, she was kept on “close watch” to ensure her safety and the safety of others. U.S.C.A. Const.Amend. 8.

[45] Prisons 310 194

310 Prisons
310II Prisoners and Inmates

310II(D) Health and Medical Care
310k191 Particular Conditions and Treat-

ments

310II(D) Health and Medical Care
310k191 Particular Conditions and Treat-

ments

310k194 k. Psychological Conditions and Treatment. Most Cited Cases

(Formerly 310k17(2))

Prisons 310 195

310 Prisons
310II Prisoners and Inmates

310II(D) Health and Medical Care
310k195 k. Self-Harm in General. Most

Cited Cases

(Formerly 310k17(2))

Sentencing and Punishment 350H 1547

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1547 k. Psychological and Psychi- atric Treatment. Most Cited Cases

310k194 k. Psychological Conditions and Treatment. Most Cited Cases

(Formerly 310k17(2))

Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1546 k. Medical Care and Treat- ment. Most Cited Cases

County and its Commissioner of Mental Health were not deliberately indifferent to serious medical needs of jail inmate who allegedly did not receive medications prescribed to him on a regular basis, in violation of the Eighth Amendment; although missed medications may have contributed to in- mate’s subsequent anxiety attack, care provided by defendants did not pose significant risk of serious harm, prisoner was counseled on numerous occa- sions about his refusal to take his medications, and there was no evidence that inmate was over- prescribed medication to point of placing him in a stupor. U.S.C.A. Const.Amend. 8.

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[46] Sentencing and Punishment 350H 1546 sequently, the actual medical consequences that flow from the alleged denial of care will be highly

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm. U.S.C.A. Const.Amend. 8.

When basis for a prisoner’s Eighth Amendment claim of deliberate indifference to his serious med- ical needs is a temporary delay or interruption in the provision of otherwise adequate medical treat- ment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner’s underlying medical condition alone in de- termining whether the alleged deprivation was suf- ficiently serious. U.S.C.A. Const.Amend. 8.

[47] Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1546 k. Medical Care and Treat- ment. Most Cited Cases

The particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner’s underlying med- ical condition, considered in the abstract, is the rel- evant inquiry in deciding an Eighth Amendment claim based on temporary delay or interruption of medical treatment. U.S.C.A. Const.Amend. 8.

[48] Sentencing and Punishment 350H 1546

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1546 k. Medical Care and Treat- ment. Most Cited Cases

Where alleged lapses in prisoner’s medical treatment are minor and inconsequential in that they do not result in substantial risk of injury, an Eighth Amendment claim cannot be made out; con-

310 Prisons
310II Prisoners and Inmates

310II(D) Health and Medical Care
310k191 Particular Conditions and Treat-

ments

310k194 k. Psychological Conditions and Treatment. Most Cited Cases

(Formerly 310k17(2))

Prisons 310 200

310 Prisons
310II Prisoners and Inmates

310II(D) Health and Medical Care 310k200 k. Suicide. Most Cited Cases

(Formerly 310k17(2))

Sentencing and Punishment 350H 1547

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1547 k. Psychological and Psychi- atric Treatment. Most Cited Cases

County and its Commissioner of Mental Health were not deliberately indifferent to serious medical needs of jail inmate, in violation of the Eighth Amendment, by allegedly delaying psychiatric as- sessment of inmate and delaying administration of psychotropic drugs; inmate was on “close watch” during period of delay to ensure that he did not harm himself or others, and inmate was seen imme- diately by various professionals after his two sui- cide attempts. U.S.C.A. Const.Amend. 8.

[50] Prisons 310 194 310 Prisons

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350Hk1546 k. Medical Care and Treat- [49] Prisons 310 194 ment. Most Cited Cases

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372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

310II Prisoners and Inmates
310II(D) Health and Medical Care

310k191 Particular Conditions and Treat-

ments

310k194 k. Psychological Conditions and Treatment. Most Cited Cases

(Formerly 310k17(2))

Sentencing and Punishment 350H 1547

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral

350HVII(H) Conditions of Confinement 350Hk1547 k. Psychological and Psychi-

atric Treatment. Most Cited Cases
County and its Commissioner of Mental Health

were not deliberately indifferent to serious medical needs of jail inmate who allegedly was not in- formed that he could refuse medication prescribed in connection with diagnosis of depression, absent allegation of any facts demonstrating substantial risk of serious harm. U.S.C.A. Const.Amend. 8.

[52] Prisons 310 194

310 Prisons
310II Prisoners and Inmates

310II(D) Health and Medical Care
310k191 Particular Conditions and Treat-

ments

310k194 k. Psychological Conditions and Treatment. Most Cited Cases

(Formerly 310k17(2))

Sentencing and Punishment 350H 1547

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1547 k. Psychological and Psychi- atric Treatment. Most Cited Cases

County and its Commissioner of Mental Health were not deliberately indifferent to serious medical needs of jail inmate based on three-day delay between time inmate was booked at jail and time she was seen by psychiatrist, or based on fact that on several occasions inmate missed doses of her medications because she was out of her cell at time of scheduled administration of medications, absent any showing that inmate was harmed as result of such conduct; records indicated that inmate saw mental health professionals whenever she put in a request and that her medication schedule was switched to evenings to accommodate her as soon as the forensic clinic was notified that she was missing some of her medications. U.S.C.A. Const.Amend. 8.

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350HVII(H) Conditions of Confinement 350Hk1547 k. Psychological and Psychi-

atric Treatment. Most Cited Cases
County and its Commissioner of Mental Health

were not deliberately indifferent to serious medical needs of jail inmate who allegedly received sub- standard medical care in that he was given medica- tions without appropriate monitoring, did not have changes made to his medications despite determina- tion that he was sleeping excessively, and suffered severe symptoms such as increased hallucinations but received inadequate help for such symptoms; inmate was seen by clinician/case worker and parti- cipated in group therapy on numerous occasions, and inmate had adequate access to care. U.S.C.A. Const.Amend. 8.

[51] Prisons 310 198

310 Prisons
310II Prisoners and Inmates

310II(D) Health and Medical Care 310k196 V oluntariness; Right to

Treatment

Refuse

310k198 k. Psychological Treatment. Most Cited Cases

(Formerly 310k17(2))

Sentencing and Punishment 350H 1547

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral

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372 F.Supp.2d 377

(Cite as: 372 F.Supp.2d 377)

[53] Sentencing and Punishment 350H 1532

350H Sentencing and Punishment
350HVII Cruel and Unusual Punishment in Gen-

eral
350HVII(H) Conditions of Confinement

350Hk1532 k. In General. Most Cited

Cases

Opinions of experts are entitled to little weight in determining whether a condition of confinement is cruel and unusual punishment under the Eighth Amendment; rather, it is appropriate to consider an expert opinion in assessing subsidiary issues which inform the court’s final determination, such as the effects of challenged conditions or practices. U.S.C.A. Const.Amend. 8.

*384 Thornton, Bergstein & Ullrich, Chester, NY ( Scott A. Thornton, Helen Ullrich, Stephen Bergstein, of Counsel), Attorneys for Plaintiffs Mark Bellotto, Dawn Brown, Jane Brown, Michael J. Croci, Jr., Michael P. Kracht and Robert Grassfield.

Dupée, Dupée & Monroe, P.C., Goshen, NY ( James E. Monroe, William Garvin, of *385 Coun- sel), Attorneys for Plaintiff Romus Atkins, Goshen.

County Attorney, Orange County, Goshen, NY ( David L. Darwin, Acting County Attorney, of Counsel), Attorneys for Defendant County of Or- ange, Goshen.

McCabe & Mack LLP, Poughkeepsie, NY (David L. Posner, of Counsel), Attorneys for Defendant Chris Ashman, sued in his individual and official capacities.

Burke, Miele & Golden, LLP, Goshen, NY (Mi- chael K. Burke, of Counsel), Attorneys for Indi- vidual Correctional Officer Defendants, sued in their individual capacities.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge. Plaintiffs Romus Atkins, Mark Bellotto, Dawn

Brown, Jane Brown, Michael J. Croci, Jr., Michael P. Kracht and Robert Grassfield (collectively the “plaintiffs”) bring this action against numerous cor- rections officers (the “CO defendants”),FN1 the County of Orange (the “County”) and Chris Ash- man, the County Commissioner of Mental Health. FN2 Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 for violations of their rights under the Eighth and Fourteenth Amendments. The CO defendants are sued in their individual capacities and Ashman is sued in both his individual capacity and his offi- cial capacity. In the present motion, defendants move pursuant to FED. R. CIV. P. 37 to preclude the testimony of plaintiffs’ expert and pursuant to FED. R. CIV. P. 56 for partial summary judgment dismissing plaintiffs’ claims. In addition, defend- ants move to sever each individual plaintiff’s claims for separate trials and, in the alternative, the CO de- fendants move to sever trial of the claims against the CO defendants from those against the County defendants. For the reasons stated hereinafter, de- fendants’ motions are granted in part and denied in part.

FN1. The CO defendants include Donna Dominick, Robert Curreri, David Serrano, Paul Weissinger, Michael Zappolo, Kath- leen Ferreri, Arthur Conklin, Keith Pelton, Jennifer Sergi, Kandi Jones, Kristy Kelly, Michael Andricut, Daniel Figueroa, Ed- ward Craven, Richard Russell, Bryce Sote- lo, Lou Pastor, Vincent DiChairo, Lawrence Catletti, Robert Tichy and Ger- ald Kehlenbeck. However, the parties stip- ulated to the dismissal of Paul Weissinger and Edward Craven from the action without costs. (Burke Affm., Ex. B.)

FN2. The County and Ashman are referred to collectively as the “County defendants” and all of the defendants are referred to collectively as the “defendants.”

BACKGROUND I. Plaintiffs’ Factual Allegations

Plaintiffs were incarcerated at the Orange

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County Correctional Facility (the “Jail”) at various times between 1999 and 2002. (Complt.¶¶ 11-17.) FN3 While incarcerated, each plaintiff was under the care of the Orange County Department of Men- tal Health (“DMH”), which operates and staffs the forensic mental health clinic (the “forensic clinic”) at the Jail. Plaintiffs allege that the County had a policy or practice of deliberate indifference to the mental health needs of prisoners at the Jail that res- ulted in violations of their rights under the Eighth and Fourteenth Amendments. Four of the plaintiffs also allege that the County’s deliberate indifference to their mental health needs caused episodes of irra- tionality or insanity that resulted in *386 their be- ing beaten or otherwise mistreated by certain CO defendants in violation of the Eighth and Four- teenth Amendments. The following factual allega- tions appear in plaintiffs’ Complaint.

FN3. All references to the “Complt.” or to the “Complaint” are to plaintiffs’ Third Amended Complaint.

A. Allegations Pertaining to Plaintiffs With Ex- cessive Force Claims

Atkins suffers from schizophrenia and bipolar disorder. (Id. ¶ 43.) On April 16, 2001, he was in- carcerated at the Jail and immediately referred to the forensic clinic. (Id. ¶ 44.) On April 17, 2001, a forensic clinic psychiatrist evaluated Atkins, dia- gnosed him with “chronic, undifferentiated schizo- phrenia with acute exacerbation” and prescribed medication. (Id. ¶ 45.) Atkins refused his medica- tion, but no action was taken when DMH was in- formed of his refusal. (Id.) Atkins then experienced a psychotic episode. (Id. ¶ 46.) On April 18, he was placed in a cell called “the bullpen” and pepper spray was directed at his eyes. (Id. ¶ 47.) He was then placed in a therapeutic restraint without med- ical authorization, shackled and handcuffed. While Atkins was restrained, CO defendants Curreri, Cat- letti, Tichy and Kehlenbeck allegedly beat him. (Id. ) Sometime thereafter, Lieutenant Joseph Williams transported Atkins to the forensic clinic, explained that Atkins’s inappropriate behavior was a direct

result of his mental condition and demanded that the prisoner receive treatment. Plaintiffs allege that Atkins did not receive treatment for his mental con- dition until April 20. (Id. ¶ 48.)

Dawn Brown was an inmate at the Jail on sev- eral occasions during the relevant period and suf- fers from schizoaffective disorder and bipolar dis- order. (Id. ¶¶ 63-64.) On April 19, 2000, Dawn Brown was behaving irrationally and was referred to the forensic clinic. (Id. ¶ 69.) The nursing staff placed her on close watch, but she was not treated by a psychiatrist until April 24, 2000, five days later. (Id. ¶¶ 67-68.) On two other occasions during her incarceration. Brown refused treatment and DMH took no further steps to provide her with care. (Id. ¶¶ 73, 77.) On April 12, 2001, Dawn Brown was placed in restraints after she was found in a highly agitated state. Plaintiffs allege that after she was shackled, handcuffed and a helmet was placed upon her head, CO defendants Dominick, Curreri, Serrano and Weissinger beat her. (Id. ¶ 78.) On April 26, 2001, Dawn Brown was again placed in the bullpen, restrained and allegedly beaten by CO defendants Zappolo, Ferreri, Conklin and Pelton after she smeared feces on the walls of her cell. (Id. ¶ 79.) At some point during her incarcera- tion, Dawn Brown was confined to medical “keeplock” isolation which according to plaintiffs was the result of DMH’s failure to provide treat- ment. (Id. ¶ 82.) CO defendants Sergi, Jones and Kelly allegedly turned off the water supply to Dawn Brown’s keeplock unit, denying her drinking water for several days. The officers also threw her food “through a slot in her door” and refused to al- low her to shower. Dawn Brown alleges that she was beaten when she did not cooperate with the prison guards. (Id.)

Croci was incarcerated at the Jail from May 29, 1999 until March 2000, and from May 15, 2001 un- til September 2001. During the relevant periods, he suffered from bipolar disorder, claustrophobia and anxiety. (Id. ¶¶ 94-96.) Upon his incarceration in May 1999, Croci was referred to DMH for treat-

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ment “ASAP,” but he was not seen by a doctor until many days later. (Id. ¶ 99.) When he was finally ex- amined, he was administered a number of pre- scribed medications that left him in an “almost con- stant state of somnolence.” (Id. ¶ 100.) During his incarceration in 2001, Croci was seen by DMH per- sonnel but there was no follow-up treatment even *387 though he refused medication. (Id. ¶¶ 106, 109-10.) On June 16, 2001, Croci had a psychotic episode which plaintiffs allege was caused by his failure to take his medication. (Id. ¶ 104.) CO de- fendants Andricut, Figueroa and Craven allegedly beat Croci so severely in connection with this epis- ode that he was transported to a community hospit- al emergency room. Upon Croci’s return to the Jail, he was placed in the bullpen and restrained because no psychiatrist was available to prescribe the drugs that he required. (Id. ¶ 105.)

Grassfield was incarcerated from January 11, 2002 until March 2002. (Id. ¶ 134.) During this period, he suffered from bipolar disorder and post- traumatic stress disorder. (Id.) Upon incarceration, Grassfield informed the booking officer that he re- quired certain medications and provided his medic- ations to the officer. (Id. ¶ 137.) Once he was in the inmate population, Grassfield made repeated re- quests for medication but was denied medication and treatment for four days. (Id. ¶¶ 138-40.) When the proper medications were finally prescribed for him, he received them only sporadically. (Id. ¶ 141.) As a result, Grassfield suffered from severe depression and attempted suicide on February 4, 2002. (Id. ¶ 146.) He was then allegedly beaten by an unnamed corrections officer who discovered his suicide attempt. (Id. ¶ 147.) After several inmates threatened him in an unrelated incident, Grassfield was placed in “keeplock” isolation. (Id. ¶ 149.) While in isolation, his medications were not prop- erly dispensed and Grassfield continually asked to be reintroduced to the general inmate population. ( Id. ¶¶ 150-51.) On February 10, 2002, Grassfield attempted to hang himself from the Jail’s sprinkler system using a sheet that he had fashioned as a noose. (Id. ¶ 152.) His weight caused the pipe to

break and he was sprayed with water and chemic- als. (Id. ¶ 153.) According to Grassfield, after ob- serving the spectacle for a period of time, CO de- fendants Russell, Sotelo, Pastor and DiChairo al- legedly shackled him and beat him as they dragged him to the medical unit. (Id.)

B. Allegations Pertaining to Plaintiffs Without Excessive Force Claims

Kracht has been incarcerated at the Jail more than ten times. (Id. ¶ ¶ 113-14.) He suffers from bi- polar disorder. (Id. ¶ 112.) Upon incarceration in July 2001, it is alleged that Kracht was denied med- ication for a week despite the fact that DMH was aware of his mental illness. (Id. ¶ 115.) When he was finally seen by a psychiatrist, the doctor ig- nored Kracht’s previous mental health record, is- sued a new diagnosis of Kracht’s mental conditions and prescribed several psychotropic medications for him. (Id. ¶¶ 116-17.) One of the drugs prescribed for him was Elavil. (Id. ¶ 118.) Although this drug requires careful monitoring, Kracht did not see a DMH psychiatrist until three weeks after the drug was first prescribed. (Id. ¶ 118.) Kracht informed the DMH psychiatrist that he was experiencing side effects. (Id. ¶ 119.) Instead of weaning Kracht off the drug, the psychiatrist abruptly terminated the Elavil and prescribed Depakote, Neurotin and Ser- oquel. (Id. ¶ 120.) DMH failed to closely monitor Kracht to determine how he was responding to these new drugs. (Id. ¶ 121.) On September 16, 2001, Kracht refused to take his medications but re- ceived no follow-up treatment. (Id. ¶ 123.) There- after, Kracht’s medications were changed again and a caseworker noticed that he was “sleeping day and night.” (Id. ¶¶ 124-27.) No changes in his medica- tions were made even after it was determined that Kracht was sleeping excessively. (Id. ¶¶ 128-32.)

*388 Bellotto was a minor with no previous history of mental illness when he was incarcerated for a thirty-day sentence in 2000. (Id. ¶¶ 53-54.) Subsequent to his admission, a forensic clinic psy- chiatrist diagnosed Bellotto with depression and prescribed Paxil for him. (Id. ¶ 56.) Bellotto was

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not informed he could refuse the medication, (id. ¶ 57), although his mother protested the administra- tion of the drug to her son. (Id. ¶ 58.) DMH contin- ued to administer Paxil to Bellotto for the re- mainder of his sentence. (Id. ¶ 59.) Plaintiffs allege that during the relevant period, DMH routinely pre- scribed psychotropic drugs to inmates who had no need for them to “induce a state of stupor.” (Id. ¶ 60.)

Jane Brown was an inmate at the Jail from March 30, 2001 to May 9, 2001. During that time, she suffered from cyclothymic disorder, panic dis- order and post-traumatic stress disorder and was a recovering substance abuser. (Id. ¶¶ 86-88.) A psy- chiatrist at the forensic clinic prescribed Paxil for Jane Brown, but she frequently missed taking the drug because she was attending GED classes during the time it was distributed. (Id. ¶ 89.) Her request to have the distribution schedule changed went un- heeded until one week before her release. (Id. ¶¶ 89-90.) DMH provided no discharge planning, and Jane Brown suffered withdrawal symptoms after re- lease. (Id. ¶ 95.)

C. The County Defendants’ Alleged Knowledge of Treatment Failures

Plaintiffs allege that the County was deliber- ately indifferent to the mental health needs of men- tally ill inmates at the Jail and failed to provide them with adequate mental health care in violation of the Eighth and Fourteenth Amendments. They contend that Ashman and the County had direct knowledge of the treatment problems in the Jail, but failed to take any action. In 1995, Susan Menon, a nurse administrator working for the medical ser- vices contractor at the Jail, informed Ashman that the forensic clinic psychiatrists were routinely over- prescribing psychotropic drugs for inmates under their care. (Id. ¶ 30.) Menon contacted Ashman on another occasion two years later to apprise him of continuing problems at the forensic clinic. She ad- vised Ashman that DMH was still over-medicating some prisoners and that many prisoners suffered significant delays in receiving treatment. She also

told Ashman that DMH lacked an emergency backup treatment program and facilities. (Id. ¶ 31.) In 1998, Menon, along with another nurse, Lurana Berweger, informed Ashman that the problems in the forensic clinic were continuing. (Id. ¶ 32.) FN4

FN4. However, we note that with respect to the claims alleged in the present case, the earliest allegation pertains to alleged constitutional violations in 1999. Con- sequently, the probative value of these facts will be assessed accordingly with re- spect to the present summary judgment motion.

In the spring of 1997, Menon met with Deputy County Executive Toni Murphy. (Id. ¶ 38.) She ex- plained the treatment problems occurring in the forensic clinic and provided memoranda that she had written to others in authority detailing the same problems. (Id.) Murphy told Menon that Joseph Rampe, who was the County Executive at the time, FN5 would be shocked by this information and that it would be dealt with after his re-election. (Id. ¶ 39.) In July 1998, Berweger wrote a letter to *389 Rampe outlining the same treatment problems she observed and included documentary support. (Id. ¶ 40.) According to plaintiffs, the County did not take any steps to rectify the alleged problems in the forensic clinic prior to the commencement of the present action.

FN5. Rampe was initially named as a de- fendant in this action, but this Court gran- ted his motion to dismiss the claims asser- ted against him. See Atkins v. County of Orange, 251 F.Supp.2d 1225, 1235 (S.D.N.Y.2003) (Conner, J.).

II. Defendants’ Contentions Regarding Alleged Treatment Failures

The County defendants contend adequate men- tal health treatment was available to plaintiffs. The forensic clinic at the Jail employs clinicians as seni- or caseworkers,FN6 staff social workers, support staff and a director, and contracts with psychiatrists

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who perform various consulting services. (County Defs. Mem. Supp. Summ. J. at 2.) In addition, the County contracted with Dr. Ramachandran in the Fall of 2001 to perform quality assurance reviews and with Dr. Fruchter in early 2002 to provide on- call emergency psychiatric services whenever the forensic clinic was closed. (Id.) With respect to each plaintiffs’ claims, the County defendants assert the following:

FN6. “The clinicians’ job responsibilities involved conducting initial client screen- ing, obtaining inmate medical records and verifying their medication, making refer- rals as needed to the psychiatrists, provid- ing counseling services, conducting group therapy sessions and providing discharge planning for inmate clients soon to leave the jail.” (County Defs. Mem. Supp. Summ. J. at 2.)

A. Atkins
Defendants maintain that “[a]lthough Atkins

does not recall the intake procedures, the records are clear that he was properly and promptly pro- cessed and his mental health care began immedi- ately upon admission.” (Id. at 57.) Atkins was ad- mitted to the Jail on April 16th and on the same day he was assessed in booking, referred for mental health services and placed on “close watch” until mental health could see him. He was then seen by medical staff which also made a mental health re- ferral. Atkins was seen by mental health on the 17th at which time a case file was opened and, with his consent, mental health received his records from prior treatment at Cornwall Hospital. (Id.) Atkins was also seen by a psychiatrist on the 17th. (Id. at 61.)

Notably, Atkins had no complaints about the medication he began taking at the Jail or the care he received from his mental health clinician, although plaintiffs’ expert did state that the dosage Atkins was receiving was “woefully inadequate.” (Id. at 58; Thornton Affm., Ex. 29.) Rather, Atkins’s claim centers around an incident which occurred on April

18th after Atkins was yelling and screaming uncon- trollably in his cell. The forensic clinic records in- dicate that Atkins was seen by his case worker after being brought to the clinic from medical on the 18th shortly after the incident occurred and re- turned to his cell within one and one-half to two hours of being brought to the medical unit. (County Defs. Mem. Supp. Summ. J. at 59, 61.) In addition, defendants note that while Atkins alleges that the clinic refused to provide him with his medication, the medical records demonstrate that it was Atkins, himself, who did not follow up with the care re- commended by Cornwall Hospital. Therefore, de- fendants contend that Atkins was provided with constitutionally adequate mental health treatment.

B. Dawn Brown
Defendants maintain that each of the five times

Dawn Brown was incarcerated and alleged constitu- tional deprivations, she was a patient of the mental health clinic and “received timely and appropriate care *390 …, even when she refused to be treated by medical and mental health staff.” (Id. at 63.) With respect to Dawn Brown’s April 19, 2000 in- carceration, she was immediately evaluated for mental health issues and was referred to mental health. (Id.) She was also placed on “close watch” until she could be seen by a mental health profes- sional. (Id.) The forensic records indicate that Dawn Brown requested mental health services and signed a voluntary application to the mental health clinic on April 20, 2000, and that she was seen in the mental health clinic by a mental health clinician and a psychiatrist for evaluation on that same day. ( Id. at 64.) Dawn Brown was again seen by a mental health clinician on April 24th and the clinician’s notes indicate that this was the third time she had seen Brown since her arrival at the Jail. (Id. at 65.) In addition, Dawn Brown also saw the psychiatrist again, which was the second time in five days. (Id.) During this incarceration, Dawn Brown did not suf- fer, nor does she allege any injury or harm.

With respect to the other incarcerations, de- fendants contend that the record is replete with ex-

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amples of how defendants attended to Dawn Brown’s medical and mental health needs with con- stant supervision and counseling. Dawn Brown al- leges that during her incarceration which began on October 31, 2000, she tried to hang herself. However, defendants note that there are no allega- tions that Dawn Brown did not receive proper and adequate mental health care during this particular incarceration. (Id. at 66.) Upon admission, Dawn Brown’s mental health was screened by corrections officers and an “urgent/emergency” referral was made to mental health. (Id.) She was observed to be at an “elevated” risk for suicide and was placed on “close watch” in a “strip cell.” FN7 (Id.) Dawn Brown was seen by a psychiatrist and mental health case worker on the day she was admitted to the Jail. (Id.) Medication was prescribed for her by the psy- chiatrist, and she was directed to return to the clinic for follow-up in three weeks. The medication ad- ministration chart indicates that Dawn Brown was given her medication regularly. (Id. at 66-67.) Dawn Brown was seen by her mental health case worker and psychiatrist on two subsequent occa- sions after her initial screening at the clinic. The al- leged attempted hanging by Dawn Brown occurred on November 24, 2000. Dawn Brown was found by corrections staff sitting on her bed with a sheet around her neck, not hanging. (Id.) Corrections staff removed Dawn Brown from her cell, placed her in a protective “strip cell” and put her on “extreme close watch” until she could be evaluated and seen by someone from mental health. Dawn Brown was seen by her mental health case worker on November 27, 2000, and the mental health case worker noted that Dawn Brown admitted to her that “ ‘she wasn’t seriously considering suicide, she just wanted somebody’s attention.’ ” (Id.)

FN7. A “strip cell” is a cell where all ob- jects that could be used by an inmate to harm oneself are removed. (Id.)

Dawn Brown was next incarcerated from March 12, 2001 until March 19, 2001. There are no allegations of constitutional deprivations during

this incarceration other than the statement that Dawn Brown was again incarcerated and treated by the forensic clinic. (Id. at 68.) Dawn Brown was screened in booking for mental health issues and was put on “close watch” with a referral to mental health. She was seen by a psychiatrist and mental health caseworker the next day and medication was *391 prescribed for her by the psychiatrist. (Id.)

Dawn Brown was incarcerated again on March 26, 2001. She was immediately screened in booking for mental health issues and was placed on “close watch” with an urgent referral to mental health. (Id. at 69.) The medical charts indicate that while Dawn Brown was in the booking unit she began “acting out” and was placed in the “bullpen” which was a cell under constant supervision by correction of- ficers. The medical progress notes indicate that Dawn Brown was placed in a restraint chair with a helmet on her head, but defendants note that “[t]hese devices are used only by corrections staff when an inmate exhibits conduct that presents a danger to herself and others and requires restraint to prevent injury to herself or others.” FN8 (Id. at 70.) Dawn Brown was in the restraints for a little more than one hour. (Id.) The following day, March 27, Dawn Brown was seen by a mental health clinician, but she later refused to be seen by a psychiatrist and refused all mental health services. (Id.) She also re- fused to submit to an intake medical/mental health screening, but it was eventually conducted on March 28. (Id.) Dawn Brown was released from the Jail on April 2, 2001.

FN8. Use of a restraint chair is sanctioned by the State Commission of Correction. ( Id. at 70.)

The last incarceration in which Dawn Brown alleges constitutional deprivations began on April 4, 2001. (Id. at 71.) She was screened at booking for mental health problems and a referral was made to the mental health clinic. She was then taken to the medical unit, where it was again attempted to assess her mental health, but Dawn Brown refused. “She was observed to be ‘screaming, shaking-

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banging at cell door’ and was referred to mental health and to a psychiatrist and placed in medical keeplock and close watch.” (Id. at 72.) Dawn Brown refused medical intake and was kept in med- ical “keeplock” until April 17 when she agreed to be screened and tested. “Until then, additional ef- forts to persuade Brown to be seen in medical on several occasions between April 7 and April 10 were rebuffed proving false the allegation that after April 4 there was ‘no further effort to provide her treatment.’ ” (Id.) On April 12, Dawn Brown was seen by a nurse at her cell, and it is alleged that she screamed and lunged at the nurse. Defendants also maintain that Dawn Brown was observed by the corrections staff to be “shaking” and “banging at [the] cell door.” (Id.) Corrections then made a refer- ral to mental health, and Dawn Brown was seen by a mental health clinician, Jane Tiller. Tiller repor- ted to corrections that Dawn Brown was “getting worse-loud, banging her head, refusing all medical services.” (Id.) The corrections staff then decided that Dawn Brown needed to be restrained, and she was placed in the restraint chair for about two to three hours. (Id. at 73.) While in the restraint chair, a nurse tried to assess Dawn Brown’s condition sev- eral times, but was resisted. A report of the incident was filed with the State Commission of Correction. (Id. at 73.) On April 12, Dawn Brown submitted to an examination by the staff psychiatrist and medic- ation was prescribed for her. Defendants note that even though Dawn Brown failed to voluntarily re- quest mental health services, she was seen by a mental health clinician on April 13, April 16 and April 19, “each time in connection with disruptive and non-compliant misconduct.” (Id.) Dawn Brown was seen by a psychiatrist on April 25, who noted that she was refusing all medication. (Id.) On April 26, Dawn Brown threw feces and urine under her cell door and was placed in a restraint chair for her safety. *392 Defendants maintain that she was im- mediately attended to by a staff psychiatrist “who found her to be ‘agitated and uncontrollable’ and had smeared feces ‘all over’ and ‘needed to be re- strained.’ ” (Id.) The staff psychiatrist then admin- istered a STAT dose of Ativan, which was consist-

ent with the emergency and accepted medical prac- tice. (Id.) Dawn Brown admits that she banged her head against the wall and that this was the cause of her being restrained and given an injection of Ativan. (Id. at 74.) She also admits that she was “agitated” before the injection, and that after the in- jection she stopped banging her head and was able to sleep. (Id.) There are no further allegations by Dawn Brown regarding her mental health care after April 26, 2001.

A court-ordered psychiatric examination was conducted on May 4, 2001 to determine Dawn Brown’s competency pursuant to Article 730 of the Criminal Procedure Law. (Id.) As a result of the ex- amination, on May 16, 2001, Dawn Brown was found to be an incapacitated person and was re- manded to the custody of the State Commissioner of Mental Hygiene. (Id.) On or about May 16, 2001, Dawn Brown was discharged from the Jail and transferred to the Middletown Psychiatric Cen- ter. (Id.) Defendants contend that although on nu- merous occasions Dawn Brown refused medication and mental health care, defendants met their obliga- tion to provide access to care and continued to monitor her mental and physical condition, despite her refusal for such care. (Id. at 75.)

C. Croci
Defendants contend that Croci received ad-

equate mental health care and was seen by case workers and a psychiatrist on numerous occasions. (Id. at 42.) According to defendants, each time the medical staff or nurses reported Croci was acting strange or refusing his medications, he was referred to and seen by a psychiatrist. (Id. at 43.) Further, al- though Croci alleges that he requested his medica- tions be changed, defendants note that there is no constitutional obligation to accommodate such a re- quest. (Id. at 44.) Defendants also note that despite the fact that Croci met with his psychiatrist on nu- merous occasions, he made “no mention of side ef- fects and certainly no mention of somnolence or a stupor.” (Id.) In addition, defendants maintain that Croci’s “extensive treatment record [in 1999] docu-

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ments that Croci was not in a ‘stupor’ or ‘state of somnolence’ ” as the complaint alleges, nor does the record indicate Croci complained to anyone about nausea or dizziness. (Id. at 47.)

With respect to Croci’s incarceration during 2001, his forensic clinic case was opened a day after he was admitted to the Jail, he saw a psychiat- rist that same day and was diagnosed with “bipolar disorder depressed” and medication was prescribed. (Id. at 49.) Croci refused all medications, so medic- al suggested counseling which he received. (Id. at 50.) In addition, defendants note that, despite Croci’s allegations to the contrary, the records re- veal that Croci was seen repeatedly by both clini- cians and a psychiatrist during July and August 2001. (Id. at 56.)

D. Grassfield
Defendants maintain that Grassfield was

provided with adequate mental health treatment and the fact that he attempted suicide does not create an issue of fact with respect to the constitutionality of the care provided to him. FN9 (Id.) Grassfield *393 was appropriately screened in booking by correc- tions and was referred to mental health as a result of his high score on the Jail’s suicide screening. (Id. at 25.) He was then seen by a nurse, who also re- ferred him to mental health. On the day Grassfield entered the jail, he was seen by a licensed social worker in the forensic clinic and his mental health case was opened. (Id.) The social worker obtained “Grassfield’s consent for services, completed a de- tailed intake assessment and also obtained Grassfield’s consent to obtain information from pro- viders of services on the outside in order to verify his medication and treatment history.” (Id. at 26.) Defendants also note that “Grassfield acknowledges the propriety of the jail’s policy of not permitting inmates to take their own medication and the need to obtain verification from previous providers.” (Id. )

FN9. Defendants note that “Grassfield made numerous suicide attempts before and after his incarceration while under

psychiatric care and on psychotropic drugs.” (Id. at 27.)

The social worker referred Grassfield for a psy- chiatric consult and recommended he be “monitored more closely” in the mental health housing unit. The records indicate that Grassfield saw a psychiatrist on January 14, 2002, three days after he was admitted to the Jail. (Id.) In addition, the medication administration record reveals that Grassfield began receiving his medication on Janu- ary 16, which was five days after he was admitted and two days after he saw the psychiatrist. (Id. at 27.) Notably, during the period of time that Grassfield was not taking any medication, he took no action to harm himself, others or property, nor did he suffer any apparent ill effects. In fact, during that time, Grassfield was on “close watch” which protected him until he was seen by the psychiatrist. (Id.)

Moreover, with respect to the alleged February 4th suicide attempt, which defendants contend plaintiff has since admitted was a “joke,” Grassfield was seen immediately by a case worker in the men- tal unit and referred to a psychiatrist for evaluation. (Id. at 28.) Grassfield was then counseled by the psychiatrist and had his medication adjusted. (Id.) As a result of the February 10th suicide attempt, Grassfield was immediately seen by medical per- sonnel at the Jail and then taken to Arden Hill Hos- pital where he was evaluated and examined. He was then sent to Middletown Psychiatric Center where he spent three days. (Id. at 29.) When Grassfield re- turned to the Jail, he was seen by the psychiatrist for a “suicide evaluation” and was counseled and medication was prescribed. (Id.) Each time Grassfield requested to see a doctor, he was seen, and he continuously met with his caseworker for counseling. (Id.) Furthermore, Grassfield “received a detailed discharge plan which … he felt was more than adequate.” (Id. at 30.) Defendants maintain that Grassfield “clearly benefitted from procedures in place at the forensic clinic in that he participated in group and individual therapy and was given

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ready access to a psychiatrist.” Defendants also maintain that their response to Grassfield’s suicide attempts were appropriate, as was the discharge plan. (Id.) Thus, defendants contend that “the forensic clinic had in place all necessary policies and staff to care for his mental health needs.” (Id. at 31.)

E. Kracht
Defendants contend that Kracht’s mental health

case was opened the same day he was admitted to the Jail, and although Kracht alleges that it took nine days to get his medication, he was on “close watch” during that period and he admits that “he took no action to harm himself or others.” (Id. at 32.) Defendants contend that this is due, “presumably, at least in part to the beneficial ef- fects of [the] intense level of supervision.” (Id.) De- fendants maintain that a review of Kracht’s chart for the *394 period in which he alleges that his consti- tutional rights were violated indicates that he was seen by his clinician/case worker on numerous oc- casions, consulted with clinic psychiatrists sixteen times and participated in group therapy about twenty times. In addition, defendants allege that while Kracht may have complained about his med- ication, these complaints were addressed by the clinic. (Id.)

Further, defendants note that Kracht was sen- tenced “more than fifteen times” and had been a pa- tient of the clinic during his prior incarcerations, but challenges how he was treated during only this sentence. (Id. at 31.) Defendants maintain that dur- ing the period about which he complains, Kracht was treated “with the same or substantially similar medications” that were administered to him during his prior incarcerations. (Id. at 32.)

F. Bellotto
Defendants maintain that Bellotto had a prior

history of hospitalization for depression, about which the Jail was advised, and that Bellotto was depressed at the time of his admission. (Id. at 17.) Bellotto saw a psychiatrist during his incarceration who diagnosed him with depression and prescribed

Paxil and supportive therapy. (Id.) Therefore, de- fendants contend that “[a]s far as the forensic clinic was concerned a depressed inmate was referred to it by medical, he consented to care, was screened by a clinician and seen by a psychiatrist whose medical judgment resulted in a Paxil prescription. The clinic received no complaints from the inmate, corrections or medical with respect to adverse side effects, as- suming there were any.” (Id. at 18.) Additionally, defendants note that Bellotto suffered no ill effects from taking Paxil, and “[t]he allegation that it made him sleep a lot, even if true, is insufficient to satisfy the Eighth Amendment standard for deficient men- tal health care.” (Id. at 19.)

G. Jane Brown
Defendants maintain that Jane Brown’s forensic

clinic file was opened within three days of her ad- mission and she was seen by a psychiatrist who dia- gnosed her with a “depressive disorder, NOS and polysubstance abuse.” (Id. at 20.) She was then pre- scribed medication which was “standard” for her condition, and she “expressed no objection to the doctor with respect to these medications.” (Id. at 21.) Further, with respect to Paxil, the medication administration record notes that she received it whenever she wanted it with the exception of three times and that she refused to take it twelve times. ( Id. at 22.)

In addition, defendants note that Jane Brown “thrived during her short stay in jail” in that she completed her GED, read numerous books, atten- ded special programs in the evening, participated fully in available activities and “there was nothing about her medication that made her ill or prevented her from taking advantage of these programs.” (Id. at 21.) Further, when Jane Brown informed the forensic clinic that she sometimes missed her med- ication because of school, her prescription was changed to bedtime rather than the morning to ac- commodate her. (Id.) Moreover, she told the doctor during a routine check-up, three weeks after her ini- tial visit, that she was “presently less depressed.” ( Id.) Additionally, defendants note that the one time

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Jane Brown submitted a request for mental health services, she was seen immediately by her case- worker who then referred her to the psychiatrist. ( Id.)

Lastly, with respect to the claim that Jane Brown was not provided any discharge planning, defendants maintain that she herself decided not to continue with the medication or go for follow-up care *395 despite the fact that post-release treat- ment was discussed with her doctor prior to her re- lease. (Id. at 23.) Thus, defendants maintain that Jane Brown “did well while incarcerated and can point to no ill effect from anything that occurred as a result of her treatment by the clinic” and that any withdrawal symptoms from the medications “was self-induced” because she “voluntarily avoided compliance with the forensic clinic’s post-release treatment recommendation.” (Id.)

III. Present Motion
In the present motion, defendants move to pre-

clude the testimony of plaintiffs’ expert and for summary judgment. In addition, defendants move for severance of plaintiffs’ claims.

DISCUSSION
I. Motion to Preclude Plaintiffs’ Expert

[1][2] FED. R. CIV. P. 26 requires that parties disclose the identity of a witness who is retained or employed to provide expert testimony. FED. R. CIV. P. 26(a)(2)(A). In particular, Rule 26 provides that the disclosure include a written report prepared and signed by the expert witness which

shall contain a complete statement of all opinions to be expressed and the basis and reasons there- for; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, in- cluding a list of all publications authored by the witness within the preceding ten years; the com- pensation to be paid for the study and testimony; and a listing of any other cases in which the wit- ness has testified as an expert at trial or by depos-

ition within the preceding four years.

FED. R. CIV. P. 26(a)(2)(B). “[A report is de- ficient if it] fails to include any of the underlying conclusions on which the expert’s ultimate opinions are based. Bald conclusions on the ultimate issues do not alone amount to a ‘detailed and complete written report’ of the expert’s expected testimony…. [A report is also deficient if it] fail[s] to set forth ‘a complete statement’ of the ‘basis and reasons’ for [the] expert['s] opinions.” Giladi v. Strauch, No. 94 Civ. 3976, 2001 WL 388052, at *4-5 (S.D.N.Y. Apr.16, 2001) (citing Rule 26(a)(2)(B) Advisory Committee’s Notes on 1993 amend.) (internal cita- tions omitted); see also Bristol-Myers Squibb Co. v. Rhône-Poulenc Porer, Inc., No. 95 Civ. 8833, 2000 WL 356412, at *1 (S.D.N.Y. Apr. 5, 2000) (recognizing that an expert’s report should be “ ‘detailed and complete … stating the testimony the witness is expected to present during direct examin- ation, together with the reasons therefor’ ”) (quoting Rule 26(a)(2)(B) Advisory Committee’s Notes on 1993 amend., ¶ 2). Rule 26 further provides that “[i]n the absence of other directions from the court or stipulation by the parties, the dis- closures shall be made at least 90 days before the trial date or the date the case is to be ready for tri- al.” FED. R. CIV. P. 26(a)(2)(C).

[3][4] Rule 37 authorizes courts to impose sanctions when a party does not comply with the Federal Rules of Civil Procedure pertaining to dis- covery. See Point Prods. A.G. v. Sony Music Entm’t, Inc., No. 93 Civ. 4001, 2004 WL 345551, at *9 (S.D.N.Y. Feb.23, 2004). Rule 37 is self- executing and “[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial … any witness or information not so disclosed.” FED. R. CIV. P. 37(c)(1). The exclusion of undisclosed information is automatic*396 and the non- disclosing party has the burden to demonstrate that the failure to disclose was substantially justified or that the failure was harmless. See Middle Mkt. Fin.

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Corp. v. D’Orazio, No. 96 Civ. 8138, 2002 WL 31108260, at *4 (S.D.N.Y. Sept.23, 2002) (“The ‘automatic sanction’ for a violation of Rule 26(a) is preclusion.”); see also Giladi, 2001 WL 388052, at *1, 3 (“[P]reclusion is appropriate unless there is ‘substantial justification’ or the failure to make dis- closure is harmless.”); Potter v. Phillips, No. 03 Civ. 4942, 2004 WL 3250122, at *2 (E.D.N.Y. Mar.28, 2004). However, the imposition of sanc- tions under this rule is discretionary, and preclusion is not generally ordered. See Semi-Tech Litig. LLC v. Bankers Trust Co., 219 F.R.D. 324, 325 (S.D.N.Y.2004); see also Babcock v. Rezak, No. 96 Civ. 0394, 2002 WL 31654995, at *1 (W.D.N.Y. Nov. 6, 2002) (noting that the preclusion of expert testimony is “ ‘a drastic remedy and should only be applied in those rare cases where the party’s con- duct represents bad faith and callous disregard of the Federal Rules of Civil Procedure’ ”) (quotations omitted). The Second Circuit has stated that the fol- lowing factors are relevant in the determination of whether preclusion is appropriate: “(1) the party’s explanation for the failure to comply with the dis- covery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Softel, Inc. v. Dragon Med. & Scientific Comm., Inc., 118 F.3d 955, 961 (2d Cir.1997) (citing Outley v. City of New York, 837 F.2d 587, 590-91 (2d Cir.1988)).

[5] In the case at bar, defendants seek to pre- clude plaintiffs from offering the expert witness testimony of Dr. Patrice Harris and evidence related thereto. (Defs. Mem. Supp. Preclusion at 1.) De- fendants maintain that plaintiffs’ Rule 26(a)(2) dis- closure concerning Dr. Harris is deficient on the ground that the report was neither detailed nor com- plete and was based only on a preliminary review. ( Id. at 2, 3.) According to defendants, the report contains only conclusory statements by Dr. Harris without any basis for her conclusions. (Id. at 2.) For instance, defendants direct the Court’s attention to the fact that Dr. Harris’s report, with respect to four

of the six plaintiffs, notes “inappropriate use of punishment for inmates with mental illness” without providing any further explanation. (Id.) In addition, the report fails to identify what, if any cases, Dr. Harris has previously testified in the pre- ceding four years, a requirement pursuant to FED. R. CIV . P . 26(a)(2)(B).FN10 (Defs. Mem. Supp. Preclusion at 3.)

FN10. Plaintiffs, however, in their re- sponse papers note that Dr. Harris has only testified in one case during the relevant time frame. (Pls. Mem. Opp. Preclusion at 3.) In addition, plaintiffs note that their ex- pert should not be precluded on the basis of this minor omission, “particularly [because] defendants never sought to take her deposition.” (Id.)

Plaintiffs respond to defendants’ motion to pre- clude the testimony of Dr. Harris by noting that de- fendants never asked plaintiffs to supplement the report, nor did they raise any objections to the re- port, even though they have had it in their posses- sion for over a year. (Pls. Mem. Opp. Preclusion at 2.) In addition, defendants never sought to take Dr. Harris’s deposition. (Id.) Further, plaintiffs assert that “[a]lthough concise, Dr. Harris’s report con- tains a complete statement of her opinions and bases therefor, while noting the materials she re- viewed in forming her opinions.” (Id.) In addition, plaintiffs correctly point out that Local Rule 37.2 provides that “[n]o motion under Rules 26 through 37 … shall be heard unless counsel for *397 the moving party has first requested an informal con- ference with the court and such request has either been denied or the discovery dispute has not been resolved as a consequence of such a conference.” ( Id. at 5.) Here, defendants never raised any objec- tion to plaintiffs’ expert’s report either to the Court or plaintiffs prior to the present motion. (Id.)

Consequently, while we agree with defendants that Dr. Harris’s report is deficient and fails to com- ply fully with Rule 26, upon consideration of the factors outlined by the Second Circuit in Softel, we

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do not believe preclusion is the appropriate remedy. First, plaintiffs contend that Dr. Harris’s report does comply with Rule 26 and, to the extent that it does not, they were unaware because defendants never made any objections nor did they request that the report be supplemented. In addition, Dr. Harris’s testimony is essential to plaintiffs’ case, and while defendants may be prejudiced by the deficient re- port, they had over a year to object to the report; thus, any prejudice is a result of their tactical de- cision to wait until a few months before trial to seek preclusion. Furthermore, plaintiffs annexed a de- claration by Dr. Harris to their opposition papers further detailing her conclusions with respect to the care provided to each plaintiff and her bases for those conclusions. We also note that plaintiffs are willing to make Dr. Harris available for deposition by defendants prior to trial if necessary. Accord- ingly, defendants’ motion to preclude plaintiffs’ ex- pert witness is denied.

II. Motion for Summary Judgment A. Summary Judgment Standard

Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judg- ment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The burden rests on the movant to demonstrate the ab- sence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether sum- mary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual infer- ences against the movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. To defeat summary judg- ment, the nonmovant must go beyond the pleadings and “do more than simply show that there is some metaphysical doubt as to the material facts.” Mat- sushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court’s role at this stage of the litigation is not to decide issues of material fact, but to dis- cern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994).

B. Individual CO Defendants
The CO defendants move for summary judg-

ment with respect to plaintiffs Croci, Grassfield and Dawn Brown, on the basis that they have failed to demonstrate that the individual COs used excessive force against them in violation of their constitution- al rights. (CO Defs. Mem. Supp. Summ. J. at 4-5.)

[6][7][8][9][10][11][12] The Eighth Amend- ment, which applies to the states through the due process clause of the Fourteenth Amendment, pro- hibits the infliction of “cruel and unusual punish- ment” including the “unnecessary and wanton in- fliction of pain.” See Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); *398Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). An Eighth Amend- ment claim of cruel and unusual punishment con- sists of two components: (1) a subjective compon- ent which focuses on the defendant’s motive for his conduct; and (2) an objective component which fo- cuses on the conduct’s effect. See Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000). The subjective compon- ent “requires a showing that the defendant ‘had the necessary level of culpability, shown by actions characterized by “wantonness” in light of the par- ticular circumstances surrounding the challenged conduct.’ ” Id. at 21 (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999) (quoting Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991))). In excessive force cases, “wanton” conduct involves force that is applied “maliciously and sadistically to cause harm” as op- posed to force that is “applied in a good-faith effort to maintain or restore discipline.” Hudson v. Mc- Millian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); see also Blyden, 186 F.3d at 262-63. “To determine whether defendants acted mali-

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ciously or wantonly, a court must examine several factors including: the extent of the injury and the mental state of the defendant, as well as ‘the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any ef- forts made by the defendants to temper the severity of a forceful response.’ ” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (quoting Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) (citations omitted)). The objective component of an Eighth Amendment violation claim requires that the violation be “ ‘sufficiently serious’ by objective standards.” Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir.1999). “The objective component … is … con- textual and responsive to ‘contemporary standards of decency.’ … When prison officials maliciously and sadistically use force to cause harm, contem- porary standards of decency always are violated.” Hudson, 503 U.S. at 8-9, 112 S.Ct. 995. A showing of extreme injury is not required to bring an excess- ive force claim against prison officials; however, “ ‘de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind’ ” are not actionable as a vi- olation of the Eighth Amendment. Sims, 230 F.3d at 21-22 (quoting Hudson, 503 U.S. at 10, 112 S.Ct. 995).

With the above principles in mind, we will now examine the excessive force claims of the plaintiffs as to which the CO defendants seek summary judg- ment.

1. Croci’s Excessive Force Claims
[13] Croci alleges that on June 16, 2001 he was

so severely beaten by COs Daniel Figueroa, Mi- chael Andricut and Edward Craven during a manic/ psychotic episode that he required treatment at the Arden Hill Hospital Emergency room. (CO Defs. Mem. Supp. Summ. J. at 5.) Defendants maintain that summary judgment is warranted on this claim because neither Figueroa nor Andricut were work- ing on June 16, 2001. (Id.) In support of this claim, defendants offer affidavits from Andricut and

Figueroa and corresponding employment records which indicate that both officers were not working on June 16, 2001. (Id.) In addition, Croci has stipu- lated to discontinue with prejudice any claims he may have had against the only remaining individu- ally named CO involved in this claim, Craven, who is deceased. (Burke Affm., Ex. D.)

[14] A plaintiff may recover under § 1983 against any individual acting under the color of state law who has caused him or her to be deprived “of any rights, privileges, or immunities secured by the Constitution*399 and laws” of the United States. 42 U.S.C. § 1983; see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (“To state a claim for relief in an action brought under § 1983, [plaintiff] must established that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was com- mitted under color of state law.”). However, absent personal involvement, an individual defendant can- not be liable under § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). The Second Circuit has made clear that an individual defendant is deemed to be personally involved in a section 1983 viola- tion if:

(1) the defendant participated directly in the al- leged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or al- lowed the continuance of such a policy or cus- tom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited de- liberate indifference to the rights of inmates by failing to act on information indicating that un- constitutional acts were occurring.

Madison v. Mazzuca, No. 02 Civ. 10299, 2004 WL 3037730, at *6 (S.D.N.Y. Dec.30, 2004) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Wright, 21 F.3d at 501)).

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Consequently, because Croci has dismissed his claim against officer Craven and has not provided any evidence of individual involvement on the part of Figueroa or Andricut, summary judgment is war- ranted with respect to Croci’s excessive force and failure to intervene claims.

2. Grassfield’s Excessive Force Claims
Grassfield alleges that after a suicide attempt

while incarcerated at the Jail, he was subjected to excessive force by COs at the Jail. According to Grassfield,

officers opened his cell and a sergeant (DiChairo) grabbed the sheet which was still wrapped around Grassfield’s neck and “yanked” him out of the cell. Officers Pastor and Sotelo grabbed Grassfield’s arms, threw them behind his back and handcuffed him. Grassfield then heard someone say, “get him the fuck out of here.” Pas- tor and Sotelo picked up Grassfield (with his feet “dangling behind” him) and these officers “slammed, slammed hard as they possibly could into the door.” While “purposely” slamming Grassfield’s head into the door, Pastor called him a “stupid mother fucker.”

(Pls. Mem. Opp. Summ. J. at 52 (quoting Grassfield Dep. at 145-46, 149-50).) Grassfield al- leges that he “was slammed into doors and walls at least three separate times and he suffered severe pain in his shoulders which lasted between three and five days.” (Id. at 52-53 (quoting Grassfield Dep. at 158, 163).)

[15] Defendants, however, maintain that with regard to this incident, Grassfield had attempted to hang himself from a sheet attached to the sprinkler system, but because of his size,FN11 the sprinkler head broke off and water sprayed out filling Grassfield’s cell. (Id.) Grassfield testified at his de- position that it seemed like “8,000 gallons” of wa- ter were filling his cell. (Grassfield Dep. at 142-43.) Consequently, defendants contend that when Grassfield alleges he was slammed into doors *400 and walls as the COs transported him to the mental

health unit, what actually transpired was that Sotelo and Pastor “were slipping in the water and, as [a] result of their slipping, Grassfield was thrown against the wall.” (CO Defs. Mem. Supp. Summ. J. at 8.) In addition, defendants maintain that Russell and DiChiaro were not involved in transporting Grassfield to the mental health unit; and therefore cannot be liable for the alleged excessive force be- cause they were not personally involved.FN12

FN11. Grassfield is 6′ 8″ and 230 pounds. (CO Defs. Mem. Supp. Summ. J. at 8.)

FN12. It should be noted that Grassfield does not object to the dismissal of CO de- fendant Russell from this action. (Pls. Mem. Opp. Summ. J. at 53 n. 5.) Accord- ingly, all claims against Russell are dis- missed with prejudice. With respect to Grassfield’s claims against DiChairo, plaintiffs have not provided sufficient evidence to maintain an excessive force claim against DiChairo. Plaintiffs have offered no evidence as to DiChairo’s per- sonal involvement in the alleged constitu- tional violations other than the conclusory statement that “DiChairo assaulted him maliciously” and that DiChairo “yanked” Grassfield out of the cell after Grassfield tried to hang himself. (Pls. Mem. Opp. Summ. J. at 56; Pls. Rule 56.1 Stmt. ¶ 88.) It is uncontested that COs Pastor and Sote- lo were the officers who transported Grassfield to the mental health unit when the alleged excessive force occurred, al- though plaintiffs do allege that DiChairo accompanied Pastor and Sotelo as they transported Grassfield to the mental health unit. (CO Defs. Reply Mem. Supp. Summ. J. at 9; Pls. Rule 56.1 Stmt. ¶ 93.) Con- sequently, all claims against DiChairo are dismissed without prejudice because plaintiffs have not provided sufficient evidence with respect to DiChairo’s per- sonal involvement in the alleged excessive

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force which occurred as Grassfield was be- ing transported from his cell to the mental health unit.

a. Adequacy of Grassfield’s Excessive Force Claim

[16] Grassfield must demonstrate that both the subjective and objective components of an excess- ive force claim under the Eighth Amendment are met. As discussed above, the objective component “ ‘focuses on the harm done,’ ” and the “ ‘amount of harm that must be shown depends on the nature of the claim.’ ” Sales v. Barizone, No. 03 Civ. 6691, 2004 WL 2781752, at *11 (S.D.N.Y. Dec. 2, 2004) (quoting Sims, 230 F.3d at 21). A court may con- sider “ ‘the need for application of force,’ ” “ ‘the relationship between the need and the amount of force used, the threat reasonably perceived’ ” by the guards as well as “ ‘any efforts made to temper the severity of a forceful response.’ ” Sales, 2004 WL 2781752, at *11 (quoting Hudson, 503 U.S. at 7, 112 S.Ct. 995). In addition, the subjective com- ponent requires that Grassfield demonstrate that the CO defendants acted with a “ ‘malicious or sadist- ic’ state of mind since ‘decision[s] to use force [are] generally made in haste, under pressure, and frequently without the luxury of a second chance.’ ” Sales, 2004 WL 2781752, at *11 (quoting Trammell v. Keane, 338 F.3d 155, 162 (2d Cir.2003)). “Excessive force does not, in and of itself, establish malice or wantonness for Eighth Amendment pur- poses;” thus, Grassfield must demonstrate that Pas- tor and Sotelo acted with the necessary level of culpability. Romano, 998 F.2d at 106.

[17][18] Grassfield alleges that he suffered severe pain in his shoulder which lasted three to five days. While this does not appear to be a serious injury, it is not de minimis as a matter of law. See, e.g., Evering v. Rielly, No. 98 Civ. 6718, 2001 WL 1150318, at *6 (S.D.N.Y. Sept.28, 2001) (finding that injuries such as bruises, knot in back, soreness and redness in vaginal area and knife wound on right arm were not de minimis as a matter of law); Griffin, 193 F.3d at 92 (finding a bruised shin and

swelling over left knee were not de minimis as a matter of law); *401Miner v. Ramsey, No. 99 Civ. 11661, 2001 WL 540746, at *3 (S.D.N.Y. May 22, 2001) (denying summary judgment where plaintiff’s injuries included bruised and swollen wrist). It should also be noted that at the time of the alleged incident, Grassfield was handcuffed. If the incident occurred as plaintiff described it, it clearly violates “contemporary standards of decency;” thus, “[w]hether [Grassfield's] injuries were sufficiently serious as to satisfy the objective element of [his] excessive force claims is for the jury to decide.” Evering, 2001 WL 1150318, at *6. Accordingly, we conclude that Grassfield has established that the ob- jective component of his excessive force claims has been met to the extent of surviving summary judg- ment.

[19][20] With respect to the subjective com- ponent, Grassfield maintains that the CO defend- ants’ “wanton” state of mind is demonstrated by the COs’ comments such as “get him the fuck out of here” and calling Grassfield “a stupid motherfuck- er” while “purposely” slamming his head into the door. (Pls. Mem. Opp. Summ. J. at 52-53.) In addi- tion, as mentioned above, Grassfield was hand- cuffed at the time of the alleged incident and there- fore was not a threat to the COs’ safety or to the maintenance of order at the Jail. Although Pastor and Sotelo assert that they were slipping on the wa- ter and were not purposely trying to have Grassfield’s body hit the walls, this is a motion for summary judgment and we must consider all facts in a light most favorable to the non-moving party. Consequently, there exists a genuine issue of fact concerning the amount of force used by the COs and the intent with which it was applied, e.g., whether Pastor and Sotelo’s use of force was mali- cious. Courts in this district decline to dismiss com- plaints alleging excessive force even at the sum- mary judgment stage if “conflicts exist in the record regarding the degree and justification of force.” Evering, 2001 WL 1150318, at *7 (collecting cases). Accordingly, the CO defendants’ motion for summary judgment is denied with respect to

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Grassfield’s excessive force claim.FN13 However, we must now determine whether the defendants are shielded from liability under the doctrine of quali- fied immunity.

FN13. Although the CO defendants main- tain that Grassfield cannot establish suffi- cient injury under the Prisoner Litigation Reform Act (the “PLRA”) and therefore should be precluded from introducing evidence of emotional or psychological in- juries, Grassfield has not alleged any emo- tional or psychological injuries as a result of the alleged excessive force. (CO Defs. Mem. Supp. Summ. J. at 13.) Accordingly, the Court need not consider these argu- ments.

b. Qualified Immunity
[21][22][23] As a general rule, law enforce-

ment officers are entitled to qualified immunity if: (1) their conduct does not violate clearly estab- lished constitutional rights; or (2) it was objectively reasonable for them to believe that their acts did not violate those rights. Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir.1994), cert. denied, 513 U.S. 1076, 115 S.Ct. 721, 130 L.Ed.2d 627 (1995). It is indisput- able that freedom from the use of excessive force is a clearly established constitutional right. The issue is whether it was objectively reasonable for the CO defendants to believe that their acts did not violate Grassfield’s right to be free from the use of excess- ive force. Although this inquiry requires a focus on the particular facts of the case, the Second Circuit has held that a defendant is entitled to summary judgment on qualified immunity grounds only when

“no reasonable jury, looking at the evidence in the light most favorable to, and drawing all infer- ences most favorable to, the plaintiffs, could con- clude that it was *402 objectively unreasonable for defendant [ ]” to believe that he was acting in a fashion that did not clearly violate an estab- lished federally protected right.

Robison v. Via, 821 F.2d 913, 921 (2d

Cir.1987) (quoting Halperin v. Kissinger, 807 F.2d 180, 189 (D.C.Cir.1986) (Scalia, J., sitting by des- ignation)).

In the case at bar, there is an issue of fact sur- rounding the circumstances of the alleged excessive force. Grassfield maintains that he was purposely slammed into walls by the COs on the way to the mental health unit, while defendants maintain that if Grassfield’s body did bump into any walls, it was an accident because the COs were merely slipping on water that was on the floor as a result of the broken sprinkler. These factual issues preclude summary judgment on the defense of qualified im- munity.

3. Dawn Brown’s Excessive Force and Conditions of Confinement Claims

Dawn Brown asserts three specific incidents of constitutional violations by eleven individual CO defendants. (Pls. Mem. Opp. Summ. J. at 49.) Two of the claims involve excessive force and failure to intervene allegations and the third claim involves allegations relating to the conditions of confine- ment.

a. Excessive Force
The first alleged incident occurred on April 12,

2001, when, according to the Complaint, she was assaulted by COs Serrano, Dominick, Curreri and Weissinger. FN14 (Pls. Mem. Opp. Summ. J. at 49.) Dawn Brown alleges that she was beaten, handcuffed, shackled and had her head placed in a helmet by CO defendants Serrano, Dominick and Curreri.FN15 (CO Defs. Mem. Supp. Summ. J. at 13.) Dawn Brown alleges that Dominick and Ser- rano entered her cell and forcibly restrained and handcuffed her after “psychotic” behavior and her refusal to calm down after she had demanded to see a doctor. (Pls. Mem. Opp. Summ. J. at 49.) Dawn Brown further alleges that while handcuffed and shackled, she was first taken to the mental health offices where she was seen by a staff social worker and was then taken by Dominick, Curreri and Ser- rano to the “bullpen” where she was forced into a restraint chair and helmeted for several hours. (Id.)

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According to plaintiffs, “[t]he nursing notes for the result, defendants contend that there is no evidence evening of April 12, 2001 document ‘bruising’ on of any kind to support the April 12, 2001 excessive Brown’s arm which was sustained earlier in the force claim and that the claims relating to this al- day.” (Id. at 49-50.) leged incident involving officers Dominick, Ser-

rano and Curreri should therefore be dismissed. (CO Defs. Mem. Supp. Summ. J. at 19.) We agree, and the claims by Dawn Brown against officers Dominick, Serrano and Curreri are hereby dis- missed.FN17

FN14. Although in the opposition papers
plaintiffs refer to an alleged unprovoked
assault against Dawn Brown by CO de-
fendants Sergi and Jones, there is no men-
tion of this incident in the Complaint, thus
the Court will not consider that claim. FN17. Although plaintiffs maintain that the

FN15. Although Dawn Brown alleges ex- cessive force claims against CO Weissing- er in the Complaint, the parties have since stipulated to the dismissal of Weissinger from this action with prejudice. (Burke Af- fm., Ex. D.)

The second incident alleged by Dawn Brown occurred on April 26, 2001, and she alleges that she was placed in a restraint chair, beaten, handcuffed, shackled and helmeted by CO defendants Zappolo, Ferreri, Conklin and Pelton.FN16 (CO Defs. Mem. Supp. Summ. J. at 13-14.) Dawn *403 Brown al- leges that she was beaten by officers Conklin and Pelton as she was forced into the restraint chair and then helmeted while in the restraint chair. (Pls. Mem. Opp. Summ. J. at 50.) Plaintiffs further al- lege that the correction officers “do not have train- ing to deal with mentally challenged inmates.” (Id.)

FN16. Plaintiffs do not object to the dis- missal of defendants Zappolo and Ferreri from this action because Zappolo and Fer- reri were not personally involved in the al- leged constitutional violations. (Pls. Mem. Opp. Summ. J. at 51 n. 4.) Accordingly, all of the claims against Zappolo and Ferreri are dismissed with prejudice.

[24] Defendants assert that Dawn Brown’s testimony reveals that she recalls only one incident of being beaten and placed in the restraint chair, which was the incident on April 26, 2001 involving Sergeant Conklin. (Dawn Brown Dep. at 91.) As a

nursing notes for the evening of April 12, 2001 document “bruising” on Dawn Brown’s arm, this is not enough to sustain a claim of excessive force, especially in a case like here where the plaintiff does not even recall the incident. Furthermore, the declaration of Jane Brown offers little evidentiary support for this claim. She does not mention specific dates or specific officers; thus, her testimony is not suffi- cient to create a genuine issue of fact.

[25] With respect to the April 26, 2001 claim, defendants maintain that no excessive force was used against Dawn Brown. According to defend- ants, Ferreri was making rounds with a nurse who was administering medications when Dawn Brown threw urine and feces from her cell. (Id. at 18.) Fer- reri then notified Sergeant Conklin about the situ- ation. (Id.) Conklin’s report indicates that “he ordered that Officer Pelton place hand restraints on inmate Brown and transport her to the 332 bullpen where Lt. Fredericks ordered that she be placed in a restraint chair for her own safety until she was seen by mental health.” (Id.) Defendants maintain that at no time was Ferreri involved in Dawn Brown’s re- moval or transport to the mental health unit. (Id.) Defendants also note that Dawn Brown was moved from her cell so that her cell could be cleaned by other inmates. (Id.) In addition, defendants allege that Dawn Brown was seen by the mental health unit, given an injection by the medical staff and re- turned to her cell in just over an hour. (Id.)

Defendants maintain that Dawn Brown has not

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testified that she was injured when she was re- moved from her cell and placed in the restraint chair and further note that her placement in the re- straint chair was upon the orders of Lieutenant Fre- dericks for Dawn Brown’s own safety. (Id.) Dawn Brown does not appear to allege any injuries as a result of the April 26, 2001 incident. Essentially, Dawn Brown’s excessive force claims rests on the fact that the CO defendants placed her in a restraint chair after she threw feces and urine from her jail cell and was acting out.

In support of Dawn Brown’s excessive force claims, plaintiffs offer the Officer Reports of Conk- lin and Ferreri relating to this incident, Use of Force Reports compiled by defendants dated 4/26/01, CMS nursing progress notes for Dawn Brown dated 4/26/01, testimony from Dawn Brown’s deposition and a declaration from another inmate, Jane Brown.FN18 The evidence*404 presented creates an issue of fact as to whether ex- cessive force was used against Dawn Brown during the April 26, 2001 incident. The central question in an excessive force claim is “whether force was ap- plied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6, 112 S.Ct. 995. Based on the record it is not ab- solutely clear that the force used by the CO defend- ants was reasonable and appropriate under the cir- cumstances. Consequently, summary judgment with respect to Dawn Brown’s April 26, 2001 excessive force claim is inappropriate. In addition, the issues of fact that preclude summary judgment with re- spect to this claim, preclude application of the doc- trine of qualified immunity at the summary judg- ment stage.

FN18. The declaration of Jane Brown re- lied on by plaintiffs states that “On at least four occasions, corrections officers and a sergeant came to Dawn’s cell, beat her, re- strained her, hog tied her, and carried her out of the dorm. An hour or two later, Dawn would be returned to the dorm,

asleep for the next 12 hours. She appeared to be drugged since she was carried, asleep, into her cell. The corrections of- ficers told[,] then bragged that Dawn was taken to the restraint chair.” (Jane Brown Decl. ¶ 13.)

b. Conditions of Confinement
[26][27][28] The Supreme Court held that

“[t]he Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes, 452 U.S. at 349, 101 S.Ct. 2392). Consequently, the Eighth Amendment prohibition against cruel and unusual punishment requires that prison officials provide “humane conditions of confinement” in- cluding “adequate food, clothing, shelter and med- ical care.” Id. To prevail on a claim that the condi- tions of confinement constitute cruel and unusual punishment, a plaintiff must demonstrate that the conditions of confinement fell below the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347, 101 S.Ct. 2392. The prisoner “must show ‘extreme deprivations,’ ‘[b]ecause routine discomfort is “part of the penalty that criminal of- fenders pay for their offenses against society.” ’ ” Sims, 230 F.3d at 21 (quoting Hudson, 503 U.S. at 9, 112 S.Ct. 995 (quoting Rhodes, 452 U.S. at 347, 101 S.Ct. 2392)); see also Blyden, 186 F.3d at 263 (“Because society does not expect or intend prison conditions to be comfortable, only extreme depriva- tions are sufficient to sustain a ‘conditions-of-confinement’ claim.”). In addition, a plaintiff must also show that the prison officials ac- ted with “a sufficiently culpable state of mind,” which, in the context of conditions of confinement claims, requires a showing of “deliberate indiffer- ence.” Lunney v. Brureton, No. 04 Civ. 2438, 2005 WL 121720, at *5 (S.D.N.Y. Jan.21, 2005) (citing Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (citations omitted) (“ Hathaway II ”); Wilson, 501 U.S. at 298, 111 S.Ct. 2321).

Dawn Brown alleges that she was confined to

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medical “keeplock” isolation and was deprived of water for almost one month which resulted in the swelling of her feet and ankles.FN19 (Pls. Mem. Opp. Summ. J. at 51.) She maintains that officers Sergi, Kelly and Jones were responsible for shut- ting off her water. (CO Defs. Mem. Supp. Summ. J. at 14.) In addition, Dawn Brown alleges that she was denied sanitary food and basic hygiene items such as toilet paper, toothbrush and sanitary nap- kins. (Pls. Mem. Opp. Summ. J. at 51-52; Complt. ¶ 82; CO Defs. Mem. Supp. Summ. J. at 14.) In sup- port of these allegations, plaintiffs offer the testi- mony of *405 Dawn Brown and Jane Brown and medical records which verify the swollen feet and ankles. (Pls. Mem. Opp. Summ. J. at 51-52.) Jane Brown attested that Dawn Brown “begged and pleaded to her jailers to give her some water, ‘all to no avail,’ ” and also that she “observed Dawn Brown in her cell with ‘blood all over legs’ because she was not provided with sanitary napkins.” (Id. at 52 (quoting Jane Brown Decl. ¶ 4).) Plaintiffs maintain that these deprivations violated basic standards of decency and subjected Dawn Brown to cruel and unusual punishment in violation of the Eighth Amendment. (Id.)

FN19. We note that in the opposition pa- pers, plaintiffs assert that Dawn Brown was deprived of water for almost a month, however, in the Complaint she alleges that “she lacked any drinking water for several days.” (Pls. Mem. Opp. Summ. J. at 51; Complt. ¶ 82.) This is a significant dis- crepancy which the Court will take into ac- count accordingly.

Defendants, however, maintain that none of the named CO defendants shut off the water in Dawn Brown’s cell and, at the very least, COs Jones and Sergi should be dismissed from the denial of water claim because Dawn Brown testified at her depos- ition that officer Kelly shut off her water. (CO Defs. Mem. Supp. Summ. J. at 14-15.) In addition, defendants contend that the claim that Kelly shut off the water is not supported and, even if it were, it

does not rise to the level of a constitutional viola- tion. (Id.) Defendants further assert that Dawn Brown was never deprived of sanitary food to the extent of constituting a constitutional violation and note that the only allegation Dawn Brown offers to support this claim involved one incident where her food was served to her on a napkin through the food slot rather than on a tray. (Id. at 16.) Defend- ants maintain that although “having your food served to you on one occasion on a napkin or paper towel … may be unpleasant [it] does not amount to a constitutional deprivation.” (Id. at 17.)

[29][30] Eighth Amendment case law indicates that “prisoners are entitled to ‘nutritionally ad- equate food that is prepared and served under con- ditions which do not present an immediate danger to the health and well being of the inmates who consume it.’ ” Lunney, 2005 WL 121720, at *5 (quoting Robles v. Coughlin, 725 F.2d 12, 14 (2d Cir.1983) (per curiam) (citations omitted)). It is clear that food being served on a napkin or paper towel on one occasion did not “present an immedi- ate danger to the health and well being” of Dawn Brown, and she has not offered any other allega- tions or evidence in support of her claim that she was denied sanitary food. Thus, we agree with de- fendants that Dawn Brown’s denial of sanitary food claim does not rise to the level of a constitutional deprivation, and grant summary judgment on that claim. In addition, because plaintiffs fail to address defendants’ contentions regarding the alleged denial of sanitary food, Dawn Brown’s claim alleging that she was denied sanitary food by officers Sergi, Kelly and Jones is dismissed. See, e.g., Singleton v. City of Newburgh, 1 F.Supp.2d 306, 312 (S.D.N.Y .1998) (Conner, J.) (deeming plaintiff’s claim “abandoned” and granting defendants’ sum- mary judgment where claim was alleged in the complaint but “not raised elsewhere in the record”); cf. Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F.Supp. 895, 907 (S.D.N.Y.1997) (“[T]he failure to provide argument on a point at issue constitutes abandonment of the issue.”), aff’d, 130 F.3d 1101 (2d Cir.1997).

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[31] With respect to Dawn Brown’s claim that she was denied water, Dawn Brown testified that it was officer Kelly who shut off her water. (Dawn Brown Dep. at 218.) However, when questioned a second time about who shut off her water, Dawn Brown responded “I can’t say exactly. I didn’t see who did it so it’s hard to tell you.” (CO Defs. Mem. Supp. Summ. J. at 14 (quoting Dawn Brown Dep. at 223).) Jones, Kelly and Sergi all testified that they did not shut off Dawn Brown’s water and that the maintenance department*406 shuts off water, which can only be done on the order of a Sergeant or a higher-ranking officer. (Id.) It appears likely that Dawn Brown’s water was controlled by a valve outside her cell which she could not see from inside the cell and that she would have no way of knowing who shut off her water. But this should not deprive her of a claim against those to whom she com- plained about its being shut off and became compli- cit in the action by doing nothing about it.

In addition, defendants assert that even if Dawn Brown had been deprived of water, it did not rise to the level of a constitutional deprivation. Defendants point out that Dawn Brown testified that she was provided with fluids with every one of her meals. ( Id. (citing Dawn Brown Dep. at 201-02, 220-22).) In Reid v. Artus, the court recognized that the deni- al of running water in an inmate’s cell was not a vi- olation of the Eighth Amendment where the inmate was not deliberately denied necessary liquids. 984 F.Supp. 191, 193 (S.D.N.Y.1997) (citing Johnson v. Comm’r of Corr. Servs., 699 F.Supp. 1071 (S.D.N.Y .1988)); see also Beckford v. Portuondo, 151 F.Supp.2d 204, 211 (N.D.N.Y .2001) (noting that “[n]owhere has it been held that prisoners are entitled to complete unfettered access to water or showers”). However, in the case at bar, Dawn Brown’s testimony, as well as the medical records indicating that she had swollen feet and ankles, which plaintiffs contend was the result of water deprivation, creates an issue of fact with respect to whether she was deliberately deprived of water des- pite her complaints of resulting injury to her health, which could be a clear violation of the Eighth

Amendment. Accordingly, that claim survives sum- mary judgment.

[32][33] Lastly, with respect to Dawn Brown’s claim that she was denied basic hygiene products such as toilet paper, toothbrush and sanitary nap- kins, defendants have not offered sufficient evid- ence to the contrary. “The failure to regularly provide prisoners with … toilet articles including soap, razors, combs, toothpaste, toilet paper, access to a mirror and sanitary napkins for female prison- ers constitutes a denial of personal hygiene and san- itary living conditions.” Dawson v. Kendrick, 527 F.Supp. 1252, 1288-89 (D.C.W.Va.1981) (citing Newman v. Alabama, 559 F.2d 283, 288 (5th Cir.1977), remanded with instructions sub nom., Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); McCray v. Burrell, 516 F.2d 357, 368 (4th Cir.1975), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); Bolding v. Holshouser, 575 F.2d 461, 464-65 (4th Cir.1978), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978); Ahrens v. Thomas, 434 F.Supp. 873, 890-91 (W.D.Mo.1977), modified, 570 F.2d 286 (8th Cir.1978)). Dawn Brown alleges that these deprivations occurred as a result of the inaction by COs Jones and Kelly. Dawn Brown stated on two occasions that Kelly re- fused to provide her with a sanitary napkin, but could not say whether Jones ever refused to give her a sanitary napkin. (CO Defs. Reply Mem. Supp. Summ. J. at 8.) In addition, Jane Brown attested to the fact that she observed Dawn Brown in her cell with “blood all over her legs” because she was not provided with sanitary napkins. (Jane Brown Decl. ¶ 4.) Accordingly, summary judgment is not appro- priate with respect to Dawn Brown’s claim against defendant Kelly alleging deprivation of basic hy- giene products; however, the claim is dismissed with respect to defendant Jones because there is no evidence to support the claim that Jones was per- sonally involved in the alleged deprivation.

*407 4. Failure to Intervene

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[34] Croci’s failure to intervene claims premised on his excessive force claim are dis- missed. Croci has failed to establish any constitu- tional violations based on excessive force. The case law in the Second Circuit is clear: “law enforce- ment officers’ affirmative duty to intervene exists only where a person’s constitutional rights have been violated.” Stefanopoulous v. City of New York, No. 01 Civ. 0771, 2005 WL 525552, at *4 (E.D.N.Y. Feb.28, 2005) (citing Anderson v. Bran- en, 17 F.3d 552, 557 (2d Cir.1994)); see also Foy v. City of New York, No. 03 Civ. 7318, 2004 WL 2033074, at *3 (S.D.N.Y. Sept.10, 2004) (“[T]here can be no failure to intervene where there was no constitutional violation.”). Accordingly, Croci’s claims based on a failure to intervene with respect to his excessive force claims are dismissed.

[35] However, Dawn Brown’s failure to inter- vene claims based on her excessive force and con- ditions of confinement claims survive summary judgment because this Court found those claims to be actionable. In addition, the failure to intervene claims brought by Atkins and Grassfield premised on alleged excessive force survive summary judg- ment as well. However, because plaintiffs’ failure to intervene claims are not alleged with sufficient par- ticularity, i.e., they fail to name which defendants are allegedly liable for failure to intervene with re- spect to each particular incident, all failure to inter- vene claims must be dismissed. However, plaintiffs may amend the Complaint within ten days of this Opinion and Order to replead the failure to inter- vene claims with respect to the alleged constitution- al deprivations that survived summary judgment and name the proper defendants with respect to each incident.

C. County Defendants
Plaintiffs allege that the mental health treat-

ment they received at the Jail was “deliberately in- different” to their serious medical needs and that Ashman, the Commissioner of Mental Health, had direct knowledge of the systematic inadequacies of the Jail’s mental health clinic, but failed to correct

those deficiencies. (Pls. Mem. Opp. Summ. J. at 1.) They further allege that the County, through the de- ficient customs and policies of its forensic clinic, is liable for the injuries. (Id.) The County defendants, however, maintain that each plaintiffs’ mental health care exceeded the standard required under the Eighth and Fourteenth Amendments; thus, plaintiffs’ claims against the County defendants should be dismissed. (County Defs. Mem. Supp. Summ. J. at 75.) In addition, the County defendants contend that even if the Court were to find that plaintiffs’ constitutional rights were violated, neither Ashman nor the County is liable because Ashman had no personal involvement in the plaintiffs’ treatment at the forensic clinic and he is entitled to qualified immunity, and plaintiffs cannot connect any alleged constitutional deprivation to an official policy, which is necessary to find liability on the part of the County. (County Defs. Mem. Supp. Summ. J. at 79, 85, 87.)

1. Whether Plaintiffs’ Constitutional Rights Were Violated

Plaintiffs assert Eighth Amendment claims for cruel and unusual punishment based on alleged in- difference to serious medical needs.FN20 It is well- settled that *408 inadequate medical treatment for a prisoner can constitute cruel and unusual punish- ment. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In the Second Circuit, it is equally clear that psychiatric or mental health care “is an integral part of medical care” and falls under the rule laid out in Estelle which re- quires that such care be provided to prisoners. Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir.1989); see also Young v. Coughlin, No. 93 Civ. 0262, 1998 WL 32518, at *4 (S.D.N.Y. Jan. 29, 1998) (“The guarantee of the minimal standards of medical care to prisoners extends to treatment of psychological or psychiatric disorders.”) (collecting cases).

FN20. We note that some of the plaintiffs were pre-trial detainees while others were convicted prisoners. However, the Second

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Circuit has applied the analysis of the Eighth Amendment deliberate indifference test to claims brought by pre-trial detainees under the Due Process Clause of the Four- teenth Amendment. See Santiago v. City of New York, No. 98 Civ. 6543, 2000 WL 1532950, at *4 (S.D.N.Y . Oct.17, 2000) (citing Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000)). In Cuoco, the Second Circuit recognized that a claim that arises under the Due Process Clause of either the Fifth Amendment or the Fourteenth Amendment requires application of the standard developed under the Eighth Amendment. Santiago, 2000 WL 1532950, at *4 n. 4. Accordingly, all of the plaintiffs’ claims will be analyzed under the deliber- ate indifference standard.

[36][37] To successfully bring a claim under § 1983 for a violation of the Eighth Amendment for inadequate medical treatment, a plaintiff must es- tablish that defendants were “deliberately indiffer- ent to his serious medical needs.” See McCoy v. Goord, 255 F.Supp.2d 233, 258 (S.D.N.Y.2003) (citing Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994)). The standard of deliberate indifference consists of both objective and subjective elements. Id. First, the alleged deprivation of care must be sufficiently serious in objective terms such that the plaintiff’s condition presents a “ ‘condition of ur- gency, one that may produce death, degeneration, or extreme pain.’ ” Id. (quoting Hathaway, 37 F.3d at 66 (citations omitted)). However, “the Supreme Court extended Eighth Amendment protection bey- ond current health problems to those that are ‘sufficiently imminent’ and ‘sure or very likely to cause serious illness and needless suffering in the next week or month or year.’ ” Young, 1998 WL 32518, at *4 (quoting Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ). The determination of “[w]hether a medical condi- tion is sufficiently serious” requires an objective as- sessment. Id.

[38][39][40] On the other hand, whether a de- fendant acted in a deliberately indifferent manner, with respect to a plaintiff’s serious condition, is to be judged subjectively. Id. This element requires the plaintiff to establish that “the defendants were aware of plaintiff’s serious medical needs and con- sciously disregarded a substantial risk of serious harm.” McCoy, 255 F.Supp.2d at 258-59 (citing Hathaway, 37 F.3d at 66). A finding of deliberate indifference cannot be made “ ‘unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that substantial risk of serious harm exists, and he must also draw the inference.’ ” Young, 1998 WL 32518, at *4 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970;); see also Amaker v. Coombe, No. 96 Civ. 1622, 2002 WL 523388, at *5 (S.D.N.Y. Mar. 29, 2002) (noting that “[s]ubjectively, the charged offi- cial must have a mental state ‘equivalent to crimin- al recklessness’ ”). “Mere negligence, medical mal- practice, or differences of opinion regarding medic- al treatment do not give rise to an Eighth Amend- ment violation.” McCoy, 255 F.Supp.2d at 259 (citations omitted); Young, 1998 WL 32518, at *4 (citing Estelle, 429 U.S. at 106-07, 97 S.Ct. 285). However, medical *409 malpractice in some cases may rise to the level of deliberate indifference where it “ ‘involves culpable recklessness, i.e., an act or failure to act … that evinces “a conscious dis- regard of a substantial risk of serious harm.” ’ ” Young, 1998 WL 32518, at *4 (quoting Hathaway II, 99 F.3d at 553 (citation omitted)).

In the case at bar, the County defendants con- tend that each plaintiffs’ mental health care ex- ceeded the standard of care required under the Eighth and Fourteenth Amendments and that the claims against the County defendants should there- fore be dismissed. (County Defs. Mem. Supp. Summ. J. at 75-76.) It is not in dispute that plaintiffs exhibited mental health deficiencies that were serious in nature. However, the County de- fendants contend that plaintiffs were provided with adequate medical care and that there was no consti-

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tutional deprivation, and, even if the Court were to find that plaintiffs were subjected to a constitution- al deprivation, plaintiffs are unable to demonstrate that neither Ashman, nor any other employee at the Jail, exhibited a “sufficiently culpable state of mind.” (Id. at 77.)

[41] Plaintiffs allege that they were subjected to the following mistreatment while incarcerated at the Jail: “over-medication with psychotropic drugs; denial of timely psychiatric evaluations; denial of emergency psychiatric care; denial of timely pre- scription drug administration; denial of adequate staffing of observation holding cells; denial of ad- equate therapeutic psychiatric care; and, denial of discharge planning and treatment plans.” (Complt.¶ 3.) In support of their assertion that they received substandard medical care, plaintiffs offer the expert testimony of Dr. Harris, who after review of plaintiffs’ medical and mental health records FN21 and the Merriweather Consent Judgment,FN22 de- termined that the services provided by defendants were deficient. (Thornton Affm., Ex. A.) Dr. Harris concluded that “overall systemic deficiencies in- clude [d] the apparent lack of seven-day-a-week mental health coverage, the inconsistency in devel- oping written treatment plans for any inmate who is receiving ongoing mental health services and the lack of discharge planning services.” (Id.) In addi- tion, with respect to the care provided to each plaintiff, Dr. Harris concluded the following: (1) Atkins: “[s]ignificant problems with access to care and psychotropic medication management;” “[c]omprehensive mental health evaluation was not conducted within a time frame appropriate to the level or urgency;” and “[i]nappropriate use of pun- ishment for inmates with mental *410 illness”; (2) Belloto: “[l]ack of informed consent for a minor de- tainee;” and “[t]he psychiatric evaluation failed to demonstrate that diagnostic criteria for a major de- pressive disorder was present”; (3) Dawn Brown: “[s]ignificant problems with access to care and psy- chotropic medication;” “[m]ental health treatment was not appropriate to the level of urgency;” “[i]nappropriate use of punishment for inmates with

mental illness;” and “[t]here was no evidence of systemic suicide risk assessment and monitoring for this patient with stated suicidal ideation and a sui- cide attempt”; (4) Kracht: “[s]ignificant problems with access to care and psychotropic medication;” “[m]ental health evaluations were not conducted within a time frame appropriate to the level of ur- gency;” and “[m]onitoring of medications fell be- low the standard of care”; (5) Grassfield: “[s]ignificant problems with access to care and psy- chotropic medications;” “[i]nappropriate use of punishment for inmates with mental illness;” and “[l]ack of a systemic suicide risk assessment and monitoring for detainees with known suicide risk”; and, (6) Croci: “[s]ignficant problems with access to care and psychotropic medications;” and “inappropriate use of punishment for inmates with a mental illness.” (Id.) We note that Dr. Harris did not state any preliminary findings or conclusions with respect to plaintiff Jane Brown in her report, although she does discuss Jane Brown in her de- claration annexed to plaintiffs’ opposition papers. In the declaration, Dr. Harris notes that Jane Brown “received substandard care” and that she missed several doses of her medication. (Thornton Affm., Ex. 29 at 7-8.)

FN21. Dr. Harris reviewed the mental health records of Belloto and Grassfield and both the medical and mental health re- cords of Atkins, Brown, Kracht and Croci. (Thorton Affm., Ex. A.)

FN22. The Merriweather Consent Judg- ment was the result of the Merriweather class action, Merriweather v. Sherwood, No. 77 Civ. 3421 (S.D.N.Y.), which was brought in 1977 to secure better medical and mental health care at the facility, as well as improved living conditions in the form of recreational, educational, and other out-of-cell and out-of-tier activities. A compromise was reached and a Consent Judgment was entered by the Hon. Edward Weinfeld of this Court on October 27,

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1978. Merriweather v. Sherwood, 518 F.Supp. 355, 356 (S.D.N.Y .1981). The Merriweather Consent Decree was vacated on July 28, 2003 by a Stipulation of Settle- ment and Order. (County Defs. Reply Mem. Supp. Summ. J. at 32.) The Stipula- tion of Settlement and Order settled “ ‘all issues and/or claims that were or could have been raised … concerning the termin- ation of the Consent Judgment and the compliance of the defendants with the Con- sent Judgment.’ ” (Id. (quoting Posner Aff., Ex. A, ¶ 73).) Consequently, all claims relating to alleged violations of the Merriweather Consent Decree are irrelev- ant to the present action and barred under the doctrine of res judicata.

With respect to plaintiffs’ allegations and Dr. Harris’s report, the County defendants maintain that the alleged deprivation of mental health care was not “sufficiently serious” to warrant a finding of a constitutional deprivation nor were defendants de- liberately indifferent to plaintiffs’ medical needs. (County Defs. Mem. Supp. Summ. J. at 76-77.) De- fendants note that plaintiffs admitted that “the treat- ing psychiatrists were competent with no profes- sional misconduct or malpractice claims against them.” (County Defs. Reply Mem. Supp. Summ. J. at 1.) Plaintiffs also admit, by omission, “that the forensic clinic treated approximately 1,875 inmate/ patients per year between 1999 and 2002 and that the percentage of inmates on psychotropic drugs for those years ranged between approximately 7.5 and 11.” FN23 (Id. (internal citations omitted).) In addi- tion, plaintiffs admit that they saw a clinician on either the day of their entry to the Jail or within three days thereafter and that they had “numerous visits with clinicians, attendance at group therapy sessions, and consultations with psychiatrists.” (Id.)

FN23. We also note that plaintiffs have offered no proof that forensic clinic pa- tients were routinely over-medicated other than conclusory statements and the com-

plaints by Menon and Berwerger which oc- curred prior to any of the plaintiffs’ incar- cerations, thereby making their alleged ob- servations irrelevant.

We agree with defendants that plaintiffs’ alleg- ations do not rise to the level of a constitutional deprivation and reiterate that in order to survive a motion for summary judgment, plaintiffs must “do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348. Once defendants carry their initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact, it is plaintiffs’ responsibility to come forward with “specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e). To defeat defendants’ motion for *411 summary judg- ment, plaintiffs “must do more than make broad factual allegations and invoke the appropriate stat- ute. [Plaintiffs] must also show, by affidavits or as otherwise provided in Rule 56 … that there are spe- cific factual issues that can only be resolved at tri- al.” Colon, 58 F.3d at 872.

[42] In addition, we note that “although an Eighth Amendment violation may be based upon exposure to an unreasonable risk of future harm, ‘the absence of present physical injury will often be probative in assessing the risk of future harm.’ ” Ross v. McGinnis, No. 00 Civ. 0275, 2004 WL 1125177, at *9 (W.D.N.Y. Mar.29, 2004) (quoting Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir.2003)). “ ‘[I]n most cases, the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the pris- oner to a significant risk of serious harm.’ ” Ross, 2004 WL 1125177, at *9 (quoting Carpenter, 316 F.3d at 187). Moreover, we reiterate that “ ‘[d]eliberate indifference requires more than negli- gence, but less than conduct undertaken for the very purpose of causing harm.’ ” Ross, 2004 WL 1125177, at *9 (quoting Hathaway, 37 F.3d at 66 (citations omitted)). Further,

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[i]t is well-established that mere disagreement over the proper treatment does not create a con- stitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation. Moreover, negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.

Ross, 2004 WL 1125177, at *9 (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998)).

Accordingly, with the above principles in mind, we will address each plaintiffs’ claims separ- ately.

a. Atkins
[43] In support of Atkins’s claims, plaintiffs of-

fer Dr. Harris’s declaration which concludes that the medications provided to Atkins were a “woefully inadequate dosage” given the circumstances of his acutely psychotic state. (Thornton Affm., Ex. 29 at 3.) However, a disagreement over proper treatment does not give rise to a constitutional claim. In addi- tion, although Atkins alleges that he was not treated by the mental health unit in a timely manner, the medical records reveal that he was seen by mental health and a psychiatrist within one day of admis- sion to the Jail and was on “close watch” until men- tal health could see him. This demonstrates that de- fendants were not deliberately indifferent to Atkins’s serious medical needs. With respect to the psychotic episode in question, the medical records again indicate that Atkins was seen at the clinic shortly after the incident occurred. Additionally, Atkins has failed to provide any evidence of delib- erate indifference on the part of defendants other than the conclusory statement that they were delib- erately indifferent to his medical needs. Con- sequently, Atkins’s claim of deliberate indifference to his serious medical needs is dismissed.

b. Dawn Brown
[44] Plaintiffs maintain that Dawn Brown was

subjected to substandard care in that the wrong medication was prescribed to treat her mental ill- ness and that defendants failed to render care to her while she was acutely manic and psychotic and dangerous to herself and others. We do not disagree that Dawn Brown had serious medical needs and re- quired care; *412 however, as a matter of law, the care provided to her was not so inadequate that it rose to the level of a constitutional violation. The record demonstrates that Dawn Brown was provided with mental health care upon each admis- sion to the Jail and, if she could not immediately be seen by the mental health clinic, she was kept on “close watch” to ensure her safety and the safety of others. These facts hardly demonstrate a deliberate indifference to Dawn Brown’s serious medical needs. To the contrary, the record establishes that the clinic was actively involved in providing Dawn Brown access to mental health care. Dawn Brown was never denied such care; rather, each time she had an episode as result of her mental illness, she was treated and stabilized.

Notably, Dawn Brown when asked at her de- position if there was “any other complaint about the mental health care besides that they were trying to give you Neurontin and you didn’t think they should,” Dawn Brown replied, “I don’t really have a complaint about them that much. It’s more of the other stuff.” (County Defs. Mem. Supp. Summ. J. at 74 (quoting Dawn Brown Dep. at 176).) Dawn Brown later explained that by “the other stuff,” she was referring to her treatment by the corrections of- ficers. (Id.) This further evidences that Dawn Brown received adequate mental health care while incarcerated at the Jail.

In addition, with respect to Dawn Brown’s al- legations concerning her medication, it is well- settled that a complaint that a doctor was “negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment un- der the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285;. We reiterate that “mere dis- agreement with prison officials about what consti-

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tutes appropriate care does not state a claim cogniz- able under the Eighth Amendment.” Hanton v. Strange, No. 98 Civ. 0706, 2005 WL 733873, at *8 (D.Conn. Mar. 30, 2005) (citing Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.1992), aff’d, 970 F.2d 896 (2d Cir.1992), cert. denied, 506 U.S. 1040, 113 S.Ct. 828, 121 L.Ed.2d 698 (1992)). Consequently, Dawn Brown has failed to state a cognizable claim against the County defendants for deliberate indif- ference to her serious medical needs and, accord- ingly, that claim is dismissed.

c. Croci
[45] Croci alleges that he received substandard

care in that he did not receive on a regular basis the medications prescribed to him. (Pls. Mem. Opp. Summ. J. at 33.) According to plaintiffs, this was due to the fact that Croci was either refusing to take his medication, was away when the nurse brought the medications around or the medication “simply was not ‘available’ that day.” (Id.) Plaintiffs also allege that the prescribing psychiatrist was not timely informed of the missed medications which deprived Croci of having this problem resolved with alternative prescriptions or treatment. In addi- tion, plaintiffs contend that the severe anxiety at- tack that Croci suffered was a result of these missed medications.

[46][47][48] Croci’s allegations do not rise to the level of a constitutional deprivation. First, we again note that “not every lapse in prison medical care will rise to the level of a constitutional deprivation.” Carpenter, 316 F.3d at 184. In addi- tion, “[w]hen the basis for a prisoner’s Eighth Amendment claim is a temporary delay or interrup- tion in the provision of otherwise adequate medical treatment, it is appropriate to focus on the chal- lenged delay or interruption in treatment rather than the prisoner’s underlying medical condition alone” in determining whether the alleged *413 deprivation was sufficiently serious. Id. at 185. Fur- thermore, “the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner’s underlying

medical condition, considered in the abstract” is the relevant inquiry in deciding an Eighth Amendment claim based on temporary delay or interruption of medical treatment. Id. at 186. Where the alleged lapses in treatment are minor and inconsequential in that they do not result in substantial risk of injury, an Eighth Amendment claim cannot be made out. Id. Consequently, “the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the deni- al of treatment subjected the prisoner to a signific- ant risk of serious harm.” Id. at 187.

With respect to Croci’s claim against the County defendants, although the missed medica- tions may have contributed to his subsequent anxi- ety attack, the care provided by the defendants did not pose a significant risk of serious harm. Notably, when Croci did suffer the anxiety attack he was taken to Arden Hill Hospital for treatment and re- ceived care from a psychiatrist at the forensic clinic when he returned from the hospital. These events simply do not demonstrate the deliberate indiffer- ence on the part of defendants which is necessary to liability for Eighth Amendment violations.

Moreover, with respect to Croci’s missed med- ications, he was counseled on numerous occasions about his refusal to take the medications. This fur- ther contradicts the allegation of deliberate indiffer- ence on the part of defendants. Defendants met their responsibilities with respect to providing treat- ment to Croci by providing access to a psychiatrist and other clinicians when requested or necessary. In addition, with respect to Croci’s claim that he was over-prescribed medication to the point of pla- cing him in a stupor, the evidence suggests the con- trary. The medical records demonstrate that Croci was an alert individual who never told his doctors that the medications were putting him in a stupor. Further, any complaint regarding the medication prescribed to Croci relates to the medical judgment of the doctors, not the quality of care provided by the forensic clinic. Because Croci has failed to demonstrate that the County defendants were delib-

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erately indifferent to his serious medical needs, his e. Kracht
claims against them are dismissed. [50] Kracht alleges that he received substand-

d. Grassfield
[49] Grassfield alleges that his delayed psychi-

atric assessment and delayed administration of psy- chotropic drugs constitutes a constitutional viola- tion of deliberate indifference to his serious medic- al needs. Grassfield was seen by a psychiatrist three days after he was booked by corrections, but he was referred to the mental health housing unit right away, where it was recommended that he be “monitored more closely,” and he was in fact on “close watch” until he was seen by the psychiatrist. In addition, defendants note that Grassfield’s two suicide attempts were not the result of substandard care as “Grassfield made numerous suicide attempts before and after his incarceration while under psy- chiatric care and on psychotropic drugs.” (County Defs. Mem. Supp. Summ. J. at 27.)

Plaintiffs have provided no evidence to support a finding of deliberate indifference to Grassfield’s medical needs. Although there may have been a delay between Grassfield’s admission and his psy- chiatric assessment, he was on “close watch” dur- ing that time period to ensure that he did not harm himself or others. In addition, after the first suicide attempt Grassfield *414 was immediately seen by a caseworker and a psychiatrist in the mental health unit and after the second suicide attempt he was im- mediately seen by medical personnel and taken to Arden Hill Hospital where he was evaluated and examined and referred to Middletown Psychiatric Center. After three days at the psychiatric center, Grassfield was returned to the Jail and was again seen by a psychiatrist who counseled him and pre- scribed medication. Additionally, Grassfield admit- ted that the discharge plan he received “was more than adequate.” Although Grassfield may not have received the best care, the care he did receive was not, as a matter of law, so inadequate as to rise to the level of a constitutional deprivation. Accord- ingly, Grassfield’s claims against the County de- fendants are dismissed.

ard care in that he was given medications that re- quired monitoring though blood tests “approximately five to seven days after the first dosage,” but the psychiatrist merely ordered monthly blood tests. In addition, he alleges that no changes were made to his medications even after it was determined that he was sleeping excessively. However, as noted earlier, disagreements over med- ications do not give rise to a constitutional claim; rather, such a claim would sound in medical mal- practice. Kracht additionally alleges that he suffered severe symptoms such as “increased com- mand auditory hallucinations and paranoid ideations,” but that nothing was done to help him, other than the routine follow-up visits every three weeks with the psychiatrist. He alleges that he noti- fied the psychiatrist of his symptoms, but the psy- chiatrist told him to come back in three weeks. De- fendants, however, note that a review of Kracht’s medical chart reveals that he was seen by a clini- cian/case worker on numerous occasions, consulted with a clinic psychiatrist sixteen times, participated in group therapy twenty times and that each time Kracht complained about his medication, he was seen by someone at the clinic. (County Defs. Mem. Supp. Summ. J. at 32.) In addition, defendants maintain that although the routine follow-ups with the psychiatrist were scheduled every three weeks, there were other mechanisms in place to deal with plaintiffs’ mental health claims as they arose such as the use of service request forms, the ability to self-refer to mental health and permitting referrals by corrections or medical staff. (County Defs. Reply Mem. Supp. Summ. J. at 20.) This illustrates that Kracht had access to care, received care and that defendants were not deliberately indifferent to his mental illness. There are no issues of fact sur- rounding Kracht’s claim that, if resolved in his fa- vor, could raise his treatment to the level of a con- stitutional deprivation.

Kracht also alleges that it took nine days from his arrival at the Jail until he received his medica-

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tions. However, defendants respond to that allega- tion by noting that Kracht was on “close watch” during that period to ensure his safety and that Kracht admits that he took no action to harm him- self or others during this period. Consequently, this allegation does not rise to the level of a constitu- tional deprivation because Kracht cannot demon- strate deliberate indifference on the part of the County defendants. Accordingly, Kracht’s claims against the County defendants are dismissed.

f. Bellotto
[51] Plaintiffs allege that a forensic psychiatrist

diagnosed Bellotto with depression and prescribed Paxil for him, but no one informed him that he could refuse *415 the medication. Consequently, plaintiffs contend that this psychotropic drug was prescribed for Bellotto, even though he had no need for it, to “induce a state of stupor.” However, Bel- lotto has not alleged any facts that demonstrate that he was in a substantial risk of serious harm or that defendants were deliberately indifferent to his med- ical needs. If anything, defendants were conscien- tious with respect to Bellotto’s medical needs in that they diagnosed his depression and treated him for it. Accordingly, Bellotto’s claims are dismissed.

g. Jane Brown
[52] Plaintiffs contend that Jane Brown’s con-

stitutional rights were violated as a result of a three- day delay after she was booked at the Jail before she was seen by the psychiatrist and the fact that on several occasions she missed doses of her medica- tions because she was out of her cell at the time of the scheduled administration of medications. However, Jane Brown has failed to allege how she was harmed or how defendants were deliberately indifferent to her medical needs. See, e.g., Car- penter, 316 F.3d at 189 (noting that “[a]lthough [plaintiff] suffered from an admittedly serious un- derlying condition, he presented no evidence that the two alleged episodes of missed medication res- ulted in permanent or on-going harm to his health”); R.T. v. Gross, 298 F.Supp.2d 289, 295 (N.D.N.Y.2003) (concluding that plaintiff cannot

be found to have had a serious medical need where he failed to submit “any verifiable evidence indicat- ing that a failure to treat his condition adversely af- fected his prognosis”); Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir.1994), abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“An inmate who complains that delay in medical treatment rose to a constitu- tional violation must place verifying medical evid- ence in the record to establish the detrimental effect of the delay in the medical treatment to succeed.”). In no way has Jane Brown alleged that the alleged deprivation of medical care was sufficiently serious to warrant a finding of a constitutional violation. The records indicate that Jane Brown saw mental health professionals whenever she put in a request and that her medication schedule was switched to evenings to accommodate her as soon as the forensic clinic was notified that she was missing some of her medications. The fact that three days passed before Jane Brown saw a psychiatrist did not result in a serious condition that could produce death, degeneration, or extreme pain, which is re- quired to substantiate an Eighth Amendment claim. In addition, Jane Brown was able to complete her GED while incarcerated and admits that as a result of her treatment at the clinic she was “presently less depressed.” Consequently, the allegations alleged by Jane Brown simply do not rise to the level of a constitutional deprivation. Accordingly, her claims are dismissed.

h. Alleged Systematic Deficiencies
[53] With respect to all plaintiffs, we note that

while they allege that the care they received was substandard, the record demonstrates that they not only had access to but actually received care, thereby demonstrating that defendants were not wantonly indifferent to plaintiffs’ medical needs. Although plaintiffs may disagree with the care they did receive, it did not rise to the level of a constitu- tional deprivation. In addition, defendants correctly point out that the opinion rendered by plaintiffs’ ex- pert, Dr. Harris, is merely that the mental health

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care each plaintiff received was “substandard.” (County Defs. Reply Mem. Supp. Summ. J. at 13.) *416 However, that does not amount to a constitu- tional violation: a constitutional claim requires more than medical malpractice or a “deviation or departure from accepted practice.” FN24 To estab- lish an Eighth Amendment claim, plaintiffs must establish that defendants were deliberately indiffer- ent to a serious medical need. Based on the record, plaintiffs have failed even to establish that there is an issue of fact as to whether the County defendants were deliberately indifferent. We also note that the fact that defendants retained a doctor in the fall of 2001 to perform quality assurance reviews, al- though not dispositive, further evinces that defend- ants were not deliberately indifferent to plaintiffs’ serious medical needs. Consequently, all claims against the County defendants are dismissed.

FN24. In addition, we note that “the opin- ions of experts are entitled to little weight in determining whether a condition is ‘cruel and unusual punishment’ under the Eighth Amendment.” Madrid v. Gomez, 889 F.Supp. 1146, 1159 (N.D.Cal.1995) (citing Toussaint v. McCarthy (Toussaint IV ), 801 F.2d 1080, 1107 n. 28 (9th Cir.1986)). Rather, it is appropriate to con- sider an expert opinion “in assessing subsi- diary issues which inform the court’s final determination. For example, expert opinion may be properly considered in assessing the effects of challenged conditions or practices.” Id. (citations omitted)

III. Motion for Severance
Defendants’ motion for severance is denied as

moot because all claims against the County defend- ants have been dismissed.

CONCLUSION

For all of the foregoing reasons, defendants’ motion to preclude plaintiffs’ expert testimony is denied. The partial summary judgment motion of the individual corrections officers is granted in part and denied in part. All claims against the following

defendants are hereby dismissed without prejudice: Donna Dominick, David Serrano and Vincent Di- Chairo. All claims against the following defendants are hereby dismissed with prejudice: Michael Zap- polo, Kathleen Ferreri, Michael Andricut, Daniel Figueroa and Richard Russell. Plaintiffs are granted leave to amend the Complaint within ten days from the date of this Opinion and Order to replead the failure to intervene claims with particularity to make it clear against which defendants these claims are asserted.

The summary judgment motion of defendants Chris Ashman and the County of Orange (the “County defendants”) is granted and all claims against the County defendants are hereby dismissed with prejudice. Lastly, defendants’ motion for sev- erance is denied as moot.

SO ORDERED.

S.D.N.Y .,2005.
Atkins v. County of Orange 372 F.Supp.2d 377

END OF DOCUMENT

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United States District Court,
S.D. New York.
Anthony DODGE, Peter A. Machado and Joseph Petriello, individually and on behalf of all other similarly situated, Plaintiffs,
v.
COUNTY OF ORANGE and Sheriff H. Frank Big- ger, in his individual and official capacity, Defend- ants.
Samuel Rango, Jarrod H. Mann and Rocco Manni- ello, individually and on behalf of all others simil- arly situated, Plaintiffs,
v.
County of Orange and Sheriff H. Frank Bigger, in his individual and official capacity, Defendants.

Nos. 02 Civ. 769CMMDF, 02 Civ. 8451CMLMS. Jan. 27, 2005.

Background: Pretrial detainees who were strip searched upon arrival at county jail brought class actions against county and sheriff, in his individual and official capacity, alleging violation of their right to be free from unreasonable searches. Plaintiffs moved for decertification of class seeking injunctive relief, and for certification of a class based on predominance of class issues over indi- vidual issues.

Holdings: The District Court, McMahon, J., held that:
(1) plaintiffs met numerosity, commonality, typical- ity, and adequacy of representation requirements for class certification;

(2) as to issue of liability, class issues predominated over individual issues, and thus supported certifica- tion of a class limited to issue of liability; but
(3) as to issue of damages, individual issues pre- dominated over issues common to class, and thus, class certification was not warranted with respect to issue of damages; and

(4) as to issue of liability, class action was superior

to any other method for fairly and efficiently resolving action.

Ordered accordingly.
West Headnotes

[1] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Pretrial detainees who were strip searched upon arrival at county jail met numerosity requirement for class certification, in their action against county and sheriff alleging unreasonable searches, where class, which included as many as 9,280 potential members detained for misdemeanors and over 10,000 potential members detained for felonies, was so numerous that joinder of all members was impracticable. U.S.C.A. Const.Amend. 4; Fed.Rules Civ.Proc.Rule 23(a)(1), 28 U.S.C.A.

[2] Federal Civil Procedure 170A 164

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions 170AII(D)1 In General

170Ak164 k. Representation of Class; Typicality. Most Cited Cases

Federal Civil Procedure 170A 165

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions 170AII(D)1 In General

170Ak165 k. Common Interest in Sub- ject Matter, Questions and Relief; Damages Issues.

Most Cited Cases

Page 1

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The crux of both the commonality and typical- ity requirements for class certification is to ensure that the maintenance of a class action is economic- al, and that the named plaintiffs’ claims and the class claims are so inter-related that the interest of the class members will be fairly and adequately protected in their absence. Fed.Rules Civ.Proc.Rule 23(a)(2, 3), 28 U.S.C.A.

[3] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

unreasonable searches. U.S.C.A. Const.Amend. 4; Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.

[5] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Validity of alleged policy at jail of strip search- ing each new pretrial detainee upon arrival, regard- less of existence of individualized reasonable suspi- cion that new arrival was carrying contraband, pre- dominated over individual issues, and thus suppor- ted certification of a class, limited to issue of liabil- ity, in detainees’ action against county and sheriff alleging unreasonable searches, where issues of ex- istence of policy at jail, constitutionality of that policy, and whether policy was uniformly applied were predominant liability issues in the case of every one of the detainees. U.S.C.A. Const.Amend. 4; Fed.Rules Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.

[6] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Pretrial detainees who were strip searched upon arrival at county jail met commonality and typical- ity requirements for class certification, in their ac- tion against county and sheriff alleging unreason- able searches, where issue of whether there was a policy at jail of strip searching each new pretrial detainee upon arrival, regardless of existence of in- dividualized reasonable suspicion that new arrival was carrying contraband, was common and central to claims of every proposed class member. U.S.C.A. Const.Amend. 4; Fed.Rules Civ.Proc.Rule 23(a)(2, 3), 28 U.S.C.A.

[4] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Individual issues as to damages predominated over issues common to proposed class in action against county and sheriff brought by pretrial de- tainees who were strip searched upon arrival at county jail, alleging unreasonable searches, and thus, class certification was not warranted with re- spect to issue of damages, even if class members were strip searched illegally pursuant to a uniform policy, where not all arriving detainees would have suffered in same way or to same extent. U.S.C.A. Const.Amend. 4; Fed.Rules Civ.Proc.Rule 23(b)(3),

Page 2

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Counsel for pretrial detainees who were strip searched upon arrival at county jail were capable of representing interests of the class in a more than ad- equate manner, and thus, adequacy of representa- tion requirement for class certification was met in detainees’ action against county and sheriff alleging

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28 U.S.C.A.

[7] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

accused of misdemeanors who were strip searched upon their initial arrival at OCCF from January 31, 1999 through August 6, 2002. The Rango plaintiffs seek to represent a class consisting of all persons accused of felonies who were strip searched upon their arrival at OCCF during the same period.FN1

FN1. Plaintiffs originally sought to repres- ent classes of misdemeanor and felony de- tainees, respectively, from January 31, 1999 through the date of judgment. They have narrowed the class period, apparently in view of certain findings this court made at the trial of their action for preliminary and permanent injunctive relief. Dodge v. County of Orange, 282 F.Supp.2d 41, 85-86 (S.D.N.Y.2003). Those findings are not binding on anyone any more, in view of the Second Circuit’s vacatur of that de- cision, but plaintiffs’ counsel appears to have given up the contention that all pre- trial detainees who arrived at OCCF after August 6, 2002 were strip searched pursu- ant to a uniform policy.

Dodge has been the subject of considerable lit- igation before this court, including the certification of a class pursuant to Fed.R.Civ.P. 23(b)(2), Dodge v. County of Orange, 208 F.R.D. 79 (S.D.N.Y.2002), and a full trial on the merits of plaintiffs’ request for preliminary and permanent in- junctive relief against OCCF’s policies relating to strip searches upon initial admission to the facility. Dodge v. County of Orange, 282 F.Supp.2d 41 (S.D.N.Y.2003). On appeal from this Court’s de- termination after trial, the Second Circuit vacated that judgment and remanded so this court could re- consider the issue of plaintiffs’ standing to seek in- junctive relief in view of its decision in Shain v. El- lison, 356 F.3d 211 (2d Cir.2004) (Shain II), which was handed down after the trial of the injunction claims. Dodge v. County of Orange, 103 Fed.Appx. 688, 2004 WL 1567870 (2d Cir.2004).

In the wake of Shain II, plaintiffs have with- drawn their claim for injunctive relief. They seek

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170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Class action was superior to any other method for fairly and efficiently resolving, with respect to liability, action against county and sheriff brought by pretrial detainees who were strip searched upon arrival at county jail, alleging unreasonable searches, where single issue of whether there was a policy at jail of strip searching each new pretrial detainee upon arrival, regardless of existence of in- dividualized reasonable suspicion that new arrival was carrying contraband, was guaranteed to come up time and time again. U.S.C.A. Const.Amend. 4; Fed.Rules Civ.Proc.Rule 23(b)(3), (c)(4)(A), 28 U.S.C.A.

*179 James Edward Monroe, Dupee, Dupee & Monroe, P.C., Goshen, NY, for Plaintiffs.

Christina Sanabria, County Attorney, County of Or- ange, Goshen, NY, James M. Fedorchak, Gellert & Cutler, P.C., Poughkeepsie, NY, Robert S. Groban, Epstein Becker & Green, New York City, for De- fendants.

DECISION AND ORDER ON PLAINTIFFS’ MO- TION FOR TO DECERTIFY THE RULE 23(B)(2) CLASS IN THIS ACTION AND CERTIFY A CLASS OR SUBCLASSES UNDER RULE 23(B)(3)

McMAHON, District Judge.
These consolidated actions, brought as class

actions, challenge the admissions procedures for newly-arrived inmates at the Orange County Cor- rectional Facility (OCCF). The Dodge plaintiffs seek to represent a class consisting of all persons

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decertification of the Rule 23(b)(2) class and certi- fication of a class or classes of plaintiffs pursuant to Rule 23(b)(3). Defendants have no problem decerti- fying the injunctive class but oppose the motion to certify classes for purposes of recovering damages.

The standards for determining a motion for class certification are well settled and require little discussion. For a court to certify a class under Rule 23(b)(3), it must conclude that the prerequisites to class action status as set forth in Rule 23(a) are met, as well as the standards specific to Rule 23(b)(3) classes. In brief, the court must conclude all of the following:

Under Rule 23(a):
(1) the class is so numerous that joinder of all

members is impracticable;

*180 (2) there are questions of law or fact com- mon 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 ad- equately protect the interests of the class.

Under Rule 23(b):
(1) the questions of law or fact common to the

members of the class predominate over any ques- tions affecting only individual members; and

(2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

The following constitute my findings on these issues.

Rule 23(a)(1): Numerosity
[1] There is no question that the class is so nu-

merous that joinder of all members is impractic- able. Defendants do not dispute plaintiff’s assertion, using data drawn from the report filed annually by OCCF with the New York State Department of

Corrections, that there could be as many as 9,280 members in the Dodge class (misdemeanor admit- tees) and over 10,000 members in the Rango class (felony admittees).

Rule 23(a)(2): Commonality/Rule 23(a)(3): Typic- ality

[2] “The commonality and typicality require- ments of Rule 23(a) tend to merge.” General Tele- phone Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The crux of both requirements is to ensure that the maintenance of a class action is economic- al, and that the named plaintiffs’ claims and the class claims are so inter-related that the interest of the class members will be fairly and adequately protected in their absence. Pyke v. Cuomo, 209 F.R.D. 33, 41 (N.D.N.Y.2002). As such it is appro- priate to discuss them together.

The commonality requirement is satisfied if plaintiffs’ grievances share a common question of law or fact. It is not necessary that all of the ques- tions raised by arguments are identical; it is suffi- cient if a single common issue is shared by the class. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir.2001); Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y .1992); Fox v. Cheminova, Inc., 213 F.R.D. 113, 126 (E.D.N.Y.2003). Or, as this court previously held in this very action, “Rule 23(a)(2) does not require the plaintiffs to demonstrate that the class members’ claims are identical; rather, it demands that the disputed issue of law or fact ‘occupi[ies] essentially the same degree of central- ity to the named plaintiffs’ claim as to that of the other members of the proposed class.’ ” Dodge v. County of Orange, 208 F.R.D. 79, 88 (S.D.N.Y .2002).

The typicality requirement is satisfied “if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” Marisol A. v. Giuliani, 929 F.Supp. 662, 691 (S.D.N.Y.1996); Robinson, supra, 267 F.3d at 155.

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[3] Notwithstanding defendants’ effort to over- complicate the analysis, there is in fact one issue that is both common to the claims of every pro- posed class member and central to each of their claims: the existence or non-existence of a policy at the OCCF of strip searching each and every new pre-trial detainee upon arrival at the jail, regardless of the existence of individualized reasonable suspi- cion that the new arrival was carrying contraband, based on the nature of the crime charged, the cir- cumstances of the arrest, and the particular charac- teristics of the arrestee. All the members of the Dodge class contend that such a policy existed at the time they were admitted to the jail; all the mem- bers of the class claim that any such policy is pat- ently illegal under Second Circuit jurisprudence; FN2 and all the members of the class claim that they were searched pursuant to *181 the policy, which was uniformly applied to every arriving de- tainee. That is what the named plaintiffs allege in the Dodge complaint; that is what the other mem- bers of the proposed class allege.

FN2. Shain v. Ellison, 273 F.3d 56 (2d Cir.2001)(“ Shain I ”); Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994); Walsh v. Franco, 849 F.2d 66 (2d Cir.1988); Weber v. Dell, 804 F.2d 796 (2d Cir.1986). I will frequently refer to these four cases together as “ Weber/ Walsh/ Wachtler/ Shain I.”

The same is true of the proposed Rango class: the plaintiffs, all newly-arrived detainees accused of felonies, allege that they were strip searched pur- suant to an unconstitutional policy of searching all arriving detainees. The principal difference between the Dodge and Rango classes is that Second Circuit jurisprudence on the strip searching of pre-trial detainees accused of felonies is not “settled;” the Court of Appeals has never spoken to the question and, as far as I know, the only court to rule on the question is this one. See Murcia v. County of Orange, 226 F.Supp.2d 489, 494 (S.D.N.Y.2002). Since the law on this point cannot

be considered “clearly established” as of the time the searches were conducted on the members of the proposed class, qualified immunity is a common defense applicable to Sheriff Bigger as against the Rango class members.FN3 Indeed, I gave Sheriff Bigger the benefit of qualified immunity in Murcia when I concluded that there was no logical reason to treat felony detainees differently than misde- meanor detainees under the reasoning of Weber, Walsh, Wachtler, and Shain I. Murcia, supra, 226 F.Supp.2d at 494 n. 3.

FN3. Plaintiffs allege that this Court’s de- cision in Murcia put the County defendants on notice, as of the date of that decision, that the indiscriminate strip searching of newly-arrived felony detainees was unlaw- ful, and that the law, for qualified im- munity purposes, was “clearly estab- lished.” However, the Second Circuit has held that the law cannot be “clearly estab- lished” for qualified immunity purposes by district court opinions, but only by the de- cisions of the applicable circuit court or the Supreme Court. Shechter v. Comp- troller of New York, 79 F.3d 265, 271 (2d Cir.1996); Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991); Hawkins v. Stein- gut, 829 F.2d 317, 321 (2d Cir.1987); Chipperini v. Crandall, 253 F.Supp.2d 301, 307 (D.Conn.2003).

Rule 23(a)(4): Adequacy of Representation
[4] In class actions of this sort, the adequacy of representation factor relates chiefly to the ability of class counsel. I am familiar with the work of both Mr. Monroe and Mr. Isseks, generally through their numerous cases on my docket, and specifically through their work on the Dodge case, which, as noted above, they took through trial on the applica- tion for injunctive relief. There is no question in my mind that they are capable of representing the in- terests of the class in a more than adequate manner,

and defendants do not argue otherwise.

Rule 23(b)(3) Issues

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The only serious argument here is whether this action can or should be certified as a Rule 23(b)(3) class because of the issues that are particular to (b)(3) classes: whether class-wide issues predomin- ate and whether a class action is superior to other available methods fo the fair and efficient adjudica- tion of the controversy. I conclude that the action should be bifurcated into liability and damages phases, and that two classes, each containing two sub-classes, should be certified, limited to the issue of liability only.

Predominance

“In order to meet the predominance require- ment of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, thus applicable to the class as a whole, … predominate over those issues that are subject only to individualized proof.” Amchem Products, Inc., v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The predomin- ance requirement is “more stringent” and “far more demanding” than the commonality requirement of Rule 23(a). Id. at 609, 623, 117 S.Ct. 2231.

It makes sense to discuss predominance first in the context of a finding of liability, and then in the context of damages.

[5] On the liability side of the equation: Case law suggests that, when a uniformly applied policy is challenged, the validity of the policy predomin- ates over individual issues. That is certainly true in this case. The issue of the existence of a policy at OCCF, the constitutionality of that policy, and whether the policy was uniformly applied (which is a yes/no question) are the predominant*182 liabil- ity issues in the case of every one of these plaintiffs.

In similar circumstances involving facility- wide strip search policies, courts have not hesitated to certify classes. See e.g., Tardiff v. Knox County, 365 F.3d 1, 7 (1st Cir.2004)(affirming certification of two 23(b)(3) strip search liability classes); Calv- in v. Sheriff of Will County, No. 03 C 3086, 2004

WL 1125922, *3-5 (N.D.Ill. May 17, 2004)

(certifying 23(b)(3) liability strip search sub- classes); Blihovde v. St. Croix County, Wisconsin, 219 F.R.D. 607, 622-23 (W.D.Wis.2003)(certifying 23(b)(3) strip search class); Maneely v. City of Newburgh, 208 F.R.D. 69, 78-79 (S.D.N.Y .2002) (certifying 23(b)(3) strip search class as to the issue of whether defendants had an unconstitutional policy).

If the complaint alleged no more than that the plaintiffs were illegally strip searched upon their ar- rival at OCCF, I would probably agree with defend- ants that class certification was inappropriate. But that is not what the complaint alleges. It alleges that all the members of the class were strip searched for no reason except that there was a policy of strip searching everyone. That is an entirely different matter.

The defendants identify a number of “individual issues” that they contend are relevant to the question of liability. The only one that requires extended discussion is whether-assuming the exist- ence of a uniform policy uniformly applied as plaintiffs allege-the County could have legally strip searched some class members, because a proper Weber/ Walsh/ Wachtler/ Shain I assessment would have revealed some individualized reason to con- clude that the arrestee might be carrying contra- band. The County contends that each individual class member would have to prove that the County could not have strip searched him or her in a consti- tutionally compliant manner as a precondition to finding the defendants liable.

I reject this contention. The allegation of the complaint is that everyone was searched pursuant to a uniformly-applied policy. Implicit in that allega- tion is the notion that no individualized assessments were made for anyone. If individualized assess- ments were in fact not made, then all the searches were illegal, because each new arrival was constitu- tionally entitled to an individualized assessment of his or her circumstances. As plaintiff correctly notes, the fact that a particular class member could

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have been lawfully strip searched if OCCF had made the constitutionally required assessment is a defense to a particular class member’s claim for damages, not a defense to the class-wide claim that the County searched everyone without making any assessment at all. See e.g., In re Visa Check, 280 F.3d 124, 140-41 (2d Cir.2001), Maneely v. City of Newburgh, 208 F.R.D. 69, 77-78 (S.D.N.Y.2002); Calvin v. Sheriff of Will County, No. 03 C 3086, 2004 WL 1125922 (N.D.Ill. May 17, 2004); Mack v. Suffolk County, 191 F.R.D. 16, 24 (D.Mass.2000) .

None of the other “individual issues” with which, according to the County, this case “bristles,” (County Br. At 15) goes to the defendants’ liability, either. For example, the date when a particular plaintiff was incarcerated goes to his/her eligibility for membership in the class (or a particular sub- class), and no more disqualifies the case for class treatment than does the fact that particular share- holders in securities litigation sold their stock on different dates. Similarly, whether a particular class member was subjected to an admissions search un- der more than one policy begs the question, since the allegations is that at all times, there was only one policy-search everyone. And whether a Correc- tions Officer correctly applied the policy is of no moment here, because the allegation is that every- one who arrived was searched pursuant to a policy of strip searching every pre-trial detainee upon ar- rival. The only way to apply such a policy incor- rectly is to fail to strip search a newly-arrived de- tainee. A person who was not searched is by defini- tion not a member of any class in either lawsuit.

[6] When we turn to damages, however, it is clear that individual issues predominate. Even if the plaintiff class members were strip searched illegally pursuant to a uniform policy, not all arriving in- mates will have suffered in the same way or to the same extent. Some may have suffered physical damages as *183 a result of a strip search. Some may have been severely psychologically damaged. Some, perhaps many, will not have found the ex-

perience terribly degrading. And there will un- doubtedly be certain defendants-who knows how many?-whose damages may be limited precisely because they could have been legally strip searched if OCCF personnel had simply assessed each new arrival for factors that would render a strip search permissible under Second Circuit jurisprudence.

The question then arises whether “predominance” must exist at every stage of a class action. As defendants acknowledge, the Second Circuit has already held that the presence of indi- vidualized damages issues does not, by itself, pre- clude class certification. In re Visa Check, 280 F.3d 124, 140-41 (2d Cir.2001). Defendants argue, in a footnote, that where numerous and significant indi- vidualized liability issues combine with individual- ized damages issues, class certification is not ap- propriate. But I have rejected defendants’ conten- tion that there are numerous and significant indi- vidualized liability issues in this case.FN4

FN4. I recognize that Judge Hurley has, on multiple occasions, both before and after Visa Check was decided, refused to certify a class in a similar case pending in the Eastern District, Augustin v. Jablonsky, 99 Civ. 3126(DRH), 2001 WL 770839 (E.D.N.Y.2001), on the ground that com- mon issues did not predominate. I am not familiar with the record in Augustin; per- haps I would have reached the same result on the record before Judge Hurley. Even the same court can reach different conclu- sions in different cases; for example, I am today declining to certify classes in a com- panion case involving the strip search policies at the Dutchess County Jail be- cause, on a rather different fact pattern, common questions do not predominate. See Franklin v. County of Dutchess, No. 03 Civ. 719(CM), 225 F.R.D. 487 (S.D.N.Y .2005). But on the record before me-a record I know well-I do not find the reasoning of Augustin persuasive in view

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of Visa Check and Robinson, supra, and I respectfully decline to follow it.

I thus conclude that, on the question that under- lies imposition of liability in these cases-the exist- ence of a uniform policy-common questions pre- dominate.

Nonetheless, where, as here, individualized questions dominate the issue of damages, it seems to me that a 23(b)(3) class ought be certified only when a class action is the clearly superior method for resolving the case fairly and efficiently. So I turn to the second prong of the 23(b)(3) analysis.

Superiority

[7] Plaintiff urges that a class action is superior to any other method for resolving this case fairly and efficiently. Defendants disagree, and urge the court instead to use this case as a “test case,” with an appropriate special verdict form on which a jury will make certain findings, some of which findings (those pertinent to the County’s policies) will be binding on the County through principles of former adjudication.

I agree with plaintiffs.

Where a single issue (such as the existence of a uniform policy) is guaranteed to come up time and time again, issues of judicial economy strongly mil- itate in favor of resolving that issue via a technique that will bind as many persons as possible. The County blithely suggests that it would be bound, under principles of former adjudication, by a de- cision in the test case. But it fails to address the fact that hundreds, perhaps thousands, of individual plaintiffs would have to file motions with the judges of this court to take advantage of a test case ruling, thereby creating a tremendous and wholly unnecessary burden on the court system (not to mention on the tax payers of Orange County).

Moreover, to the extent that principles of former adjudication bind the County with regard to the existence of a policy of strip searching all per-

sons who arrive at OCCF, the County may well already be bound, at least for the period prior to August 2001-not because of the now-vacated find- ings after trial in Dodge, but because of either (1) this Court’s decision in Lee v. Perez, 175 F.Supp.2d 673 (S.D.N.Y.2001), and/or (2) the County’s admis- sion (via the testimony of its own personnel) that such a uniform policy existed prior to August 2001. FN5 The issue of *184 the binding effect of prior decisions or admissions is itself an issue that ought to be resolved once for all, thereby minimizing the risk of inconsistent results.

FN5. The principal reason why defendants wanted to have a quick trial on the merits of plaintiffs’ application for permanent in- junctive relief was so that, if the Second Circuit reversed itself (or the Supreme Court reversed the Second Circuit) in Shain v. Ellison, the jail could “revert” to the policy of strip searching every new ar- rival, regardless of his individualized cir- cumstances. OCCF officials were eager to strip search every new arrival for what they claimed were security reasons. See Trial Transcript, Testimony of Captain Joseph G. Ryan, at 106-07; 115-16. It will be difficult if not impossible for the County to retreat from its prior position on the existence of a uniform strip search policy at the “old” OCCF, even though the findings made after the Dodge trial are no longer binding.

Finally, the Second Circuit has also endorsed reliance on Rule 23(c)(4)(A), which expressly per- mits an action to be brought or maintained as a class action with respect to particular issues. As the Second Circuit recognized in Robinson, supra, “District courts should ‘take full advantage of this provision’ to certify separate issues ‘in order … to reduce the range of disputed issues’ in complex lit- igation and achieve judicial efficiencies.” 267 F.3d at 167-68.

In this case, as was true in Robinson, litigating

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the “existence of a uniform policy” issue for the class as a whole would both reduce the range of is- sues and promote judicial economy. Every member of the class who did not opt out would be bound by a decision that there was, or was not, a uniform policy in effect during a particular time period. As in Robinson, “even assuming that the remedial stage is ultimately resolved on a non-class basis, the issues and evidence relevant to these individual adjudications would be substantially narrowed.” Id. at 168. For example, a finding that there was a uni- form policy in effect during a particular period would establish the eligibility of certain persons to seek damages. A finding of “no uniform policy” during a particular period, by contrast, would not bar individuals who arrived at OCCF during that period from challenging the particulars of their search in an individual action. It would, however, bar them from asserting that they were searched pursuant to a uniform policy, which would elimin- ate one contentious issue from those individual ac- tions.

In short, dealing with the question that is com- mon to everyone’s claim-the issue of the existence of a uniform strip search policy-on a class-wide basis is a clearly superior method of resolving that key question.FN6

FN6. As a purely practical matter, I must observe that, if thousands of individual plaintiffs brought individual actions in this court ab initio, those actions would likely be assigned to me as “related cases,” and I would consolidate them for the purpose of determining liability.

Because common questions predominate on the issues of liability but not individualized issues un- derlie any award of damages to class members, I am bifurcating the liability and remedy phases of these actions and I certify classes only on the issue of liability-with liability defined as the plaintiffs al- lege it, namely, that the class members were searched solely on the basis of the uniform policy and without any consideration of their individual

circumstances.

To the County defendants’ suggestion that cer- tifying a liability-only class will somehow impinge on their right to a jury: that is, with respect, absurd. If there are disputed issues of material fact concern- ing the existence of a uniform policy, they will be tried to a jury.FN7 *185 If in fact there was a uni- form policy in effect during a particular time peri- od, none of the issues raised by defendants that might impinge on the legality of the search will be triable. And as I promised counsel for the County at our first conference long ago, all issues triable to a jury concerning each individual class member’s damages will of course be tried to a jury if they cannot be settled.FN8

FN7. I recognize that I cannot resolve mer- its issues as part of a decision on a motion for summary judgment. However, this case carries a lot of “merits” history. Plaintiffs have already announced that they intend to move for summary judgment on the “existence of a policy” issue. Given the facts known to this court, it would be fool- ish not to acknowledge that plaintiff might well prevail on such a motion for the pre- August 2001 period-even if Lee does not collaterally estop the County and Bigger from relitigating the issue. Defendants could just as easily have prevailed on such a motion for the period from and after Au- gust 2002 had plaintiffs not withdrawn their proposal to certify a class for that period.

I imagine that the parties will move for cross-motion for summary judgment on the existence of a policy issue for the year between August 2001 and August 2002. I cannot stop anyone from making such a motion, but let me suggest that summary judgment will not be an appro- priate vehicle for resolving the question. In this regard, I remind the parties that Dodge I findings concerning the interim

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year were not based on undisputed facts. Many facts concerning the existence or non-existence of a policy from August 2001-August 2002 were in dispute, and I resolved them by making, inter alia, credibility findings. Now that we are dealing only with an action for damages, I will not be the fact-finder and I would not be in a position to make credibility assessments or resolve evidentiary con- flicts should they emerge from the re- cord on a motion for summary judgment. If the record on such a motion is no dif- ferent from the trial record, there is no question that there will be disputed is- sues of fact, which will be tried to a jury. Moreover, that jury will not be made aware of how the court ruled on those same issues after the first trial.

FN8. In what the court interprets as an at- tempt to intimidate me from concluding that there are ways to manage issue-ori- ented class certification, the County has in- timated that it would not consent to have damages inquests for class members held before one of our excellent magistrate judges. That, of course, is the County’s right. Fortunately, there are many other ways of handling such matters. For ex- ample, if the County’s liability were estab- lished because the trier of fact concluded that a uniform policy existed, I could ap- point an out-of-district Article III judge whose docket is not overcrowded to serve as a special master. That judge could then travel to New York-at the defendants’ ex- pense, of course-to supervise the damages trials.

Classes to be Decertified

Since plaintiffs have abandoned their claims for any injunctive relief, I hereby decertify the classes previously certified in Dodge pursuant to Rule 23(b)(2).

Classes to be Certified

I hereby certify classes, pursuant to Rules 23(b)(3) and (c)(4), classes in each of the Dodge and Rango actions, limited to the issue of liability under an alleged uniform policy of strip searching all new arrivals at the OCCF.

The Dodge class consists of all persons who were detained on misdemeanor charges and who were strip searched on their initial arrival at OCCF pursuant to the facility’s alleged policy of strip searching all newly-arrived pre-trial detainees without making any individualized assessment of the likelihood that they would be carrying contra- band, using the factors identified by the Second Circuit in Weber/ Walsh/ Wachtler/ Shain I.

The Rango class consists of all persons who were detained on felony charges and who were strip searched on their initial arrival at OCCF pursuant to the facility’s alleged policy of strip searching all newly-arrived pre-trial detainees without making any individualized assessment of the likelihood that they would be carrying contraband, using the factors identified by the Second Circuit in Weber/ Walsh/ Wachtler/ Shain I.

The Dodge and Rango plaintiffs need to be in separate classes, because of both the potential that a different legal standard may be applicable to strip searches of felony and misdemeanor detainees and the likelihood that Rango will end up being dis- missed as to Sheriff Bigger on the basis of qualified immunity. Some individuals may belong to both classes, but that is of no moment. The cases have been consolidated because virtually all of the evid- ence will be identical, but that does not suggest merging the two groups.

Within the two general classes in each case, there should be two sub-classes: a class of persons who were strip-searched on arrival at OCCF between January 31, 1999 and August 1, 2001, and a class of persons who were strip-searched on ar- rival at OCCF between August 1, 2001 and August 6, 2002.The first subclass covers the period when

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OCCF was in its old facility and for which there are arguable issues of former adjudication and party ad- missions. The second begins with the move to the new OCCF and ends with the entry of the short- lived preliminary injunction in Dodge, which resul- ted in changes in the official policies at OCCF.FN9

FN9. The fact that the parties treated these two periods differently during the Dodge I trial is a persuasive reason for dividing the classes in this fashion.

Notice to the Class

Rule 23(c)(2) provides that, in any class action maintained under Rule 23(b)(3), notice shall be giv- en to the class in the best practicable manner. As required by the rule, the notice shall advise each potential class member that he/she can choose to opt out of the class; that the judgment, whether fa- vorable *186 or not, will bind all members who do not choose to opt out; and that individual class members who do not request inclusion may, if they so desire, enter an appearance through counsel.

Plaintiffs propose to send a letter by first class mail to each individual who was admitted to OCCF as a pre-trial detainee between January 31, 1999 and August 6, 2002, advising that individual of the status of the case and giving the statutorily required information. Plaintiffs also propose to give notice by publication on four consecutive weekends in five newspapers that serve the Orange County re- gion: The Times Herald Record, El Diario, The Wallkill Valley Times, The Warwick Advertiser, and The Port Jervis Gazette. Plaintiffs do not attach a copy of a proposed letter or advertisement, and do not suggest a deadline by which class members have to opt out. Defendants ask that the letter in- clude a statement that there will be individuals who were strip searched who will not be able to recover any damages-an intimidating remark that will not appear in any letter sanctioned by this court. However, clearly the notice letter needs to advise each potential class member that the issue of dam- ages, if it cannot be settled, will be litigated before a judge and a jury on a case-by-case basis, and that

different members of the class may receive differ- ent amounts of damages as a result.

The manner of giving notice is acceptable to the Court. However, plaintiffs’ counsel needs to present the Court and defendants’ counsel with the text of a proposed notice letter and advertisement. Counsel shall submit same within ten days of the date of this decision. Defendants’ counsel shall have ten days thereafter to offer any substantive or styl- istic comments it wishes to make to the letter.

Within ten days, the County defendants are dir- ected to supply class counsel with a computerized listing of the names and addresses of each individu- al admitted to OCCF between January 31, 1999 and August 6, 2002.

The cost of giving notice rests with plaintiff’s counsel unless otherwise agreed by the parties.

This constitutes the decision and order of the Court.

S.D.N.Y .,2005.
Dodge v. County of Orange 226 F.R.D. 177

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103 Fed.Appx. 688, 2004 WL 1567870 (C.A.2 (N.Y.))

(Not Selected for publication in the Federal Reporter)
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Page 1

This case was not selected for publication in the Federal Reporter.

United States Court of Appeals,
Second Circuit.
Anthony DODGE, Peter A. Machado, Joseph Petri- ello, Joseph Petriello, individually and on behalf of all others similarly situated, Samuel Rango, Indi- vidually and on behalf of all others similarly situ- ated, Jarrod H. Mann, Individually and on behalf of all others similarly situated and Rocco Manniello, Individually and on behalf of all others similarly situated, Plaintiffs–Appellees,
v.
COUNTY OF ORANGE and Frank H. Bigger, Sheriff, Sheriff H. Bigger, in his individual and of- ficial capacity, Defendants–Appellants.

No. 03–7958. July 14, 2004.

Background: Class action was brought seeking to enjoin county jail’s policy of strip searching newly arrived pretrial detainees upon their initial admis- sion. The United States District Court for the Southern District of New York, Colleen McMahon, J., 282 F.Supp.2d 41, entered permanent injunction. County and sheriff appealed.

Holding: The Court of Appeals held that remand was required for district court to determine whether named plaintiffs had standing.

Appeal dismissed, and case remanded. West Headnotes

[1] Federal Courts 170B 543.1

170B Federal Courts
170BVIII Courts of Appeals

170BVIII(B) Appellate Jurisdiction and Pro- cedure in General

170Bk543 Right of Review
170Bk543.1 k. In general. Most Cited

Cases

While issue of standing was not raised on ap- peal, Court of Appeals had independent obligation to assure that there was standing, because standing was a jurisdictional prerequisite.

[2] Injunction 212 1505

212 Injunction
212V Actions and Proceedings

212V(A) In General
212k1505 k. Persons entitled to apply;

standing. Most Cited Cases (Formerly 212k114(2))

District court’s finding of official policy was insufficient, on its own, to support plaintiffs’ stand- ing to seek to enjoin county jail from strip- searching newly arrived pretrial detainees upon their initial admission.

[3] Federal Courts 170B 12.1

170B Federal Courts
170BI Jurisdiction and Powers in General

170BI(A) In General
170Bk12 Case or Controversy Require-

ment

Cases

170Bk12.1 k. In general. Most Cited

Exception to mootness for disputes capable of repetition yet evading review does not apply equally to standing.

[4] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and inmates. Most Cited Cases

Named plaintiffs in class action had to have

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103 Fed.Appx. 688, 2004 WL 1567870 (C.A.2 (N.Y.))

(Not Selected for publication in the Federal Reporter)
(Cite as: 103 Fed.Appx. 688, 2004 WL 1567870 (C.A.2 (N.Y.)))

standing themselves to seek to enjoin county jail from strip-searching newly arrived pretrial detain- ees upon their initial admission.

[5] Federal Courts 170B 947

170B Federal Courts
170BVIII Courts of Appeals

170BVIII(L) Determination and Disposition of Cause

170Bk943 Ordering New Trial or Other Proceeding

170Bk947 k. Further evidence, find- ings or conclusions. Most Cited Cases

Remand of class action seeking to enjoin county jail’s policy of strip searching newly arrived pretrial detainees upon their initial admission was required for district court to determine whether named plaintiffs had standing.

*688 Appeal from the United States District Court for the Southern District of New York (McMahon, J.).James E. Monroe, Dupee, Dupee & Monroe, Goshen, N.Y . (Robert N. Isseks, Middletown, NY , on the brief), for Plaintiffs–Appellees.

*689 Robert S. Groban, Jr., Epstein, Becker & Green, New Y ork, N.Y . for County of Orange, for Defendants–Appellants.

Present: KEARSE, KATZMANN, Circuit Judges, and KOELTL,FN* District Judge.

FN* The Honorable John G. Koeltl, of the United States District Court for the South- ern District of New York, sitting by desig- nation.

AMENDED SUMMARY ORDER
**1 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED and the

case is REMANDED.

[1] Appellants the County of Orange and Sher- iff H. Frank Bigger, in his official capacity, appeal a permanent injunction issued by the United States District Court for the Southern District of New York (McMahon, J.). The district court enjoined the appellants from strip searching felony and mis- demeanor pretrial admittees to the Orange County Correctional Facility (“OCCF”) without reasonable suspicion that the admittees were concealing weapons or other contraband. Following oral argu- ment, the Court directed the parties to submit sup- plemental letter briefs addressing the appellees’ standing to seek injunctive relief in light of Shain v. Ellison, 356 F.3d 211 (2d Cir.2004) (“Shain II”). While standing was not an issue raised on appeal, because standing is a jurisdictional prerequisite this Court has an independent obligation to assure that there is standing. Both parties contend in the sup- plemental briefs that the appellees do have stand- ing. However, having considered the arguments of the parties, we dismiss the appeal and remand to the district court to determine whether the appellees have standing to seek injunctive relief under Shain II.

[2] The parties indicate in their supplemental briefs that the district court relied on Deshawn E. v. Safir, 156 F.3d 340 (2d Cir.1998), to find that the appellees had standing to seek injunctive relief be- cause they were challenging the appellants’ official and uniform policy of strip searching all pretrial ad- mittees to the OCCF. See Dodge v. County of Or- ange, 208 F.R.D. 79, 85 (S.D.N.Y.2002). Following the district court’s ruling on standing, this Court de- cided Shain II, which addressed an individual plaintiff’s standing to seek injunctive relief against strip searches of misdemeanor pretrial detainees at a county correctional facility. In Shain II, the Court concluded that Deshawn E. does not stand for the proposition that “the existence of an official policy, on its own, is sufficient to confer standing to sue on any individual who had previously been subjected to that policy.” Shain II, 356 F.3d at 216. The Court held that “a plaintiff seeking injunctive relief must demonstrate both a likelihood of future harm and

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the existence of an official policy or its equivalent.” Id. The district court’s finding of an official policy is therefore insufficient, on its own, to support the appellees’ standing to seek injunctive relief.

**2 [3][4] The parties argue on various grounds that the standing requirements set forth in Shain II do not apply in this case. The appellants contend that standing should be found to exist be- cause the dispute is one capable of repetition yet avoiding review. This argument confuses mootness and standing, because the exception to mootness for disputes capable of *690 repetition yet evading re- view does not apply equally to standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“Standing admits of no similar exception; if a plaintiff lacks standing at the time the action com- mences, the fact that the dispute is capable of repe- tition yet evading review will not entitle the com- plainant to a federal judicial forum.”). The parties also contend that this case differs materially from Shain II for the purposes of standing because this case is a class action. The argument is unavailing, because the named plaintiffs in this action must themselves have standing to seek injunctive relief. See, e.g., Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n. 20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (“That a suit may be a class action … adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” (internal quota- tion marks omitted)). None of the other arguments presented by the parties to distinguish Shain II has any merit.

[5] In the supplemental briefs, the parties also request that this Court make any findings necessary to establish the appellees’ standing. For example, they contend that the named plaintiffs face a likeli- hood of future harm because they are recidivists who are likely to return to the OCCF. We conclude

that any necessary findings should be made in the first instance by the district court. The district court should make its findings in light of this Court’s de- cision in Shain II and the Supreme Court’s decision in O’Shea v. Littleton, 414 U.S. 488, 494–98, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). See, e.g., id. at 496 (“Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future in- jury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before peti- tioners.”); id. at 497 (“[W]e can only speculate whether respondents will be arrested, either again or for the first time, for violating a municipal ordin- ance or a state statute, particularly in the absence of any allegations that unconstitutional criminal stat- utes are being employed to deter constitutionally protected conduct.”); id. (“attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear be- fore either petitioner takes us into the area of specu- lation and conjecture”).

**3 Because further findings are necessary to establish whether the appellees have standing to seek the challenged injunctive relief, we DISMISS the appeal and REMAND the case to the district court. In the event of a subsequent appeal, the mat- ter will be assigned to this panel. The stay pending interlocutory appeal issued by this Court is dis- solved.

C.A.2 (N.Y.),2004.
Dodge v. County of Orange
103 Fed.Appx. 688, 2004 WL 1567870 (C.A.2 (N.Y .))

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282 F.Supp.2d 41

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United States District Court,
S.D. New York.
Anthony DODGE, Peter A. Machado and Joseph Petriello, individually and on behalf of all others similarly situated, Plaintiffs,
v.
COUNTY OF ORANGE and Sheriff H. Frank Big- ger, in his individual and official capacity, Defend- ants.
Samuel Rango, Jarrod H. Mann, and Rocco Manni- ello, individually and on behalf of all others simil- arly situated, Plaintiffs,
v.
County of Orange and Sheriff H. Frank Bigger, in his individual and official capacity, Defendants.

No. 02 CIV. 769(CM)(LMS), 02 CIV .8451(CM)(LMS). Sept. 9, 2003.

Suit was brought seeking permanent injunction against county jail’s policy of strip searching newly arrived pretrial detainees upon their initial admis- sion. The District Court, McMahon, J., held that: (1) policy, in its three iterations, violated Fourth Amendment to extent that it allowed strip search without individualized reasonable suspicion that the detainee was carrying contraband, and (2) balance of hardships warranted issuance of permanent in- junction against unconstitutional aspects of county jail’s policy.

Request granted.
West Headnotes

[1] Injunction 212 1032

212 Injunction
212I Injunctions in General; Permanent Injunc-

tions in General
212I(B) Factors Considered in General

212k1032 k. Grounds in general; multiple

factors. Most Cited Cases (Formerly 212k9)

Permanent injunctive relief is appropriate when a plaintiff (1) shows that an inadequate remedy is available at law, such as by showing that irrepar- able harm would result if an injunction were not granted, and (2) succeeds on the merits of his claim.

[2] Injunction 212 1034

212 Injunction
212I Injunctions in General; Permanent Injunc-

tions in General
212I(B) Factors Considered in General

212k1034 k. Actual success on merits. Most Cited Cases

(Formerly 212k9)
Standard for a permanent injunction is essen-

tially the same as for a preliminary injunction, ex- cept that the plaintiff must actually succeed on the merits.

[3] Injunction 212 1049

212 Injunction
212I Injunctions in General; Permanent Injunc-

tions in General
212I(B) Factors Considered in General

212k1041 Injury, Hardship, Harm, or Ef-

fect

212k1049 k. Balancing or weighing hardship or harm. Most Cited Cases

(Formerly 212k23, 212k12)
Where public consequences are implicated by a

request for injunctive relief, it is incumbent upon a district court in exercising its discretion to balance the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.

[4] Prisons 310 314 310 Prisons

310II Prisoners and Inmates

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310II(H) Proceedings
310k307 Actions and Litigation

310k314 k. Judgment and relief. Most

Cited Cases

(Formerly 98k6)
Prison Litigation Reform Act (PLRA) requires

a court to apply principles of comity in fashioning relief that requires or permits a government official to exceed his or her authority under state or local law. 18 U.S.C.A. § 3626(a)(2).

[5] Civil Rights 78 1450

78 Civil Rights
78III Federal Remedies in General

78k1449 Injunction
78k1450 k. In general. Most Cited Cases

Alleged violation of a constitutional right suf- fices to show irreparable harm for purposes of ob- taining injunctive relief.

[6] Courts 106 91(.5)

106 Courts
106II Establishment, Organization, and Proced-

ure
106II(G) Rules of Decision

106k88 Previous Decisions as Controlling or as Precedents

106k91 Decisions of Higher Court or Court of Last Resort

106k91(.5) k. In general. Most

Cited Cases

A lower court must follow precedent that is on point, even if it thinks the precedential decision was wrongly decided.

[7] Prisons 310 359

310 Prisons
310III Pretrial Detention

310k351 Care, Custody, Confinement, and Control

310k359 k. Search, seizure, and confisca- tion. Most Cited Cases

(Formerly 310k4(7))

Policy of strip searching every arrestee admit- ted to county jail upon arrival violated the Fourth Amendment. U.S.C.A. Const.Amend. 4.

[8] Prisons 310 137

310 Prisons
310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

(Formerly 310k4(7))
County jail’s policy pursuant to which newly-

admitted detainees were automatically strip searched if any one of a set of listed factors existed violated the Fourth Amendment because it did not call for an officer to have individualized suspicion that a detainee was secreting contraband on his per- son in order to strip search the detainee; factors lis- ted included being a known gang member or having prior escape charges. U.S.C.A. Const.Amend. 4.

[9] Prisons 310 359

310 Prisons
310III Pretrial Detention

310k351 Care, Custody, Confinement, and Control

310k359 k. Search, seizure, and confisca- tion. Most Cited Cases

(Formerly 310k4(7))
County jail’s policy calling for automatically

strip searching all newly-admitted detainees who had been arrested on suspicion of a felony violated the Fourth Amendment because it did not call for an officer to have individualized suspicion that a detainee was secreting contraband on his person in order to strip search the detainee. U.S.C.A. Const.Amend. 4.

[10] Prisons 310 359 310 Prisons

Page 2

tion

Cases

310k134 Search, Seizure, and Confisca- 310k137 k. Strip searches. Most Cited

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282 F.Supp.2d 41

(Cite as: 282 F.Supp.2d 41)

310III Pretrial Detention
310k351 Care, Custody, Confinement, and

Control
310k359 k. Search, seizure, and confisca-

tion. Most Cited Cases (Formerly 310k4(7))

To extent that county jail officers complied with written dictates of policy that they strip search only newly-admitted pre-trial detainees if they de- veloped reasonable suspicion based on the crime charged, particular characteristics of the arrestee, and/or the circumstances of the arrest, policy did not violate Fourth Amendment; however, aspect of policy mandating strip searches of all detainees who had been arrested on suspicion of a felony, weapons, or narcotics offense, it was unconstitu- tional to the extent that it called for an on-arrival strip search of every felony detainee without indi- vidualized reasonable suspicion that the detainee was carrying contraband. U.S.C.A. Const.Amend. 4 .

[11] Injunction 212 1201

212 Injunction
212IV Particular Subjects of Relief

212IV(C) Criminal Matters and Proceedings 212k1200 Prisons and Prisoners

212k1201 k. In general. Most Cited

Cases

(Formerly 212k74)
Prison Litigation Reform Act’s (PLRA) tailor-

ing requirement does not affect the availability of injunctive relief; rather, it affects the scope of the equitable relief a court may order once that court determines that an injunction should issue. 18 U.S.C.A. § 3626(a)(2).

[12] Civil Rights 78 1454

78 Civil Rights
78III Federal Remedies in General

78k1449 Injunction
78k1454 k. Criminal law enforcement;

prisons. Most Cited Cases
Balance of hardships warranted issuance of

permanent injunction against unconstitutional as- pects of county jail’s policy of strip searching newly arrived pretrial detainees upon their initial admission without individualized reasonable suspi- cion that the detainee was carrying contraband; data did not show that more contraband had been smuggled into the facility as a result of policy im- plemented pursuant to preliminary injunction and county defendants did not demonstrate that addi- tional expenses would strain their budget or that the costs would be particularly onerous. U.S.C.A. Const.Amend. 4; 18 U.S.C.A. § 3626(a)(2).

*42 James Edward Monroe, Dupee, Dupee & Mon- roe, P .C., Goshen, NY , Robert N. Isseks, Middletown, NY, for Anthony Dodge.

James Edward Monroe, Dupee, Dupee & Monroe, P.C., Goshen, NY, for Peter A. Machado, Joseph Petriello, Samuel Rango, Jarrod H. Mann, Rocco Manniello.

Christina Sanabria, County Atty, County of Orange, Goshen, NY, Robert Groban, Epstein Bechen & Green, P.C., New York, NY, for County of Orange.

*43 James M. Fedorchak, Gellert & Cutler, P.C., Poughkeepsie, Christina Sanabria, County Atty, County of Orange, Goshen, NY, for H. Frank Big- ger.

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING TRIAL

MCMAHON, District Judge.
This case began in January of 2002, when the

complaint in Dodge v. County of Orange, 208 F.R.D. 79 (S.D.N.Y .2002) (“ Dodge ”) was filed. Plaintiffs brought suit pursuant 42 U.S.C. § 1983 (“ Section 1983”) and sought to represent a class of pre-trial detainees charged with misdemeanors who were admitted to the Orange County Correctional Facility (“OCCF”) from January 1, 1999 to the present and allegedly subject to strip searches upon their admission to the facility that they contend vi- olated the Fourth Amendment of the United States

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Constitution.

The plaintiffs in Dodge moved for a prelimin- ary injunction against further unconstitutional strip searches at OCCF in February of 2002, and defend- ants moved to dismiss plaintiffs’ complaint as moot. I denied defendants’ motion to dismiss and granted plaintiffs’ request for a hearing on their motion for a preliminary injunction. See Dodge v. County of Or- ange, 208 F.R.D. 79 (S.D.N.Y.2002). I also consol- idated the preliminary injunction hearing with a hearing to determine whether class certification un- der Federal Rule of Civil Procedure 23(b)(2) was appropriate, or whether partial class certification under Rule 23(c)(4)(A) would be the best method for adjudicating plaintiffs’ case.

A one-day hearing was held on June 24, 2002. Following the hearing, I granted plaintiffs motion for class certification pursuant to Rule 23(b)(2) and issued a preliminary injunction. See Dodge v. County of Orange, 209 F.R.D. 65 (S.D.N.Y.2002). The injunction enjoined defendants to conduct strip searches of newly-arrived inmates only when they had reason to believe the new arrival might be se- creting contraband, based on (1) the nature of the crime charged; (2) the circumstances of the arrest; and (3) the particular characteristics of the arrestee. [DX 33].

On October 22, 2002, a second complaint, Rango v. County of Orange, 02 Civ. 8451 (S.D.N.Y .2002) (“ Rango ”) was filed. The Rango plaintiffs purported to represent a class of pre-trial detainees charged with felonies who were admitted to the Orange County Correctional Facility (“OCCF”) from January 1, 1999 to the present and allegedly strip searched in violation of the Fourth Amendment of the United States Constitution. The Rango plaintiffs moved for a preliminary injunction soon after filing their complaint.

At oral arguments on the Rango plaintiffs’ mo- tion for a preliminary injunction, I deferred my de- cision on that motion pending an evidentiary hear- ing. The parties then agreed to consolidate the

Dodge and Rango cases so that a single trial could be conducted on plaintiffs’ requests for permanent injunctive relief in both cases. The consolidated tri- al was conducted over four days, between May 19 and May 28, 2003. At the trial, I heard testimony from twenty six witnesses and received into evid- ence voluminous exhibits from both parties. I was also given a personal tour of OCCF on May 29, 2003, at which I time I heard additional testimony from OCCF corrections officers.

Upon reviewing that evidence, together with the parties’ post-trial submissions, I make the fol- lowing findings of fact and conclusions of law.

FINDINGS OF FACT
I. The Orange County Correctional Facility

OCCF is a county jail located about sixty miles northwest of New York City, in *44 a county that contains two of the poorest cities in New York State (Middletown and Newburgh), as well as a growing number of suburban developments that are beginning to impinge on the county’s extensive rur- al areas.

For many years, OCCF was housed in Goshen, New York at 40 Erie Street. OCCF officials and counsel were frank in describing the jail as old and decrepit. On September 1, 2001, the County opened its new correctional facility, which is located in Goshen at 110 Wells Farm Road. As part of the tri- al, I was given an extensive tour of the facility, which is most impressive.

OCCF is a county jail. In the jurisprudence of the Second Circuit, county jails are not considered “prisons.” Shain v. Ellison, 273 F.3d 56, 65–66 (2d. Cir.2001) (hereafter “ Shain ”).FN1 However, at least in the more populous counties (and I include Orange County—one of the fastest growing counties in terms of population in New York State—in that group FN2), the county jail is not the local pokey, either. Accordingly, a description of the facility is both warranted and relevant.

FN1. While the Second Circuit in Shain

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did not consider a county jail to be a “prison,” the facility clearly falls within the definition of the term “prison” as used by Congress in the Prison Litigation Re- form Act (“PLRA”), which defines “prison” as “any Federal, State, or local fa- cility that incarcerates or detains juveniles or adults accused of, convicted of, sen- tenced for, or adjudicated delinquent for, violations of criminal law.” 18 U.S.C. § 3626(g)(5).

FN2. According to the 2000 Census, Or- ange County is the eleventh most populous of New York’s sixty two counties. Between 1990 and 2000, its population grew by el- even percent. Only three other counties (Putnam, Queens, and Richmond) grew at a faster rate. This information is available online at ht- tp://www.empire.state.ny.us/nysdc/census2 000/pl94/ctytabl.pdf.

OCCF is constructed as four separate modules, each of which contains three or four units. Each unit houses up to fifty-three inmates in a self- contained area, in which not only cells, but also re- creation areas (both outdoor and indoor) and facilit- ies for serving food are located. The facility has common areas for educational programs conducted by the Board of Cooperative Educational services (BOCES); medical treatment; personal grooming; and a common kitchen. It also houses administrat- ive offices for jail personnel and the County Sheriff and recreational facilities for use by corrections personnel. (A diagram of OCCF is attached to this opinion as Ex. 1.) FN3

FN3. Due to security concerns, the dia- grams provided by OCCF are incomplete and not to scale.

OCCF is surrounded by high metal fencing topped with barbed wire. It boasts guard towers and lights. It looks nothing whatever like a community lock-up; it is every bit as forbidding as the medium

security federal prison I visited some years ago.

OCCF, like all county jails in New York, houses at least three classes of criminal inmates: persons accused of felonies who have not been ad- mitted to (or made) bail; persons convicted of mis- demeanors who have been sentenced to terms of imprisonment of less than one year; and persons ac- cused of misdemeanors who have not made bail. FN4 Every criminal detainee who arrives at OCCF has been arraigned. Alien detainees and persons who have been civilly committed are also housed in the facility. [Ryan Direct ¶ 21]. The County is presently negotiating with federal authorities to house certain federal detainees.

FN4. In New York State, all persons ac- cused of misdemeanors must be admitted to bail pursuant to N.Y.Crim. Proc. L. § 170.10(7), as recognized in Shain. 273 F.3d at 65.

*45 When multiple inmates are being transpor- ted to the facility (generally by the Orange County Sheriff’s Department), no effort is made to segreg- ate accused felons from misdemeanants or civil committees. Similarly, accused felons are not ne- cessarily segregated from accused misdemeanants, sentenced misdemeanants, or civil detainees in the housing units. However, a person being detained for trial on a charge of rape or murder is unlikely to be housed in the same unit as a person who is delin- quent on his child support, because New York State law requires that inmates be classified by perceived level of risk (high, medium, low) and housed with other inmates who share a similar risk assessment. Men and women are housed separately, and there is a separate housing unit for juveniles.

OCCF only accepts inmates after a court has is- sued a securing order that remands the inmate to OCCF until he can either raise bail or be tried on the criminal charges against him. [Ryan Direct ¶ 8]. Approximately thirty seven different local and mu- nicipal courts (and, on occasion, federal authorities) remand inmates to OCCF. The arresting agencies

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include the New York State Police (who serve as the police force for significant parts of Orange County) and the police departments of the various municipalities within the County.

OCCF has the capacity to house 786 inmates. [Ryan Direct ¶ 5]. At present its capacity is not taxed. An average of 530 inmates are housed at OCCF each day. The annual census filed with the State of New York show that just over 5,500 in- mates passed through the institution in each of the years 2001 and 2002. In 2001, 36% of the inmates housed at OCCF were felony pre-trial detainees (2,009 inmates); in 2002, 42% were felony detain- ees (2,322 inmates). The rest are misdemeanants at various stages of the process (both pre-trial and sentenced), persons secured under civil commit- ment orders, and immigration detainees. This con- trasts with Rikers Island, New York City’s “local jail.” Rikers consists of several different buildings, some of which (such as the Anna M. Kross Center) house up to approximately 3,000 inmates on any given day. [Tr. 182 (DeRosa Testimony) ].

The record contains no data about how many new arrivals are/were received at either the old or the new facility on any given day. According to Capt. Joseph Ryan, the current daytime shift com- mander at OCCF, there are some days on which no new arrivals come to OCCF, while as many as thirty or more may show up on the five to ten busiest days of the year. [Tr. 99–100]. Corrections Officer James Ognibene III testified that the aver- age number of new pre-trial detainees who were in- processed on a given day was about fourteen or fif- teen, with seven to ten of those on the day tour and fewer at night. I find that the booking and receiving officers at OCCF are not heavily burdened with in- processing new detainees during the average tour of duty.FN5

FN5. New arrivals are not the only persons who are in-processed at Booking and Re- ceiving. Inmates who are coming in to serve weekend sentences, inmates return- ing from work details, and inmates return-

ing from court are all in-processed at Booking and Receiving and should be dis- tinguished from inmates—whether accused of misdemeanors or felonies—who are ar- riving at OCCF for the first time following arraignment.

II. Strip Searches
I here emphasize that the only matter at issue in

this case is the constitutionality of strip searching inmates who are arriving at OCCF for the first time post-arraignment or arrest. The case is not about the legality of strip searches conducted after contact visits, strip searches conducted after court appear- ances or work details, or *46 strip searches conduc- ted during cell shakedowns or when violations of contraband rules are suspected. Therefore, I will fo- cus the rest of my findings of fact on that issue.FN6

FN6. It is therefore not necessary for me to make detailed findings of fact about the wonderful educational and religious pro- grams that are conducted at OCCF, or for that matter about all the ways in which contraband circulates among members of the general population. Proposed findings on these and other irrelevant subjects take up numerous single-spaced pages of de- fendants’ lengthy, argumentative, and heavily footnoted Proposed Findings of Fact and Conclusions of Law.

First, however, it is necessary to define what a “strip search” is, because—as I have previously noted—the term means different things to different people. See Sarnicola v. County of Westchester, 229 F.Supp.2d 259, 272 n. 5 (S.D.N.Y.2002). Ac- cording to the Orange County Correctional Facility Training Manual, a “strip search” is:

a search of the inmate’s clothes, once they have been removed, and a visual inspection of the in- mate’s naked body. This should include the in- mate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, al-

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lowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the pro- cedures are similar except females must in addi- tion, squat to expose the vagina. [PX 8, at 13].

The Facility Training Manual elaborates on the strip search procedures, providing, in part, that the strip searching officer should “[c]arefully examine the inmate’s groin”; that “a flashlight should be used, making it unnecessary to touch the prisoner at this point in the search”; and that the officer should “[r]equire the inmate to turn around, bend over and spread his buttocks” and “[t]hen, using the flash- light, look at the inmate’s rectum to see if any con- traband has been placed there.” [PX 8, at 15].

A. The Penological Interest in Strip Searching OCCF houses inmates who present a wide vari- ety of security risks. [Camp Direct ¶ 8; DX 5–11]. These range from maximum-custody inmates who are considered the most dangerous, to minimum-cus- tody inmates who are considered to pose lesser se- curity risks. [Camp Direct ¶ 8]. As both sides’ ex- perts testified, however, penal institutions must provide a perimeter security that addresses the max- imum possible risk. [DX 50A (DeRosa Dep. 101); Camp Direct ¶ 8]. They also agreed that one of the primary security objectives of any correctional fa- cility must be to prevent the introduction of “contraband” into a correctional facility due to the dangers that contraband presents in a correctional setting. [Tr. 432–33, 447 (Camp Testimony); Tr. 196–97 (DeRosa Testimony); DX 50A (DeRosa

Dep. 17–18); DX 49B (Fraser Aff. ¶¶ 16–18) ].

In a correctional setting, the term “contraband” means anything that an inmate is not permitted to have in a correctional facility. Items such as money, cigarettes, or other materials that individuals can possess legally outside a correctional facility may be considered contraband, even serious contraband, inside a correctional facility. [Tr. 429, 433–34

(Camp Testimony) ].

Both William Fraser and George Camp (defendants’ expert) testified credibly about the harm that contraband can cause within a correction- al facility. The dangers *47 posed by weapons, am- munition, or drugs are obvious. Less apparent is the danger presented by money, cigarettes, or even ex- cess prison issue items. All of the expert witnesses testified, including plaintiffs’ expert, that even this “lesser” contraband can increase the level of viol- ence and endanger the health, safety, and well-be- ing of inmates, staff, and civilians in a correctional facility. [Camp Direct ¶¶ 8, 11; Tr. 433–34 (Camp Testimony); Tr. 196–97 (DeRosa Testimony); DX 50A (DeRosa Dep. 17–18); Tr. 395 (Fraser Testi- mony) ]. The danger results from the unique envir- onment that exists inside a correctional facility. Even seemingly innocuous items like money, cigar- ettes, or excess issue (extra sets of items that are is- sued to an inmate once he arrives at the jail, such as clothing or linens) can be used by inmates to barter, and thus be held over the heads of other inmates. [Tr. 433–34 (Camp Testimony) ]. Barter tends to disrupt prison operations by allowing certain in- mates, or groups of inmates, to exercise authority in competition with correctional staff. The use of even seemingly innocuous contraband in this manner can have serious and dangerous consequences. This is why both experts and Mr. Fraser agreed that the in- troduction of contraband into a correctional facility such as OCCF “endangers the safety and security of the inmates, [correctional] employees, visitors, and the surrounding community.” [DX 49B (Fraser Aff. ¶ 16) ].

Jail and prison administrators have the legal mandate and professional obligation to ensure that correctional facilities maintain safe environments for those who reside at, work in, or visit them. [Camp Direct ¶ 7]. The presence of contraband in a correctional facility interferes with this mandate be- cause it can allow inmates to disrupt jail operations, escape, or harm themselves or others. [Camp Direct ¶ 8]. It also increases the level of violence at the in-

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stitution. [Tr. 196–97 (DeRosa Testimony); Tr. 395 (Fraser Testimony) ]. At large correctional facilities like OCCF, this dangerous threat places a premium on keeping contraband out, as both the experts and correctional staff agreed that it was extremely hard to find contraband at OCCF once it already had been introduced into the facility. [Tr. 226 (DeRosa Testimony); Camp Direct ¶ 26; Tr. 356–57 (Ryan Testimony) ].

For OCCF and other jail facilities, this means that the development of procedures, policies, and precautions that will deter, and hopefully prevent, the introduction of contraband is a priority, because of the dangers that this contraband presents to insti- tutional security, safety, and stability. [Camp Direct ¶¶ 8, 11, 12; Tr. 196–97 (DeRosa Testimony); DX 50A, at 17–18 (DeRosa Dep.) ].

The responsibility for stopping the introduction of contraband into OCCF falls on the administrators of that facility. The experts agreed that no prudent correctional administrator could safely rely on se- curity precautions taken by other law enforcement agencies, or even correctional facilities that may have had custody of the inmate before he or she ar- rived at OCCF. [Tr. 228–29 (DeRosa Testimony) ]. The record of this case contains several instances where inmates who arrived at OCCF after spending considerable time in local custody and at arraign- ment nonetheless possessed dangerous items, such as razor blades, drugs, and bullets. [DX 1B (razor blades); DX 1I (marijuana); DX 1A (bullet) ]. FN7 As former-Commissioner Fraser explained, the po- lice are good at making arrests but often fall short with respect *48 to thorough and effective searches. [Tr. 385].

FN7. Significantly for this case, none of these items was found in or around an ar- restee’s anal, groinal, or vaginal area—i.e., areas where only an Admission Strip Search (as I have defined that term above) will uncover contraband.

The fact that OCCF is a jail, not a prison, does

not necessarily make the contraband problem easier to manage. While the Second Circuit surmised in Shain that prisons might present more dangerous circumstances because they house inmates con- victed of serious crimes, that is only one aspect of the problem. Jails like OCCF primarily house pre- trial detainees, some of whom are accused of seri- ous crimes. [Camp Direct ¶¶ 47–50]. Statistics provided by OCCF, and not disputed by plaintiffs, show that one third or more of the persons housed at that facility in every year since 1999 are felony pre-trial detainees, while one-half or fewer of the inmates are either accused or convicted misde- meanants.FN8 Moreover, a sample of the inmate population drawn from the month of August in each of the years 2000–2002 reveals that a significant percentage of the post-arraignment pre-trial inmates admitted to OCCF (either the old or the new facil- ity) after being charged with misdemeanors or civil violations had prior felony criminal histories or gang affiliations, which might make them greater security risks than the charges pending against them indicated.FN9

FN8. In 1999, 32% of the pre-trial inmates at OCCF were felony detainees and 53% were misdemeanor detainees; 36% were felony detainees and 50% were misde- meanor detainees in 2000; 36% were felony detainees and 49% were misde- meanor detainees in 2001; and 42% were felony detainees and 44% were misde- meanor detainees in 2002. [DX 5, 6, 8, 10].

FN9. In August of 2000, 33% of the pre- trial inmates admitted to OCCF after ar- raignment upon being charged with a mis- demeanor or civil violation had a felony history and 42% had a gang affiliation; 34% had a felony history and 40% had a gang affiliation in August of 2001; and 26% had a felony history and 50% had a gang affiliation in August of 2002. [DX 7A, 7B, 9A, 9B, 11A, 11B].

Jail officials rightly view gang affiliation as a

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serious security risk. During the past two years, OCCF has housed approximately 1,000 gang mem- bers from approximately 51 different gangs. [Hefferon Direct ¶ 12]. These have included mem- bers of gangs well-known for their violence, includ- ing the Bloods, Crips, Latin Kings, Netas, Pagans, BBK (Bankard Barrio Kings), and Ching-a-lings. On any given day there are approximately 50 gang members incarcerated at OCCF. [Hefferon Direct ¶ 13]. In the years 2000, 2001, and 2002, respect- ively, approximately 42%, 40%, and 50% of those gang members were being held on misdemeanor or lesser charges. Gang members are often more viol- ent, dangerous, and manipulative than other in- mates, regardless of the nature of the charges against them. [DX 50A, at 117; Hefferon Direct ¶ 15; Tr. 391–92 (Fraser Testimony) ]. They are also more likely than other inmates to attempt to coerce family members or to coerce, cajole, or intimidate lesser violators into smuggling contraband into the facility. [DX 49B, at ¶ 32]. One of the best ways of identifying gang members is by examining mark- ings and tattoos on their bodies. [Hefferon Direct ¶¶ 12–14].

Finally, officials at a county jail like OCCF usually know very little about the new inmates they receive or the security risks they present at the time of their arrival. Ironically, prison officials are often at an advantage here, since sentenced inmates ar- rive after being convicted and after the preparation of a pre-sentence report (which is theoretically sup- posed to contain details about the inmate’s past). FN10 *49 Moreover, many inmates arrive at pris- ons from jails, where they have been incarcerated and already evaluated for potential security risks (a procedure known as “classification,” which will be discussed extensively below).

FN10. As a former state court judge who spent three years trying felonies, I am con- strained to note that pre-sentence reports in the New York State system—at least in New Y ork City—are of wildly varying quality. Some include considerable back-

ground information about a newly arrived prisoner; some tell the judge almost noth- ing.

Both experts and Mr. Fraser agreed that thor- ough Admission Searches of all arriving inmates are the best way to maintain the security level ne- cessary for keeping serious and dangerous contra- band out of OCCF. [Tr. 339–450 (Camp Testi- mony); Tr. 198, 218–19 (DeRosa Testimony); DX 50A, at 16–18 (DeRosa Dep.); Fraser Direct ¶ 4]. All jail personnel who testified at this trial, includ- ing plaintiffs’ expert, Robert Joseph DeRosa, testi- fied that, if they could, they would strip search every newly arrived inmate, regardless of what brought him or her to their facility, in order to min- imize the risk of introduction of contraband. [Tr. 219 (DeRosa Testimony); Tr. 447 (Camp Testi- mony); Tr.]. So strongly do the corrections people feel about this that Fraser testified, credibly, that not until the United States Court of Appeals for the Second Circuit denied the motion for rehearing en banc in Shain did officials at Rikers Island finally stop strip searching every new inmate who arrived at Rikers. [Tr. 393–94 (Fraser Testimony) ]. There- after, Rikers personnel modified their strip search procedures for certain type of inmates to the extent of acquiring hospital gowns, which allows inmates to remain clothed while they squat and cough—a process that, according to Mr. DeRosa, is generally sufficient to dislodge any contraband contained in the anal or vaginal areas. [Tr. 183].

B. OCCF Strip Search Policies
I find as a matter of fact that until the new jail

opened in the summer of 2001, it was the policy at OCCF for each and every newly-arrived inmate to be subjected to an on-arrival strip search, in the manner described above, without regard to the nature of the charges against the inmate or any reason to suspect that he/she might be carrying con- traband. Indeed, defendants, through counsel, stipu- lated that prior to the time when OCCF moved to its present facility the policy was to conduct on- arrival strip searches on every newly-arrived in-

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mate. [Tr. 16]. Moreover, I credit the testimony of Corrections Officers Enos VanAmburgh, James Ognibene III, Christine Mertens (for females), Thomas C. Hefferon, and Robert Crosby on this point. These officers were all assigned during relev- ant periods to work in the jail’s Booking and Re- ceiving area. All of them testified, credibly, that every single new arrival at OCCF was strip searched without regard to the nature of the crime charged, the circumstances of the arrest, or particu- lar characteristics of the arrestee. Their testimony was confirmed by the deposition testimony of de- fendant Bigger, who was the sheriff of Orange County from 1995 through the end of 2002. [PX 22, at 5–22]. Sheriff Bigger’s deposition revealed that new arrivals were strip searched even if they were able to make bail and were not being admitted to the general population. [PX 22, at 20–21].

In or about March 2000, use of the term “personal hygiene check” began at OCCF. I find, based on the credible testimony from Ognibene and the fair inferences drawn from the deposition of Bigger, that a “personal hygiene check” and a “strip search” were de facto the same. As Corrections Of- ficer Ognibene testified, “[t]he names changed, but the search remained the same.” [Tr. 89]. FN11 I do not credit the testimony of Capt. Ryan or any other witness who stated that there were differences between the “strip search” and the “hygiene check” as carried out at OCCF.

FN11. The declaration and testimony of Officer Mertens also support this conclu- sion. [PX 34; Tr. 145–46].

*50 When OCCF moved to the new jail, new booking and receiving facilities, containing new and improved devices for detecting contraband, were suddenly available. At that point, the County promulgated the “August 2001 Policy.” [DX 29]. That policy provided that Admissions Searches “may be conducted” on all inmates charged with felonies, and those inmates charged with misde- meanors or lesser offenses when any of the follow- ing factors was present: “(a) Committed sentenced

inmate/weekenders; (b) Committed probation/pa- role violator; (c) Weapons or narcotics offenses; (d) Known gang affiliation; (e) Prior or current escape charges; (f) Committed for a felony; (g) Prior or current contraband charges; (h) Known history of contraband charges; (i) Metal detector/boss chair activation; (j) Inmate that appears under the influ- ence of drugs/alcohol; (j) Currently suicidal inmate; (k) Prior suicidal history in past 10 years.” Id.FN12

FN12. The August 2001 Policy included additional circumstances that would war- rant a strip search, but they applied outside the context of Admissions Searches—for example, after the violation of particular contact visiting rules.

At the preliminary injunction hearing in Dodge, both Captain Joseph Ryan, OCCF’s Day Shift Com- mander, and his subordinate Lieutenant Dominic De Marco testified—credibly—that the new policy was implemented to give corrections officers under their command as little discretion as possible about whether or not to conduct strip searches. 209 F.R.D. 65, 73. Thus, while the August 2001 Policy purported (on its face) to list circumstances where an officer “may” conduct a strip search, the policy, in effect, listed the factors that mandated a strip search. As a result, at least some strip searches were conducted that violated the reasonable suspi- cion rule of Shain. Indeed, this Court entered a pre- liminary injunction in Dodge after finding that newly arrived inmates were strip searched, pursuant to the August 2001 Policy, without reasonable sus- picion to believe that they might be secreting con- traband.FN13

FN13. In Dodge, I found, based on a re- cord that was far more limited than the one currently before me, that each of several factors that automatically led to a strip search under the August 2001 policy—specifically, activation of the met- al detectors/BOSS chair (in the circum- stances in which the chair was used at that time, which was prior to the inmate’s re-

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moving his clothing and donning prison garb), the appearance of intoxication, or arrest for violation of probation—was in- sufficient, standing alone, to establish the reasonable suspicion necessary to conduct strip search. 209 F.R.D. at 73–77.

The only inmate testimony concerning strip searches during the period when the August 2001 Policy was in effect came from the three inmates who testified during the Dodge preliminary injunc- tion hearing. Nonetheless, that strip searches were carried out during that period without reasonable suspicion to believe that the inmate was secreting contraband was confirmed by several corrections officers, who testified (credibly) that the policy of strip searching all or virtually all new arrivals at OCCF did not really change until 2002. [Tr. 519–20 (Officer Jo–Ann Mance); Tr. 545 (Officer Nancy Duryea); Tr. 549–50 (Officer Joseph Alvarado) ]. Additionally, I have no basis to reconsider my find- ings, made in Dodge, that Wallace Babcock, who was arrested at the Orange County Courthouse when he went there voluntarily to try to resolve ar- rearages in child support payments and transported to OCCF, was strip searched without reasonable suspicion to believe that he was carrying contra- band. See 209 F.R.D. at 70.FN14

FN14. In Dodge I was unable to conclude whether Anthony Dodge had or had not been strip searched—the corrections of- ficer who allegedly conducted the search denied it and it seemed quite possible that Mr. Dodge was confusing his January 29, 2002 arrest with one of the many previous times when he was strip searched under the blanket policy. Nothing in the present re- cord adds to my ability to make that de- termination. In order to recover for this particular incident during the damages phase of this case, Mr. Dodge will have to prove to the satisfaction of a jury that he was in fact strip searched in connection with this arrest.

As for Gordon Barnum, the third inmate whose strip search during the August 2001–2002 period was addressed in Dodge: Barnum was arrested for petit larceny. He was a frequent visitor to OC- CF, and he had a history of using drugs and stealing to support his drug habit. He even stole drugs—the arrest in question occurred when he attempted to steal Tylenol from a convenience store. Barnum appeared to be under the influ- ence of something when he arrived at OCCF and he told the booking officer that he had taken crack cocaine within the previous twenty four hours. For reas- ons to be discussed below, I conclude that the officers had reasonable suspi- cion to conduct a strip search of Barnum—an issue I did not need to reach in Dodge. See 209 F.R.D. at 77.

After this Court entered the preliminary injunc- tion in Dodge, OCCF again revised *51 its strip search policy. [DX 30]. That new “August 2002 Policy” provides that a strip search “may be con- ducted” if any one of the following factors exists: “(A) Committed sentenced inmate/weekender; (B) Committed for Felony offense (Sentenced or Un- sentenced); [and] (C) Weapons or Narcotics of- fenses.” Id. Again, I find that “may” means “must” when used in the August 2002 Policy with respect to those factors.

In addition, the policy provides that a strip search may be conducted when there is “[r]easonable suspicion that a legally committed in- mate is concealing weapons or other contraband based on the crime charged, the particular charac- teristics of the arrestee, and/or circumstances of the arrest (if available).” Id. The policy explicitly states that the an officer may consider the following char- acteristics of the arrestee when determining wheth- er reasonable suspicion exists: “(1) Known Gang Member; (b) Prior or Current escape charges; (c) Inmate has prior or current contraband charges; (d)

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Metal Detector, Boss Chair, Hand held Magneto- meter activation …; (e) Inmate appears to be under the influence of drugs or alcohol; (f) Currently sui- cidal inmate; (g) Inmate has history of suicidal be- havior; (h) Inmate displays assaultive behavior; [and] (i) Inmates disposition (nervous, fidgety, sweating, uncooperative, distracting).” Id. The policy further provides that an officer who develops reasonable suspicion that an unsentenced misde- meanor or violation arrestee is concealing contra- band must obtain approval from a supervisor before performing a strip search. Id. By its terms, the Au- gust 2002 Policy does not require supervisory ap- proval before strip searching sentenced inmates or those accused of felonies or weapons or narcotics offenses.

C. OCCF Procedures 1. Admitting

The process of admitting a newly arrived in- mate takes place in an area of the facility known as Booking and Receiving. (A diagram of the Booking and Receiving Area is attached to this opinion as Ex. 2). Having toured this area, I find that it is a large—indeed, huge—open hall with a booking desk in the center. It is ringed with five separate holding cells, each of which can house multiple in- mates.

The following constitutes my findings of fact concerning the procedures followed to admit new arrivals to OCCF since of August of 2002, after the short-lived preliminary injunction was entered in Dodge.FN15

FN15. The injunction was entered on July 26, 2002, and defendants implemented their new policy soon after in August of 2002. As will be noted below, this intake procedure differed in at least one signific- ant particular from the procedure that was followed from August 2001 until August 2002.

*52 Inmates arrive at OCCF in shackles and re- straints and are discharged at a sallyport outside the Booking and Receiving area. Usually, staff at OC- CF are alerted that a vehicle transporting inmates will be arriving so they are prepared to process the inmates when they arrive. [Tr. 423–25 (Camp Testimony) ]. The inmates typically are met by two OCCF Booking and Receiving officers, who review the inmates’ securing orders to make sure that OC- CF is authorized to receive them. If this paperwork is satisfactory, the OCCF officers escort them in- side OCCF into the Booking and Receiving area. [Tr. 424; Camp Direct ¶¶ 3–10].

Inside the OCCF Booking and Receiving area, the officer lines the arriving inmates up against an interior wall, asks them if they have anything in their pockets (such as drugs, weapons, or needles), and then conducts a pat-search. Any items taken from the inmate are placed in a plastic bag. [Tr. 424; Camp Direct ¶¶ 19–25]. At that point, the in- mate is issued an institutional jump suit and is taken to a semi-private “changing room.” It is at this point that an inmate who is going to be strip searched is strip searched.

As described above, the August 2002 policy provides that the following categories of inmates are automatically subjected to strip searches upon their arrival to OCCF: (1) all sentenced inmates, (2) all inmates who have been committed to OCCF for a felony offense (whether or not they have been sentenced, or even tried), (3) all inmates charged with drug or weapons offenses, and (4) all inmates who are returning from court or work details (regardless of the nature of the charges lodged against them). [DX 30]. If a corrections officer con- cludes that an inmate falls into one of these cat- egories and conducts a strip search, he must note that fact on a form called an “Admissions Strip Search Report.” [DX 20L].

If the new arrival is charged with a misdemean- or or violation or is civilly committed, and the of- fense does not involve drugs or weapons, the writ- ten policy states that the corrections officer on duty

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must assess the inmate’s individual circumstances to determine whether there is reasonable suspicion to conduct an Admission Search. [DX 30; DX 20L]. If a booking and receiving officer believes that such reasonable suspicion exists, the officer first must then secure the approval of a supervisor before a strip search can be performed. [Tr. 280 (Ryan Testimony); DX 20L]. If the supervisor approves, then both the officer and the supervisor must ex- ecute an Admission Strip Search Report, and the supervisor also must describe on that form the “reasonable suspicion” that provided the basis for the search. [DX 20L].FN16

FN16. See below for specific findings of fact concerning OCCF’s compliance or non-compliance with this policy in particu- lar cases.

Any strip search is conducted by an OCCF of- ficer of the same sex in a semi-private changing room that has opaque glass on a portion of the win- dow in the door. This prevents other inmates or staff from observing what is happening. [Tr. 425, 481–82 (Camp Testimony); Camp Direct ¶ 35]. The officer never touches the inmate during a strip search, which is carried out in the manner described above. As soon as the search is concluded, the in- mate puts on the institutional jumpsuit. The balance of his or her belongings is placed in a plastic bag for deposit with the OCCF property clerk. [Tr. 425].

There is no evidence in this record that any in- mate has complained of being physically or sexu- ally abused by OCCF staff *53 during an Admis- sion Search, that any inmate has filed an internal grievance alleging such abuses, or that any such ab- uses have occurred.

Once the inmate has changed into the institu- tional jumpsuit, he or she then is walked through the metal detector and required to sit in the Body Orifice Security Scanner (“BOSS”) chair. The BOSS chair is a non-intrusive, high sensitivity de- tector designed to detect metal objects hidden in

body cavities. It is used to screen inmates for weapons and contraband objects that might be hid- den in anal, oral, vaginal, and nasal cavities. [DX 20M]. It will not pick up non-metallic items such as drugs, cigarettes, or money. The BOSS Chair is not foolproof, but it enhances any other search conduc- ted on an arriving inmate. [Tr. 246–47 (DeRosa Testimony) ].

The BOSS scan comes after most inmates who are going to be strip searched have already been strip searched. [Tr. 425 (Camp Testimony) ].FN17 Though nothing in the record indicates as much, I presume that if an inmate who was not previously subjected to a strip search sets off the BOSS chair, he or she is returned to the changing area and strip searched under the “reasonable suspicion” standard.

FN17. This is a significant difference from the policy that was described to me at the preliminary injunction hearing. There, Lt DeMarco, the Records Supervisor at OC- CF, testified that the inmates were put through the BOSS chair before being ordered to remove their own clothing and change into prison garb. Lt DeMarco also testified that no inmate was ever strip searched under the August 2001 policy be- fore being placed in the metal detector/ BOSS chair. Dodge, 209 F.R.D. at 68. The arriving inmates were asked to remove anything that might set off a metal detector before being put through the machines, but of course items like jewelry, belts, shoe lasts and jeans studs could well have set off the detectors as the BOSS chair was originally used. Lt. DeMarco’s testimony was confirmed by Capt. Ryan and Correc- tions Officers Fagan and Essig. Id.

Issuing prison garb before putting someone through the metal detector/ BOSS chair no doubt cuts down on the false positives that were the subject of much testimony and discussion in Dodge. Statistics introduced at the pre-

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liminary injunction hearing demon- strated that 60% of the strip searches that were conducted between August 1, 2001 and February 14, 2002 were triggered by the inmate’s setting off the metal detect- or/BOSS chair. Unfortunately, no one explained why strip searches for reasons other than setting off the BOSS chair were moved to an earlier point in the booking and receiving process.

After clearing the BOSS Chair, the inmate is placed in one of the OCCF’s holding cells, usually directly opposite the booking area so inmates can be observed by corrections officers. [Tr. 425; Camp Direct ¶¶ 9–17]. Later, the inmate is interviewed by an OCCF booking officer to obtain the pedigree in- formation necessary to complete various forms and the answers to suicide screening questions. [Tr. 425; Camp Direct ¶¶ 1–6; DX 20–20–L, 20N–20O]. All the pertinent information about the new inmates in these forms is self-reported. [Tr. 289 (Ryan Testimony) ].

After the inmate’s paperwork has been com- pleted, he is fingerprinted and, if he is charged with a crime (either felony or misdemeanor), his finger- prints are forwarded to the New York State Depart- ment of Criminal Justice Services (“NYSDCJS”) to confirm his true identity. Under New York law, OCCF is not permitted to forward to NYSDCJS the fingerprints of persons remanded for civil viola- tions, persons remanded for family court non- payments, or immigration detainees. OCCF must destroy these fingerprints when the inmate is dis- charged. [Tr. 281 (Ryan Testimony) ].

Finally, the inmate receives a medical assess- ment by one of the OCCF nurses.

Once all the paperwork and assessments re- quired during the booking and receiving *54 pro- cess are completed, the inmate is escorted to a new housing unit, where he or she will remain pending completion of the classification and assessment process. [Hefferon Direct ¶ 6]. Inmates are housed

as follows: Alpha 1 houses adult and juvenile men without acute medical problems or a history of pri- or suicide attempt or current suicidal ideation; Bravo 4 houses suicidal males, adult and juvenile; Bravo 1 houses all newly-arrived females, adult and juvenile, regardless of suicidal ideation; Medical 1 houses adult and juvenile males with acute medical (non-psychiatric) problems; and Medical 2 houses adult and juvenile females with acute medical (non-psychiatric) problems. OCCF believes that there is no need for a more elaborate housing as- signment at the pre-classification stage because the new arrivals—regardless of the nature or severity of the charges pending against them—are kept con- fined to their cells for twenty three hours a day un- til the classification process is complete.FN18 They leave their cells only for one hour of daily recre- ation, a fifteen-minute shower, and necessary med- ical or legal visits. [Ryan Direct ¶ 19; July 25, 2003 Letter to the Court]. Meals are taken in the cells. FN19 As a result, newly-arrived and pre-classified inmates do not have the same opportunity that clas- sified inmates do to intermingle with others in the housing unit—or, presumably, to pass contraband from one to another.

FN18. After classification, twenty-three hour a day confinement would be con- sidered punitive in nature.

FN19. This is true at the post-classification stage as well.

2. Classification
Under New York law, see N.Y. Correct. Law §

500–b (McKinney 2003), OCCF is required to clas- sify inmates for housing assignments and supervi- sion levels according to the risks that they present. [Ryan Direct ¶ 21].

The classification process at OCCF begins shortly after the new inmate arrives. [Hefferon Dir- ect ¶ 5]. The paperwork completed in Booking and Receiving is forwarded to the Classification De- partment so that it can start to assemble the inform- ation necessary to classify the inmate in accordance

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with New York law. Id. at ¶ 6. Classification re- quires an assessment of the inmate’s criminal his- tory, current charge(s), pending detainers, current or prior disciplinary problems at OCCF or any oth- er correctional institution, problems adjusting to confinement, amount of bail, propensity for victim- ization, escape or contraband risk, aggressive beha- vior, history of bail jumping, or any other factor that may be required to properly evaluate the danger a particular inmate presents. [DX 40B–2, at 17 (Ryan Dep.) ].

Classification officers record their overall as- sessment on a worksheet to develop the security score that defines the inmate’s classification level: minimum custody, low medium custody, high me- dium custody, or maximum custody. [DX 40B–2, at 17 (Ryan Dep.); Ognibene Direct ¶ 6; Van Am- burgh Direct ¶ 6]. This custody level is used to en- sure that the inmate only receives housing and work assignments that are compatible with the security risk that he or she presents. [Tr. 93 (Ryan Testi- mony) ].

Under New York law, the classification of- ficers at OCCF have seven days to complete the classification of new inmates. [Hefferon Direct ¶ 10]. The testimony at trial indicated that the classi- fication process at OCCF usually was completed within three to five days. [Ryan Direct ¶ 21].

OCCF obtains criminal history information about newly arrived inmates during *55 the classi- fication process. Criminal history is derived from so-called “File 15” reports, also known as “rap sheets.” To obtain these reports, OCCF (or any oth- er law enforcement facility) must have access to a NYSPIN terminal. At OCCF, the NYSPIN terminal is located in a secure room within the Classification Department, which is about 600 feet away from the Booking and Receiving area. Captain Ryan testified that the County has placed the NYSPIN terminal in the Classifications Department to control access to and the use of the rap sheets that are generated. Ac- cording to Captain Ryan, this is necessary due to New York State rules restricting dissemination of

the File 15 reports because of privacy and confiden- tiality requirements. [Ryan Direct ¶ 15].FN20

FN20. Though Captain Ryan did not so specify, I assume that he was referring to the regulations concerning NYSPIN secur- ity set forth at N.Y. Comp.Codes R. & Revs. tit. 9, § 486.4 (2003).

Criminal history information about an arriving inmate, in the form of a File 15, can be (and gener- ally is) obtained expeditiously. Former Corrections Officer Enos Van Amburgh worked for approxim- ately eight and a half years in the jail’s Classifica- tion Department. It was his job to run rap sheets on every inmate processed at the Orange County Jail (the old facility). Van Amburgh did so as soon as he received the paperwork from booking. [Tr. 12]. Customarily it took him only a couple of minutes to generate a File 15 on an inmate. Id. Although, in Van Amburgh’s experience, there were occasions where attempts to secure a File 15 were delayed, this did not happen often. [Tr. 13]. In the eight and a half years that Van Amburgh worked in classific- ation, the terminal probably went down only “five times, six times,” [Tr. 15], and when the terminal was down, it could be back up in five minutes. While it has happened that the terminal was down for up to three or four hours, [Tr. 13–14], I con- clude, based on Van Amberg’s testimony, that this happened no more than five times during an eight and a half year time span. The terminal was never down for as many as eight hours when Van Am- burgh was there. [Tr. 14].

Capt. Ryan acknowledged that the time from when the NYSPIN terminal receives the inmate’s name and social security number to when it provides the File 15 could be as quick as the time it takes to log onto a website. [Tr. 95]. All that is needed to generate a File 15 is the inmate’s name, social security number, and date of birth. [Tr. 320]. He also conceded that the terminal operates under normal conditions most of the time. [Tr. 95]. Capt. Ryan testified that the system is “booted,” usually “once or twice a month.” Id. But there is no evid-

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ence in the record tending to show that this ad- versely affects the turn-around time to generate File 15′s or otherwise delays the in-processing of in- mates. I recognize that, hypothetically, a computer malfunction could slow the process down consider- ably. But on the record before me I cannot conclude that this happens with any frequency.

Rap sheets are generated based on self-reported information, and not until fingerprints have been compared is it possible to confirm that the arrestee is in fact the person he says he is. Fingerprint con- firmation normally takes more than a week to get to OCCF. [Ryan Direct ¶ 21]. Of course, some ar- restees’ identities cannot be confirmed via finger- print check. If an arrestee has not previously been fingerprinted—for example, if he or she has never before been involved with the criminal justice sys- tem—then there is no way for corrections officers to obtain absolute identity confirmation. Nonethe- less, corrections*56 officers evaluate those inmates and make risk assessments about them, based on self-reported information.

I conclude that corrections officers do rely on self-reported information in making classifications and risk assessments. Moreover, in the absence of data indicating that significant numbers of new ar- rivals at OCCF turn out to be lying about who they are—and there is no hard data on that issue in this record—I conclude that File 15s generated on the basis of self-reported data are generally reliable. Lacking any evidence of how frequently new ar- rivals at OCCF attempt to mask their identity, I cannot and do not conclude that rap sheets are per se unreliable or could not be used by corrections of- ficers as one piece of information in making pre- liminary assessments during the booking and re- ceiving process.FN21

FN21. I must observe that the judges and magistrates who sit in arraignment parts and make bail decisions at arraignment hearings do not have the luxury of waiting several days for fingerprint confirmation to come in, and thus rely heavily on these

very File 15 “rap sheets” to make decisions that affect the safety of the community. While I recognize that people do on occa- sion use aliases to try to mask their iden- tity, I also recognize that NYSPIN rap sheets provide helpful informa- tion—sometimes the most helpful informa- tion—when time is of the essence (for ex- ample, to satisfy constitutional arrest- to-arraignment standards). Indeed, OCCF corrections officers make preliminary risk assessments about new prisoners in order to assign them appropriately within the pre-classification housing bloc—according to defendants, OCCF personnel assess each new arrival for identified direct contact problems (i.e., should the inmate by kept apart from some other particular inmate), propensity for victimization, and risk of es- cape. Thus, it is simply silly for defendants to suggest that rap sheets are of no value whatever until fingerprint confirmation comes in.

Nothing prevents the operator of the NYSPIN terminal from sharing with officers in Booking and Receiving information in a new arrival’s File 15 criminal history during the booking and receiving process. As Capt. Ryan put it, “There’s no reason why anybody can’t communicate any information to anybody.” [Tr. 97]. However, booking officers at OCCF do not receive criminal history information from Classification Officers during in-processing of new arrivals.

In addition, Orange County maintains compu- terized “prior commitment” records that contain in- formation about persons formerly admitted to the facility. These records are generated and main- tained by the County as a part of their classification process. [PX 40].

Upon completion of the classification process, the inmate is assigned to a more permanent housing unit, where he or she dwells with other inmates who are similarly classified in terms of their secur-

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ity risk and who are not considered a threat to the new inmate. [Ryan Direct ¶ 21]. A typical housing unit, therefore, may contain inmates charged with misdemeanors and/or felonies, inmates remanded under civil commitments, and immigration detain- ees, as long as all of these inmates pose approxim- ately the same security risk. Id.

3. Information Available (or Not Available) at the Time of the Booking and Receiving Process

As noted above, a new arrival at OCCF brings with him a securing order from the court that ar- raigned him and committed him to OCCF’s custody. This order contains minimal information about the inmate, typically consisting of only the name the arrested individual gave to the arresting agency, the charge pending against him, and information con- cerning bail (e.g., *57 the amount bail was set for). [DX 18]. Thus, securing orders generally do not contain detailed information relevant to an assess- ment of whether there is reasonable suspicion to be- lieve that a new arrival at OCCF might be secreting contraband, except for the crime charged. [Tr. 236 (DeRosa Testimony) ].

Booking and receiving officers at OCCF, who are charged with in-processing new arrivals and making decisions about matters like whom to strip search, receive no information other than the secur- ing order that arrives with the prisoner. They are not provided with the File 15 “rap sheet” generated by OCCF’s Classification Department. They are not even provided with information about whether the new arrival had previously been incarcerated at OCCF, although that information is maintained at the jail.

Captain Ryan’s testimony concerning why in- formation generated within OCCF itself is not provided to officers in Booking and Receiving makes no sense. He testified that rap sheets are not made available to booking officers because the in- formation contained therein is “privileged” (though he did not explain the nature of the privilege), and he indicated that it was undesirable for such in- formation to be disseminated to staff members, lest

they take a dislike to a particular prisoner, which he deemed not “beneficial to good operations.” [Tr. 96–97]. He did not explain why this particular con- cern overrode giving Booking and Receiving per- sonnel information that would help them do their job of evaluating arriving inmates for reasonable suspicion of contraband, or how it was that the use of this “privileged” information by the officers who work in Classifications did not give rise to the same concerns.FN22

FN22. Presumably, the concern is that the Booking and Receiving officers would tell other corrections officers “privileged” in- formation about arriving prisoners. Of course, officers working in Classifications, who have access to this “privileged” in- formation, could do exactly the same thing.

There is also information elsewhere in the sys- tem that might be made available to the booking and receiving officers who are in-processing new arrestees. For example, every arresting officer on a police force in the State of New York is required to prepare a police arrest report, containing informa- tion about the circumstances of the arrest and in- formation about a suspect. [Tr. 152]. These reports are not confidential [Tr. 153], and nothing in the law would prevent a police agency from giving a copy of an arrest report to whoever is transporting a detainee to OCCF or from faxing the arrest report to jail.

The City of Middletown is one of the largest jurisdictions within Orange County. According to its former police chief, Louis Ogden, officers of the Middletown Police Department routinely tell sher- iff’s deputies who arrive to transport newly ar- raigned arrestees to OCCF about anything that the deputies ought to know concerning the individuals they are transporting, including information about the perceived dangerousness of the detainee.

Plaintiffs’ expert witness, Robert DeRosa, testi- fied credibly that when a new inmate arrived at Rikers Island, in New York City, where he served

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as deputy warden and warden of the Anna M. Kross Center for approximately seven years, the inmate brought with him a File 15 rap sheet generated at Central Booking, as well as a securing order and ar- rest ticket (a form containing pedigree information and fingerprints). [Tr. 239–43 (DeRosa Testimony) ]. The rap sheet was generated by classifications of- ficers within New York City Corrections. Id. at 241. Of course, the situation at Rikers differs from *58 the situation at OCCF in two rather obvious particulars. First, Rikers is a much larger and busier institution. Furthermore, it receives all its prisoners from a single police department, not from thirty seven different jurisdictions. However, that police department—the NYPD—is a gigantic decentral- ized police department, with thousands of officers scattered over five separate counties, each of which is significantly larger than Orange County in terms of population.

Personnel who transport prisoners from the various municipalities to OCCF and OCCF Correc- tions Officers are not trained in how to gather in- formation from other law enforcement agencies within Orange County. [Tr. 319 (Ryan Testimony) ].

At no time have OCCF officials asked the vari- ous municipalities that feed inmates into the jail to devise a system for sharing information about new arrestees that could be used to make the kind of in- dividualized assessment about the risk of contra- band carriage that is required by existing Second Circuit case law. Id. at 317–18. Therefore, no one knows whether it is possible to devise a workable information sharing system with the multiple juris- dictions involved. Captain Ryan thinks it would be “pretty much impossible,” [Tr. 277], while Chief Ogden believes that if the County simply directed local law enforcement to provide it with informa- tion, the authorities would readily comply. Chief Ogden testified credibly that, while he was Chief, he would have told his officers to provide sheriff’s deputies with File 15s and arrest reports if asked to do so. [Tr. 166–67].

The experience of New York City strongly sug- gests that it would be possible to devise procedures that would require local law enforcement agencies to transmit material in addition to the securing or- der with a prisoner who was being sent to OCCF. Moreover, contrary to the testimony of OCCF offi- cials, New Y ork State regulations regarding NYSPIN security do not appear to bar the sharing of File 15s among law enforcement agencies. See N.Y. Comp.Codes R. & Revs. tit. 9, § 486.4 (2003).

4. Compliance (or Non–Compliance) with the Au- gust 2002 Strip Search Policy

On July 26, 2002, this Court entered a prelim- inary injunction in the Dodge case, in which I dir- ected that OCCF comply with the mandate of the United States Court of Appeals for the Second Cir- cuit as handed down in Shain. I thus enjoined the defendants in Dodge to conduct strip searches of newly-arrived inmates only when they had reason to believe the new arrival might be secreting con- traband, based on (1) the nature of the crime charged; (2) the circumstances of the arrest; and (3) the particular characteristics of the arrestee. [DX 33]. The injunction did not direct OCCF personnel to adopt any particular policies or procedures in or- der to effect this result, leaving all such matters to the sound discretion of experts in penology. The court simply and solely directed defendants to com- ply with the Constitution as interpreted by the Second Circuit in Shain.

The Dodge injunction expired ninety days later, pursuant to the Prison Litigation Reform Act (“PLRA”). See 18 U.S.C. § 3626(a)(2) (“Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, un- less the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90–day period.”).FN23

FN23. The reason for this incomprehens- ible development is that neither side in Dodge so much as mentioned the PLRA until after the preliminary injunction ex-

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pired. Apparently, neither plaintiffs’ coun- sel nor the County’s attorney was aware that, pursuant to the PLRA, preliminary in- junctive relief expires unless the court makes the order final, consistent with § 3626(a)(1) (which requires a court to make findings as to whether prospective relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right), within ninety days after the entry of the preliminary injunction. Plaintiffs made no effort to have this Court timely make the findings necessary to per- mit continuance of the injunction.

After the decision in Dodge came out, Orange County hired as outside counsel the law firm of Epstein, Becker & Green, which has handled considerable PLRA litigation. Since Epstein Becker’s en- trance into the case, the PLRA and its re- quirements have been the focus of sub- stantial litigation, and this trial was con- ducted with those requirements very much in mind.

*59 Shortly after the Dodge injunction was entered, OCCF adopted the August 2002 strip search policy. OCCF contends that it voluntarily continues to follow this policy, even though the Dodge injunction has expired. Plaintiffs contend that this is a paper policy only, and that it is routinely disregarded. Defendants demur.

At trial, plaintiffs presented testimony from ten witnesses, all of whom were arrested after the Au- gust 2002 policy went into effect, and all of whom insisted that they had been strip searched upon their initial arrival at OCCF, despite the fact that they were arrested for misdemeanors or civil violations and that officers had no probable cause to believe that they were carrying contraband. Defendants presented testimony from the corrections officers who in-processed these individuals. What follows

are my findings of fact concerning these incidents. Because the individuals whose stories are told be- low are all members of the plaintiff class, and both sides have requested a jury trial on the subject of damages, these findings of fact pertain solely to the injunctive phase of the case.

a. Gary Luke
Gary Luke was admitted to the Orange County

Jail on or about October 5, 2002, on a bench war- rant arising out of a violation of probation and a charge of injuring an animal (a Class “A” Misde- meanor). Upon his arrival at the receiving area, he was ordered by the corrections officers to remove all of his clothes, squat down, lift his genitals, and spread the cheeks of his buttocks for the officers’ visual inspection. The record does not indicate the nature of the underlying charge or the nature of the violation, but Luke testified without contradiction that it had nothing to do with either drugs or weapons. [PX 4; Tr. 19; DX 68]. Luke was admit- ted to the general population.

There is no dispute that Luke was strip searched on arrival at OCCF; the appropriate paper- work so indicates. [DX 68]. The corrections officer who supervised Luke’s admission to the jail was David Myers. Myers had no recollection of Luke’s arrival independent of his paperwork, although he knew Luke from prior incarcerations at OCCF. FN24 However, the Strip Search Report that is part of Luke’s file indicates that Luke appeared to be un- der the influence of “drugs or alcohol” when he ar- rived at the jail. He had eleven pull tabs on his per- son, and during questioning Luke admitted to hav- ing a prior problem with alcohol. Based on his ap- pearance and property inventory, Luke obtained su- pervisor consent to conduct a strip search and pre- pared the appropriate paperwork, with supervisory sign-off as required by the policy.

FN24. Luke was a frequent visitor to OC- CF, having been arrested and strip searched on two prior occasions pursuant to the blanket strip search policy. [Plaintiff's Proposed Finding of Fact

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2–13].

*60 I find that Officer Myers did not have reas-

onable suspicion to conclude that Luke might be se-

creting contraband on his person, so as to justify an

on-arrival strip search. Myers had no suspicion

whatever that Luke was under the influence of

drugs. Eleven pop top cans does indeed suggest the

influence of alcohol, but Luke appeared to be

drunk, nothing more. There is no evidence in this

record that alcohol abuse is correlated with efforts

to introduce into the facility contraband of the sort

that can be hidden in the anus or genitalia. See

Dodge, 209 F.R.D. at 76–77, and cases cited.

Moreover, alcohol intoxication is not a per se reas-

on to conduct a strip search; it is merely a factor

that an officer can consider. In Luke’s case, the

evidence suggests that the officer searched Luke

simply and solely because he believed that the jail’s

policy allowed him to search any newly arrived in-

mates who appeared to by drunk. [Myers Direct ¶ 8].FN25

FN25. Officer William Proscia also ap- pears to share this misapprehension. [Tr. 534].

b. John MacChurch
John MacChurch was admitted to the Orange

County Jail on February 27, 2003 for failure to pay child support. Upon his arrival at the receiving area he claims he was brought to a separate room where he was ordered by the corrections officers to re- move all of his clothes, squat down, lift his genit- als, and spread the cheeks of his buttocks for the of- ficers’ visual inspection. None of the circumstances surrounding MacChurch’s arrest involved the use or possession of drugs or weapons. [PX 49; Tr. 25].

Defendants contend that MacChurch was strip searched during a cell shakedown, not during Mac- Church’s admission to OCCF. [Tr. 29–30]. The “no search” box on MacChurch’s Admissions Strip Search Report was checked off, [PX 60A], but no corrections officer testified about the MacChurch search or about his admission to OCCF.

After hearing MacChurch testify, I find him to be a credible witness and conclude he was strip searched without reasonable suspicion in violation of OCCF’s stated policy.

c. Demorris Reed
Demorris Reed was admitted to the Orange

County Jail in February 2003 for failure to pay child support (Family Article 4). His arrest did not involve the use or possession of drugs or weapons. [PX 46; Tr. 32]. Nonetheless, he claims that, upon his arrival at the receiving area, he was ordered by the corrections officers to remove all of his clothes, squat down, lift his genitals, and spread the cheeks of his buttocks for the officers’ visual inspection. Reed was admitted to the general population.

Corrections Officer William Proscia received Reed at OCCF. Proscia testified that he was going to strip search him because high bail ($7,000) had been set for the prisoner, which caused Proscia to wonder if he might have been charged with a felony. [Tr. 537]. However, he stated that a super- visor overruled him, and so he did not conduct the search. I do not credit this testimony, largely be- cause Officer Proscia testified that the strip search policy at OCCF in 1999 and 2000 was otherwise than I have found it to be. [Tr. 533–34]. I find that Reed was in fact strip searched upon arrival at OC- CF, without reasonable suspicion and in violation of jail policy.

Reed was again admitted on April 9, 2003 for endangering the welfare of a child (a Class “A” Misdemeanor). He claims that he was subjected to a strip search at the jail in the same manner as before. *61 Reed testified that the notation in the Admis- sion Strip Search Report, [DX 61B, 61C], which in- dicates that he was not strip searched, is “wrong.” [Tr. 38–39].

This time, Reed’s admitting officer was Joseph Alvarado. Alvarado has no recollection of admit- ting him, and testified only to the procedure that he should have followed, since he checked the “no search” box on the Admissions Strip Search Report.

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Since Alvarado is not able to controvert Reed’s testimony, I accept it as true.

There were violations of OCCF’s strip search policy in Reed’s case.

d. Delacy Brandon–Abraham
Delacy Brandon–Abraham was admitted to the

Orange County Jail in February 2003 for violation of an Order of Protection (Family Article 4). She claims that, upon her arrival and before being placed in a cell, a female corrections officer escor- ted her to a room and ordered her to remove all of her clothes; squat down; and expose her breasts, fe- male genitalia, and anal cavity for visual inspec- tion. None of the circumstances surrounding the ar- rest involved the use or possession of drugs, weapons, or contraband. [PX 47; Tr. 40]. Brandon–Abraham testified that the notation in the Admission Strip Search Report indicating that she was not strip searched, [DX 53A], is not correct. [Tr. 45–46]. Brandon–Abraham was admitted to the general population.

Corrections Officer Jo–Ann Mance–Saenz in- processed Brandon–Abraham, whom she recalls as a “large woman” who “arrived at the OCCF with a substantial amount of candy.” [Mance–Saenz Direct ¶ 7]. After pat-searching Brandon–Abraham, she took her into a changing room, with a jump suit. Per standard procedure, she asked Brandon–Abraham to remove all of her clothing other than her undergarments, so she could do a routine check for contraband under the armpits, between the toes, and in the hair. Apparently, Brandon–Abraham was not wearing any undergar- ments—a fact that Officer Mance–Saenz learned only when the inmate removed her outer clothing. Officer Mance–Saenz told her to put on a jump suit and went in search of some underwear that would fit her. Since this was not an Admissions “strip search” as defined above, Officer Mance–Saenz filled out the paperwork accordingly.

I credit the testimony of Officer Mance–Saenz. There was no violation of OCCF strip search policy

in Brandon–Abraham’s case.

e. Jeremiah Westford
Jeremiah Westford (18 years old), Charles Toto

(19 years old), and John Watson (17 years old) were admitted to OCCF in April 2003. Westford was admitted on charges of criminal possession of stolen property (a Class “A” Misdemeanor) and consumption of alcohol in a motor vehicle. Watson was charged with criminal possession of stolen property and petit larceny (both Class “A” Misde- meanors). Toto was charged with criminal posses- sion of stolen property (a class “A” misdemeanor). Each testified that, upon his arrival at the receiving area, he was ordered by the corrections officers to remove all of his clothes, squat down, lift his genit- als, and spread the cheeks of his buttocks for the of- ficers’ visual inspection. None of the circumstances surrounding their arrest involved the use or posses- sion of drugs or weapons. [PX 48; Tr. 174–75]. All testified that the notation in their Admissions Strip Search Report indicating that they were not strip searched was “a false statement,” id. at 176–77, or “absolutely false,” id. at 179, or “wrong.” Id. at 55–56. All three were bailed out of jail within hours of their arrival and before they were introduced into the general population.

*62 A single corrections officers, Michael Pfleger, in-processed these three young men. Pfleger testified that upon their arrival he patted them (and a fourth companion) down, directed them to line up against the wall, and led them, one at a time, to a changing room, where he gave them a plastic bag for their clothes and jump suits into which they had to change. Pfleger remained at the door of the changing room, looking outside to keep an eye on the other three while one young man changed his clothes in the room. While I find that the young men had to remove their clothes (i.e., “strip”) in the presence of Officer Pfleger, I credit Pfleger’s testimony and do not believe that they were “strip searched” as that term is used in this case.

f. Patrick Crowe

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Patrick Crowe was admitted to the Orange County Jail on August 8, 2002 on a charge of petit larceny (a Class “A” Misdemeanor). He claims that upon his arrival at the receiving area he was ordered by the corrections officers to remove all of his clothes, squat down, lift his genitals, and spread the cheeks of his buttocks for the officers’ visual in- spection. Crowe testified that the notation in the Admission Strip Search Report that indicates that he was not strip searched, [DX 52A], is “wrong.” [Tr. 68, 70]. Crowe was admitted to the general population.

Corrections Officer William Proscia in- processed Crowe on August 8, 2002. He specific- ally recalls Crowe because Crowe was crying dur- ing the booking process and was placed on close watch as a potential suicide. (Crowe’s step-sister had died the previous day.) Proscia claims that he did not strip search Crowe, and that the contempor- aneous paperwork confirms this.

I conclude that Proscia did strip search Crowe. Moreover, he violated OCCF’s newly-promulgated policy by not obtaining permission from a super- visor prior to conducting the strip search. Under OCCF’s August 2002 policy, suicidal ideation upon entry is a factor that an officer may consider in de- termining whether there is reasonable cause to be- lieve that the new arrival is secreting contraband. But no single factor is determinative under that policy (unlike the August 2001 Policy, where the presence of any single factor automatically led to a strip search), and Proscia did not testify that he had reason to believe that Crowe was secreting contra- band on his person. He conducted the strip search simply and solely because it appeared to him that the inmate was suicidal. There is no evidence in the record from which I can conclude that suicidal ideation upon arrival correlates with likelihood of carriage of contraband.

That said, I note that the August 2002 policy was instituted only two days prior to Crowe’s ar- rival at the jail. Under the August 2001 policy, sui- cidal ideation meant an automatic strip search, with

no need to obtain supervisory approval. I can well imagine how confusing the whole situation was for corrections officers, who theretofore had been giv- en—by design—little or no discretion in determin- ing whether or not to strip search an inmate. And inmate suicide presents corrections officers with a nightmare scenario. So Proscia’s decision to strip search Crowe was likely an innocent mistake. Non- etheless, this strip search contravened both policy and the reasonable suspicion standard.

Crowe was again admitted to OCCF on August 22, 2002. At that time, he was asked by a correc- tions officer to remove all of his clothing prior to receiving a jump suit to change into. [PX 42; Tr. 57]. Crowe was admitted to the general population.

*63 This time the admitting officer was Correc- tions Officer Joseph Alvarado. Alvarado has no specific recollection of admitting Crowe independ- ent of the paperwork, which indicates that no strip search was performed. However, accepting Crowe’s unrebutted testimony as true, no “strip search” as that term is defined by OCCF (and this opinion), was performed on that day, although Crowe was re- quired to “strip.”

g. Christina Fabbro
Christina Fabbro was admitted to the Orange

County Jail in March 2003 for issuing a bad check (a Class “B” Misdemeanor). She claims that, upon her arrival and before being placed in a cell, a fe- male corrections officer escorted her to a room and ordered her to remove all of her clothes; squat down; and expose her breasts, genitalia, and anal cavity for visual inspection. During this time Fab- bro was menstruating and, once she was completely naked, she was provided with a sanitary napkin. None of the circumstances surrounding this arrest involved the use or possession of drugs, weapons, or contraband. [PX 45; Tr. 167–68]. Fabbro testi- fied that the notation in the Admission Strip Search Report that indicates that she was not strip searched, [DX 56A], is “not true, because we were strip searched.” [Tr. 173–74].

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Corrections Officer Nancy Duryea was called out of other duty to in-process Ms. Fabbro on the night of March 27, 2003. She testified, credibly, that she did not strip search Ms. Fabbro that night (see Admissions Strip Search Report dated 3/27/03, part of DX 56G), but did strip search her following a court visit on April 10, 2003. [DX 65, at ¶¶ 9–10]. Ms. Fabbro was also strip searched following a court visit on April 16, 2003, by Corrections Of- ficer Davis. [DX 56G]. Ms. Fabbro’s use of the word “we” suggests that she is recalling instances when she was strip searched after arriving in the company of other inmates, which is consistent with a return from a court visit.FN26

FN26. I recognize that it is also consistent with her having been transported to OCCF for the first time in the company of other inmates, but the record contains no inform- ation about the circumstances in which she was transported to the jail. Moreover, I find Officer Duryea to be a credible wit- ness.

I find that there was no violation of OCCF policy in Ms. Fabbro’s case.

h. Klaus Rice
Klaus Rice was admitted to the Orange County

Jail on November 14, 2002 for failure to pay child support. [DX 54E; Tr. 264–65, 268]. Mr. Rice was taken into custody at the Orange County Family Court in Goshen. [Tr. 261]. He claims that upon his arrival at the receiving area he was brought to a separate room where he was ordered by the correc- tions officers to remove all of his clothes, squat down, lift his genitals, and spread the cheeks of his buttocks for the officers’ visual inspection. None of the circumstances surrounding his arrest involved the use or possession of drugs or weapons. [PX 41; Tr. 260]. Rice testified that the Admissions Strip Search Report that indicates he was not strip searched, [DX 54A], is “incorrect.” [Tr. 265–266].

Corrections Officer Rick Essig in-processed Mr. Rice. Essig was working as the “court-prep”

officer that day, preparing inmates to go to court and processing those who returned. Apparently, Mr. Rice was taken to OCCF with the inmates who were returning from court visits.

Essig has no memory of admitting Rice and testified only to the procedures that he should have followed had he been acting in accordance with OCCF policy. As previously*64 noted, it was standard practice for OCCF corrections officers to strip search any inmate who was returning from a court appearance. Since Rice arrived at the jail with inmates who were returning from court, I find is en- tirely plausible that he was strip searched just as they were. I find that DX 54A, to the extent it in- dicates otherwise, is in error.

5. The Impact of the August 2002 Strip Search Policy on the Presence of Contraband at OCCF

Shortly after this court entered the Dodge in- junction, stories about the case were published in the Middletown Times Herald Record, which is the principal newspaper in Orange County. Defendants contend that, as the word got out that not everyone who arrived at OCCF would be strip searched, massive amounts of additional contraband were in- troduced into the facility during the booking and re- ceiving process, thereby resulting in a tremendous increase in the number of State Reportable Incid- ents of contraband.FN27 Defendants blame the in- crease in seizures of contraband within the facility on public disclosure of the Court’s injunction, which they believe has led potential occupants of the jail to believe that they will be able to bring in contraband with impunity. Plaintiffs deny that the Dodge preliminary injunction has led to any in- crease in contraband.

FN27. The New Y ork State Commission on Corrections (“NYSCOC”) has issued regulations that require correctional facilit- ies to report certain contraband that is found in a facility. [DX 31]. See N.Y. Comp.Codes R. & Revs. tit. 9, §§ 7022.1–7022.7 (2003). It is mandatory, for example, for a correctional facility to re-

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port the discovery of any amount of marijuana or alcohol. [DX 31, at 5–6]. When such a report is made, it is called a State Reportable Incident (“S.R.I.”).

After extensive review of the voluminous ma- terials submitted to me on this question, I side with plaintiffs and conclude that, per the credible evid- ence, there was no change in the number of incid- ents involving weapons or contraband at OCCF—at least, no change that can be traced to large amounts of contraband being smuggled into the facility by newly arriving inmates. While I believe that the Dodge injunction is “responsible” for the increase in recovery of contraband, it is responsible only in the sense that OCCF officials stepped up their in- ternal surveillance following the issuance of that in- junction and altered their policies concerning what they would and would not report to the State. There is no credible evidence in the record indicating that more contraband was smuggled into the facility during initial entry by persons arrested for misde- meanors and civil violations who were not strip searched due to lack of reason to believe that they were carrying contraband.

The statistics that follow were compiled by plaintiffs. [PX 11, PX 12, PX 13, PX 14]. The Court re-counted and arrived at substantially the same results; whatever small differences exist between plaintiffs’ count and mine can be accoun- ted for by the fact that different people, working in- dependently, did the classifying. While defendants’ counsel claimed during colloquy that the defense disputed the accuracy of plaintiffs’ statistics [Tr. 144], they offered none of their own to rebut plaintiffs’ showing, nor did they explain in what particulars plaintiffs’ numbers were not accurate.

In 1999—at a time when every new arrival at OCCF was strip searched, regardless of reasonable suspicion—there were 5,752 inmates admitted. Of- ficers filed 856 officer contraband reports concern- ing 940 items of contraband. 61 of those items of contraband fell into the category “Drugs, Alcohol, Meds,” and 51 items qualified as *65 “Weapons.”

A total of 17 items of contraband were found in Booking and Receiving.FN28 In that year, the jail filed only 5 S.R.I.

FN28. As noted above, items recovered at “Booking and Receiving” are not limited to those recovered from new ar- rivals—inmates returning from court visits or work details are strip searched in Book- ing and Receiving as well. Neither side has suggested what proportion of the few items of contraband that were recovered in Booking and Receiving came from newly- admitted inmates and what proportion came from returning inmates, the propriety of whose strip searches has not been called into question. However, items recovered at Booking and Receiving necessarily ac- count for the entire universe of contraband recovered from newly-admitted inmates during Admissions Searches. Therefore, as a matter of logic, no more than 17 items of State reportable contraband were recovered during Admissions Strip Searches during 1999.

In 2000, when strip searches were still mandat- ory for everyone, 5,578 inmates were admitted to OCCF. Officers filed 410 officer contraband reports covering 464 items of contraband. 62 items of con- traband qualifies as “Drugs, Alcohol, Meds,” and 51 were “Weapons.” A total of 14 items of contra- band were found in booking and receiving. OCCF filed only 4 S.R.I. reports that year.

In 2001—a year when strip searching was still the rule rather than the exception, but when the new facility opened—5,599 inmates generated a total of 226 officer contraband reports concerning 262 items of contraband, including 62 items of “Drugs, Alcohol Meds” and 44 “Weapons.” A total of 5 items of contraband were found in Booking and Re- ceiving. That year, OCCF filed a mere 2 S.R.I. re- ports.

From January 2002 through February 2003,

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there were 5,779 inmates admitted, 205 officer con- traband reports and 213 items of contraband seized (35 “Drugs, Alcohol, Meds” and 31 “Weapons”). A total of 20 items of contraband were found in Book- ing and Receiving. Only 5 S.R.I. reports were filed prior to July 26, 2002, the date the Dodge injunc- tion was entered. Over the next five and a half months, however, OCCF filed 34 S.R.I. reports.

As these statistics demonstrate, it is simply not true that there was any dramatic increase—or any increase at all—in the amount of contraband at OC- CF or in the amount that was recovered at Booking and Receiving (and thus, hypothetically, could have come from new arrivals) after the Dodge injunction was entered. What these statistics show is that there were significantly more incidents involving contra- band during the time period when the County was strip searching everyone, and that the number of in- cidents has gone down significantly since the new jail opened and the county’s written policy began to reflect the reality of Shain. The smallest amount of contraband—either all contraband or dangerous contraband (drugs and weapons)—was recovered during the period when the County changed its written policy in order to comply with Shain and increased its shakedown rate by 500% to 600%. Notably, the number of inmates admitted to the jail has remained relatively constant throughout all the years.

Of course, the statistics also show something else. During the automatic strip search years, when the number of incidents of state reportable contra- band was relatively high, OCCF filed fewer than 10 S.R.I. reports a year. Only after this Court issued the preliminary injunction in Dodge, and the parties began to prepare the injunction phase of this case for trial, did the number of S.R.I. reports increase to something approximating the number of instances in which reportable contraband was seized. The in- escapable inference is that OCCF policy regarding what to report and what not to report changed at *66 about the time OCCF had a motive to argue that reducing on-arrival strip searched led to “a dir-

ect, observable negative impact on security at the Facility.” [PX 31C, at ¶ 29].

Faced with this clear and compelling inference, Capt. Ryan testified that he had reviewed the in- ternal officer reports and found that all incidents that should have been reported to the State since 1999 were in fact reported to the state.FN29 If Capt. Ryan is telling the truth, then out of the 1,879 officer-reported items of contraband from January 1999 through July 26, 2002, only 16 met the state’s criteria of a reportable incident. But given that the state’s criteria require an S.R.I. report for “any quantity of marijuana,” “drugs other than marijuana that would constitute a crime under the Penal Law,” and “any quantity of alcohol,” [DX 31, at 5–6], the following data demonstrate that Ryan is not telling the truth:

FN29. Ryan testified:

Q My question is: In your review of the records—let’s say for the year 1999—did you review those records?

A I think so, yes.

Q In your review of the records, did you see whether or not there were any incid- ents of contraband that were reported by corrections officers internally—that is, within the facility—that were not in turn reported to the state, yet they were re- portable incidents?

******

A No. Not that I seen, no.

Q So based on your review, all report- able incidents of contraband were, in fact, reported to the state?

A As far as I could see, yes. [Tr. 110–11].

1. During calendar year 1999, corrections officers at OCCF prepared 61 officer reports concerning

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drugs, alcohol, and medication. Of this total, 15 reports concerned the recovery of marijuana; 3 reports were filed concerning heroin; 6 reports were filed concerning cocaine; 3 reports were filed concerning psychotropic medication; and 6 reports were filed concerning alcohol/hooch. All appear to be state reportable. As shown above, only 5 S.R.I. reports concerning contraband were filed during 1999.

2. During calendar year 2000, corrections officers at OCCF prepared 62 officer reports concerning drugs, alcohol, and medication. Of this total, 25 reports concerned the recovery of marijuana; 5 concerned the recovery of cocaine/crack; 4 con- cerned the recovery of alcohol/hooch; and 1 con- cerned the recovery of heroin. During the same period, OCCF filed only 4 S.R.I. reports about contraband.

3. During calendar year 2001, OCCF corrections officers prepared 62 officer reports concerning drugs, alcohol, and medication. Of this total, 15 reports concerned the recovery of marijuana; 5 concerned the recovery of cocaine; 1 concerned the recovery of heroin; and 1 concerned the re- covery of alcohol/hooch. OCCF filed 2 S.R.I. re- ports.

4. From January 1 through July 26, 2002, officers prepared 35 officer reports concerning the recov- ery of drugs, alcohol, and medication. Of this total, 10 reports concerned the recovery of marijuana; 5 concerned the recovery of cocaine; 1 concerned the recovery of hashish; 2 concerned the recovery of paraphernalia (needles); and 1 concerned alcohol/hooch. Only 5 S.R.I. reports were filed in connection with these 18 reportable incidents.

To summarize: In 1999 there were 33 report- able incidents of drugs and alcohol and only 5 S.R.I. reports; in 2000 there were 35 reportable in- cidents of drugs and alcohol and only 4 S.R.I. re- ports; in 2001 there were 22 reportable incidents of drugs and alcohol and only 2 S.R.I. reports; and in

2002 there were 18 reportable incidents of drugs and alcohol prior to *67 July 26 but only 5 S.R.I. reports. And this only counts drug and alcohol in- cidents. All weapons recoveries are also state re- portable as well, and a total of 146 weapons were recovered during the years 1999–2001—years in which 5 or fewer S.R.I. reports were filed.

Capt. Ryan testified at trial that the reason for this rather startling discrepancy was officer error:

During that time period, I believe we did have some new officers working in classifications. They may not have been up to speed on what they should have been doing. A lot of times re- ports are interpreted different ways and an officer may not interpret a report as a reportable incident or didn’t know and should have reported it.

[Tr. at 325]. Thus, in mid-trial, Ryan did an about-face and suggested that the jail was underre- porting the number of S.R.I.s during the periods prior to the preliminary injunction. [Tr. 347–48]. He attributed the County’s past failure to report S.R.I.s to “probably poor communication, judgment by the command staff on whether it was reportable or not. Receiving a field test, whether it was posit- ive or negative, things like that.” [Tr. at 336]. Des- pite the clear, objective state mandate to report all marijuana and illegal drugs, Ryan pitched the idea that there is “a fair amount of senior officers’ … judgment and discretion that goes on in this state reporting process.” [Tr. 337]. This explanation con- tradicts Capt. Ryan’s sworn testimony in PX 31 and his earlier testimony at trial, [Tr. 110–11], in which he stated that every State Reportable Incident was in fact reported.

Moreover, Capt. Ryan acknowledged that at least one of the officers in classifications, Officer Hefferon, has been making determinations as to which incidents are state reportable in all the years from 1999 to the present. According to the Captain, Hefferon did not ever change the criteria by which he made (and still makes) those determinations. [Tr. at 325–326].

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I thus do not credit the explanation advanced at In 2002, there were 13 instances of contraband trial for the failure to report dozens of State Report- recovered at Booking and Receiving.

able Incidents. I do, however, accept the fact that there were dozens of State Reportable Incidents that in fact went unreported by OCCF during the period prior to the issuance of the Dodge injunction. The disparity between reported and reportable incidents in those years undermines, rather than supports, the County’s claim that the post-injunction spike in S.R.I. reports correlates with a “major increase” in the amount of serious contraband entering the facil- ity.

And lest we forget, the only contraband with which we are concerned here is contraband that would have been uncovered during an on-arrival strip search of a newly arrived inmate—not contra- band smuggled in after court visits or contact visits, or contraband supplied to inmates by errant correc- tions officers (which, unfortunately, has been known to happen [Tr. 350–52] ). It is not possible to infer from the statistics before me that any signi- ficant amount of additional contraband was being smuggled in by newly arrested and arraigned in- mates. Indeed, none of the numbers provided to the Court by the parties suggests how much contraband that was recovered at Booking and Receiving was recovered from newly arrived inmates (the only group relevant to this proceeding) and how much came from inmates who were in-processed at Book- ing and Receiving after returning from court visits or work details outside the facility.

What it is possible to infer from plaintiffs’ stat- istics is that the amount of contraband recovered at Booking and Receiving remained relatively con- stant over the four years under study:

*68 In 1999, there were 17 instances of contra- band recovered at Booking and Receiving.

2001, not 2002 (when there was supposedly a tremendous increase in the amount of contraband being smuggled into the jail), appears to be the atypical year.

Furthermore, if an increase in contraband in- side the facility were attributable to changes in the institution’s ability to strip search new arrivals, one would expect the amount of contraband recovered at Booking and Receiving to go down, not up, fol- lowing the entry of the Dodge injunction and the corresponding decrease in on-arrival strip searches. Precisely the opposite occurred—12 of the 13 in- stances of contraband recovered at Booking and Receiving during 2002 came after the decision in Dodge and the change in strip search policy. This suggests that something other than the jail’s ability to strip search all newly arrived inmates must be at work here.

The evidence reveals what that something is: In August and September 2002, there was a 500% to 600% increase in the number of shakedowns that were conducted within a couple of weeks after the preliminary injunction was issued. [Tr. 112, 352]. A shakedown is a thorough search of a particular housing unit or an individual cell. [Tr. 111]. A shakedown of a cell consists of looking in every area in which an inmate could hide contra- band—under the mattress; in mattress seams; in the toilet bowl; in books, clothing, foot locker, or win- dowsills; under paper on the walls; “virtually every spot.” [Tr. 112]. One of the purposes of a shake- down is to find contraband. [Tr. 112].

The record reveals that the dramatically in- creased shakedowns after July 26, 2002 achieved its purpose. Relatively speaking, large amounts of

In 2002, there were 14 instances of contraband contraband were recovered during shakedowns in recovered at Booking and Receiving. the last five months of 2002, almost all of it from

dorms and cells. [PX 11(D), 12(D) ].
recovered at Booking and Receiving. However, there is also nothing in the record to

In 2001, there were 5 instances of contraband

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correlate the contraband found with contraband that was smuggled into the facility by new arrivals who were arrested for minor crimes and civil violations. Indeed, the Court’s own recount of officer reports filed after July 26, 2002—the date of the Dodge in- junction—reveals that well over half of the items of reported contraband recovered during that period (167 of 284) were so-called “excess issue.” Excess issue items are items that are issued to inmates in fixed quantities by the institution itself—towels, clothing, cups, toiletries, and the like. If an inmate has more of such items than he or she should, the excess is contraband. Such items could not possibly have been smuggled into the jail by newly-ar- raigned inmates and would never have been re- covered during an on-arrival strip search.

The remaining 117 items of contraband re- covered included 34 instances of drugs, alcohol, or medicine; 31 weapons; and 17 cigarettes/tobacco. From the information I have been given, there is no way to know whether any of those items were smuggled in upon entry by new arrivals to the facil- ity. More than half of the weapons found were makeshift weapons devised with materials found within OCCF. 9 of the weapons, for example, were sharpened pens, toothbrushes, toilet brushes, hair- brushes, or spoons; 3 were pens with sharpened wire, nails, or pins attached to them; one was a bent can lid; 7 were “metal objects,” *69 either unadul- terated or somehow weaponized (by, for example, being sharpened or serrated); 4 were heavy gauge wires; and one was socks “rolled up into a hard ball underneath the inmates bad, which constitutes pos- session of an item that could be used as a weapon.”

Capt. Ryan speculates that this wave of new contraband resulted from publicity about the Dodge injunction. However, there is nothing new about smuggling contraband into OCCF. Corrections Of- ficer Cynthia Anne Fee testified, credibly, that “[t]he inmates at the OCCF regularly attempt to smuggle contraband into the facility despite the knowledge that they will be subjected to a visual body search at the conclusion of a contact visit.”

[Tr. 374]. Moreover, if post-July 26, 2002 newspa- per publicity did encourage newly admitted detain- ees to take advantage of the preliminary injunction by trying to smuggle contraband into OCCF on ar- rival, then the data should show a correlation between the increase in contraband and the number of contraband items that were discovered during strip searches of newly-arrived inmates (many of whom were still strip searched). But there is no such correlation.

Indeed, the contraband reports in evidence re- veal that, in the 50 months following January 1, 1999, contraband was recovered from the body cav- ities or undergarments of only 5 detainees during admission strip searches or “hygiene checks”:

a. Inmate Raymond Cintron was admitted to OC- CF on June 15, 2000 following his arrest for murder in the second degree. During the course of a “hygiene check” a plastic bag containing co- caine was recovered from his buttocks.

b. Inmate Lee Rivera was admitted to OCCF on December 27, 2000 following his arrest for ag- gravated unlicensed operation in the third degree and operating a motor vehicle left of the pave- ment. While conducting a “routine search,” two packets of heroin fell to the ground while he was removing his underwear.

c. Inmate Edqin Guerrier was admitted to OCCF on July 7, 2001 following his arrest for driving while under the influence of drugs. While being searched in the Booking and Receiving area, he was ordered to spread his buttocks, bend over, and cough. A plastic bag containing marijuana was discovered protruding from his rectum.

d. Inmate Rasun King was admitted on November 20, 2002 following his arrest on a warrant for criminal sale of a controlled substance. While un- der an “admission search,” a plastic bag contain- ing cocaine fell from his boxer shorts.

e. Inmate Anthony Wright was admitted to OCCF

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on December 14, 2002 following his arrest for false impersonation. At the time of his admission to the facility, the booking and receiving officer noted that Mr. Wright appeared to be under the influence of drugs or alcohol and requested au- thorization to conduct a strip search. While Mr. Wright was exposing his buttocks for the officer’s visual inspection, two bags of marijuana fell to the floor.

Of the approximately 23,000 inmates admitted to OCCF from January 1, 1999 through February 28, 2003, the County encountered three incidents of drugs recovered from an inmate’s anal cavity and two incidents of drugs falling from an inmate’s un- derwear during the course of a strip search. Only two of those five incidents occurred after the Dodge injunction and the resulting change in strip search policy. One of those two incidents involved an ar- rest for a narcotics crime and the other involved an arrestee who appeared to be under the influence of drugs. Under the “nature of crime charge” and “particular circumstances of the arrestee” *70 tests, it is possible that neither search would violate the Constitution. See infra p. 84. Indeed, it appears that there may have been reasonable suspicion to strip search four of these five detainees, based upon either the nature of the offense or the characteristics of the detainee.

So if the County had been in compliance with the Second Circuit’s reasonable suspicion standard since 1999, it would arguably have missed—as a result of its compliance—only one item of contra- band in the course of admitting 23,000 detainees. This nominal statistic is consistent with the experi- ence of plaintiffs’ expert, Robert DeRosa, who testi- fied that, while drugs are found on a regular basis during the strip searches of inmates returning from contact visits and in packages sent to prisoners, they are rarely, if ever, found during the new ad- mission strip and body cavity search. [PX 40; Tr. 181].

During this same four year period, there was not one incident where a weapon was recovered

from a newly admitted detainee’s vaginal/anal cav- ity or undergarments. Defendants make much of razor blades recovered from an arriving inmate, Ju- lio Morant, who was charged with a civil violation (a Family Court offense under Article 10). [Tr. 282–83]. An officer found a blade in the lining of Mr. Morant’s sneaker while conducting a “general admissions search.” [DX 1B]. Mr. Morant was then strip searched and three more blades were found in the left sleeve pocket of his jacket.

Defendants’ reliance on this incident is mis- guided for two reasons. First, the strip search of Mr. Morant was lawful because reasonable suspicion existed—an officer found a razor blade in Mr. Mor- ant’s shoe before conducting a full strip search. Moreover, Mr. Morant had been disciplined for as- saultive behavior during previous incarcerations at OCCF and also written up for various types of con- traband.FN30 Id. Second, a strip search of Mr. Morant would not have turned up any additional contraband than a less invasive search would have uncovered—no contraband was found upon search- ing Mr. Morant’s private parts. All were concealed in his outer clothing—his shoes and coat sleeve.

FN30. Although it is not clear when the of- ficers who searched Mr. Morant learned of his history at OCCF (i.e., before or after they searched him), it is clear that they had access to that information.

There is simply no evidence in this record from which I could conclude that newly arrived inmates were the source of the massive amounts of contra- band recovered during the increased shakedowns that followed Dodge. In Shain, Judge Pooler sug- gested that newly-arrived inmates would be less likely than post-contact visit inmates to secret con- traband, since they would have had no advance no- tice that they were going to end up at OCCF. Shain, 273 F.3d at 64. From the statistics cited above, it would seem that her surmise was correct.

6. Strip Searches other than On–Arrival Strip Searches

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Booking and Receiving is only the first time when an inmate at OCCF might be strip searched. OCCF policy provides for strip searches under the following circumstances: (1) during a cell shake- down; (2) during a housing unit shakedown; (3) when an inmate is involved in an assault; (4) prior to an inmate’s placement in disciplinary lockdown; (5) prior to an inmate’s placement in the general population from the lockdown unit; (6) prior to an inmate’s placement in a suicide prevention cell; (7) after an inmate’s return from outside work detail; FN31 and (8) after contact visits.FN32 [DX 30].

FN31. Whenever an inmate leaves the building and returns—whether to go out on a work detail or to go to court—he or she is strip searched. As noted above, these strip searches take place in Booking and Receiving, and any contraband recovered from them is chalked up to Booking and Receiving.

FN32. OCCF contains a visiting area in which inmates sit across tables from visit- ors (other than lawyers, for whom there is a separate visiting area). Following all such visits, every inmate is strip searched. Such searches may be conducted on “less than probable cause.” See Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

*71 In addition, inmates are strip searched when officers have reason to believe that they may be secreting contraband. [DX 30, at 5.31(N); DX 29, at 4.4]. In Murcia v. County of Orange, 226 F.Supp.2d 489 (S.D.N.Y.2002), for example, a case also on my docket, OCCF officers strip searched plaintiff when they smelled cigarette smoke in the pen in which Murcia and others were housed. Be- cause cigarettes are contraband, everyone in the area was strip searched when no one admitted to having the goods.

The legality of these types of strip searches is not contested in this proceeding and was not ad-

dressed in Dodge. So if, in reliance on the Dodge preliminary injunction, individuals increasingly tried to smuggle contraband into the facility after court visits, work details, or contact visits, their re- liance was misplaced, since inmates could be strip searched following these activities without running afoul of Shain.

CONCLUSIONS OF LAW
Plaintiffs seek to enjoin defendants from imple-

menting their strip search policy insofar as it viol- ates the Constitution. Defendants want no injunc- tion, either because (1) their policies are not uncon- stitutional; or (2) plaintiffs have not demonstrated that injunctive relief is appropriate, particularly in light of the PLRA. In urging me not to award plaintiffs an injunction, defendants seek the discre- tion to strip search all newly arrived inmates.

[1][2] Permanent injunctive relief is appropri- ate when a plaintiff (1) shows that an inadequate remedy is available at law, such as by showing that irreparable harm would result if an injunction were not granted, and (2) succeeds on the merits of his claim. See Weizmann Institute of Science v. Neschis, 229 F.Supp.2d 234, 258 (S.D.N.Y .2002). Thus, the standard for a permanent injunction is es- sentially the same as for a preliminary injunction, except that the plaintiff must actually succeed on the merits. See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982); Neschis, 229 F.Supp.2d at 258.

[3] In addition, where, as here, “ ‘public con- sequences’ are implicated, it is incumbent upon a district court in exercising its discretion to ‘balance [ ] the conveniences of the parties and possible in- juries to them according as they may be affected by the granting or withholding of the injunction.’ ” Si- erra Club v. Hennessy, 695 F.2d 643, 649 (2d Cir.1982) (quoting Weinberger v. Romero–Barcelo, 456 U.S. 305, 311, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)). Congress codified this weighing of the hardships in the PLRA, which directs courts to give

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substantial weight to any adverse impact on public safety or the operation of the criminal justice sys- tem caused by the prospective injunctive relief. 18 U.S.C. § 3626(a)(2); see Smith v. Arkansas Dep’t of Correction, 103 F.3d 637, 646–47 (8th Cir.1996) (finding that the PLRA “codifies existing law and does not change the standards for determining whether to grant an injunction”); *72Gomez v. Ver- non, 255 F.3d 1118, 1129 (9th Cir.2001) (agreeing with Smith ).

[4] Even if plaintiffs meet their burden of proof on these issues, the PLRA limits the type and scope of prospective injunctive relief that the Court may award plaintiffs. 18 U.S.C. § 3626(a)(2) states that no injunction shall issue unless the court finds that the relief is narrowly drawn, extends no further than is necessary to correct the constitutional harm found, and is the least intrusive means necessary to correct that harm. In a similar vein, the PLRA re- quires a court to apply principles of comity in fash- ioning relief that requires or permits a government official to exceed his or her authority under state or local law. See also Rizzo v. Goode, 423 U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (“Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be pre- served between federal equitable power and State administration of its own law.’ ”) (quoting Stefanel- li v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 96 L.Ed. 138 (1951)).

I. Irreparable Harm
[5] Plaintiffs allege that defendants maintain a

policy of strip searching detainees arriving at OC- CF that violates their Fourth Amendment right to be free from unreasonable searches and seizures. The alleged violation of a constitutional right suf- fices to show irreparable harm. See Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738, 744–45 (2d Cir.2000); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.1996) (“[T]he alleged violation of a consti- tutional right [ ] triggers a finding of irreparable harm.”); Covino v. Patrissi, 967 F.2d 73, 77 (2d

Cir.1992); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable harm is ne- cessary.”).

II. The Merits of Plaintiffs’ Claim
As I described more fully in the findings of

fact, I find that the policy OCCF officers have fol- lowed to determine whether to strip search a newly- admitted pretrial detainee has gone through three it- erations: (1) a pre-August 2001 policy of strip searching every detainee admitted to the facility, which I have called a “blanket strip search” policy; (2) the policy from August 2001 until August 2002, pursuant to which newly-admitted detainees were automatically strip searched if any one of a set of listed factors existed; and (3) the policy from Au- gust 2002 until the present, where OCCF officers follow the written policy promulgated in response to the Dodge preliminary injunction. [DX 30].

Defendants argue that OCCF’s pre-August 2001 blanket strip search policy—to which defend- ants openly profess they wish to revert—is constitu- tional. I disagree with defendants. Shain is con- trolling law in this Circuit, and the pre-August 2001 Policy to which defendants wish to revert clearly violates Shain. I also conclude that the two policies followed since August 2001 are also unconstitu- tional, but to a much more limited degree.

A. Second Circuit Jurisprudence on Strip Searches of Pre–Trial Detainees

Second Circuit decisions on the constitutional- ity of strip searches of pre-trial detainees have fol- lowed a course that, to this reader, demonstrates considerable hostility to the practice of strip search- ing pre-trial detainees.

The journey starts with Wolfish v. Levi, 573 F.2d 118 (2d Cir.1978), rev’d sub nom Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In that case, plaintiff*73 Louis Wolfish represented a class of all persons confined at the re- cently-constructed Metropolitan Correctional Facil-

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ity (MCC), a federal institution located in down- town Manhattan that housed pre-trial detainees (unconvicted individuals awaiting trial who could not post bail), sentenced prisoners awaiting assign- ment to another prison facility or who had been designated to serve their term at the MCC, sen- tenced prisoners transferred to the MCC on writs to testify or stand trial, witnesses in protective cus- tody, and persons incarcerated for contempt of court. The plaintiffs’ suit challenged a “litany of woes [that] touched on almost all aspects of the in- stitution’s conditions and practices,” id. at 123, in- cluding the constitutionality of routinely strip searching inmates after receiving visitors. Id. at 131. Judge Frankel issued an injunction, inter alia, prohibiting “inspection of the genitals and anus un- less there is probable cause to believe that the in- mate is concealing contraband.” Id.

On appeal, the Second Circuit recognized that an incarcerated individual “relinquishes some part of those rights to privacy and protection against un- reasonable searches and seizures possessed by un- incarcerated members of society,” but found that “the existence of a realm in which privacy is safe- guarded is fundamental to decent treatment of an inmate.” Id. Thus, the court upheld Judge Frankel’s order based on its determination that “[t]he gross violation of personal privacy inherent in such a search cannot be outweighed by the government’s security interest in maintaining a practice of so little actual utility.” Id.

The United States Supreme Court apparently shared the Court of Appeals’ repugnance for strip searching—the Court stated that the practice “instinctively gives us the most pause”—but re- versed the Second Circuit’s ruling. Bell v. Wolfish, 441 U.S. at 558–60, 99 S.Ct. 1861. The Supreme Court assumed that upon their commitment to a corrections facility convicted prisoners and pretrial detainees retain some Fourth Amendment rights to be free from unreasonable searches. It explained:

The test of reasonableness under the Fourth Amendment is not capable of precise definition

or mechanical application. In each case it re- quires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider 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.

Id. at 559, 99 S.Ct. 1861 (citations omitted). The Court balanced “the significant and legitimate security interests of the institution against the pri- vacy interests of the inmates,” and concluded that the MCC could conduct the challenged strip searches—strip searching inmates after contact vis- its—“on less than probable cause.” Id. at 560, 99 S.Ct. 1861.

Eight years later, in Weber v. Dell, 804 F.2d 796 (2d Cir.1986), the Second Circuit visited the is- sue of strip searches in a different context. The plaintiff in Weber was a misdemeanor arrestee who was strip searched upon her arrival at the Monroe County Correctional Facility, pursuant to a policy “calling for strip/body cavity searches of all arres- ted persons other than those placed in ‘holding cells,’ which are the cells in which arrestees are sometimes placed when their release on bail is im- minent.” Id. at 799. After her release, she sued for damages pursuant to 42 U.S.C. § 1983. The Court of Appeals ruled that “the Fourth Amendment pre- cludes prison officials from performing strip/body cavity searches of arrestees charged with misde- meanors or other minor offenses unless the officials have a reasonable suspicion *74 that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.” Id. at 802. The Second Circuit also rejected the de- fendants’ argument that qualified immunity shielded them from liability to plaintiff because (1) all the circuits that had addressed similar policies had found them to be unconstitutional, and (2) the Court had long stressed the intrusive nature of body cav- ity searches. Id. at 803.

Moreover, the court ruled that Monroe

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County’s policy would be unconstitutional even if it only called for conducting body cavity searches on a newly arrested person who could not immediately make bail, and who was therefore moved from a holding cell to a cell near arraigned inmates. The court concluded that such a practice “would still not provide that ‘particularized suspicion,’ arising either from the nature of the charges and/or the ar- rest, which the law requires for so intrusive and de- meaning a procedure as a strip/body cavity search.” Id. at 802.

In rendering its decision, the Court of Appeals expressly found that Bell v. Wolfish did not “suggest, much less require,” the district court’s conclusion that Monroe County’s policy was not unconstitutional. Id. at 801. Bell v. Wolfish did not “read out of the Constitution the provision of gener- al application that a search be justified as reason- able under the circumstances,” the court explained, and “[t]he imposition of a standard short of prob- able cause in determining the balance of interests at stake in Wolfish in no way dispensed with that re- quirement.” Id. at 800. The Court of Appeals cited three factors that bore on the reasonableness of the strip search in Bell v. Wolfish: plaintiffs had already been arraigned, they had failed to make bail (and so were part of the general inmate population); and they “had presumably chosen to receive visitors and to enjoy physical contact with them.” Id. None of those factors was true of Weber, who was searched before she was ever admitted to the facility.

Two years later, the Circuit reaffirmed Weber in Walsh v. Franco, 849 F.2d 66 (2d Cir.1988). There, plaintiff Walsh was arrested pursuant to a bench warrant after not appearing at a hear- ing—albeit because the notice of hearing was sent to the wrong address—regarding his failure to pay parking tickets in Burlington, V ermont. W alsh was brought to the Chittenden County Correctional Cen- ter and processed in accordance with the jail’s “standard intake process,” which included a strip search and visual body cavity search. “There have been no doctrinal developments altering the prin-

ciples noted in Weber,” the court explained, finding the “blanket policy calling for strip searches of all misdemeanor arrestees” to be unconstitutional. Id. at 69.

Despite the Walsh Court’s pronouncement that there had been “no doctrinal developments” since Weber, the United States Supreme Court had issued a decision during the two years between Weber and Walsh that at least one judge in this Circuit believes “altered the principles” noted in Weber. See Shain v. Ellison, 273 F.3d 56, 70 (2d. Cir.2001) (citing Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)) (Cabranes, J., dissenting). In Turner v. Safley, the Supreme Court articulated strict standards for determining the validity of a prison regulation claimed to impinge on an inmate’s constitutional rights. The Court ruled that the relev- ant question was whether the regulation is reason- ably related to legitimate penological interests, and that this question applied in all cases in which a prisoner asserted that a prison regulation violated the Constitution. See *75Washington v. Harper, 494 U.S. 210, 223, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (citing Turner ). The Turner Court lis- ted four factors for a court to consider in answering that question: whether there is a “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to jus- tify it; whether there are alternative means of exer- cising the constitutional right in question that re- main open to prison inmates; whether accommoda- tion of the asserted constitutional right will have an impact upon guards and other inmates and upon the allocation of prison resources generally; and wheth- er there are reasonable alternatives available to the prison authorities. 482 U.S. at 89–90, 107 S.Ct. 2254.

Both Weber and Walsh were commenced by persons who were strip searched after arrest but pri- or to their arraignment. In 1994, the Weber/ Walsh rule was extended (albeit sub silentio ) to a misde- meanor arrestee who was strip searched after his ar- raignment. See Wachtler v. County of Herkimer, 35

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F.3d 77 (2d Cir.1994). The plaintiff in Wachtler was one of this State’s more celebrated misdemean- or arrestees—the then-Chief Judge of the New York Court of Appeals, who was arrested after an officer pulled him over for speeding and he refused to either answer any of the officer’s questions without the presence of an attorney or produce a driver’s license. The officer took Wachtler before the nearest available judge, who set bail at $250 after Wachtler continued to refuse to identify him- self. Though Wachtler had almost $1,000 in his possession, he refused to post bail and claimed in- digency. He was then brought to the Herkimer County Jail, where he was strip searched and placed in solitary confinement until a friend arrived to post bail approximately fourteen hours later.

The Court of Appeals did not reach the issue of whether the strip search of Wachtler was in fact un- constitutional, explaining that such a determination would require a record detailing all the circum- stances surrounding the strip search. However, re- cognizing the subtle but important distinction between its facts in Wachtler and those of Weber and Walsh, the Circuit granted qualified immunity to the individual officers involved in the strip search on the ground that it could not find that the officers violated a clearly established right in strip- searching Wachtler given (1) the circumstances of the arrest—such as Wachtler’s failure to identify himself at the scene of the arrest or in court, and his possession of $1,000 in cash; and (2) the lack of legal authority “that addresses the reasonable suspi- cion issue in circumstances even remotely similar to those in the instance case.” Id. at 81–82. The court nonetheless declined to dismiss W achtler’s claim against Herkimer County, because “[i]f the standard procedure included routine strip-searches of misdemeanor arrestees, absent reasonable suspi- cion of weapons or contraband, and if no reason- able suspicion concerning Wachtler’s possession of such items existed, then Wachtler would prevail.” Id. at 82.

The Weber/Walsh/Wachtler trilogy was inter-

rupted by a case in which the Court of Appeals reached a different conclusion, but on facts that varied from those of Weber and Walsh in three im- portant respects. In Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992), the plaintiff was not challenging a search of his person on arrival following his arrest for a minor offense. Having been arrested and de- tained pre-trial on a charge of kidnapping, Covino was incarcerated in Vermont’s Northwest State Cor- rectional Facility.FN33 While a member of *76 the general population, Covino was twice randomly se- lected for a visual body cavity search during ran- dom cell searches at the institution, and was then punished for refusing to consent to the searches. (Interestingly, Covino—whose circumstances might well have suggested that he represented a risk of carriage of contraband—was not forced to undergo the searches to which he objected, although he was disciplined for refusing). Covino brought an action seeking both Section 1983 damages and an injunc- tion against the defendants’ policy of conducting body cavity searches of pre-trial detainees. His mo- tion for a preliminary injunction was denied by then-District Judge Fred I. Parker. Judge Parker’s decision was affirmed on appeal, in a decision that never mentioned Weber or Walsh but relied exclus- ively on an analysis of the four Turner factors. One could fairly assume that the decision in Covino lim- ited the reach of Weber and Walsh to what I will call “on arrival” searches—that is, searches conduc- ted as part of the in-processing of a newly arrived defendant at the facility, whether pre- or post- arraignment.

FN33. The Covino Court did not mention the breakdown of the institution’s inmate population; for example, whether it housed mostly convicted inmates or pretrial de- tainees.

Finally, the Second Circuit reaffirmed its ad- herence to Weber/ Walsh/Wachtler—at least where misdemeanor arrestees are concerned—in Shain v. Ellison, 273 F.3d 56 (2d. Cir.2001). Shain was ba- sically Wachtler redux, except that it involved a

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much larger incarcerative facility.FN34 The plaintiff was a post-arraignment misdemeanor ar- restee who was searched on his initial arrival at the Nassau County Correctional Facility (NCCF), and who subsequently brought an action for damages and injunctive relief under Section 1983. The Second Circuit took Shain as an opportunity to re- state that the law in this Circuit relating to strip searches of post-arraignment misdemeanor ar- restees arriving at a New York county correctional facility was settled. Of particular significance for the case at bar, the majority in Shain rejected the argument that Turner had impliedly overturned Weber, stating that the Supreme Court’s 1987 de- cision was limited to regulations at prisons. It dis- tinguished Turner and Covino from Weber/ Walsh/Wachtler on the ground that the two lines of cases involved different types of institutions—the former cases all involved a “state correctional facil- ity or prison” (“a state or federal facility of confine- ment for convicted criminals, esp[ecially] felons”), while the latter cases each involved a “local correc- tional facility or jail” (a “place where persons awaiting trial or those convicted of misdemeanors are confined”).FN35 The court also noted that, in New York, misdemeanor arrestees are required to be admitted to bail, which minimized the penolo- gical significance of arraignment.

FN34. The Monroe County Correctional Facility (Weber ), the Nassau County Cor- rectional Facility (Shain ), and even OCCF (this case) are all rather large, multi-pur- pose correctional facilities serving popu- lous counties. The Herkimer County Cor- rectional Facility (Wachtler ) serves one of the smallest counties in New York State. The Herkimer County Correctional Facility at any given time houses but a small frac- tion of those inmates residing in the county jail serving suburban Long Island. (After a recent increase in its capacity, HCCF is now able to house an average of fifty in- mates a day. See Melissa A. Chadwick, Herkimer County Approves Crimin-

al–Monitoring Devices, Utica Observ- er–Dispatch, June 12, 2003.) This differ- ence, and any legitimate penological im- plications it might have, were not dis- cussed in Shain.

FN35. The Shain majority failed to note that transfer to one of the state’s prisons does not take place immediately upon con- viction. Thus, New York’s local correction- al facilities also house convicted felons pending sentence.

Judge Katzmann concurred in the result in Shain, but only because he felt that the felony/ misdemeanor and jail/prison distinctions*77 reflec- ted in Second Circuit jurisprudence bound him. He specifically noted that he was not sure if he would make either distinction were the issue before him for the first time. Judge Cabranes wrote a forceful dissent, in which he took the view that Turner had indeed impliedly overruled Weber and insisted that the majority’s distinction between prisons and jails made no difference. Nassau County’s request for certiorari was denied by the United States Supreme Court, Nassau County v. Shain, 537 U.S. 1083, 123 S.Ct., 672, 154 L.Ed.2d 582 (2002), leaving the dis- trict courts in this Circuit in the difficult position of having to determine the outer boundaries between Weber/Walsh/ Wachtler/Shain and Turner/Covino —that is, where one line of precedent ceases to control and the other begins.

B. Background to this Particular Motion
This Court’s docket contains, or at one time contained, at least six cases challenging strip searches by law enforcement personnel. Since the decisions in those actions led to the filing of the current lawsuit, it is necessary to review what those

cases are about—and what they are not about.

The first case was Lee v. Perez, 175 F.Supp.2d 673 (S.D.N.Y.2001). Plaintiff Lee was arrested for several misdemeanors. He was arraigned in the City of Newburgh City Court and released on $250 bail. A sum greater than $250 had been on his person

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when he was arrested and Lee should have been

able to pay his bond and leave. However, a regula-

tion in force at the time required him to post bail at

OCCF. He was, therefore, transported to OCCF by

Newburgh police officers for the sole purpose of

posting his bond. Upon arrival, he was strip

searched. He was never admitted to the general

population, and he was released as soon as he pos-

ted his bail. The undisputed evidence at trial

demonstrated that the corrections officer who con-

ducted the search had no basis to assume that Lee

was carrying contraband. Under Shain, the strip

search was illegal. This Court overturned a jury

verdict in favor of the County, and I subsequently

granted plaintiff’s motion for summary judgment.

FN36

FN36. It was necessary for plaintiff to move for summary judgment because there was no motion for a directed verdict, so the Court could not enter judgment in his favor at the time the jury’s verdict was over- turned.

In Maneely v. City of Newburgh, plaintiff Maneely represents a class of all pre-arraignment detainees who were strip searched at the City of Newburgh Police Department between March 27, 1998 and August 24, 2000. See Maneely v. City of Newburgh, 256 F.Supp.2d 204 (S.D.N.Y .2003); Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y.2002). I recently denied plaintiffs’ motion for partial summary judgment on the issue of whether the City of Newburgh maintained an un- constitutional policy of strip searching all pre- arraignment inmates with or without having reason- able suspicion to believe that those persons were carrying or concealing weapons or contraband.

Dodge was the next case in which a decision was handed down. That decision is described above. See supra pp. 50–51.

Lee, Maneely, and Dodge all dealt with persons who were accused only of misdemeanors, and who were strip searched upon arrival at an institution

that the Shain majority recognized as a “local cor- rectional facility or jail”—either a local lock-up ( Maneely ) or a county jail (Lee, Dodge ). Thus, they all fell squarely within the parameters of con- trolling Second Circuit law.

*78 Subsequent cases went beyond Shain ‘s factual parameters.

In Murcia v. County of Orange, 226 F.Supp.2d 489 (S.D.N.Y.2002), the plaintiff in Murcia did not arrive at the county jail accused of a misdemeanor. He was arrested on a federal warrant for bail jump- ing, which is a felony.FN37 He, too, was strip searched on arrival at OCCF. He was subsequently strip searched two other times during his brief stay in the general population at that facility. He chal- lenged all three OCCF strip searches as constitu- tionally infirm.

FN37. The unfortunate twist in Mr. Murcia’s case is that he was the wrong Mr. Murcia. He claims that he endured a total of four strip searches—one in the City of Newburgh and three at OCCF—before the mistake was uncovered.

Analyzing the on-arrival search, this Court re- cognized that Shain did not address the precise fact pattern Murcia presented. Indeed, I noted that the Shain majority had stated in passing that “a New York felony defendant’s post-arraignment detention may well be an indicator of an increased security risk.” 273 F.3d at 65 (emphasis added). But I con- cluded that the Second Circuit was likely to apply the same standard—no strip searches on arrival at a county jail in the absence of reasonable suspicion to believe the defendant is carrying contraband—to felony arrestees. 226 F.Supp.2d at 494–95. I recog- nized that the mix of factors giving rise to reason- able suspicion might weigh differently in felony cases, but concluded that a felony arrest alone, without more, was insufficient to give rise to the re- quisite reasonable suspicion.FN38 In reaching my decision, I declined the County’s suggestion that I ignore Shain in favor of their interpretation of

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Turner v. Safley.FN39

FN38. I nonetheless dismissed the com- plaint as to Sheriff Bigger, the promulgator of OCCF’s strip search policy, on the ground of qualified immunity, recognizing that Murcia extended the factual predicate for onarrival strip searches to a group of arrestees not considered in Shain —felony arrestees. Plaintiffs have moved for reargu- ment of that decision.

FN39. Orange County first made this argu- ment in Lee v. Perez. It has made the same argument (albeit in increasingly more sophisticated terms) in every case since.

I did not apply the same analysis to a strip

search of Mr. Murcia that occurred after he had

been admitted to the general population. The search

was conducted when corrections officers smelled

cigarette smoke in the pen in which Murcia and

others were housed. Cigarettes are contraband, and

everyone in the area was strip searched when no

one admitted to having the goods. I denied

plaintiff’s motion for summary judgment on this

claim, because he sought judgment against a policy

maker pursuant to Monell v. Dep’t of Social Ser-

vices of City of New York, 436 U.S. 658, 690–91,

98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) but failed to

establish that the strip search occurred pursuant to

an unconstitutional policy. I drew a distinction

between on-arrival searches and searches of indi-

viduals who had been admitted to the general popu-

lation. I concluded that plaintiff had erroneously

conflated the two. 226 F.Supp.2d at 500. That dis-

tinction is suggested by the different results reached

in Covino (where the proposed searches would have

occurred well after the inmate’s arrival and incor-

poration into the population) and Weber/Walsh/

Wachtler (all of which dealt with newly-arrived de-

tainees). It is also expressly countenanced in Shain. FN40

FN40. Although a third strip search of Murcia took place at OCCF, the parties

were not able to agree whether it was con- ducted by state or federal officials. That is- sue remains for trial.

The fifth case, *79Sarnicola v. County of Westchester, 229 F.Supp.2d 259 (S.D.N.Y.2002) , involved not just a different county (Westchester as opposed to Orange) but a different type of facility (the local State Police Barracks as opposed to a county jail). Nicole Sarnicola was arrested on sus- picion of having committed a felony (criminal sale of a controlled substance) after driving a drug sup- plier to a deal site. She was taken to the barracks, strip searched, and then questioned. Sarnicola was never charged with a crime, let alone arraigned, and was released within hours of her arrest. At depos- ition, the officer who authorized the strip search ad- mitted that he had no reason to believe that Sarnic- ola was secreting contraband on her person, despite having arrested her for possible participation in a drug crime. Id. at 271–72. Moreover, the decision to strip search her violated county policy that all strip searches following arrests be justified by reas- onable suspicion of carriage of contraband—no dis- tinction being made in the policy statement between felony arrests and misdemeanor arrests, or narcotics arrests and other arrests. I concluded that the strip search of Sarnicola, in a location where there was no conceivable penological interest (because she was in the equivalent of a police station), and in cir- cumstances where the searching officer said he had no reason to believe that she was secreting contra- band, was unconstitutional—even though she was taken into custody on suspicion of participating in a narcotics felony.FN41

FN41. If the officer in Sarnicola had not testified that he had no reason to believe that Ms. Sarnicola was secreting drugs on her person, the case might well have been decided differently. See infra p. 84.

In light of Murcia and Sarnicola, it came as no surprise when a group of plaintiffs, purporting to represent all felony pre-trial detainees strip searched at OCCF absent reasonable suspicion,

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filed suit under the caption Rango v. County of Or- ange, 02 Civ 8451 (S.D.N.Y.2002). The Rango plaintiffs sought to recover damages as a result of what they believe were constitutionally infirm strip searches, as well as preliminary and permanent in- junctions on the order of the preliminary injunction that had been entered in Dodge.

It is the consolidated trial of the Dodge and Rango plaintiffs’ application for a permanent in- junction that forms the basis of this decision.

C. Shain Controls the Disposition of This Case Defendants argue that I should decline to find Shain dispositive of plaintiffs’ claims. They do not attempt to distinguish Shain on its facts. See, e.g., DiRienzo v. Philip Serv. Corp., 294 F.3d 21, 32 (2d Cir.2002), cert. denied, 537 U.S. 1028, 123 S.Ct. 556, 154 L.Ed.2d 442 (2002) (distinguishing cases because facts differed). Indeed, it is undisputed that this case and Shain involve precisely the same type of facility (a county jail) and precisely the same type of search (visual body cavity searches of newly-admitted post-arraignment pre-trial detain- ees). The only distinction, which I address below, is that Shain ‘s holding is limited to misdemeanor ar- restees and does not, by its express terms, apply to

felony arrestees.

Defendants couch their argument in terms of stare decisis, arguing that the doctrine of stare de- cisis is “flexible” and thus “this Court need not be constrained by principles of stare decisis to follow that decision.” [Defendants' Post–Trial Memor- andum of Law 15]. Defendants fail to distinguish, however, between horizontal stare decisis (whereby a court binds itself) and vertical stare decisis (whereby a higher court’s decision binds lower courts). See, e.g., Richard W. Murphy, *80Separa- tion of Powers and the Horizontal Force of Preced- ent, 78 Notre Dame L.Rev. 1075, 1085–86 (2003); Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cor- nell L.Rev. 401, 410 n. 6 (1988). It is horizontal stare decisis that is flexible—i.e., it is not an “inexorable command” or “a mechanical formula of

adherence to the latest decision.” Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 2483, 156 L.Ed.2d 508 (2003) (internal citations omitted). In contrast, vertical stare decisis provides little, if any, leeway for a district court judge to stray from Court of Appeals precedent.

One commentator has developed a three-part typology of how a lower court might refuse to fol- low a higher court’s precedent: (1) a lower court might ignore a higher court’s opinion because of the lower court’s view that the precedent was mistaken; (2) a lower court could conclude that the higher court’s precedent has been undermined by later de- cisions to the point that it has been implicitly over- ruled by the higher court itself (or a court superior to the higher court), and is therefore no longer bind- ing; and (3) a lower court might engage in predict- ive reasoning and refuse to follow a precedent the court believes the higher court would not still fol- low. Ashutosh Bhagwat, Separate But Equal? The Supreme Court, the Lower Federal Courts, and the Nature of “Judicial Power”, 80 Boston Univ. L.Rev. 967, 971–72 (2000). Though courts and commentators have largely rejected all three of these as justifications for a lower court to not fol- low a superior court’s precedent, defendants urge me not to follow Shain on all three bases.

1. Allegedly Erroneous Factual and Legal Assump- tions Do Not Provide a Basis to Reject Shain

Defendants argue that I should reject Shain be- cause the court there based its ruling on erroneous legal and factual assumptions, in particular assump- tions about (a) the differences between jails and prisons, (b) the security risks misdemeanants pose to a correctional facility, and (c) the information that facilities have (and are able to obtain) about new inmates. In addition, defendants argue that there is no basis in the Constitution to import a reasonable suspicion standard into the context of pretrial detainees. Put bluntly, defendants argue that the Second Circuit made mistakes in Shain and I should therefore ignore that decision.

[6] A lower court must follow precedent that is

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on point, however, even if it thinks the precedential decision was wrongly decided. See, e.g., Jaffree v. Bd. of Sch. Comm’rs of Mobile County, 459 U.S. 1314, 1316, 103 S.Ct. 842, 74 L.Ed.2d 924 (1983) (Powell, Circuit Justice). In Khan v. State Oil Co., 93 F.3d 1358 (7th Cir.1996), for example, the Sev- enth Circuit Court of Appeals reversed the district court’s holding, basing its decision on the Supreme Court’s decision in Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968). Chief Judge Richard Posner wrote for the majority and argued that the rule of antitrust law set forth in Albrecht was wrong as a matter of economic the- ory. 93 F.3d at 1361–62. The court of appeals felt itself compelled to follow Albrecht, however, be- cause “Albrecht has not been expressly overruled (or, what would amount to the same thing, a later case, conceded to be indistinguishable, has not been expressly overruled).” 93 F.3d at 1363. On appeal, the Supreme Court reversed the Seventh Circuit, accepting Judge Posner’s criticism of Albrecht. The Court stated, however, stated that “[t]he Court of Appeals was correct in applying that principle des- pite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its pre- cedents.” *81State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997).

Thus if defendants are correct that the Shain Court based its ruling on erroneous assumptions, it is the Second Circuit that must rectify its own mis- take. Absent that, the Supreme Court, which (regrettably) denied certiorari in Shain, must speak to the issue.

2. Overton Has Not Implicitly Overruled Shain Taking a different tack, defendants argue that Shain is not dispositive here because the Supreme Court implicitly overruled Shain in Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162, 156

L.Ed.2d 162 (2003). Again, defendants are wrong.

Plaintiffs in Overton were a class of prisoners (and their friends and family members) challenging Michigan’s rules restricting inmates’ visitation rights. The Supreme Court applied the Turner

factors and upheld the prison regulations, overrul- ing the Sixth Circuit Court of Appeals.

Defendants fail to explain how Overton affects Shain. To the extent that Overton reinforced the Su- preme Court’s ruling in Turner v. Safley concerning judicial deference to prison regulations, that is pre- cisely the issue on which the Shain majority and the dissent differed. I, of course, must follow the ma- jority.

Moreover, Shain distinguished Turner by hew- ing to a carefully crafted set of what it perceived as critical factual distinctions between the two cases. Overton did not involve a facility of the type the Shain Court termed a “jail” FN42; it did not involve rules specifically regarding pretrial detainees; and it most certainly did not involve strip searches or plaintiffs’ Fourth Amendment rights. Rather, the Supreme Court applied Turner to visitation rules af- fecting already-admitted inmates at a facility that fell within the parameters of what Shain defined as a prison. Overton no more provides me with a basis to ignore Shain than Turner provided the Shain ma- jority with a reason to overrule the Weber/Walsh/ Wachtler trilogy.

FN42. Michigan law distinguishes between county jails and state penal institutions. Compare Mich. Comp. Laws § 791.262 and Mich. Admin. Code r. 791.707 (2003) with Mich. Comp. Laws § 791.206 and Mich. Admin. Code r. 791.1101 (2003). The visitation rules the Supreme Court ad- dressed in Overton, Mich. Admin. Code r. 791.6609 (2003), do not appear to apply to county jails.

3. I Can Not Anticipate Whether the Second Circuit Will “Abandon” Shain

Finally, defendants invite me to divine whether the Second Circuit will “abandon” its decision in Shain. They cite Judge Learned Hand’s admonition that “the measure of [a lower court's] duty is to di- vine, as best it can, what would be in the event of an appeal ….” Spector Motor Serv. v. Walsh, 139

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F.2d 809, 823 (2d Cir.1943) (Hand, J., dissenting).

In Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), however, the Supreme Court explained that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which dir- ectly controls, leaving to this Court the prerogative of overruling its own decisions.” Id. at 484, 109 S.Ct. 1917. I see no reason why a district court should not show the same deference to the Court of Appeals that the Supreme Court demands of inter- mediate appellate courts. See, e.g., Wisdom v. In- trepid Sea–Air Museum, 1992 WL 168224, at *4 (S.D.N.Y . June 26, 1992) (“[Rodriguez's] admoni- tion to the circuit courts should apply with *82 equal, if not greater, force to the district courts.”); Priester v.Senkowski, 2002 WL 1448303, at *7 (S.D.N.Y. July 3, 2002); see also Bloomer v. Cos- tello, 2001 WL 62864, at *5 (S.D.N.Y. Jan.24, 2001); Distribuidora Dimsa S.A. v. Linea Aerea Del Cobre S.A., 768 F.Supp. 74, 77 (S.D.N.Y.1991).

The circumstances of this case counsel against “anticipating” Shain ‘s demise. First, it was decided only two years ago, and there have been no inter- vening Second Circuit strip search decisions. Second, the Shain majority was clearly uncomfort- able about the institutional implications of contra- dicting prior Second Circuit decisions (in Weber, Walsh, and Wachtler ) absent those decisions’ being overruled en banc or by the Supreme Court. See 273 F.3d at 65–66, 273 F.3d at 69–70 (Katzmann, J., concurring). To urge a district court to do what a panel of the Second Circuit would not is to display a fundamental misunderstanding of the hierarchical structure of the federal judiciary. See Steven G. Ca- labresi & Gary Lawson, Equity and Hierarchy: Re- flections on the Harris Execution, 102 Yale L.J. 255, 276 n. 6 (“The hierarchical structure of Article III dictates that inferior courts faithfully apply the precedents of superior courts, just as the hierarchic- al structure of Article II requires executive officials

to follow presidential precedents.”).

I agree that Judge Cabranes’s dissent in Shain is most persuasive—the more so in view of the re- cord in this case. The findings of fact set forth above suggest that at least some of the assumptions and distinctions made by the Shain Court are ques- tionable, if not just plain wrong, and that defend- ants face very real potential security concerns from any new arrival. And it is hard for me to articulate a principled reason why an inmate cannot be strip searched without reasonable suspicion of contra- band carriage when he arrives at OCCF but can lawfully be strip searched after a court date or dur- ing a cell shakedown on “less than probable cause.” See Bell v. Wolfish, 441 U.S. at 560, 99 S.Ct. 1861. But the panel majority in Shain rejected Judge Cabranes’s argument—which is, in essence, defend- ants’ argument to me—and no subsequent Second Circuit or Supreme Court decision has overruled it. If the Court of Appeals wishes to “abandon” Shain, it must do so.

Having concluded that I may not ignore Shain, I turn to the constitutionality of OCCF’s strip search policies.

D. OCCF’s Pre–August 2001 Policy
[7] OCCF’s pre-August 2001 strip search

policy—strip searching every arrestee admitted to the jail—violated the Fourth Amendment. It was precisely the same policy that was at issue in Shain, where the court found that persons charged with a misdemeanor and remanded to a local correctional facility have a right to be free of a strip search ab- sent reasonable suspicion that they are carrying contraband or weapons. Were defendants to revert to that policy, as they wish to do, they would be acting illegally.FN43

FN43. In response to a query from the Court, defendants insist that they are not seeking a declaration that they can revert to the old “search ‘em all” policy. However, they seem to feel that, if I de- cline to enter an injunction, they would be

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free to revert to that policy. [September 3, 2003 Letter to the Court]. I do not under- stand the logic behind their position. I could, for example, decline to enter an in- junction because I found that the August 2001 OCCF policy was constitutional. Such decision would hardly imply that the prior policy was similarly constitutional.

E. OCCF’s August 2001 Policy
[8] The August 2001 Policy, which was in ef-

fect until August 2002, is unconstitutional because it does not call for an officer to have individualized suspicion that a detainee*83 is secreting contraband on his person in order to strip search the detainee.

Under that policy, corrections officers strip searched arrestees who exhibited any one of a set of listed factors. Notwithstanding the use of the phrase “may search” rather than “must search” in the policy statement, the officer had no discretion to omit the strip search if one of the factors was present. The idea of the policy was to limit, if not eliminate, officer discretion. See Dodge, 209 F.R.D. at 67.

As I explained in Dodge, at least some of those factors, standing alone, were insufficient to estab- lish reasonable suspicion that an inmate was carry- ing contraband or weapons. 209 F.R.D. at 72–77. Pursuant to the policy, for example, corrections of- ficers could (and did) automatically strip search ar- restees who appeared to be under the influence of alcohol. I fail to see how, all things being equal, a person who is under the influence of alcohol is more likely to be carrying a weapon or contraband than a person who is not under the influence. I sup- pose alcohol intoxication might create reasonable suspicion that someone is secreting alcohol on his person, and alcohol is contraband. But a person would be hard pressed to hide a bottle of whisky or can of beer in the areas of his body that only an Ad- missions Search (as defined above) would uncover.

Similarly, the August 2001 Policy directed of- ficers to strip search newly-admitted detainees ar-

rested for violating parole. At the Dodge hearing, defendants offered no justification for categorically searching that class of arrestees. 209 F.R.D. at 77. Unless a person violates his parole by using drugs or carrying weapons or being involved in some vi- olent activity, I fail to see why he is more likely to be secreting contraband on his person than is any other person admitted to OCCF.

Of course, some of the factors listed in the Au- gust 2001 Policy might well suffice to create reas- onable suspicion standing alone. Pursuant to the policy, for example, officers automatically strip searched arrestees who appeared to be under the in- fluence of drugs. Someone who is under the influ- ence of drugs while being admitted to OCCF prob- ably possessed drugs shortly before his arrest. In addition, drug intoxication can result from the in- gestion of a small (and thus easily concealable) quantity of drugs. Thus, an officer faced with an ar- restee who appeared to be under the influence of narcotics might well harbor reasonable suspicion that an arrestee may be secreting drugs on their per- son.

Similarly, on the record as it stands now, set- ting off the BOSS chair may, without more, suffice to create reasonable suspicion. At the Dodge pre- liminary injunction hearing, the evidence showed that new admittees were sent through the metal de- tector and asked to sit on the BOSS chair before they removed their clothing—or even emptied their pockets. They were then strip searched if they set off the alarm. 209 F.R.D. at 68. Between August 1, 2001 and February 14, 2002, 439 of the 731 docu- mented strip searches at OCCF occurred because the inmate activated a metal detector. Id. at 73. Yet there was no evidence that contraband was re- covered during any of those strip searches, let alone a significant number of them. Id. at 74. As a result, I found on a preliminary basis that simply setting off the BOSS chair was insufficient to establish reasonable suspicion.

The statistics about contraband recoveries in Booking and Receiving that plaintiffs introduced at

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the hearing demonstrate conclusively that little if any contraband was recovered in such searches—or put otherwise, the data suggest that the BOSS chair, as originally used, was a wildly inaccurate detector of contraband. So if the *84 same procedure were being followed with the BOSS chair I would have no reason to revisit my earlier conclusion.

At the trial, however, I learned that plaintiffs have changed their procedures relating to the BOSS chair. New admittees are no longer asked to sit on the BOSS chair while wearing their own clothes. Rather, inmates sit on the BOSS chair only after they have changed into an institutional jumpsuit, shedding most if not all of the paraphernalia that might activate a metal detector. As a result, it is possible that activating the BOSS chair is now suf- ficient to establish reasonable suspicion that an in- mate is secreting contraband on his person.FN44

FN44. The record does not contain any data that would allow me to draw any con- clusion on that score.

In short, the defect in the August 2001 Policy is that it does not limit strip searches to situations in a which a corrections officer makes an individual- ized assessment that a particular defendant presents a reasonably apprehended risk of carrying contra- band. To that extent the policy is unconstitutional.

[9] The policy also called for automatically strip searching all newly-admitted detainees who had been arrested on suspicion of a felony. The Dodge plaintiffs represented only misdemeanor ar- restees, so I had no reason to address the issue at the preliminary injunction stage. But approximately two months after the Dodge injunction issued, I de- cided the parties’ cross-motions for summary judg- ment in Murcia v. County of Orange, 226 F.Supp.2d 489, 493–95 (S.D.N.Y.2002). There, in the context of a Section 1983 action for damages, I concluded that it unconstitutional for OCCF to strip search newly-admitted inmates solely because they had been arrested for a felony. I noted the Supreme Court’s statement that the distinction between felon-

ies and misdemeanors is “minor and often arbit- rary.” Tennessee v. Garner, 471 U.S. 1, 14, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (finding “the as- sumption that a ‘felon’ is more dangerous than a misdemeanant untenable”); see also Kennedy v. Los Angeles Police Dep’t., 901 F.2d 702 (9th Cir.1989) (finding Los Angeles Police Department policy re- quiring strip searches of all those arrested on suspi- cion of having committed a felony to be unconstitu- tional). And while the holding in Shain was limited to misdemeanor arrestees, nothing in that de- cision—or in any other relevant Second Circuit de- cision—indicated that being arrested for a felony created reasonable suspicion that an arrestee is car- rying weapons or any other contraband. Indeed, the Second Circuit stopped short of addressing that is- sue. See Shain, 273 F.3d at 64.FN45

FN45. In Shain, Judge Katzmann indicated his belief that Second Circuit jurisprudence distinguished between felony and misde- meanor arrestees—a distinction he was not sure he would make if it had not already been made for him. 273 F.3d at 69–70 (Katzmann, J., concurring). I have looked for a definitive holding by the Court of Appeals to the effect that a felony defend- ant’s post-arraignment detention is in fact an indicator of increased security risk. I found no such holding. Saying that post- arraignment felony detainees “may well” present an increased security risk is as far as the Circuit has gone.

In Murcia, the defendants had offered no evid- ence that would justify a policy for searching all felony detainees. 226 F.Supp.2d at 496. They had not shown, for example, that felony arrestees were responsible for introducing more contraband than misdemeanor arrestees. Id. Defendants here have had the benefit of developing a record at a trial on the merits. Yet they still have not demonstrated that a justification exists for strip searching*85 all newly-arraigned felony arrestees. Indeed, defend- ants themselves argue that “[t]he undisputed record

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in this case demonstrates that misdemeanants and lesser violators may be more likely to secrete con- traband ….” [Defendants' Post–Trial Memorandum of Law 11] (emphasis in original).FN46 See also Kennedy, 901 F.2d at 713 (“A glaring omission from the LAPD’s justification [for strip searching all felony arrestees] is any documentation (or even assertion) that felony arrestees have attempted to smuggle contraband into the jail in greater fre- quency than misdemeanor arrestees.”). Absent such evidence, there is no basis for me to depart from the reasoning set forth in Murcia. I therefore find that defendants August 2001 policy was unconstitution- al insofar as it called for strip searching all newly- admitted detainees arrested on suspicion of a felony.

FN46. Though I do not credit the data on which defendants rely, they also argue that “the SRI reports at the OCCF show that misdemeanants and lesser violators are primarily responsible for the majority of the contraband incidents during the admis-

defendants comport with the law’s requirement that jail officers search only search newly-admitted pre- trial detainees if they develop reasonable suspicion based on “the crime charged, particular character- istics of the arrestee, and/or the circumstances of the arrest.” 273 F.3d at 63.

Plaintiffs did demonstrate that officers on occa- sion strip searched newly-admitted pretrial detain- ees without reasonable suspicion. See supra pp. 58–64. The evidence plaintiffs presented at trial does not establish, however, that the August 2002 Policy exists only “on paper.” While OCCF officers have fallen short of complying with their written policy and have strip searched some arrestees ab- sent reasonable suspicion, I cannot conclude that they have fallen so short of their stated policy to suggest that they are systemically effectuating an unconstitutional policy. I believe that Capt. Ryan and his staff are attempting to comply with the Au- gust 2002 Policy, even though they do not like it.

However, the August 2002 Policy mandates strip searches of all detainees who have been arres- ted on suspicion of a felony, weapons, or narcotics offense. FN47 [DX 30]. Plaintiffs do not contend that being arrested for a weapons or narcotics of- fense is insufficient to establish reasonable suspi- cion, but the Rango plaintiffs, who represent all pre-trial detainees strip-searched because they were arrested on suspicion of a felony, specifically chal- lenge that portion *86 of the policy. I conclude, for the reasons stated above, that the August 2002 Policy is unconstitutional to the extent that it calls for an on-arrival strip search of every felony detain- ee without individualized reasonable suspicion that the detainee is carrying contraband.

FN47. The policy also mandates strip searches of all sentenced inmates (both felons and misdemeanants) admitted to the facility, as well as all “weekenders” return- ing to the facility from their time away. [DX 30]. Plaintiffs here are all pre-trial de- tainees and do not purport to challenge these strip searches.

sion process.”[Defendants' Memorandum of Law 11].

Post–Trial

F. OCCF’s August 2002 Policy
[10] The August 2002 Policy that was imple-

mented post-Dodge lists factors that an officer may consider in determining whether reasonable suspi- cion exists that an inmate is concealing weapons or other contraband. Many of the factors listed are the same factors that automatically called for a strip search under the August 2001 policy, such as being a known gang member or having prior escape charges.

This portion of the August 2002 Policy com- plies with Shain—and cures the defect in the Au- gust 2001 Policy—because it does not direct of- ficers to perform a strip search automatically when any one factor is present. Rather, it simply gives of- ficers guidance about what they may want to think about in determining whether reasonable suspicion exists. Thus, insofar as OCCF officers comply with these written dictates of the August 2002 Policy,

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III. Plaintiffs’ Request for an Injunction is Granted gives us the most pause”); id. at 576–77, 99 S.Ct. Success on the merits is necessary but not suf- 1861 (Marshall, J., dissenting) (asserting that visual ficient to establish plaintiffs’ right to injunctive re- strip searches “represent one of the most grievous lief. Plaintiffs must also show that the balance of offenses against personal dignity and common de- hardships tips in their favor. cency”); id. at 594, 99 S.Ct. 1861 (Stevens, J., dis- senting) (remarking that visual body cavity searches are “clearly the greatest personal indig- nity”); Swain v. Spinney, 117 F.3d 1, 6 (1st Cir.1997) (“Our circuit has ‘recognize[d], as have all courts that have considered the issue, the severe if not gross interference with a person’s privacy that occurs when guards conduct a visual inspection of body cavities.’ ”) (quoting Arruda v. Fair, 710 F.2d 886, 887 (1st Cir.1983)); Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.1993) (“It is axiomatic that a strip search is an invasion of personal rights of the first magnitude.”); Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir.1992) ( “One’s anatomy is draped with constitutional protection …. [A] strip search, regardless how professionally and cour- teously conducted, is an embarrassing and humiliat- ing experience,”); Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir.1989) (“The feelings of humiliation and degradation associated with for- cibly exposing one’s nude body to strangers for visual inspection is beyond dispute.”); Mary Beth G. v. Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) (“strip searches involving the visual inspection*87 of the anal and genital areas [are] demeaning, dehu- manizing, undignified, humiliating, terrifying, un- pleasant, embarrassing, repulsive, signifying de- gradation and submission”). Preventing the deprivation of plaintiffs’ constitutional right to be free from unreasonable searches of this most intrus-

[11] Moreover, the PLRA mandates that I de- termine whether any injunctive relief I award plaintiffs is narrowly tailored. Unlike the require- ment that the balance of hardships favor plaintiffs, however, the PLRA’s tailoring requirement does not affect the availability of injunctive relief. Rather, it affects the scope of the equitable relief a court may order once that court determines that an injunction should issue. In other words, “[a]lthough the PLRA significantly affects the type of prospective injunct- ive relief that may be awarded, it has not substan- tially changed the threshold findings and standards required to justify an injunction.” Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir.2001); see also Im- prisoned Citizens Union v. Ridge, 169 F.3d 178, 188 (3d Cir.1999); Smith v. Arkansas Dep’t of Cor- rection, 103 F.3d 637, 647 (8th Cir.1996); Hand- berry v. Thompson, 219 F.Supp.2d 525, 532–33 (S.D.N.Y.2002); Jones ‘El v. Berge, 164 F.Supp.2d 1096, 1116 (W.D.Wis.2001).

Defendants argue that no injunction should is- sue, regardless of my findings concerning Shain and the constitutionality of OCCF’s thereunder, be- cause (1) the balance of hardship tips in OCCF’s fa- vor, and (2) it is not possible to fashion an injunc- tion that complies with the PLRA. I address these arguments in turn.

A. Balance of Hardships
[12] Plaintiffs would suffer a substantial hard-

ship in the absence of an injunction. Having one’s constitutional rights violated is, a priori, a substan- tial hardship. Moreover, the nature of this particular constitutional violation, being strip searched, rep- resents a serious intrusion that is often humiliating, even when performed in the most professional man- ner. See Bell v. Wolfish, 441 U.S. 520, 588, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (stating that a visual body cavity search is a “practice [that] instinctively

ive form is of utmost importance to this Court.

As for the possible injuries defendants would suffer if I were to award plaintiffs an injunction: The PLRA specifies that I must give substantial weight to any adverse impact on public safety or the operation of the criminal justice system. This case is somewhat unique in that defendants have for the most part been applying a constitutionally-compli- ant reasonable suspicion standard since August of 2002 (with the exception of felony arrestees), so

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there is empirical evidence with which to assess any hardship defendants’ would suffer by being en- joined to comply with Shain.

Defendants argue that they have suffered the following hardship since August of 2002:(1) sub- stantially more contraband has been smuggled into OCCF, increasing the danger to inmates, correc- tions officers, and staff; (2) OCCF has had to ex- pend more resources to comply with the August 2002 Policy; (3) OCCF has had to implement more pat searches in Booking and Receiving, which may increase the tension between inmates and officers; (4) OCCF has had to increase the number of cell shakedowns, which has increased tensions between the inmates and corrections officers and jeopard- ized officers’ safety; and (5) OCCF is unable to comply with the reasonable suspicion standard.

I can dismiss defendants’ argument that more contraband has been smuggled into the facility as a result of the August 2002 Policy. As explained in the findings of fact, the data belies this contention.

The resources defendants have expended in or- der to comply with the OCCF Policy include spend- ing $10,000 on gloves for performing pat searches and stationing an officer in Booking and Receiving to assist officers in applying reasonable suspicion standard. I am, of course, wary of diverting OCCF resources; jail officials are best able to optimally disburse their limited funds. But defendants have not demonstrated that these two additional expenses have strained their budget or that the costs have been particularly onerous (at their new multi-mil- lion dollar facility).

I note that defendants would suffer similar hardship even if I did not enter an injunction. Ab- sent a court ruling that OCCF need not comply with Shain—and as I have explained I am in no position to issue such a ruling—OCCF would expose itself to punitive damages in individual Section 1983 ac- tions if it reverted to its past policy of strip search- ing all arrestees. Of course, one of the functions of punitive damages is to force a party to comply with

the law. Thus, there exists a distinct possibility that OCCF would suffer the same hardship regardless of whether I issue an injunction.

Far more troubling is defendants’ claim that in- creased tensions have resulted from an increase in pat searches and cell shakedowns. This is a penolo- gical concern of the first order. However, in support of this potentially troubling allegation defendants rely solely on (1) their expert’s opinion that prop- erly performed pat searches are intrusive in nature, [Tr. 444–45 (Camp Testimony) ], and (2) Capt. Ry- an’s testimony that an officer was injured when an inmate attacked him during a cell shakedown in Oc- tober of 2002. [Ryan Direct ¶ 35]. It a stretch and then some to infer from this either that tensions between inmates and officers have risen markedly since August of 2002, or that instituting a constitu- tionally-compliant strip search policy*88 for new arrivals was the reason. Thus while I take this evid- ence into account in balancing the hardships, I do not weigh it as heavily as I would had defendants supported their allegation of increased tensions with more substantial evidence. And I note that there is no evidence that newly-arrived post- arraignment inmates are the source of any amount, let alone a great deal, of the contraband that is be- ing recovered during shakedowns.

As for defendants’ claim that they cannot com- ply with the reasonable suspicion standard: they ar- gue that it is impossible for them to make an indi- vidualized assessment of reasonable suspicion be- cause the officers stationed at Booking and Receiv- ing lack the sort of information that would enable them to make a Shain-type assess- ment—information about the nature of the crime, the circumstances of the arrest and the particular characteristics of the detainee. To the extent that they do have information, they argue that it is in- herently unreliable because it is self-reported.

As my findings of fact demonstrate, the of- ficers stationed in Booking and Receiving lack in- formation largely because jail officials choose not to procure it for them. No effort has been made to

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obtain information about the pending charges and more likely than misdemeanants to attempt to about detainees from the arresting jurisdictions. smuggle contraband into the facility (indeed, as While Capt. Ryan believes it would be impossible, noted above, defendants contend the opposite), I he has no basis for so believing because he has nev- cannot find that an injunction to obey the law er tried to do it. More significantly, booking and re- would create a hardship.

ceiving officers are not even provided with inform- ation that is already available at OCCF—rap sheets and information about prior commitment history at the jail—that would assist the officers to perform their constitutional duty of assessment. There are none so blind as those who will not see.

The County’s argument about the reliability of self-reported information is similarly unpersuasive. While there will doubtless be occasions when self- reported information turns out to be wrong, the County has offered no evidence that this happens with the frequency necessary to make such inform- ation inherently unreliable in the vast majority of cases. Indeed, because some number of new ar- rivals will never have had contact with the criminal justice system, OCCF will always have to rely on self-reported information to a certain extent, since there are no fingerprints in the system that can be used to check their identities.

I can well understand Capt. Ryan’s desire to minimize security risks by strip searching all new arrivals at OCCF. He and his officers are charged with maintaining security. Security is a function of the information available. And no system can guar- antee him perfect information about arriving in- mates. But the way to minimize the risk is to make the most of the information that is available. Clearly, officials at OCCF, by their own choice, do not make the most of the information that is or could be made available to them. Until they do, they cannot complain about the limitations of an imperfect information system.

Last, I must address whether changing defend- ants’ August 2002 Policy to extend the “individualized reasonable suspicion standard” to newly-admitted accused felons would work an un- reasonable hardship on defendants. Since no evid- ence before me suggests that felony arrestees are

I conclude that the balance of hardships tips in plaintiffs’ favor.

B. The Scope of the Injunction
I reject defendants argument that the PLRA

would be violated by issuance of an *89 injunction. I am mindful that the PLRA requires me to find that the injunction is narrowly drawn, extends no further than is necessary to correct the constitutional harm found, and is the least intrusive means necessary to correct that harm. But the PLRA’s mandate to nar- rowly tailor injunctive relief does not eliminate courts’ ability to issue injunctions. See, e.g., Im- prisoned Citizens, 169 F.3d at 188 (“Under the PLRA, courts retain authority to adjudicate consti- tutional challenges and grant equitable relief to remedy constitutional violations.”).

I hereby enjoin defendants from strip searching (as defined above) newly-arrived pre-trial detainees upon their initial admission to OCCF unless offi- cials have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest. I cannot imagine an injunction that is narrower, less extensive, or less intrusive (while correcting the constitutional harm). I am not mandating any spe- cific actions defendants must take. Rather, I am telling defendants that they must adhere to the reas- onable suspicion standard set forth in Shain before strip searching any newly arrived inmate. It is en- tirely up to defendants how they will comply with the law.FN48

FN48. As I learned at the trial, New York City has chosen to balance security con- cerns and comply with Shain by acquiring hospital gowns that inmates wear when they bend over and cough. The maneuver

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dislodges the contraband while the gown protects privacy. [Tr. 393–94 (Fraser Testi- mony) ]. I am not ordering OCCF to follow this or any other procedure, but Capt. Ryan and his staff may wish to consider it as one alternative method of complying with this injunction.

As a practical matter, complying with the injunc- tion will mean continuing to comply with the Au- gust 2002 Policy except in one respect: OCCF of- ficers can no longer strip search newly admitted de- tainees simply and solely because they are charged with a felony. I leave it to defendants’ discretion to change the written policy to reflect this change, and to ensure that OCCF officers act accordingly.

CONCLUSION
Plaintiffs’ request for an injunction is granted. My

order granting plaintiffs an injunction is directly ap- pealable to the Second Circuit pursuant to 28 U.S.C. § 1292(a)(1), even though the plaintiffs’ claims for damages remain to be tried to a jury. See Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir.1995); 16 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 3924, at 146 (1995). If defendants intend to take an appeal, the Court will stay further proceedings pending the determination of that appeal.

This constitutes the decision and order of the Court. *90 ATTACHMENTS

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282 F.Supp.2d 41

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United States District Court,
S.D. New York.
Timothy MANEELY, on behalf of himself and all others similarly situated, Plaintiff,
v.
CITY OF NEWBURGH, et al., Defendants.

No. 01 CIV. 2600(CM). April 8, 2003.

Arrestees brought § 1983 class action, alleging that city maintained an unconstitutional policy of strip searching all pre-arraignment prisoners without reasonable suspicion. Plaintiffs moved for summary judgment. The District Court, McMahon, J., held that: (1) state court’s decision in a prior case did not, under New York law, collaterally estop city’s claims; (2) city’s written strip policy was not unconstitutional on its face; and (3) issues of fact existed as to whether city instituted an unconstitu- tional strip search policy.

Motion denied.
See also 208 F.R.D. 69.

West Headnotes

[1] Federal Courts 170B 420

170B Federal Courts
170BVI State Laws as Rules of Decision

170BVI(C) Application to Particular Matters 170Bk420 k. Judgments. Most Cited

Cases

A federal court must give a state court judg- ment the same preclusive effect that the courts of the state would give it. 28 U.S.C.A. § 1738.

[2] Judgment 228 634 228 Judgment

228XIV Conclusiveness of Adjudication

228XIV(A) Judgments Conclusive in Gener- al

228k634 k. Nature and Requisites of Former Adjudication as Ground of Estoppel in

General. Most Cited Cases
Under New York law, the doctrine of collateral

estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised against that party or those in privity, whether or not the tribunals or causes of action are the same.

[3] Judgment 228 713(1)

228 Judgment
228XIV Conclusiveness of Adjudication

228XIV(C) Matters Concluded
228k713 Scope and Extent of Estoppel in

General

Cases

Page 1

228k713(1) k. In General. Most Cited Judgment 228 715(1)

228 Judgment
228XIV Conclusiveness of Adjudication

228XIV(C) Matters Concluded
228k715 Identity of Issues, in General

228k715(1) k. In General. Most Cited

Cases

Under New York law, doctrine of collateral es- toppel applies only if (1) the identical issue was de- cided in the prior action and would be decisive of the present action, and (2) the party to be precluded from relitigating the issue had a full and fair oppor- tunity to contest the prior determination.

[4] Judgment 228 956(1)

228 Judgment
228XXIII Evidence of Judgment as Estoppel or

Defense
228k956 Evidence as to Identity of Issues or

Matters Decided
228k956(1) k. Presumption and Burden of

Proof. Most Cited Cases

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Under New York law, the party seeking the be- nefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its applica- tion has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.

[5] Judgment 228 713(1)

228 Judgment
228XIV Conclusiveness of Adjudication

228XIV(C) Matters Concluded
228k713 Scope and Extent of Estoppel in

full and fair opportunity to litigate the issue, and city was unable to conduct discovery related to is- sue or otherwise sufficiently prepare. 42 U.S.C.A. § 1983.

[7] Judgment 228 632

228 Judgment
228XIII Merger and Bar of Causes of Action

and Defenses
228XIII(C) Persons Who May Take Advant-

age of the Bar
228k632 k. Persons Not Parties or Privies.

Most Cited Cases

New York courts permit the offensive use of collateral estoppel.

[8] Civil Rights 78 1351(1)

78 Civil Rights
78III Federal Remedies in General

78k1342 Liability of Municipalities and Oth- er Governmental Bodies

78k1351 Governmental Ordinance, Policy, Practice, or Custom

78k1351(1) k. In General. Most Cited

Cases

(Formerly 78k206(3))
Where a plaintiff seeks to hold a municipality

liable under § 1983, he must prove that a municipal policy or custom caused the deprivation of a right, privilege, or immunity secured by the Constitution or laws of the United States. 42 U.S.C.A. § 1983.

[9] Civil Rights 78 1351(1)

78 Civil Rights
78III Federal Remedies in General

78k1342 Liability of Municipalities and Oth- er Governmental Bodies

78k1351 Governmental Ordinance, Policy, Practice, or Custom

78k1351(1) k. In General. Most Cited (Formerly 78k206(3))

Civil Rights 78 1352(1)

Page 2

General

Cases

228k713(1) k. In General. Most Cited

In determining whether a party had a full and fair opportunity to litigate an issue in a prior pro- ceeding, as required for invocation of doctrine of collateral estoppel, court must consider factors in- cluding size of the claim, forum of the prior litiga- tion, use of initiative, extent of the litigation, com- petence and experience of counsel, availability of new evidence, indications of a compromise verdict, differences in the applicable law, and foreseeability of future litigation.

[6] Judgment 228 828.16(1)

228 Judgment
228XVII Foreign Judgments

228k828 Effect of Judgments of State Courts in United States Courts

228k828.16 Issues or Questions Presented 228k828.16(1) k. In General. Most

Cited Cases

In § 1983 action alleging that city maintained an unconstitutional policy of strip searching all pre- arraignment prisoners without reasonable suspicion, state court’s decision in a prior case did not, under New York law, collaterally estop city’s claims; court’s decision to allow prior plaintiff to amend her complaint after both parties had finished presenting their cases prevented city from having a

Cases

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256 F.Supp.2d 204

(Cite as: 256 F.Supp.2d 204)

78 Civil Rights
78III Federal Remedies in General

78k1342 Liability of Municipalities and Oth- er Governmental Bodies

78k1352 Lack of Control, Training, or Su- pervision; Knowledge and Inaction

78k1352(1) k. In General. Most Cited

Cases

(Formerly 78k206(4))
For purposes of a § 1983 action, the existence

of a municipal policy or custom may be shown where the allegedly unconstitutional action imple- ments or executes a policy statement, ordinance, regulation, or decision officially adopted and pro- mulgated by the municipality’s officers, by persist- ent and widespread constitutional violations so per- vasive that acquiescence of policy makers may be presumed, by circumstantial proof, such as evid- ence that the municipality’s failure to train its em- ployees displayed a deliberate indifference to con- stitutional rights, or by actions taken by persons whose activities reflect official policy. 42 U.S.C.A. § 1983.

[10] Prisons 310 359

310 Prisons
310III Pretrial Detention

310k351 Care, Custody, Confinement, and Control

310k359 k. Search, Seizure, and Confisca- tion. Most Cited Cases

(Formerly 310k4(7))
Blanket policies subjecting all newly-arrested

misdemeanor detainees in a local correctional facil- ity to visual body cavity searches are unconstitu- tional. U.S.C.A. Const.Amend. 4.

[11] Arrest 35 71.1(6)

35 Arrest
35II On Criminal Charges

35k71.1 Search
35k71.1(4) Scope of Search

35k71.1(6) k. Persons and Personal Ef- fects; Person Detained for Investigation. Most Cited

Cases

In order for a visual body cavity search to be found reasonable under the circumstances, there must be some particularized suspicion, arising either from the nature of the charge or specific cir- cumstances relating to the arrestee and/or the arrest, that the arrestee is concealing weapons or other contraband. U.S.C.A. Const.Amend. 4.

[12] Prisons 310 137

310 Prisons
310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

tion

Cases

310k134 Search, Seizure, and Confisca- 310k137 k. Strip Searches. Most Cited

(Formerly 310k4(7))
The individualized reasonable suspicion rule

applies to strip searches of accused felons as well as misdemeanants, upon arrival at a local correc- tional facility. U.S.C.A. Const.Amend. 4.

[13] Prisons 310 137

310 Prisons
310II Prisoners and Inmates

310II(B) Care, Custody, Confinement, and Control

Page 3

tion

Cases

310k134 Search, Seizure, and Confisca- 310k137 k. Strip Searches. Most Cited

(Formerly 310k4(7))
City’s written strip policy was not unconstitu-

tional on its face; policy could have been applied in a constitutional manner inasmuch as policy allowed strip searches only if arresting officer reasonably believed prisoner might be concealing weapons or contraband.

[14] Federal Civil Procedure 170A 2491.5 170A Federal Civil Procedure

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170AXVII Judgment
170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases 170Ak2491.5 k. Civil Rights Cases in

General. Most Cited Cases
Genuine issues of material fact existed as to

whether city instituted an unconstitutional strip search policy, precluding summary judgment for ar- restees in their § 1983 action alleging that they had been subjected to visual body cavity searches upon being arrested regardless of whether reasonable suspicion existed that they might be concealing weapons or contraband. 42 U.S.C.A. § 1983.

*206 James Edward Monroe,Dupee, Dupee & Monroe, P .C., Goshen, NY , for Timothy S. Maneely, Individually and on behalf of all others similarly situated, David P. Leroy, Edward Jazwin- ski, Christina A. Loucks, plaintiffs.

David Merrill Posner, McCabe & Mack, LLP, Poughkeepsie, NY , Marilyn D. Berson, Corporation Counsel, Newburgh, Patrick T. Burke, Burke, Miele & Golden, Goshen, NY, James M. Fedorchak , Gellert & Cutler, P .C., Poughkeepsie, NY , for the City of Newburgh, the City of Newburgh, The City of Newburgh Police Department, William Bloom, Chief of Police for the City of Newburgh Police Department, defendants.

MEMORANDUM ORDER AND DECISION DENYING PLAINTIFFS’ MOTION FOR PAR- TIAL SUMMARY JUDGMENT

McMAHON, District Judge.
Plaintiff Timothy Maneely represents a class of

individuals suing the City of Newburgh and its po- lice chief, William Bloom, pursuant to 42 U.S.C. § 1983 (“Section 1983”). Before me is plaintiffs’ mo- tion for summary judgment as to whether the City of Newburgh maintained an unconstitutional policy of strip searching all pre-arraignment prisoners, with or without having reasonable suspicion to be- lieve that those persons were carrying or concealing weapons or contraband.

For the following reasons, plaintiffs’ motion is denied.

BACKGROUND
On June 4, 2000, City of Newburgh police of-

ficers arrested Timothy Maneely, brought him to the City of Newburgh Police Department, and charged him with (1) obstructing governmental ad- ministration in the second degree (a Class A misde- meanor); (2) leaving the scene of an accident (a Class B misdemeanor); and (3) harassment in the second degree (a non-criminal offense). At the po- lice station, City of Newburgh police officers strip searched Maneely: they ordered him to remove his clothes and to bend over and squat, revealing his sexual organs and anal cavity for visual inspection.

*207 At the same time, the City of Newburgh was involved in litigation over somewhat similar events. In 1995, City of Newburgh police officers arrested Cara Huck and made her strip to her under- wear and lift her bra to expose her breasts.FN1 Huck sued the City of Newburgh and one of its po- lice officers for unlawful arrest (pursuant to Section 1983), false imprisonment, malicious prosecution, defamation, and infliction of emotional harm. The suit went to trial in state supreme court, and the court dismissed all of plaintiff’s claims after both parties finished presenting their cases to the jury and rested.

FN1. Huck claimed that she was made to take off all of her clothes. For purposes of this motion, I accept the City’s account.

However, the court allowed Huck to amend her pleadings to allege an illegal strip search claim un- der Section 1983. Both parties were then allowed to call additional witnesses, after which Huck made a motion for a directed verdict. The court denied Huck’s motion, and the case went to the jury. The jury found that defendants had not strip searched Huck, at least as the court defined “strip search” in its instructions to the jury.

In a decision dated August 14, 2000, the Ap-

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pellate Division (Second Department) reversed. After noting that “[s]trip searches of arrestees charged with misdemeanors or other minor offenses violate the Fourth Amendment to the United States Constitution unless there is a reasonable suspicion that the arrestee is concealing weapons or contra- band based on the crime charged, and the circum- stances of the arrest,” the court ruled:

In the instant case, the plaintiff was arrested for possessing an unlicensed dog, a violation of the City of Newburgh Code. Upon her arrest, she was taken to the police station where a matron searched her. A witness for the City of Newburgh testified that the plaintiff was asked to remove all her outer garments, and while her underwear was still on, she was asked to lift her bra and expose her breasts. The search was made pursuant to an official policy that provided for the strip-search of all arrestees detained in a cell. The record fur- ther indicates that neither the arresting officer nor the matron suspected that the plaintiff possessed any weapons or other contraband. Thus, the search was unreasonable and in violation of the plaintiff’s Fourth Amendment rights, and the City of Newburgh is liable under 42 U.S.C § 1983. Therefore, the Supreme Court erred in denying the plaintiff’s motion for a judgment as a matter of law against he City.

Huck v. City of Newburgh, 275 A.D.2d 343, 344-45, 712 N.Y.S.2d 149, 150-51 (2d Dep’t 2000).

Shortly thereafter, on August 18, 2000, Maneely filed a notice of claim with the Newburgh City Clerk, alleging that he was unlawfully strip searched on June 4, 2000. Plaintiff filed a Com- plaint in this Court on March 27, 2001, bringing suit pursuant to 42 U.S.C. § 1983 against the City of Newburgh, the City of Newburgh Police Depart- ment, and several city employees and officials. The Complaint alleged that defendants violated the United States Constitution by maintaining a policy of strip searching all pre-arraignment prisoners without reasonable suspicion.

Beginning on August 24, the Newburgh Police Department began to take steps to change, or at least refine, its strip search policies. First, Deputy Chief Patrick Sorrentino sent an email to all sworn personnel in which he explained that a police *208 officer may not conduct a strip search or body cav- ity search absent reasonable suspicion. Two memoranda-dated October 2, 2000 and August 23, 2001, and written by Sorrentino with input from Officer Bloom-followed the email. The memoranda (the second of which rescinded the first) reiterated the need to find reasonable suspicion before strip- searching an arrestee and set forth in greater detail how an officer was to determine whether reason- able suspicion existed. Defendants allege that they took these steps in response to the Appellate Divi- sion’s decision in Huck v. Newburgh, not in re- sponse to Maneely’s notice of claim.

In October of 2001, Maneely simultaneously moved for class certification and summary judg- ment, and I agreed to defendants’ request that I de- fer ruling on plaintiff’s summary judgment motion until I decided his motion for class certification. Meanwhile, the parties stipulated to a discontinu- ance of the suit as against all parties except the City of Newburgh and Officer Bloom.

In a May 16, 2002 decision, I granted partial class certification. I certified a class consisting of all individuals who were strip searched before ar- raignment between March 27, 1998 and March 27, 2001. Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y.2002). I certified the class for the sole purpose of ascertaining whether the City of New- burgh maintained a policy of strip searching all pre- arraignment prisoners-those for whom there was reasonable suspicion and those for whom there was not. The class certificate was limited to the consti- tutional issue; individual class members would then have to litigate the presence or absence of reason- able suspicion in their particular case, as well as their individual claims for damages.

Plaintiffs now argue that the Appellate Divi- sion’s decision in Huck v. Newburgh collaterally es-

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tops defendants from litigating whether they had a blanket policy of strip searching pre-arraignment detainees. Alternatively, they argue that the City of Newburgh’s policy, in effect between September 21, 1982 and August 24, 2000, was unconstitutional on its face.

Defendants contest both of these assertions. They also argue that genuine issues of material fact exist as to whether reasonable suspicion existed for the City of Newburgh police officers to strip search Maneely.

Plaintiffs concede that if Huck v. Newburgh does not collaterally estop defendants and the pre- August 24 policy was not facially unconstitutional, then genuine issues of material fact exist as to whether the City of Newburgh had a policy of strip searching pre-arraignment detainees without de- termining whether reasonable suspicion existed to do so.

DISCUSSION
As a preliminary matter, I note that defendants’

argument that reasonable suspicion existed to sup- port the strip search of Maneely is misplaced in this motion for summary judgment. Circumstances may have existed that would have supported a finding of reasonable suspicion in that instance. But the relev- ant question, and the issue for which I certified a class, is whether the City of Newburgh police had a policy of determining whether reasonable suspicion existed before they strip searched pre-arraignment detainees. In other words, even though circum- stances could have existed in a particular instance (e.g., the strip search of Maneely) that would have supported a finding of reasonable suspicion, that does not answer the question of whether defendants maintained an unconstitutional blanket strip search policy during the class period.

*209 I therefore turn to the parties’ additional, dispositive arguments.

I. The State Court’s Decision Does Not Collater- ally Estop Defendants’ Claims

[1][2] Pursuant to 28 U.S.C. § 1738, a federal court must give a New York state court judgment the same preclusive effect that the courts of the state of New York would give it. See Allen v. Mc- Curry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). Under New York law, the doc- trine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised against that party or those in privity, whether or not the tribunals or causes of ac- tion are the same.” Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487, 490 (1984).

[3][4] There are two requirements that must be satisfied before the doctrine applies: (1) “the identical issue necessarily must have been decided in the prior action and be decisive of the present ac- tion”; and (2) “the party to be precluded from relit- igating the issue must have had a full and fair op- portunity to contest the prior determination.” Juan C. v. Cortines, 89 N.Y.2d 659, 667, 657 N.Y.S.2d 581, 585, 679 N.E.2d 1061 (1997) (quoting Kauf- man v. Lilly & Co., 65 N.Y.2d 449, 492 N.Y.S.2d 584, 587, 482 N.E.2d 63, 67 (1985)); see also John- son v. Watkins, 101 F.3d 792, 794-95 (2d Cir.1996) (setting forth elements of collateral estoppel under New York law). In addition, “[t]he party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its applica- tion has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.” Kaufman v. Lilly & Co., 492 N.Y.S.2d at 587, 482 N.E.2d at 67.

The “issue,” of course, is whether the City of Newburgh had a policy of strip searching pre- arraignment detainees without a finding of reason- able suspicion. It is clear that this issue was materi- al to the first action and essential to the Appellate Division’s decision: the court ruled that the City of Newburgh police had an “official policy that

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provided for the strip-search of all arrestees de- tained in a cell.” Huck v. City of Newburgh, 275 A.D.2d at 344-45, 712 N.Y.S.2d at 151.

It is also precisely the issue to be determined in the present action.

The matron made Huck strip to her underwear and lift her bra. Maneely was required to take off all of his clothes and then bend over and squat. De- fendants contend that the issues are not identical because Maneely’s search was a body cavity search and Huck’s was not-meaning that a search as intrus- ive as Huck’s did not require reasonable suspicion.

Newburgh’s argument does not make sense in the context of this motion. It contends that Huck’s search was less intrusive than Maneely’s. But the Appellate Division explicitly ruled that the search of Huck was sufficiently intrusive to require reas- onable suspicion and that the City of Newburgh had a policy of conducting searches in the absence of reasonable suspicion. For purposes of collateral es- toppel, the correctness of the prior determination is largely irrelevant. In other words:

By foregoing the opportunity to reexamine an is- sue, a degree of certainty about the correctness of the prior result is sacrificed, that is to say, the bar of collateral estoppel carries with it the devastat- ing danger that the first decision on an issue may have been wrong and will remain unremedied. Use of the doctrine represents an informed choice *210 that the occasional permanent encapsulation of a wrong result is a price worth paying to pro- mote the worthy goals of ending disputes and avoiding repetitive litigation.

Johnson v. Watkins, 101 F.3d at 795 (internal citations omitted). A court’s previous determination that the search conducted on Huck required a find- ing of reasonable suspicion (regardless of the mer- its of that finding under controlling Fourth Amend- ment precedent) necessarily means that the more in- trusive search conducted on Maneely required reas- onable suspicion. Thus, the issues are identical for

collateral estoppel purposes.
That does not end the matter, however:

Recognizing that the doctrine places termination of litigation ahead of the correct result, the ap- plication of collateral estoppel has been narrowly tailored to ensure that it applies only where the circumstances indicate the issue estopped from further consideration was thoroughly explored in the prior proceeding, and that the resulting judg- ment thus has some indicia of correctness.

Id. In other words, collateral estoppel does not apply if defendants can show that they did not have a full and fair opportunity to litigate the issue in Huck v. Newburgh. See, e.g., Ryan v. New York Telephone Co., 62 N.Y.2d at 500, 478 N.Y.S.2d 823, 467 N.E.2d at 490.

[5] In making this determination, a court must bear in mind the “realities of litigation.” Johnson, 101 F.3d at 795. The factors that a court should consider include “the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indica- tions of a compromise verdict, differences in the applicable law and foreseeability of future litiga- tion.” Schwartz v. Public Administrator of Bronx County, 24 N.Y .2d 65, 72, 298 N.Y .S.2d 955, 246 N.E.2d 725, 729 (1969). Overall, the question “cannot be reduced to a formula.” Gilberg v. Bar- bieri, 53 N.Y .2d 285, 292, 441 N.Y .S.2d 49, 423 N.E.2d 807, 809 (1981).

Several factors counsel finding that defendants did not have a full and fair opportunity to litigate the issue in state court. Huck was a lawsuit brought by one person; Maneely purports to represent a class. There is no evidence suggesting that either the Huck defendants or the state court judge was aware that a finding in plaintiff’s favor might later be used to conclusively establish liability in a fed- eral class action. See Gilberg, 53 N.Y.2d at 293, 441 N.Y.S.2d 49, 423 N.E.2d at 810. The defendant

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did not choose to litigate the matter in state court; it was the plaintiff who had the initiative. Id. And while nothing in the record indicates that defense counsel in Huck was incompetent, defense counsel in this action have considerable experience litigat- ing strip search cases of this sort.

Most importantly, however, the issue of an un- constitutional strip search policy at the City of Newburgh police department only developed relat- ively late in the state court proceedings. The first count in Huck’s complaint alleged that defendants deprived her of rights guaranteed under the United States Constitution in violation of Section 1983. The facts alleged in the first count do not include defendants’ strip search of Huck. Indeed, the com- plaint makes no mention of the strip search. [Record on Appeal 19].

Approximately a year after plaintiff filed her complaint, defendants demanded a bill of particu- lars that asked Huck to specify (1) how her civil rights were violated as alleged in the complaint, (2) the acts that she claimed would prove that the City had *211 a pattern or practice that violated her civil rights, and (3) the pattern or practice that plaintiff claimed was in violation of her civil rights. Id. at 38. Huck’s response to those requests made no men- tion of the strip search. Rather, she mentioned the strip search in response to defendants’ demand for information about the nature of Huck’s intentional infliction of emotional distress claim. Id. at 41.

So it seems that at the beginning of the Huck trial, on November 25, 1998, defendants had no in- dication that plaintiff planned to prove that the City of Newburgh had an unconstitutional strip search policy. Indeed, defendant’s attorney stated in his opening statement: “[Huck] was never fingerprin- ted, never photographed, he [Officer Lopez] never conducted any strip search where she was stripped naked or any of this stuff, that’s absolutely absurd. She admits herself she was never stripped naked, absolutely absurd. There’s not even a claim in this case either, they never claimed that in this lawsuit.” [Tr. 31-32].

The issue seems to have come to the forefront upon Chief Bloom’s testimony, on December 1, which went as follows:

Question: Chief Bloom, do you know what the policy was of your department back on August 1st, 1995 concerning the strip search of detain- ees?

Defense Counsel: Just note my objection in that there’s no claim for any strip search.

Court: Overruled.
Question: Chief?
Answer: Would you repeat that, please?

Question: I’ll rephrase it, maybe you can under- stand it better. Tell the jury what your depart- ment’s policy was on August 1st, 1995 concern- ing the strip searching of detainees?

Answer: If you are arrested and are going to be placed in a cell you would be strip searched prior to being placed in the cell.

Question: How about those detainees who were not placed in a cell, are they strip searched?

Answer: No, they’re not.

Question: Now, is there any difference between someone, a detainee, who has been arrested for a felony vs. a misdemeanor as to how this policy was applied back on August 1st, 1995 to now?

Answer: Absolutely not.

Question: How about is there a difference in the policy of-concerning the strip search of detainees between those people who are arrested for a city code violation than, perhaps, a misdemeanor

Answer: No, there is not.

Question: Are all of these individuals who are brought in treated the same?

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Answer: If they’re going to be committed to a stitutional strip search policy. Although defendants cell, yes, they are. were allowed to call additional witnesses, they were

[Record on Appeal 330-31].

Two days later, in mid-trial, plaintiff moved pursuant to C.P.L.R. § 3025 to amend her pleadings to include allegations of an unconstitutional strip search, as set forth in a proposed “amended and supplemental bill of particulars.” Id. at 504. Later that day, the plaintiff rested, followed immediately by the defendant. Id. at 531-32. And after substan- tial debate, the court granted plaintiff’s motion and allowed plaintiff to amend her complaint to:

conform to the cause and allegations enumerated in the amended and supplemental bill particulars; that is to say, adding a specified cause of action that the defendants-the plaintiff’s civil rights un- der 42 U.S.Code 1983 as given to her by the 4th, 5th, 9th and 14th amendments to the United States Constitution*212 were violated by the de- fendants in that a strip search was conducted without probable cause or reasonable suspicion to believe any contraband or dangerous objects or weapons or materials would thereby be found. And it was, therefore, an unreasonable search in violation of the 4th and 14th amendments.

[Record on Appeal 50, 559, 581]. There was no adjournment for discovery, but both parties were then allowed to call more witnesses, which they did on December 4. The court charged the jurors on December 7, and they reached a verdict in defend- ant’s favor that same day.

[6][7] New York courts permit the offensive use of collateral estoppel. FN2 See, e.g., Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163, 468 N.E.2d 1 (1984). Taking into ac- count the “realities of litigation,” however, I find that the court’s decision to allow Huck to amend her complaint after both parties had finished presenting their cases to the jury prevented defendants from having a full and fair opportunity to litigate the is- sue of whether the City of Newburgh had an uncon-

unable to conduct discovery related to this issue or otherwise sufficiently prepare their case.FN3

FN2. Offensive collateral estoppel occurs when a plaintiff seeks to estop a defendant from relitigating the issues that the defend- ant previously litigated and lost against an- other plaintiff, while defensive estoppel occurs when a plaintiff is estopped from asserting a claim he had previously litig- ated and lost against another defendant. Although New York courts permit the use of offensive collateral estoppel, the Court of Appeals has cautioned that in certain contexts the application of the doctrine may raise legitimate fairness concerns. See Halyalkar v. New York Board of Regents, 72 N.Y.2d 261, 270, 532 N.Y.S.2d 85, 90, 527 N.E.2d 1222 (1988); cf. Parklane Ho- siery Co., Inc. v. Shore, 439 U.S. 322, 329-31, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (“[Where] the application of offens- ive estoppel [under federal law] would be unfair to a defendant, a trial judge should not allow the use of offensive collateral es- toppel.”).

FN3. Defendants’ counsel clearly thought this to be the case, stating: “Certainly we had a right to additional depositions …, we could have hired experts with regard to the strip search, we could have brought in oth- er witnesses regarding the strip search; we’re now sandbagged at the last second with an alleged claim of violation of con- stitutional rights based on a strip search, when strip search has never been men- tioned in this case in any pleading or in the bill of particulars, and I say that if that’s not prejudicial nothing is.” [Record on Re- view 563-64]. Defendants’ counsel also ar- gued to the court that only two questions were asked about strip searches in the en-

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tirety of the depositions taken for the case. Id. at 667.

II. The Police Department’s Written Strip Search Policy Is Not Unconstitutional On Its Face

[8] As noted above, I certified a class only on the issue of whether the City of Newburgh had a policy of strip searching pre-trail detainees without making a finding of reasonable suspicion, and that is the only issue that is properly before me on this motion for summary judgment. The issue is essen- tial to plaintiffs’ suit because, where a plaintiff seeks to hold a municipality liable under Section 1983 (as plaintiffs seek to do here), he must prove that a municipal “policy” or “custom” caused the deprivation of a right, privilege, or immunity se- cured by the Constitution or laws of the United States. See Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

[9] A policy or custom can be established in a number of ways. First, a policy *213 exists where the action that is alleged to be unconstitutional (here the strip searches) “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the muni- cipality's] officers.” Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. Second, a municipal policy or custom may be shown by “persistent and widespread” con- stitutional violations that are so pervasive that policy makers may be presumed to have acquiesced to that practice. See Sorlucco v. New York City Po- lice Dep’t, 971 F.2d 864, 870-71 (2d Cir.1992). Third, a custom or policy may be shown by “ ‘circumstantial proof, such as evidence that the mu- nicipality so failed to train its employees as to dis- play a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” DeCarlo v. Fry, 141 F.3d 56, 61-62 (2d Cir.1998) (quoting Ric- ciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir.1991)). And fourth, actions taken by per- sons whose activities reflect official policy may constitute a custom or policy for Section 1983 pur-

poses. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).

In this motion, plaintiffs argue that City of Newburgh Police Officers were implementing an explicit, written police department policy when they strip searched detainees without making a finding of reasonable suspicion.FN4 The regulation at issue provides:

FN4. Of course, even if I accepted their ar- gument, plaintiffs would still have to prove that defendants acted pursuant to that policy. In other words, there must be a “direct causal link between a municipal policy or custom and the alleged constitu- tional deprivation.” City of Canton v. Har- ris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). That issue, however, is outside the scope of the issue for which I certified a class. And each plaintiff will have to litigate it individually, just as they will have to litigate (assuming that the class prevails on the “policy” issue) wheth- er their rights were violated and whether they suffered damages. See Maneely, 208 F.R.D. at 79.

Before being placed in a cell and as soon as pos- sible at headquarters after arrest, the clothing and person of a prisoner shall be thoroughly searched by the arresting officer. Strip searches will be conducted only when the arresting officer reason- ably believes that the prisoner may have con- cealed weapons or contraband, and only after re- ceiving explicit approval from the watch com- mander to conduct the strip search.

[Defendants' 56.1 Statement, Ex. C].

[10][11][12] Under Second Circuit precedent, blanket policies subjecting all newly-arrested mis- demeanor detainees in a local correctional facility to visual body cavity searches are unconstitutional. Shain v. Ellison, 273 F.3d 56, 64-65 (2d Cir.2001); Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir.1994); Walsh v. Franco, 849 F.2d 66 (2d

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Cir.1988); Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986). In order for a visual body cavity search to be found reasonable under the circumstances, there must be some “ ‘particularized suspicion,’ arising either from the nature of the charge or spe- cific circumstances relating to the arrestee and/or the arrest,” that the arrestee is concealing weapons or other contraband. Weber, 804 F.2d at 802 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 540, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)). In addition, as this Court recently concluded, the law of this Circuit requires that the “individualized reasonable suspicion” rule apply to accused felons as well as misdemeanants upon arrival at a local correctional facility. See Murcia v. County of Or- ange, 226 F.Supp.2d 489, 494 (S.D.N.Y.2002).

[13] With this standard in mind, I cannot con- clude that the City of Newburgh’s *214 policy is unconstitutional on its face. Plaintiffs fail to demonstrate that the written policy “could never be applied” in a constitutional manner. New York State Nat. Organization for Women v. Pataki, 261 F.3d 156, 171 (2d Cir.2001). Of course, “reasonably be- lieves” is a broader standard than “reasonable under the circumstances” pursuant to finding some “particularized suspicion.” Thus, there are situ- ations where an officer may “reasonably believe” that an arrestee is concealing weapons or other con- traband, but where there exists no “particularized suspicion” under the circumstances. It is possible, however, that in implementing the “reasonable be- lief” standard the City of Newburgh stayed within the narrower parameters of the “particularized sus- picion” standard. In other words, the City of New- burgh’s policy could have been applied in a consti- tutional manner. Whether it was is an issue for the jury.

III. Genuine Issues of Material Fact Exist as to Whether the City of Newburgh Instituted An Unconstitutional Strip Search Policy

[14] Plaintiffs offer the affidavits of several in- dividuals in which they state that City of Newburgh police officers subjected them to visual body cavity

searches upon being arrested. Defendants provide (1) the deposition testimony of Chief Bloom in which he states that he was “wrong” when he testi- fied at the Huck trial; and (2) the deposition testi- mony of Deputy Chief Sorrentino, in which he stated that officers were required to have reason- able suspicion in order to conduct a search in which they removed all of an arrestees’ clothing. This con- flicting evidence creates a genuine issue of material fact.

IV. Defendants’ Motion to Redefine the Class is Granted

The class that I certified in my May 16, 2002 decision includes individuals who were strip searched upon their arrest between March 27, 1998 and March 27, 2001. In their papers on this motion for summary judgment, defendants ask the court to redefine the class period to run from March 27, 1998 to August 24, 2000, when defendants took steps to ensure that their policy would accord with the Fourth Amendment.

Plaintiffs do not appear to oppose this motion. Indeed, in their 56.1 Statement they assert that “[p]rior to August 24, 2000 defendants maintained a blanket policy/practice of strip-searching all pre- trial detainees upon placing them in a holding cell without regard to the existence or non-existence of reasonable suspicion.” Thus, defendants’ motion is granted.

CONCLUSION
Plaintiffs’ motion for summary judgment is

denied. Defendants’ motion to redefine the class period to run from March 27, 1998 to August 24, 2000 is granted.

This constitutes the decision of the Court.

S.D.N.Y .,2003.
Maneely v. City of Newburgh 256 F.Supp.2d 204

END OF DOCUMENT

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United States District Court,
S.D. New York.
Anthony DODGE, Peter A. Machado and Joseph Petriello, individually and on behalf of all others similarly situated, Plaintiffs,
v.
COUNTY OF ORANGE and Sheriff H. Frank Big- ger, in his individual and official capacity Defendants.

No. 02 Civ. 769(CM). July 24, 2002.

Misdemeanor arrestees filed proposed class ac- tion challenging constitutionality of county correc- tional facility’s practice of conducting strip searches of pre-trial detainees. On plaintiffs’ motions for pre- liminary injunction and class certification, the Dis- trict Court, McMahon, J., held that: (1) arrestees were likely to succeed on their claim, and (2) class certification was warranted.

Motions granted.
West Headnotes

310 Prisons
310V Officers and Employees

310k398 Liabilities
310k400 k. Immunity. Most Cited Cases

(Formerly 310k10)
Qualified immunity was not available to shield

county correctional officer from liability for con- ducting strip search in absence of reasonable suspi- cion.

[3] Civil Rights 78 1457(5)

78 Civil Rights
78III Federal Remedies in General

78k1449 Injunction
78k1457 Preliminary Injunction

78k1457(5) k. Criminal Law Enforce- ment; Prisons. Most Cited Cases

(Formerly 78k268)
Misdemeanor arrestees were likely to succeed

on their claim that county correctional facility’s practice of routinely conducting strip searches of pre-trial detainees who met listed criteria violated their constitutional rights, and thus were entitled to preliminary injunction preventing facility from maintaining policy; policy did not require reason- able suspicion that individual in question was car- rying contraband, but rather mandated strip search when certain factors were present, officers were not trained to recognize circumstances when strip search was not warranted, and relatively insignific- ant number of detainees who were strip searched after setting off metal detection devices were found to have contraband secreted on their persons.

[4] Prisons 310 112

310 Prisons
310II Prisoners and Inmates

310II(A) In General
310k112 k. Regulation and Supervision in

General; Role of Courts. Most Cited Cases (Formerly 310k4(1))

In determining whether prison regulation is jus-

Page 1

[1] Prisons 310

359

310 Prisons
310III Pretrial Detention

310k351 Care, Custody, Confinement, and Control

310k359 k. Search, Seizure, and Confisca- tion. Most Cited Cases

(Formerly 310k4(7))
Strip searches of individuals charged with mis-

demeanors or other minor offenses are lawful only when officers have reasonable suspicion that ar- restee is concealing weapons or other contraband based on crime charged, particular characteristics of arrestee, and/or circumstances of arrest.

[2] Prisons 310 400

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tified by legitimate penological interest, court should consider: (1) whether there is valid, rational connection between regulation and legitimate, neut- ral governmental interest; (2) whether there are al- ternative means of exercising asserted constitution- al right that remain open to inmate; (3) what extent proffered accommodation of asserted right will have on prison staff, prisoners’ liberty and alloca- tion of limited prison resources; and (4) whether regulation represents exaggerated response to pris- on concerns.

[5] Prisons 310 103

310 Prisons
310I In General

310k102 Management and Operation 310k103 k. In General. Most Cited Cases

(Formerly 310k4(2.1))
Deference must be given to prison officials in

evaluating their regulations.

[6] Searches and Seizures 349 55

349 Searches and Seizures 349I In General

349k53 Scope, Conduct, and Duration of Warrantless Search

349k55 k. Skin, Strip, and Body Searches. Most Cited Cases

Appearance of intoxication does not provide reasonable suspicion to believe that suspect is con- cealing weapons or contraband in body cavity, and thus is insufficient to justify strip search of suspect.

[7] Federal Civil Procedure 170A 165

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions 170AII(D)1 In General

170Ak165 k. Common Interest in Sub- ject Matter, Questions and Relief; Damages Issues.

Most Cited Cases

District court may allow certification under class certification rule for cases in which class-wide

injunctive or declaratory relief is appropriate if (1) reasonable plaintiff would bring suit to obtain in- junctive relief even if monetary recovery were not possible, and (2) injunctive relief would be both reasonably necessary and appropriate were plaintiffs to succeed on merits. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.

[8] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Misdemeanor arrestees were entitled to class certification in their action challenging constitu- tionality of county correctional facility’s practice of routinely conducting strip searches of pre-trial de- tainees, where, although preliminary injunctive re- lief had been granted, it was likely that policy still raised constitutional concerns, reasonable plaintiff would bring suit to obtain injunctive relief to pre- vent future unconstitutional strip searches even if monetary recovery were not possible, and, although number of strip searches had decreased dramatic- ally since suit had commenced, injunctive relief might be important to prevent facility from return- ing to its old ways once suit was completed. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.

*66 James Edward Monroe,Dupee & Dupee, PC, for Plaintiffs.

*67 MEMORANDUM AND ORDER GRANTING A PRELIMINARY INJUNCTION AND CERTI- FYING A CLASS PURSUANT TO RULE 23(B)(2)

MCMAHON, District Judge.
Plaintiffs Anthony Dodge, Peter A. Machado,

Joseph Petriello, Wallace Babcock and Gordon Barnum, Jr. seek to represent a class of pre-trial de- tainees who were strip searched at the Orange

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County Correctional Facility (“OCCF” or “Orange lowing circumstances: County Jail”) between January 31, 1999 and Janu-

ary 21, 2002. Pending before the Court are plaintiffs’ motions for a preliminary injunction and class certification.

Plaintiffs seek, among other relief, a prelimin-
ary and permanent injunction against further uncon-
stitutional strip searches at OCCF. Defendants
sought dismissal of the action on the ground that a e) Prior or current escape charges new policy adopted by OCCF in August 2001
rendered the request for an injunction moot. In an
opinion dated May 29, 2002, I found that the issue
was not moot, and noted that affidavits submitted
by plaintiffs suggested that unconstitutional strip
searches might still be taking place, notwithstand-
ing the existence of a new policy. I ordered the i) Metal detector/boss chair activation parties to appear for a hearing so that the Court
could decide whether to issue a preliminary injunc-
tion, and to determine whether class certification
should be granted pursuant to Rule 23(b)(2), or
whether partial certification under Rule 23(b)(3)
would be the more appropriate method of adjudicat-
ing this case. Dodge v. County of Orange, 208
F.R.D. 79 (S.D.N.Y.2002). Familiarity with that
opinion is assumed.

Plaintiffs’ motion for a preliminary injunction preventing the Orange County Jail from maintain- ing its current strip search policy is granted. Plaintiffs’ motion for class certification pursuant to Rule 23(b)(2) is granted.

RELEVANT FACTS

The Policy

On August 20, 2001, the Orange County Sher- iff’s Office implemented a new strip search policy. (PX 1.) According to Captain Joseph Ryan, the Captain in charge of the day shift at the Orange County Jail for the past seven years, he designed the new policy after reviewing Second Circuit case law, and the procedures of other police departments in New York and New Jersey. (Tr. at 88–90.) The revised policy reads, in part:

If an inmate falls within any of the Section 5.3.1 criteria, a strip search is authorized. The parties dispute whether a strip search is mandatory if one of the Section 5.3.1 criteria is satisfied. The policy uses the phrase “may be conducted,” not “must be conducted,” and Captain Ryan testified that, even if an inmate meets one of the criteria, the supervisor may determine that he should not be strip searched. (Tr. at 98–99.) However, both Cap- tain Ryan and Lieutenant Dominic De Marco, the Records Supervisor at OCCF, testified that the new policy was implemented to eliminate officer discre- tion in the matter of strip searches. (Tr. at 99–100, 117.) FN1 Nothing in the written policy requires a corrections officer ask a supervisor before conduct- ing a strip search, and officers are given no training about when they should not do a strip search. (Tr. at 99.) The defendants did not present the Court with evidence of so much as a single instance when a strip search was not conducted after one of the Sec- tion *68 5.3.1 triggers was met. In essence, then, Section 5.3.1 lists the circumstances under which

A strip search may be conducted under the fol- an officer will in fact conduct a strip search

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a) Committed sentenced inmate / weekenders b) Committed probation / parole violator
c) Weapons or narcotics offenses
d) Known gang affiliation

f) Committed for a felony
g) Prior or current contraband charges h) Known history of contraband charges

j) Inmate that appears to be under the influence of drugs / alcohol

(PX 1 § 5.3.1.)

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FN1. The Court finds it difficult to discern why officer discretion would need to be “eliminated,” since as far as I can tell, there was none to begin with—all arriving inmates were strip searched. Lee v. Perez, 175 F.Supp.2d 673, 677 (S.D.N.Y .2001).

Lieutenant De Marco, who is the Records Su- pervisor at the OCCF, described the process by which inmates are admitted to the OCCF. He testi- fied that the inmates enter the jail and the booking officer reviews their paperwork. (Tr. at 113.) Each inmate is then brought into the receiving area and patted down. The inmate is asked if he has any con- traband or metal items that he would like to declare before going through the detectors. (Tr. at 115.) The detainee is not asked to empty his pockets. (Id. ) His cuffs and shackles are removed and he is asked to walk through a metal detector. (Tr. at 113.) The detainee then sits in the B.O.S.S. chair. The in- mate also is asked to place his face against a plate on the chair that scans the mouth for any metal ob- jects. (Tr. at 113.)

Lieutenant De Marco testified that no inmate is ever strip searched before being placed in the metal detector or the B.O.S.S. chair. (Tr. at 113.) Captain Ryan and Corrections Officers Fagan and Essig confirmed that this is the procedure currently in place at the OCCF. (Tr. at 91, 131, 137.)

Officer Robert Essig testified that if an inmate triggers the walk-through metal detector, he allows him to go through the metal detector a second time, sometimes asking the inmate to empty his pockets or remove his shoes, or belt buckle. (Tr. at 138.) However, there is no established procedure for sending an inmate back through the detector or back onto the chair after he sets it off. While an in- dividual officer may allow the inmate to go through the detector again, there is no policy that instructs the officer to do this, as there would be, for ex- ample, if the metal detector were located in an air- line terminal. (Tr. at 115–17.) Lieutenant De Marco testified that once an inmate sets off the metal de- tector, he prefers that the officer strip search the de-

tainee, explaining that otherwise there is a danger that inmates will beat the system by walking through until they did not set off the detector. (Tr. at 116–17.) According to Lieutenant De Marco, as a matter of policy, the inmate is not instructed to empty his pockets and is not patted down a second time or searched with a “wand.” (Id.)

Plaintiffs challenge the constitutionality of this new policy. They argue that its non-discretionary nature renders it a per se violation of the constitu- tion, since an individualized assessment of the ar- riving inmate’s potential for carrying contraband is not made in every case. And they particularly chal- lenge the constitutionality of subjecting all inmates who meet criteria, such as setting off the metal de- tector, being intoxicated, or being admitted for a parole or probation violation, to a body cavity search.

The Searches

At the hearing, the Court heard testimony from three misdemeanor arrestees who had been strip searched at the OCCF under the new policy. Each described a slightly different search process.

Anthony Dodge testified that he was strip searched on each of his approximately twelve ad- missions to the Jail from April 28, 1999 through January 29, 2002. He was arrested on January 29, 2002 for failing to pay a DWAI fine. (Tr. at 10, 13.) At the time that he was arrested, Mr. Dodge did not know that the police were looking for him; he was surprised when they appeared at his girlfriend’s apartment with the warrant. (Tr. at 14.) He testified that he did not have any weapons on his person, and he gave his belongings to his girlfriend when the Middletown Police arrived at her apartment. (Tr. at 13.) There were no drugs or weapons found in his immediate area when the police came inside of his home to pick him up. (Tr. at 14.) The Middletown Police held him until he was transferred into the custody of the Wallkill police department. (Tr. at 10.) Mr. Dodge was searched and was brought be- fore a judge in Wallkill, who remanded him to the OCCF. (Id.)

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Mr. Dodge testified that the admissions proced- ure at the new jail was the same as it had been at the old facility, except that the new facility had a metal detector and B.O.S.S. chair. (Tr. at 14.) Mr. Dodge testified that, once he arrived at OCCF, a corrections officer brought him into a small room *69 and instructed him to take off his clothes. (Tr. at 11.) The corrections officer put his clothes into a plastic bag. The officer then instructed Mr. Dodge to open his mouth and move his tongue so that he could look into his mouth. (Id.) Mr. Dodge was asked to show the officer the bottoms of his feet, and to lift his genitals. (Id.) The corrections officer then had him turn around, bend over, spread his buttocks and cough. (Tr. at 12.) The officer did not touch Mr. Dodge during this procedure. (Tr. at 12.) Mr. Dodge testified that he was strip searched be- fore he went through the metal detector or B.O.S.S. chair. (Tr. at 15.) He did not recall activating either metal detector, and he claims he was not under the influence of drugs or alcohol at the time he was searched. (Tr. at 16–17.)

Corrections Officer Frederick Sean Fagan was the person responsible for Mr. Dodge’s intake on January 29, 2002. (Tr. at 129.) His records indicate that he did not strip search Mr. Dodge. (DX C; Tr. at 96, 130.) While Officer Fagan did not have an in- dependent recollection of Mr. Dodge’s intake, he testified that if he had strip searched Mr. Dodge he would have put a strip search form in his file, be- cause that is his standard procedure. (Tr. at 130.)

However, the fact that no strip search form was completed does not necessarily mean that no strip search was performed. In March, 2002, Captain Ry- an changed the OCCF’s strip search form procedure in an attempt to increase the accuracy of reporting strip searches. (Tr. at 100–01.) The new policy re- quires officers to complete strip search forms for every inmate, and contains a “no strip search con- ducted” box. (PX 4.) The previous policy required that a strip search form be filled out only after a strip search was performed. (PX 3; Tr. at 100.) Captain Ryan testified that, before the form was

changed, he had been told by some officers that they had forgotten to fill out strip search forms for detainees even though they had strip searched the detainees. (Tr. at 101.) Captain Ryan testified that he changed the policy because he “didn’t want to hear … any excuses from officers that they forgot to fill out a form.” (Tr. at 101.)

Captain Ryan had no way of knowing how many times officers failed to complete strip search forms prior to March, 2002, when the new form was introduced. However, he reviewed approxim- ately fifty files and found one that did not contain a form that probably should have (because the inmate was admitted for a felony). (Tr. at 102.) Based on this testimony. I conclude that some of the detain- ees who do not have strip search forms in their files may indeed have been strip searched. The numbers provided by the OCCF and used by the Court in this opinion may, therefore, underestimate the number of strip searches conducted before March, 2002.

Wallace Babcock testified that, on December 6, 2001, he turned himself over to Judge Andrew P. Bivona of the Orange County Family Court in re- sponse to an outstanding warrant for his arrest for failing to make child support payments. (Tr. at 18.) Mr. Babcock owed his ex-wife approximately $9,000. (Id.) Knowing that there was a warrant out for his arrest, he collected $1,500 to give to her. Mr. Babcock spoke with Judge Bivona’s secretary and she told him to come to court on December 7, the Judge’s calendar day. (Tr. at 18.) Mr. Babcock and his fiancee waited in the courtroom until the lunch hour without his case being called. (Id.) They went to lunch and returned at 1:00 PM, as instruc- ted. (Id.) When Mr. Babcock arrived at the courtroom, his case was called. (Tr. at 19.) Judge Bivona asked why Mr. Babcock had not been arres- ted. (Id.) The sheriffs then came and took Mr. Bab- cock into the custody. (Id.) Mr. Babcock was patted down and put into lockup, and later transferred to the OCCF. (Tr. at 20.)

Mr. Babcock had not idea that he was going to be arrested when he voluntarily showed up in Fam-

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ily Court. He had no opportunity to hide any weapons or contraband on his person; he was arres- ted in a public courtroom. When was taken to the OCCF, he was wearing jeans, a belt, a tee shirt and a dress shirt. (Id.) He had no drugs or prescription medications on him. (Id.) In his pockets, he had a wallet, lighter, and bobby pin. (Tr. at 21.) These items were taken from him. (Id.)

*70 Mr. Babcock testified that the admissions procedure at the new Jail was the same as it had been at the old Facility, with the addition of the walk-through metal detector and B.O.S.S. chair. (Tr. at 22, 31.) Mr. Babcock was taken into a separ- ate room and asked to remove his clothes. He was then told to “bend over and cough and pull up [his] privates, turn around, pull up [his] privates in front of them, and then run [his] hands through [his] hair with [his] fingers and open [his] mouth and go be- hind [his] ear’s with his hands. And then they told [him] to get dressed, and so [he] put his clothes back on.” (Tr. at 22–23.) Mr. Babcock testified that after the strip search, he put on his regular clothes and went through a metal detector and B.O.S.S. chair. (Tr. at 23, 31–32.) He stated that he was not given a prison uniform until 1:00 or 2:00 in the morning. (Tr. at 32.)

According to the admissions strip search report filled out for Mr. Babcock, he was strip searched because he activated either the metal detector or B.O.S.S. chair. (PX 9.) Corrections Officer Rick Essig, who signed the report, had no independent recollection of in-processing Mr. Babcock in December, 2001 and thus cannot contradict Bab- cock’s story that he was searched before going through the detectors. (Tr. at 136.)

Gordon Barnum, Jr. was strip searched on Feb- ruary 4, 2002 at the OCCF after being arrested and charged with one count of petit larceny (a Class “A” misdemeanor). (Tr. at 40.) Mr. Barnum is cur- rently at the OCCF on a petit larceny charge. He testified that he has been arrested numerous times over his lifetime, mostly for petit larceny. He also has one drug offense from when he was younger.

(Tr. 35–36.) His January, 2002 arrest stemmed from allegations that he was stealing Tylenol. (Tr. at 37.)

Mr. Barnum explained that the only difference in the intake procedure at the new jail is that the new one has a metal detector and B.O.S.S. chair. (Tr. at 42.) Mr. Barnum testified that he was sent through the metal detectors as he first came into the facility, while he was still in his street clothes. (Tr. at 46.) The officers then took his clothes, strip searched him, and gave him a prison jumper. (Tr. at 37.) Mr. Barnum testified that he has been strip searched every time that he has ever been admitted to the OCCF, and he has been admitted to the facil- ity many times. (Tr. at 43, 110–12.)

Lieutenant De Marco had records for all of Mr. Barnum’s post August, 2001 strip searches. Mr. Barnum was strip searched during his January 21, 2002 admission because he set off the metal detect- or or B.O.S.S. chair and because he appeared to be under the influence of drugs or alcohol. (Tr. at 110.) He also was strip searched on his February 12, 2002 admission because he appeared to be un- der the influence and told the booking officer that he had used crack within the last 24 hours. (Tr. at 111.) He was strip searched on April 15, 2002 for setting off the metal detector or B.O.S.S. chair. (Tr. at 112.)

Defendants contend that all of the strip searches about which the Court heard testimony were constitutionally justified, because the men ap- peared to be under the influence of a substance, or because they set off a metal detection device, or both.

The Experts

Plaintiff presented an expert witness, Roger Boyell, to explain the metal detector technology to the Court. Mr. Boyell designs, develops, and main- tains electronic equipment. (Tr. at 52.) While OC- CF’s machine was the first B.O.S.S. chair that he had ever inspected, Mr. Boyell has experience in- vestigating airport metal detectors and x-ray ma- chines. (Tr. at 54–55.) On June 22, he inspected the

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OCCF metal detectors. (Tr. at 55.) He observed the settings and controls on the walk-through detector and the B.O.S.S. chair. (Id.) He testified that the metal detectors were set to be rather sensitive. (Tr. at 58.)

Mr. Boyell conducted experiments to check the reliability of the detectors. He determined that there was a “high degree of randomness” involved in the triggering of the metal detectors. (Tr. at 71.) Most of the time, a belt buckle would set off the walk- though device. (Tr. at 58.) If metal was placed close to the sides of the machine, where the coils are, smaller pieces of metal would activate the metal de- tector than if *71 metal was placed in the center of the machine. (Tr. at 58.) The sensitivity of the met- al detector also varied at different heights. (Id.) Mr. Boyell noted that a bunch of keys would trigger the machine, even though the keys were outside of the machine. (Tr. at 69.) He testified that, carrying what he usually carries in his pockets, he set off the metal detector every time he went near it because he had a pen, a lighter, keys, and a laser pointer. (Tr. at 70.) He was able to trigger the machine with just the keys most of the time. (Id.) The machine did not respond to the laser pointer alone. (Id.)

Mr. Boyell explained that the underlying tech- nology of the B.O.S.S. chair is the same as that used in the walk-through metal detector. (Tr. at 72.) He found that the chair was very sensitive to the orientation of conductive material. (Tr. at 73–75.) The smallest metallic object he used during his in- spection of the B.O.S.S. chair, his ring, which is conductive but not magnetic, triggered the seat de- tector when about three inches away from the seat, but did not set off the detector when placed off to the side. (Tr. at 72.) Mr. Boyell testified that the B.O.S.S. chair would quite likely pick up the metal on a zipper or the fillings in one’s mouth. (Tr. at 74, 84.)

The County called Patrick Perez to testify about the B.O.S.S. chair used at the OCCF. Mr. Perez works for Ranger Security Detectors, the company that designed and manufactures the

B.O.S.S. chair. (Tr. at 119.) He testified that this chair is used in many prisons across the county, in- cluding over one hundred in New York, and is the state of the art. (Tr. at 124.) Mr. Perez inspected the OCCF B.O.S.S. chair, checking the voltages and sensors on the chair, and determined that the ma- chine was properly calibrated and functioning cor- rectly. (Tr. at 120.) He noted that the sensitivity set- tings were left at the factory standard, the lowest level at which they could be set. (Id.) He testified that the B.O.S.S. chair should not be triggered by a zipper, buttons, studs or a belt buckle. (Tr. at 122.) The chair was designed not to perceive metal in the front of a person, but to pick up objects in a back pocket or in the vaginal or anal cavities. (Tr. at 122–24.) When plaintiffs’ counsel pointed out on cross examination that an inmate form for Derrick Prescod noted that the inmate had set off the facial plate of the B.O.S.S. chair because he had metal fillings in his mouth (PX 5), Mr. Perez testified that he would be surprised if this was the case. (Tr. at 126.) He also testified, however, that metal (such as stainless steel) in someone’s body from a medical procedure (such as a hip replacement) would prob- ably be detected by the B.O.S.S. chair. (Tr. at 127.)

The Data

From August 1, 2002 until February 14, 2002, 731 out of 1,115 detainees (or 66%) were strip searched. From February 15, 2002 until May 31, 2002, 275 out of 591 detainees (or 47%) were strip searched.

Between August 1, 2001 and February 14, 2002, 439 of the 731 documented strip searches were conducted because the inmate activated a met- al detector. (PX 6.) This means that between these dates, 60% of the documented strip searches were justified by the activation of a metal detector. From February 15, 2002 to May 31, 2002, 84 of the 275 detainees, or 31%, were strip searched because they triggered a metal detector. (PX 7.)

From August 1, 2001 through February 14, 2002, 96 of the 731 documented strip searches, or 13%, were conducted because the inmate appeared

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to be under the influence of drugs or alcohol. (PX 6.) From February 15, 2002 to May 31, 2002, 69 out of the 275 inmates that were strip searched, or 25%, were searched for this reason. (PX 7.)

Between August 1, 2001 and February 14, 2002, 54 out of the 731 documented strip searches, or 7%, were conducted because the inmate was brought in for a probation or parole violation. (PX 6.) From February 15, 2002 through May 31, 2002, 27 out of the 275 total strip searches, or almost 10%, were justified because the inmate was brought in for a probation or parole violation. (PX 7.)

Plaintiffs draw the Court’s attention to the fact that since the time this law suit was commenced, the number of strip searches has decreased dramat- ically. I agree that there has been a significant de- crease in the percentage of detainees searched since February.*72 Interestingly, February is when de- fendants were notified of this lawsuit.

DISCUSSION I. Preliminary Injunction

In order to prevail on a motion for a prelimin- ary injunction, a plaintiff must demonstrate:

(a) that it will suffer irreparable harm in the ab- sence of an injunction and (b) either (i) a likeli- hood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.

Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33 (2d Cir.1995) (citing Polymer Technology Corp. v. Mimran 37 F.3d 74, 77–78 (2d Cir.1994); Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam)).

[1][2] The Second Circuit has ruled that strip searches of individuals charged with misdemeanors or other minor offenses are lawful only when “officers have a reasonable suspicion that the ar-

restee is concealing weapons or other contraband based on the crime charged, the particular charac- teristics of the arrestee, and/or the circumstances of the arrest.” Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986). That law has been well settled for some time. Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994); Walsh v. Franco, 849 F.2d 66 (2d Cir.1988). In Shain v. Ellison, 273 F.3d 56 (2d Cir.2001), the Court of Appeals held that the law on this point was so well-settled by July 1995 that qualified immunity was not available to shield an officer from liability for conducting a strip search in the absence of reasonable suspicion on or after that date. A fair reading of Second Circuit law on the subject suggests that strip searches of misde- meanor arrestees will be the exception, not the rule.

A. Irreparable Harm
The right to be free from unreasonable searches

is a constitutional right. See Covino v. Joseph Pat- rissi, 967 F.2d 73, 77 (2d Cir.1992). “When an al- leged deprivation of a constitutional right is in- volved, most courts hold that no further showing of irreparable harm is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (quoting 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2948, at 440 (1973)). Plaintiffs have demonstrated a po- tential deprivation of their constitutionally protec- ted right to be free from unreasonable searches. They have thus satisfied the irreparable harm prong of the analysis.

B. Likelihood of Success or Sufficiently Serious Questions Going to the Merits

[3] Plaintiffs assert that defendants’ strip search policy is unconstitutional because strip searches are conducted in circumstances where there is no reas- onable suspicion that the inmate possesses contra- band. I agree that OCCF’s policy as it currently ex- ists permits—and in some circumstances man- dates—strip searches without reasonable suspicion that the inmate is carrying contraband. Thus, plaintiffs are likely to succeed at trial—or, at the very least, have raised a sufficiently serious ques-

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tion going to the merits to warrant an injunction

pendente lite.

Captain Ryan, who is obviously not a lawyer, included “reasonable suspicion” as a Section 5.3.1 factor. But “reasonable suspicion” is the only factor, because a misdemeanor detainee may be strip searched ONLY if there is reasonable suspi- cion to believe that he is carrying contraband. Fur- thermore, reasonable suspicion must be determined individually for each inmate, in light of the crime charged, and the particular characteristics of the ar- restee or the circumstances of the arrest. While Sec- tion 5.3.1 includes things that might enter into the reasonable suspicion calculation, the factors do not automatically translate into reasonable suspicion, and are no substitute for an individualized analysis of the relevant factors: the crime charged; circum- stances surrounding the arrest to suggest that the detainee is carrying contraband; and characteristics of the detainee that suggest that he might be carry- ing contraband. Weber, 804 F.2d at 802.

*73 Captain Ryan testified that his goal in cre- ating the strip search policy was to diminish the discretion of the individual corrections officer as much as possible by establishing bright line rules for the officer to follow. (Tr. at 100.) Given the his- tory of the OCCF—where corrections officers strip searched every detainee who came through the doors until a year ago—I can certainly understand Captain Ryan’s desire to provide his subordinates with clear standards for conducting strip searches, lest they revert to strip searching every inmate.

Moreover, the factors he selected for inclusion in the policy are sensible enough. For example, the Second Circuit has stated in dicta that being ac- cused of a felony may give rise to reasonable suspi- cion for a strip search. See Shain, 273 F.3d at 65 (“a New Y ork felony defendant’s post-arraignment de- tention may well be an indicator of an increased se- curity risk”); see also Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir.1983). However, it is possible that automatically strip searching everyone arrested for a felony, without having independent reasonable

suspicion to believe that he is secreting contraband, is unconstitutional, since the United States Supreme Court has held that “the assumption that a ‘felon’ is more dangerous than a misdemeanant” is “untenable.” Tennessee v. Garner, 471 U.S. 1, 14, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).FN2

FN2. Garner did not involve strip searches and the Second Circuit has not had occa- sion to address this argument squarely in the context of strip searches. It did, however, use the word “may” rather than the more emphatic “does” when it ad- dressed the point in Shain.

And that explains why the policy devised by Captain Ryan does not pass constitutional muster. Instead of directing an officer to use the denomin- ated factors to ascertain whether reasonable suspi- cion exists, the OCCF policy effectively mandates that they conduct a strip search whenever any factor is present. Captain Ryan’s passing statement about a supervisor’s ability to countermand an automatic strip search is not convincing, especially in view of his testimony—corroborated by Lieutenant De Marco—that the policy was designed to eliminate corrections officers’ discretion. Moreover, it ap- pears that corrections officers are not enlightened about the non-mandatory nature of the policy, since they are not trained to recognize circumstances when a strip search is not warranted even though an inmate exhibits one of the factors. Neither are they instructed when to call in a supervisor for consulta- tion. I have no doubt that, if a new arrival at the OCCF qualifies under any criterion set forth in Sec- tion 5.3.1, he will be strip searched.

Plaintiffs’ concerns about the constitutionality of automatic strip searches simply because an in- mate triggers a metal detector or B.O.S.S. chair, ap- pears to be under the influence of drugs or alcohol, or violates parole or probation, illustrate why the OCCF’s non-discretionary strip search policy is un- constitutional.

1. Metal Detector/B.O.S.S. chair

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The Court did not need the testimony of plaintiffs’ expert to know that walk-through metal detectors can be triggered by non-threatening items. Many of us have had the experience of walking through airport detectors and triggering them with keys or belt buckles or relatively modest jewelry. The lasts in lawyers’ shoes used to set off the metal detector in the Federal Court House in Los Angeles (I know, because mine did), so everyone who walked in had to go through the detector in stockinged feet. There is a “high degree of random- ness” involved in the use of detection devices, and metal detectors sometimes go off for no apparent reason. (Test. of Mr. Boyell, Tr. at 71.) In light of that, there is a serious question about whether these imperfect machines alone can provide reasonable suspicion to conduct a strip search.

This question is important if only because a huge number of misdemeanor arrestees set off the detection devices at OCCF. Between August 1, 2001 and February 14, 2002, 439 of the 731 docu- mented strip searches were conducted because the inmate activated a metal detector. (PX 6.) (The ac- tual number of strip searches performed for this reason may be higher if officers who strip searched individuals forgot to fill out strip search forms *74 during this period.) This means that between these dates, 60% of the documented strip searches were justified by the activation of a metal detector. From February 15, 2002 to May 31, 2002, 84 of the 275 detainees who were strip searched, just under a third, were strip searched because they triggered a metal detector. (PX 7.)

Of course, if most of those who were strip searched after triggering the metal detector were found to be secreting contraband, it might be pos- sible to conclude that the detector alone gave rise to reasonable suspicion. Unfortunately, the County has no idea how many of the people who activated the metal detector or B.O.S.S. chair were conceal- ing weapons or contraband. (Tr. at 108–09.) However, that number is not likely to be too great, since none of the corrections officers who testified

could identify a large number of situations in which contraband was found via strip search. Captain Ry- an testified that there was one occasion where a prisoner had hidden a razor blade in his mouth. (Tr. at 104–05.) He also said that detainees hide metal rings from piercings in the side of their mouths, knowing that these are not allowed in the jail. (Tr. at 105.) But he could not quantify the number of times this has occurred, or indicate how it was that an inmate would know upon his arrival at the jail that piercing rings were contraband. (Tr. at 105.) I thus conclude that a relatively insignificant number of the hundreds of detainees who were strip searched after setting off the metal detection devices were found to have contraband secreted on their persons.

Contrasting misdemeanor arrestees with post- contact visit prisoners, the Second Circuit has noted that, “[i]t is far less obvious that misdemeanor ar- restees frequently or even occasionally hide contra- band in their bodily orifices. Unlike persons already in jail who receive contact visits, arrestees do not ordinarily have notice that they are about to be ar- rested and thus an opportunity to hide something.” Shain, 273 F.3d at 64. Mr. Babcock’s situation illus- trates this point neatly. Mr. Babcock had no idea that he would be arrested when he voluntarily ap- peared in court to answer a charge of non-support. Once arrested, he had no opportunity to hide any weapons or contraband on his person. Yet Mr. Bab- cock—who undoubtedly went through a metal de- tector in order to gain admittance to the Orange County Court House, where he was arrested—was strip searched solely because he set off the metal detector at OCCF. Needless to say, no contraband was found on his person.

Under the prevailing standard in this Circuit, articulated in Weber v. Dell, 804 F.2d 796 (2d Cir.1986), Walsh v. Franco, 849 F.2d 66 (2d Cir.1988) and Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994), no law enforcement officer is permitted to search a misdemeanor arrestee ab- sent individualized reasonable suspicion. Shain v.

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Ellison clarified that the rule of Weber extended to detector, without more, gives rise to reasonable sus- searches of post-arraignment arrestees in a local picion to conduct a strip search. However, the facts jail, such as the OCCF. 273 F.3d at 59. Judge Pool- in Young are vastly different than those in this case. er explained: In Young, corrections officers noticed that a prison-

a person charged with a misdemeanor who re- mains in jail in New York after arraignment probably does so because (a) he cannot afford the bail set; (b) he refuses to post bail; or (c) he was arraigned on a Family Court matter…. None of these scenarios creates a reasonable suspicion that the alleged offender has secreted contraband or weapons.

Shain, 273 F.3d at 65. In the case at bar, one of the three individual plaintiffs who testified was ar- rested on a Family Court matter, and another was arrested for failing to pay a fine imposed after con- viction of a non-violent crime. Neither the nature of the crime charged nor the circumstances of the ar- rest gives rise to the slightest suspicion that Dodge or Babcock was carrying contraband. A strip search of either was constitutionally impermissible. FN3

FN3. Whether Mr. Dodge was in fact strip searched is questionable. I find it unlikely that he was strip searched prior to going through the metal detector, as he testified; there were no other triggers for conducting a strip search based on the OCCF policy; Corrections Officer Fagan testified that he did not strip search Dodge; and there was no strip search form in Dodge’s file. However, it is not impossible that he was strip searched (particularly in view of Cap- tain Ryan’s testimony that some officers forgot to fill out the strip search forms un- til the rule was changed in March, 2002 to require that a form be completed whether or not an inmate was searched). If he was, there would have been no reasonable basis for the search.

*75 Defendants cite Young v. Coombe, 227 A.D.2d 799, 642 N.Y.S.2d 443 (3d Dep’t 1996), in support of their position that activation of a metal

er at the Great Meadow Correctional Facility in Washington County was walking in a suspicious manner. 227 A.D.2d at 800, 642 N.Y.S.2d 443. The officers had the inmate walk through a metal de- tector. When the metal detector did not go off, an officer used a hand-held detector on the prisoner. The hand-held detector went off when it was waived over the groin area of the inmate. The pris- oner admitted that he had a weapon on his person but refused to submit to the strip search. He was eventually subdued and taken to the hospital. At the hospital, a round of live ammunition, a handcuff key and an encased razor blade were found in the inmate’s anus. The Young court held that the strip search was reasonable. Id.

I agree with the Young court that the officers in that case had individualized reasonable suspicion to search the inmate. Indeed, no other conclusion should have been reached. But that hardly settles the question before me, which is whether a policy of strip searching arrestees for no other reason than because they set off a walk-though metal detector or B.O.S.S. chair is constitutionally-compliant. Young has nothing to say on that issue.

Perhaps knowing that their new policy does not satisfy the Weber rule, defendants argue that Weber was implicitly overruled by the United States Su- preme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Supreme Court said the standard for reviewing the constitutionality of prison regulations was “whether the regulation is reasonably related to legitimate penological interests.” Unfortunately for the County, its argument that Turner overturned Weber was squarely rejected in Shain. 273 F.3d at 65. As I told the County at the trial in Lee v. Perez, I am in no position to make any ruling that runs counter to that clear holding.

However, even assuming arguendo that Turner

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overruled Weber, it hardly seems likely that any le- gitimate penological interest is served by strip searching every person who activates a metal de- tector.

[4][5] The four factors to be considered under Turner’s legitimate penological interest standard are: (1) whether there is a valid, rational connection between the regulation and a legitimate, neutral governmental interest; (2) whether there are altern- ative means of exercising the asserted constitutional right that remain open to the inmate; (3) what ex- tent the proffered accommodation of the asserted right will have on prison staff, prisoners’ liberty and the allocation of limited prison resources; and (4) whether the regulation represents an exaggerated response to prison concerns. Deference must be given to prison officials in evaluating their regula- tions. See also Bell, 441 U.S. at 546, 99 S.Ct. 1861.

Without any statistics from the OCCF suggest- ing that a significant number of misdemeanor ar- restees are concealing contraband when they arrive at OCCF, defendants have not made a convincing showing that there exists a rational connection between strip searching misdemeanor detainees who activate a metal detector and safe jail adminis- tration. And the question of whether there are non- burdensome alternatives to strip searching every in- mate who sets off a metal detector or B.O.S.S. chair is readily answered. There are a number of simple things that the corrections officers could do before conducting a strip search to satisfy the reasonable suspicion standard. For example, after patting the detainee down, corrections officers could ask the detainee to empty his pockets before sending him through the metal detector and B.O.S.S. chair. It might be possible, given the configuration of the fa- cility (about which I know almost nothing) for in- mates to change into prison jumpers before being walked through the machines; this would eliminate the possibility*76 that pocket change, belts, or met- al studs on Levis might set off the detector. Finally, when the crime charged and the circumstances of the arrest are such that carriage of contraband is

highly unlikely, inspection by a hand-held metal detector (such as the one used in Young ) could be used to verify the accuracy of a positive reading by the metal detector or B.O.S.S. chair before the drastic measure of a strip search is employed. Giv- en the documented fact that metal detectors over- detect, it is hard to see why any of these simple steps would be overly burdensome to the OCCF.

Thus, whether under Weber or Turner, plaintiffs have raised a serious question going to the merits concerning metal detector activation as a substitute for particularized determination of reas- onable suspicion.

2. The appearance of the influence of alcohol or drugs

Plaintiffs argue that there is no legal justifica- tion for strip searching detainees because they ap- pear to be under the influence of alcohol or drugs. From August 1, 2001 through May 31, 2002, 172 individuals were processed by the Orange County Jail after being arrested for driving while intoxic- ated. Of the documented instances where a strip search occurred, 66 individuals, or 38%, were strip searched because they “appeared to be under the in- fluence of drugs or alcohol.” (PX 6, PX 7.)

Numerous courts have held that an arrest for driving while intoxicated or public intoxication does not provide officers with reasonable suspicion to believe that a misdemeanor inmate is concealing weapons or contraband. See e.g., Stewart v. Lub- bock Co., 767 F.2d 153, 154–57 (5th Cir.1985) (holding that a policy permitting the strip search of persons arrested for misdemeanors, including pub- lic intoxication, without reasonable suspicion that the arrestee possessed weapons or contraband was unconstitutional); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984) (finding that the practice of strip searching a detainee charged with driving while in- toxicated is unconstitutional); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (stating that driving while intoxicated “though not a minor traffic of- fense, was nevertheless one not commonly associ- ated by its very nature with the possession of

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weapons or contraband”); Kidd v. Gowen, 829 F.Supp. 16, 19 (D.N.H.1993) (holding that the County Correctional Facility’s policy of strip- searching intoxicated protective custody detainees violated the Fourth Amendment because it permit- ted such searches without any individualized suspi- cion that the particular detainee might be securing weapons or contraband); and Draper v. Walsh, 790 F.Supp. 1553, 1557 (W.D.Okla.1991) (“public in- toxication by alcohol, which is a less serious of- fense than driving while intoxicated, is likewise an offense not commonly associated by its very nature with the possession of weapons or contraband”); see also Wilson v. Jones, 251 F.3d 1340, (11th Cir.2001) (holding that there was no evidence of reasonable suspicion to believe that arrestee charged with driving under the influence of alcohol was concealing weapons or any other type of con- traband, especially where arrestee was permitted to use the bathroom prior to the search, which indic- ated a lack of fear that she might flush any sub- stance down the toilet).

In Foote v. Spiegel, 118 F.3d 1416, 1426 (10th Cir.1997), the Tenth Circuit stressed the distinction between probable cause to believe that someone is under the influence and probable cause to believe that someone is hiding narcotics on their person. Being charged with driving under the influence, is distinct, for example, from being charged with smuggling drugs into the country or into a prison. As the Foote court noted:

it may be reasonable to believe that a person driv- ing while under the influence of marijuana could have marijuana in a pocket, a bag, or other con- tainer, or somewhere in the vehicle. However, … a strip search could be justified only if it were reasonable to believe persons driving while under the influence of marijuana, who have no particu- lar reason to expect they will be searched, routinely carry a personal stash in a body cavity. That belief is unreasonable.

[6] I, too, find that the appearance of intoxica- tion does not provide reasonable suspicion to be-

lieve that a suspect is concealing *77 weapons or contraband in a body cavity. In this regard, also, plaintiffs have demonstrated serious questions go- ing to the merits of this claim. I reach this conclu- sion without addressing (because I need not ad- dress) the constitutional propriety of searching Mr. Barnum.

3. Violation of Probation
The question of whether there is reasonable

suspicion to strip search an inmate who has come into the facility after a violation of probation is not as clear.

Between August 1, 2001 and February 14, 2002, 54 out of the 731 documented strip searches (or 7%) were conducted because the inmate was brought in for a probation or parole violation. (PX 6.) From February 15, 2002 through May 31, 2002, 27 out of the 275 total strip searches (or almost 10%) were justified because the inmate was brought in for a probation or parole violation. (PX 7.)

I have not been given any information from the defendants that leads me to believe that inmates who have violated parole or probation are more likely to be carrying weapons or contraband. In- deed, defendants have neither explained the nature of the parole violations, nor kept records showing how many violators had contraband on them when arrested. I therefore have no basis to conclude that parole violators as a class are highly likely to rep- resent a greater danger to the OCCF than any other misdemeanant who arrives at the facility. Being ad- mitted for a violation of probation or parole does not in and of itself provide individualized reason- able suspicion for a strip search.

C. Balance of the Hardships
I note that the balance of the hardships tips de-

cidedly in favor of the plaintiffs in this matter. Be- ing strip searched represents a serious intrusion that is often humiliating, even when performed in the most professional manner. See Bell v. Wolfish, 441 U.S. 520, 588, 99 S.Ct. 1861, 60 L.Ed.2d 447

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(1979) (stating that a visual body cavity search is a Plaintiffs’ request for a preliminary injunction “practice [that] instinctively gives us the most preventing defendants from maintaining its current pause”); Id. at 576–77, 99 S.Ct. 1861 (Marshall, J., strip search policy is therefore granted. Plaintiffs dissenting) (asserting that visual strip searches shall submit an order within 48 hours.

“represent one of the most grievous offenses against personal dignity and common decency”); Id. at 594, 99 S.Ct. 1861 (Stevens, J., dissenting) (remarking that visual body cavity searches are “clearly the greatest personal indignity”); Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir.1992) ( “One’s anatomy is draped with constitutional pro- tection…. [A] strip search, regardless how profes- sionally and courteously conducted, is an embar- rassing and humiliating experience.”); Mary Beth G. v. Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) (“strip searches involving the visual inspection of the anal and genital areas [are] demeaning, dehu- manizing, undignified, humiliating, terrifying, un- pleasant, embarrassing, repulsive, signifying de- gradation and submission”). Preventing the deprivation of plaintiffs’ constitutional right to be free from unreasonable searches of this most intrus- ive form is of utmost importance to this Court.

In contrast, the OCCF will not be unduly burdened by changing its strip search policy to con- form to this preliminary injunction ruling. The OC- CF is enjoined from strip searching a detainee based solely on the existence of a Section 5.3.1 factor. For example, corrections officers cannot strip search solely on a positive metal detector read- ing (under the OCCF’s current practice of using the detectors), solely on the fact that a misdemeanor detainee appears to be intoxicated, or solely be- cause he was admitted for a parole or probation vi- olation. Officers at the OCCF may only strip search a detainee if they have individualized reasonable suspicion to do so. They may—indeed, must—evaluate the crime charged, the circum- stances of the arrest, and the detainee’s characterist- ics, including the factors listed in Section 5.3.1. What the OCCF may not do is automatically strip search every detainee who meets any one of the cri- teria on that list. This will not place an undue hard- ship on the OCCF.

II. Class Certification
The Court’s May 29, 2002 decision in this case

noted that the preliminary injunction *78 hearing would assist the Court in determining whether class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure was appropriate, or if par- tial certification under Rule 23(b)(3) was the pre- ferred method of proceeding with class certifica- tion.

Rule 23(b)(2) provides for the maintenance of a class action if “the party opposing the class has ac- ted or refused to act on grounds generally applic- able to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole [.]” Fed.R.Civ.P. 23(b)(2). Class certification under Rule 23(b)(3) is appropriate only if “the court finds that the questions of law or fact common to the members of the class predominate over any ques- tions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the contro- versy.” Fed.R.Civ.P. 23(b)(3).

Class certification under Rule 23(b)(2) is ap- propriate where “broad, class-wide injunctive or de- claratory relief is necessary to redress a group-wide injury.” Robinson v. Metro–North Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir.2001).

[7] The Robinson court established an ad hoc approach to determining whether (b)(2) certifica- tion is appropriate in cases seeking anything other than incidental damages. Robinson, 267 F.3d at 164. The Second Circuit directed district courts to hold a class certification hearing to weigh “the rel- ative importance of the remedies sought.” Id. (citing Hoffman, 191 F.R.D. at 536). The district court should allow (b)(2) certification where:

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(1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought is predominant even though compensatory or punit- ive damages are also claimed, and (2) class treat- ment would be efficient and manageable, thereby achieving an appreciable measure of judicial eco- nomy.

Id. at 164 (internal citations omitted). The min- imum standard for allowing (b)(2) certification is (1) that a reasonable plaintiff would bring suit to obtain injunctive relief even if monetary recovery were not possible, and (2) injunctive relief would be “both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id. The court also warned that “insignificant or sham re- quests for injunctive relief should not provide cover for (b)(2) certification of claims that are brought es- sentially for monetary recovery.” Id.

Since I have now determined that a preliminary injunctive is appropriate in this case, I must weigh the importance of that relief compared to monetary damages. Defendants no longer strip search every inmate who walks through their doors. However, plaintiffs are likely to convince me at trial that de- fendants’ policy still raises constitutional concerns. Given the seriousness of a strip search, I find that a reasonable plaintiff would bring suit to obtain in- junctive relief to prevent future unconstitutional strip searches even if monetary recovery were not possible in this case.

[8] Plaintiffs also draw the Court’s attention to the fact that since the time this law suit was com- menced, the number of strip searches has decreased dramatically. From August 1, 2002 until February 14, 2002, 731 out of 1,115 detainees (or 66%) were strip searched. From February 15, 2002 until May 31, 2002, 275 out of 591 detainees (or 47%) were strip searched. This is a significant decrease in the percentage of detainees that were searched since the Jail was placed on notice of this lawsuit. Plaintiffs suggest, and this Court is inclined to agree, that the standards used by the Jail contain greater room for subjectivity than the Jail would like to admit. I

therefore find that injunctive relief may be import- ant to prevent the Jail from returning to its old ways once this lawsuit is completed.

If plaintiffs succeed on the merits of their claim, injunctive relief would be both reasonably necessary and appropriate. Plaintiffs’ request for in- junction relief is neither insignificant nor a sham, and class certification is therefore granted under Rule 23(b)(2).

The case will proceed in two stages. First, a tri- al will be held to decide what strip search policies the OCCF has maintained from 1991 to the present, whether those policies*79 are constitutional, and whether permanent injunctive relief is appropriate. If the class prevails on these issues, then individual plaintiffs can come forward to litigate the issue of whether their rights were violated and whether they suffered damages. As was true in Maneely v. City of Newburgh, No. 01 CIV 2600(CM), notice will have to be provided to the potential class members in or- der to ensure that their due process rights are pro- tected.

CONCLUSION
Plaintiffs’ motion for a preliminary injunction

preventing the OCCF from enforcing its current strip search policy is granted. Plaintiffs’ motion for class certification is granted pursuant to Rule 23(b)(2).

This constitutes the decision and order of the Court.

S.D.N.Y .,2002.
Dodge v. County of Orange 209 F.R.D. 65

END OF DOCUMENT

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United States District Court,
S.D. New York.
Anthony DODGE, Peter A. Machado and Joseph Petriello, individually and on behalf of all others similarly situated, Plaintiffs,
v.
COUNTY OF ORANGE and Sheriff H. Frank Big- ger, in his individual and official capacity Defend- ants.

No. 02 Civ. 769(CM). July 24, 2002.

Misdemeanor arrestees filed proposed class ac- tion challenging constitutionality of county correc- tional facility’s practice of conducting strip searches of pre-trial detainees. On plaintiffs’ motions for pre- liminary injunction and class certification, the Dis- trict Court, McMahon, J., held that: (1) arrestees were likely to succeed on their claim, and (2) class certification was warranted.

Motions granted.
West Headnotes

310 Prisons
310V Officers and Employees

310k398 Liabilities
310k400 k. Immunity. Most Cited Cases

(Formerly 310k10)
Qualified immunity was not available to shield

county correctional officer from liability for con- ducting strip search in absence of reasonable suspi- cion.

[3] Civil Rights 78 1457(5)

78 Civil Rights
78III Federal Remedies in General

78k1449 Injunction
78k1457 Preliminary Injunction

78k1457(5) k. Criminal Law Enforce- ment; Prisons. Most Cited Cases

(Formerly 78k268)
Misdemeanor arrestees were likely to succeed

on their claim that county correctional facility’s practice of routinely conducting strip searches of pre-trial detainees who met listed criteria violated their constitutional rights, and thus were entitled to preliminary injunction preventing facility from maintaining policy; policy did not require reason- able suspicion that individual in question was car- rying contraband, but rather mandated strip search when certain factors were present, officers were not trained to recognize circumstances when strip search was not warranted, and relatively insignific- ant number of detainees who were strip searched after setting off metal detection devices were found to have contraband secreted on their persons.

[4] Prisons 310 112

310 Prisons
310II Prisoners and Inmates

310II(A) In General
310k112 k. Regulation and Supervision in

General; Role of Courts. Most Cited Cases (Formerly 310k4(1))

In determining whether prison regulation is jus-

Page 1

[1] Prisons 310

359

310 Prisons
310III Pretrial Detention

310k351 Care, Custody, Confinement, and Control

310k359 k. Search, Seizure, and Confisca- tion. Most Cited Cases

(Formerly 310k4(7))
Strip searches of individuals charged with mis-

demeanors or other minor offenses are lawful only when officers have reasonable suspicion that ar- restee is concealing weapons or other contraband based on crime charged, particular characteristics of arrestee, and/or circumstances of arrest.

[2] Prisons 310 400

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209 F.R.D. 65

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tified by legitimate penological interest, court should consider: (1) whether there is valid, rational connection between regulation and legitimate, neut- ral governmental interest; (2) whether there are al- ternative means of exercising asserted constitution- al right that remain open to inmate; (3) what extent proffered accommodation of asserted right will have on prison staff, prisoners’ liberty and alloca- tion of limited prison resources; and (4) whether regulation represents exaggerated response to pris- on concerns.

[5] Prisons 310 103

310 Prisons
310I In General

310k102 Management and Operation 310k103 k. In General. Most Cited Cases

(Formerly 310k4(2.1))
Deference must be given to prison officials in

evaluating their regulations.

[6] Searches and Seizures 349 55

349 Searches and Seizures 349I In General

349k53 Scope, Conduct, and Duration of Warrantless Search

349k55 k. Skin, Strip, and Body Searches. Most Cited Cases

Appearance of intoxication does not provide reasonable suspicion to believe that suspect is con- cealing weapons or contraband in body cavity, and thus is insufficient to justify strip search of suspect.

[7] Federal Civil Procedure 170A 165

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions 170AII(D)1 In General

170Ak165 k. Common Interest in Sub- ject Matter, Questions and Relief; Damages Issues.

Most Cited Cases

District court may allow certification under class certification rule for cases in which class-wide

injunctive or declaratory relief is appropriate if (1) reasonable plaintiff would bring suit to obtain in- junctive relief even if monetary recovery were not possible, and (2) injunctive relief would be both reasonably necessary and appropriate were plaintiffs to succeed on merits. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.

[8] Federal Civil Procedure 170A 186.10

170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions
170AII(D)3 Particular Classes Represen-

ted

170Ak186.10 k. Prisoners and In- mates. Most Cited Cases

Misdemeanor arrestees were entitled to class certification in their action challenging constitu- tionality of county correctional facility’s practice of routinely conducting strip searches of pre-trial de- tainees, where, although preliminary injunctive re- lief had been granted, it was likely that policy still raised constitutional concerns, reasonable plaintiff would bring suit to obtain injunctive relief to pre- vent future unconstitutional strip searches even if monetary recovery were not possible, and, although number of strip searches had decreased dramatic- ally since suit had commenced, injunctive relief might be important to prevent facility from return- ing to its old ways once suit was completed. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.

*66 James Edward Monroe,Dupee & Dupee, PC, for Plaintiffs.

*67 MEMORANDUM AND ORDER GRANTING A PRELIMINARY INJUNCTION AND CERTI- FYING A CLASS PURSUANT TO RULE 23(B)(2)

MCMAHON, District Judge.
Plaintiffs Anthony Dodge, Peter A. Machado,

Joseph Petriello, Wallace Babcock and Gordon Barnum, Jr. seek to represent a class of pre-trial de- tainees who were strip searched at the Orange

Page 2

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County Correctional Facility (“OCCF” or “Orange lowing circumstances: County Jail”) between January 31, 1999 and Janu-

ary 21, 2002. Pending before the Court are plaintiffs’ motions for a preliminary injunction and class certification.

Plaintiffs seek, among other relief, a prelimin-
ary and permanent injunction against further uncon-
stitutional strip searches at OCCF. Defendants
sought dismissal of the action on the ground that a e) Prior or current escape charges new policy adopted by OCCF in August 2001
rendered the request for an injunction moot. In an
opinion dated May 29, 2002, I found that the issue
was not moot, and noted that affidavits submitted
by plaintiffs suggested that unconstitutional strip
searches might still be taking place, notwithstand-
ing the existence of a new policy. I ordered the i) Metal detector/boss chair activation parties to appear for a hearing so that the Court
could decide whether to issue a preliminary injunc-
tion, and to determine whether class certification
should be granted pursuant to Rule 23(b)(2), or
whether partial certification under Rule 23(b)(3)
would be the more appropriate method of adjudicat-
ing this case. Dodge v. County of Orange, 208
F.R.D. 79 (S.D.N.Y.2002). Familiarity with that
opinion is assumed.

Plaintiffs’ motion for a preliminary injunction preventing the Orange County Jail from maintain- ing its current strip search policy is granted. Plaintiffs’ motion for class certification pursuant to Rule 23(b)(2) is granted.

RELEVANT FACTS

The Policy

On August 20, 2001, the Orange County Sher- iff’s Office implemented a new strip search policy. (PX 1.) According to Captain Joseph Ryan, the Captain in charge of the day shift at the Orange County Jail for the past seven years, he designed the new policy after reviewing Second Circuit case law, and the procedures of other police departments in New York and New Jersey. (Tr. at 88–90.) The revised policy reads, in part:

If an inmate falls within any of the Section 5.3.1 criteria, a strip search is authorized. The parties dispute whether a strip search is mandatory if one of the Section 5.3.1 criteria is satisfied. The policy uses the phrase “may be conducted,” not “must be conducted,” and Captain Ryan testified that, even if an inmate meets one of the criteria, the supervisor may determine that he should not be strip searched. (Tr. at 98–99.) However, both Cap- tain Ryan and Lieutenant Dominic De Marco, the Records Supervisor at OCCF, testified that the new policy was implemented to eliminate officer discre- tion in the matter of strip searches. (Tr. at 99–100, 117.) FN1 Nothing in the written policy requires a corrections officer ask a supervisor before conduct- ing a strip search, and officers are given no training about when they should not do a strip search. (Tr. at 99.) The defendants did not present the Court with evidence of so much as a single instance when a strip search was not conducted after one of the Sec- tion *68 5.3.1 triggers was met. In essence, then, Section 5.3.1 lists the circumstances under which

A strip search may be conducted under the fol- an officer will in fact conduct a strip search

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a) Committed sentenced inmate / weekenders b) Committed probation / parole violator
c) Weapons or narcotics offenses
d) Known gang affiliation

f) Committed for a felony
g) Prior or current contraband charges h) Known history of contraband charges

j) Inmate that appears to be under the influence of drugs / alcohol

(PX 1 § 5.3.1.)

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FN1. The Court finds it difficult to discern why officer discretion would need to be “eliminated,” since as far as I can tell, there was none to begin with—all arriving inmates were strip searched. Lee v. Perez, 175 F.Supp.2d 673, 677 (S.D.N.Y .2001).

Lieutenant De Marco, who is the Records Su- pervisor at the OCCF, described the process by which inmates are admitted to the OCCF. He testi- fied that the inmates enter the jail and the booking officer reviews their paperwork. (Tr. at 113.) Each inmate is then brought into the receiving area and patted down. The inmate is asked if he has any con- traband or metal items that he would like to declare before going through the detectors. (Tr. at 115.) The detainee is not asked to empty his pockets. (Id. ) His cuffs and shackles are removed and he is asked to walk through a metal detector. (Tr. at 113.) The detainee then sits in the B.O.S.S. chair. The in- mate also is asked to place his face against a plate on the chair that scans the mouth for any metal ob- jects. (Tr. at 113.)

Lieutenant De Marco testified that no inmate is ever strip searched before being placed in the metal detector or the B.O.S.S. chair. (Tr. at 113.) Captain Ryan and Corrections Officers Fagan and Essig confirmed that this is the procedure currently in place at the OCCF. (Tr. at 91, 131, 137.)

Officer Robert Essig testified that if an inmate triggers the walk-through metal detector, he allows him to go through the metal detector a second time, sometimes asking the inmate to empty his pockets or remove his shoes, or belt buckle. (Tr. at 138.) However, there is no established procedure for sending an inmate back through the detector or back onto the chair after he sets it off. While an in- dividual officer may allow the inmate to go through the detector again, there is no policy that instructs the officer to do this, as there would be, for ex- ample, if the metal detector were located in an air- line terminal. (Tr. at 115–17.) Lieutenant De Marco testified that once an inmate sets off the metal de- tector, he prefers that the officer strip search the de-

tainee, explaining that otherwise there is a danger that inmates will beat the system by walking through until they did not set off the detector. (Tr. at 116–17.) According to Lieutenant De Marco, as a matter of policy, the inmate is not instructed to empty his pockets and is not patted down a second time or searched with a “wand.” (Id.)

Plaintiffs challenge the constitutionality of this new policy. They argue that its non-discretionary nature renders it a per se violation of the constitu- tion, since an individualized assessment of the ar- riving inmate’s potential for carrying contraband is not made in every case. And they particularly chal- lenge the constitutionality of subjecting all inmates who meet criteria, such as setting off the metal de- tector, being intoxicated, or being admitted for a parole or probation violation, to a body cavity search.

The Searches

At the hearing, the Court heard testimony from three misdemeanor arrestees who had been strip searched at the OCCF under the new policy. Each described a slightly different search process.

Anthony Dodge testified that he was strip searched on each of his approximately twelve ad- missions to the Jail from April 28, 1999 through January 29, 2002. He was arrested on January 29, 2002 for failing to pay a DWAI fine. (Tr. at 10, 13.) At the time that he was arrested, Mr. Dodge did not know that the police were looking for him; he was surprised when they appeared at his girlfriend’s apartment with the warrant. (Tr. at 14.) He testified that he did not have any weapons on his person, and he gave his belongings to his girlfriend when the Middletown Police arrived at her apartment. (Tr. at 13.) There were no drugs or weapons found in his immediate area when the police came inside of his home to pick him up. (Tr. at 14.) The Middletown Police held him until he was transferred into the custody of the Wallkill police department. (Tr. at 10.) Mr. Dodge was searched and was brought be- fore a judge in Wallkill, who remanded him to the OCCF. (Id.)

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Mr. Dodge testified that the admissions proced- ure at the new jail was the same as it had been at the old facility, except that the new facility had a metal detector and B.O.S.S. chair. (Tr. at 14.) Mr. Dodge testified that, once he arrived at OCCF, a corrections officer brought him into a small room *69 and instructed him to take off his clothes. (Tr. at 11.) The corrections officer put his clothes into a plastic bag. The officer then instructed Mr. Dodge to open his mouth and move his tongue so that he could look into his mouth. (Id.) Mr. Dodge was asked to show the officer the bottoms of his feet, and to lift his genitals. (Id.) The corrections officer then had him turn around, bend over, spread his buttocks and cough. (Tr. at 12.) The officer did not touch Mr. Dodge during this procedure. (Tr. at 12.) Mr. Dodge testified that he was strip searched be- fore he went through the metal detector or B.O.S.S. chair. (Tr. at 15.) He did not recall activating either metal detector, and he claims he was not under the influence of drugs or alcohol at the time he was searched. (Tr. at 16–17.)

Corrections Officer Frederick Sean Fagan was the person responsible for Mr. Dodge’s intake on January 29, 2002. (Tr. at 129.) His records indicate that he did not strip search Mr. Dodge. (DX C; Tr. at 96, 130.) While Officer Fagan did not have an in- dependent recollection of Mr. Dodge’s intake, he testified that if he had strip searched Mr. Dodge he would have put a strip search form in his file, be- cause that is his standard procedure. (Tr. at 130.)

However, the fact that no strip search form was completed does not necessarily mean that no strip search was performed. In March, 2002, Captain Ry- an changed the OCCF’s strip search form procedure in an attempt to increase the accuracy of reporting strip searches. (Tr. at 100–01.) The new policy re- quires officers to complete strip search forms for every inmate, and contains a “no strip search con- ducted” box. (PX 4.) The previous policy required that a strip search form be filled out only after a strip search was performed. (PX 3; Tr. at 100.) Captain Ryan testified that, before the form was

changed, he had been told by some officers that they had forgotten to fill out strip search forms for detainees even though they had strip searched the detainees. (Tr. at 101.) Captain Ryan testified that he changed the policy because he “didn’t want to hear … any excuses from officers that they forgot to fill out a form.” (Tr. at 101.)

Captain Ryan had no way of knowing how many times officers failed to complete strip search forms prior to March, 2002, when the new form was introduced. However, he reviewed approxim- ately fifty files and found one that did not contain a form that probably should have (because the inmate was admitted for a felony). (Tr. at 102.) Based on this testimony. I conclude that some of the detain- ees who do not have strip search forms in their files may indeed have been strip searched. The numbers provided by the OCCF and used by the Court in this opinion may, therefore, underestimate the number of strip searches conducted before March, 2002.

Wallace Babcock testified that, on December 6, 2001, he turned himself over to Judge Andrew P. Bivona of the Orange County Family Court in re- sponse to an outstanding warrant for his arrest for failing to make child support payments. (Tr. at 18.) Mr. Babcock owed his ex-wife approximately $9,000. (Id.) Knowing that there was a warrant out for his arrest, he collected $1,500 to give to her. Mr. Babcock spoke with Judge Bivona’s secretary and she told him to come to court on December 7, the Judge’s calendar day. (Tr. at 18.) Mr. Babcock and his fiancee waited in the courtroom until the lunch hour without his case being called. (Id.) They went to lunch and returned at 1:00 PM, as instruc- ted. (Id.) When Mr. Babcock arrived at the courtroom, his case was called. (Tr. at 19.) Judge Bivona asked why Mr. Babcock had not been arres- ted. (Id.) The sheriffs then came and took Mr. Bab- cock into the custody. (Id.) Mr. Babcock was patted down and put into lockup, and later transferred to the OCCF. (Tr. at 20.)

Mr. Babcock had not idea that he was going to be arrested when he voluntarily showed up in Fam-

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ily Court. He had no opportunity to hide any weapons or contraband on his person; he was arres- ted in a public courtroom. When was taken to the OCCF, he was wearing jeans, a belt, a tee shirt and a dress shirt. (Id.) He had no drugs or prescription medications on him. (Id.) In his pockets, he had a wallet, lighter, and bobby pin. (Tr. at 21.) These items were taken from him. (Id.)

*70 Mr. Babcock testified that the admissions procedure at the new Jail was the same as it had been at the old Facility, with the addition of the walk-through metal detector and B.O.S.S. chair. (Tr. at 22, 31.) Mr. Babcock was taken into a separ- ate room and asked to remove his clothes. He was then told to “bend over and cough and pull up [his] privates, turn around, pull up [his] privates in front of them, and then run [his] hands through [his] hair with [his] fingers and open [his] mouth and go be- hind [his] ear’s with his hands. And then they told [him] to get dressed, and so [he] put his clothes back on.” (Tr. at 22–23.) Mr. Babcock testified that after the strip search, he put on his regular clothes and went through a metal detector and B.O.S.S. chair. (Tr. at 23, 31–32.) He stated that he was not given a prison uniform until 1:00 or 2:00 in the morning. (Tr. at 32.)

According to the admissions strip search report filled out for Mr. Babcock, he was strip searched because he activated either the metal detector or B.O.S.S. chair. (PX 9.) Corrections Officer Rick Essig, who signed the report, had no independent recollection of in-processing Mr. Babcock in December, 2001 and thus cannot contradict Bab- cock’s story that he was searched before going through the detectors. (Tr. at 136.)

Gordon Barnum, Jr. was strip searched on Feb- ruary 4, 2002 at the OCCF after being arrested and charged with one count of petit larceny (a Class “A” misdemeanor). (Tr. at 40.) Mr. Barnum is cur- rently at the OCCF on a petit larceny charge. He testified that he has been arrested numerous times over his lifetime, mostly for petit larceny. He also has one drug offense from when he was younger.

(Tr. 35–36.) His January, 2002 arrest stemmed from allegations that he was stealing Tylenol. (Tr. at 37.)

Mr. Barnum explained that the only difference in the intake procedure at the new jail is that the new one has a metal detector and B.O.S.S. chair. (Tr. at 42.) Mr. Barnum testified that he was sent through the metal detectors as he first came into the facility, while he was still in his street clothes. (Tr. at 46.) The officers then took his clothes, strip searched him, and gave him a prison jumper. (Tr. at 37.) Mr. Barnum testified that he has been strip searched every time that he has ever been admitted to the OCCF, and he has been admitted to the facil- ity many times. (Tr. at 43, 110–12.)

Lieutenant De Marco had records for all of Mr. Barnum’s post August, 2001 strip searches. Mr. Barnum was strip searched during his January 21, 2002 admission because he set off the metal detect- or or B.O.S.S. chair and because he appeared to be under the influence of drugs or alcohol. (Tr. at 110.) He also was strip searched on his February 12, 2002 admission because he appeared to be un- der the influence and told the booking officer that he had used crack within the last 24 hours. (Tr. at 111.) He was strip searched on April 15, 2002 for setting off the metal detector or B.O.S.S. chair. (Tr. at 112.)

Defendants contend that all of the strip searches about which the Court heard testimony were constitutionally justified, because the men ap- peared to be under the influence of a substance, or because they set off a metal detection device, or both.

The Experts

Plaintiff presented an expert witness, Roger Boyell, to explain the metal detector technology to the Court. Mr. Boyell designs, develops, and main- tains electronic equipment. (Tr. at 52.) While OC- CF’s machine was the first B.O.S.S. chair that he had ever inspected, Mr. Boyell has experience in- vestigating airport metal detectors and x-ray ma- chines. (Tr. at 54–55.) On June 22, he inspected the

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OCCF metal detectors. (Tr. at 55.) He observed the settings and controls on the walk-through detector and the B.O.S.S. chair. (Id.) He testified that the metal detectors were set to be rather sensitive. (Tr. at 58.)

Mr. Boyell conducted experiments to check the reliability of the detectors. He determined that there was a “high degree of randomness” involved in the triggering of the metal detectors. (Tr. at 71.) Most of the time, a belt buckle would set off the walk- though device. (Tr. at 58.) If metal was placed close to the sides of the machine, where the coils are, smaller pieces of metal would activate the metal de- tector than if *71 metal was placed in the center of the machine. (Tr. at 58.) The sensitivity of the met- al detector also varied at different heights. (Id.) Mr. Boyell noted that a bunch of keys would trigger the machine, even though the keys were outside of the machine. (Tr. at 69.) He testified that, carrying what he usually carries in his pockets, he set off the metal detector every time he went near it because he had a pen, a lighter, keys, and a laser pointer. (Tr. at 70.) He was able to trigger the machine with just the keys most of the time. (Id.) The machine did not respond to the laser pointer alone. (Id.)

Mr. Boyell explained that the underlying tech- nology of the B.O.S.S. chair is the same as that used in the walk-through metal detector. (Tr. at 72.) He found that the chair was very sensitive to the orientation of conductive material. (Tr. at 73–75.) The smallest metallic object he used during his in- spection of the B.O.S.S. chair, his ring, which is conductive but not magnetic, triggered the seat de- tector when about three inches away from the seat, but did not set off the detector when placed off to the side. (Tr. at 72.) Mr. Boyell testified that the B.O.S.S. chair would quite likely pick up the metal on a zipper or the fillings in one’s mouth. (Tr. at 74, 84.)

The County called Patrick Perez to testify about the B.O.S.S. chair used at the OCCF. Mr. Perez works for Ranger Security Detectors, the company that designed and manufactures the

B.O.S.S. chair. (Tr. at 119.) He testified that this chair is used in many prisons across the county, in- cluding over one hundred in New York, and is the state of the art. (Tr. at 124.) Mr. Perez inspected the OCCF B.O.S.S. chair, checking the voltages and sensors on the chair, and determined that the ma- chine was properly calibrated and functioning cor- rectly. (Tr. at 120.) He noted that the sensitivity set- tings were left at the factory standard, the lowest level at which they could be set. (Id.) He testified that the B.O.S.S. chair should not be triggered by a zipper, buttons, studs or a belt buckle. (Tr. at 122.) The chair was designed not to perceive metal in the front of a person, but to pick up objects in a back pocket or in the vaginal or anal cavities. (Tr. at 122–24.) When plaintiffs’ counsel pointed out on cross examination that an inmate form for Derrick Prescod noted that the inmate had set off the facial plate of the B.O.S.S. chair because he had metal fillings in his mouth (PX 5), Mr. Perez testified that he would be surprised if this was the case. (Tr. at 126.) He also testified, however, that metal (such as stainless steel) in someone’s body from a medical procedure (such as a hip replacement) would prob- ably be detected by the B.O.S.S. chair. (Tr. at 127.)

The Data

From August 1, 2002 until February 14, 2002, 731 out of 1,115 detainees (or 66%) were strip searched. From February 15, 2002 until May 31, 2002, 275 out of 591 detainees (or 47%) were strip searched.

Between August 1, 2001 and February 14, 2002, 439 of the 731 documented strip searches were conducted because the inmate activated a met- al detector. (PX 6.) This means that between these dates, 60% of the documented strip searches were justified by the activation of a metal detector. From February 15, 2002 to May 31, 2002, 84 of the 275 detainees, or 31%, were strip searched because they triggered a metal detector. (PX 7.)

From August 1, 2001 through February 14, 2002, 96 of the 731 documented strip searches, or 13%, were conducted because the inmate appeared

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to be under the influence of drugs or alcohol. (PX 6.) From February 15, 2002 to May 31, 2002, 69 out of the 275 inmates that were strip searched, or 25%, were searched for this reason. (PX 7.)

Between August 1, 2001 and February 14, 2002, 54 out of the 731 documented strip searches, or 7%, were conducted because the inmate was brought in for a probation or parole violation. (PX 6.) From February 15, 2002 through May 31, 2002, 27 out of the 275 total strip searches, or almost 10%, were justified because the inmate was brought in for a probation or parole violation. (PX 7.)

Plaintiffs draw the Court’s attention to the fact that since the time this law suit was commenced, the number of strip searches has decreased dramat- ically. I agree that there has been a significant de- crease in the percentage of detainees searched since February.*72 Interestingly, February is when de- fendants were notified of this lawsuit.

DISCUSSION I. Preliminary Injunction

In order to prevail on a motion for a prelimin- ary injunction, a plaintiff must demonstrate:

(a) that it will suffer irreparable harm in the ab- sence of an injunction and (b) either (i) a likeli- hood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.

Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33 (2d Cir.1995) (citing Polymer Technology Corp. v. Mimran 37 F.3d 74, 77–78 (2d Cir.1994); Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam)).

[1][2] The Second Circuit has ruled that strip searches of individuals charged with misdemeanors or other minor offenses are lawful only when “officers have a reasonable suspicion that the ar-

restee is concealing weapons or other contraband based on the crime charged, the particular charac- teristics of the arrestee, and/or the circumstances of the arrest.” Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986). That law has been well settled for some time. Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994); Walsh v. Franco, 849 F.2d 66 (2d Cir.1988). In Shain v. Ellison, 273 F.3d 56 (2d Cir.2001), the Court of Appeals held that the law on this point was so well-settled by July 1995 that qualified immunity was not available to shield an officer from liability for conducting a strip search in the absence of reasonable suspicion on or after that date. A fair reading of Second Circuit law on the subject suggests that strip searches of misde- meanor arrestees will be the exception, not the rule.

A. Irreparable Harm
The right to be free from unreasonable searches

is a constitutional right. See Covino v. Joseph Pat- rissi, 967 F.2d 73, 77 (2d Cir.1992). “When an al- leged deprivation of a constitutional right is in- volved, most courts hold that no further showing of irreparable harm is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (quoting 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2948, at 440 (1973)). Plaintiffs have demonstrated a po- tential deprivation of their constitutionally protec- ted right to be free from unreasonable searches. They have thus satisfied the irreparable harm prong of the analysis.

B. Likelihood of Success or Sufficiently Serious Questions Going to the Merits

[3] Plaintiffs assert that defendants’ strip search policy is unconstitutional because strip searches are conducted in circumstances where there is no reas- onable suspicion that the inmate possesses contra- band. I agree that OCCF’s policy as it currently ex- ists permits—and in some circumstances man- dates—strip searches without reasonable suspicion that the inmate is carrying contraband. Thus, plaintiffs are likely to succeed at trial—or, at the very least, have raised a sufficiently serious ques-

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tion going to the merits to warrant an injunction

pendente lite.

Captain Ryan, who is obviously not a lawyer, included “reasonable suspicion” as a Section 5.3.1 factor. But “reasonable suspicion” is the only factor, because a misdemeanor detainee may be strip searched ONLY if there is reasonable suspi- cion to believe that he is carrying contraband. Fur- thermore, reasonable suspicion must be determined individually for each inmate, in light of the crime charged, and the particular characteristics of the ar- restee or the circumstances of the arrest. While Sec- tion 5.3.1 includes things that might enter into the reasonable suspicion calculation, the factors do not automatically translate into reasonable suspicion, and are no substitute for an individualized analysis of the relevant factors: the crime charged; circum- stances surrounding the arrest to suggest that the detainee is carrying contraband; and characteristics of the detainee that suggest that he might be carry- ing contraband. Weber, 804 F.2d at 802.

*73 Captain Ryan testified that his goal in cre- ating the strip search policy was to diminish the discretion of the individual corrections officer as much as possible by establishing bright line rules for the officer to follow. (Tr. at 100.) Given the his- tory of the OCCF—where corrections officers strip searched every detainee who came through the doors until a year ago—I can certainly understand Captain Ryan’s desire to provide his subordinates with clear standards for conducting strip searches, lest they revert to strip searching every inmate.

Moreover, the factors he selected for inclusion in the policy are sensible enough. For example, the Second Circuit has stated in dicta that being ac- cused of a felony may give rise to reasonable suspi- cion for a strip search. See Shain, 273 F.3d at 65 (“a New Y ork felony defendant’s post-arraignment de- tention may well be an indicator of an increased se- curity risk”); see also Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir.1983). However, it is possible that automatically strip searching everyone arrested for a felony, without having independent reasonable

suspicion to believe that he is secreting contraband, is unconstitutional, since the United States Supreme Court has held that “the assumption that a ‘felon’ is more dangerous than a misdemeanant” is “untenable.” Tennessee v. Garner, 471 U.S. 1, 14, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).FN2

FN2. Garner did not involve strip searches and the Second Circuit has not had occa- sion to address this argument squarely in the context of strip searches. It did, however, use the word “may” rather than the more emphatic “does” when it ad- dressed the point in Shain.

And that explains why the policy devised by Captain Ryan does not pass constitutional muster. Instead of directing an officer to use the denomin- ated factors to ascertain whether reasonable suspi- cion exists, the OCCF policy effectively mandates that they conduct a strip search whenever any factor is present. Captain Ryan’s passing statement about a supervisor’s ability to countermand an automatic strip search is not convincing, especially in view of his testimony—corroborated by Lieutenant De Marco—that the policy was designed to eliminate corrections officers’ discretion. Moreover, it ap- pears that corrections officers are not enlightened about the non-mandatory nature of the policy, since they are not trained to recognize circumstances when a strip search is not warranted even though an inmate exhibits one of the factors. Neither are they instructed when to call in a supervisor for consulta- tion. I have no doubt that, if a new arrival at the OCCF qualifies under any criterion set forth in Sec- tion 5.3.1, he will be strip searched.

Plaintiffs’ concerns about the constitutionality of automatic strip searches simply because an in- mate triggers a metal detector or B.O.S.S. chair, ap- pears to be under the influence of drugs or alcohol, or violates parole or probation, illustrate why the OCCF’s non-discretionary strip search policy is un- constitutional.

1. Metal Detector/B.O.S.S. chair

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The Court did not need the testimony of plaintiffs’ expert to know that walk-through metal detectors can be triggered by non-threatening items. Many of us have had the experience of walking through airport detectors and triggering them with keys or belt buckles or relatively modest jewelry. The lasts in lawyers’ shoes used to set off the metal detector in the Federal Court House in Los Angeles (I know, because mine did), so everyone who walked in had to go through the detector in stockinged feet. There is a “high degree of random- ness” involved in the use of detection devices, and metal detectors sometimes go off for no apparent reason. (Test. of Mr. Boyell, Tr. at 71.) In light of that, there is a serious question about whether these imperfect machines alone can provide reasonable suspicion to conduct a strip search.

This question is important if only because a huge number of misdemeanor arrestees set off the detection devices at OCCF. Between August 1, 2001 and February 14, 2002, 439 of the 731 docu- mented strip searches were conducted because the inmate activated a metal detector. (PX 6.) (The ac- tual number of strip searches performed for this reason may be higher if officers who strip searched individuals forgot to fill out strip search forms *74 during this period.) This means that between these dates, 60% of the documented strip searches were justified by the activation of a metal detector. From February 15, 2002 to May 31, 2002, 84 of the 275 detainees who were strip searched, just under a third, were strip searched because they triggered a metal detector. (PX 7.)

Of course, if most of those who were strip searched after triggering the metal detector were found to be secreting contraband, it might be pos- sible to conclude that the detector alone gave rise to reasonable suspicion. Unfortunately, the County has no idea how many of the people who activated the metal detector or B.O.S.S. chair were conceal- ing weapons or contraband. (Tr. at 108–09.) However, that number is not likely to be too great, since none of the corrections officers who testified

could identify a large number of situations in which contraband was found via strip search. Captain Ry- an testified that there was one occasion where a prisoner had hidden a razor blade in his mouth. (Tr. at 104–05.) He also said that detainees hide metal rings from piercings in the side of their mouths, knowing that these are not allowed in the jail. (Tr. at 105.) But he could not quantify the number of times this has occurred, or indicate how it was that an inmate would know upon his arrival at the jail that piercing rings were contraband. (Tr. at 105.) I thus conclude that a relatively insignificant number of the hundreds of detainees who were strip searched after setting off the metal detection devices were found to have contraband secreted on their persons.

Contrasting misdemeanor arrestees with post- contact visit prisoners, the Second Circuit has noted that, “[i]t is far less obvious that misdemeanor ar- restees frequently or even occasionally hide contra- band in their bodily orifices. Unlike persons already in jail who receive contact visits, arrestees do not ordinarily have notice that they are about to be ar- rested and thus an opportunity to hide something.” Shain, 273 F.3d at 64. Mr. Babcock’s situation illus- trates this point neatly. Mr. Babcock had no idea that he would be arrested when he voluntarily ap- peared in court to answer a charge of non-support. Once arrested, he had no opportunity to hide any weapons or contraband on his person. Yet Mr. Bab- cock—who undoubtedly went through a metal de- tector in order to gain admittance to the Orange County Court House, where he was arrested—was strip searched solely because he set off the metal detector at OCCF. Needless to say, no contraband was found on his person.

Under the prevailing standard in this Circuit, articulated in Weber v. Dell, 804 F.2d 796 (2d Cir.1986), Walsh v. Franco, 849 F.2d 66 (2d Cir.1988) and Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994), no law enforcement officer is permitted to search a misdemeanor arrestee ab- sent individualized reasonable suspicion. Shain v.

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Ellison clarified that the rule of Weber extended to detector, without more, gives rise to reasonable sus- searches of post-arraignment arrestees in a local picion to conduct a strip search. However, the facts jail, such as the OCCF. 273 F.3d at 59. Judge Pool- in Young are vastly different than those in this case. er explained: In Young, corrections officers noticed that a prison-

a person charged with a misdemeanor who re- mains in jail in New York after arraignment probably does so because (a) he cannot afford the bail set; (b) he refuses to post bail; or (c) he was arraigned on a Family Court matter…. None of these scenarios creates a reasonable suspicion that the alleged offender has secreted contraband or weapons.

Shain, 273 F.3d at 65. In the case at bar, one of the three individual plaintiffs who testified was ar- rested on a Family Court matter, and another was arrested for failing to pay a fine imposed after con- viction of a non-violent crime. Neither the nature of the crime charged nor the circumstances of the ar- rest gives rise to the slightest suspicion that Dodge or Babcock was carrying contraband. A strip search of either was constitutionally impermissible. FN3

FN3. Whether Mr. Dodge was in fact strip searched is questionable. I find it unlikely that he was strip searched prior to going through the metal detector, as he testified; there were no other triggers for conducting a strip search based on the OCCF policy; Corrections Officer Fagan testified that he did not strip search Dodge; and there was no strip search form in Dodge’s file. However, it is not impossible that he was strip searched (particularly in view of Cap- tain Ryan’s testimony that some officers forgot to fill out the strip search forms un- til the rule was changed in March, 2002 to require that a form be completed whether or not an inmate was searched). If he was, there would have been no reasonable basis for the search.

*75 Defendants cite Young v. Coombe, 227 A.D.2d 799, 642 N.Y.S.2d 443 (3d Dep’t 1996), in support of their position that activation of a metal

er at the Great Meadow Correctional Facility in Washington County was walking in a suspicious manner. 227 A.D.2d at 800, 642 N.Y.S.2d 443. The officers had the inmate walk through a metal de- tector. When the metal detector did not go off, an officer used a hand-held detector on the prisoner. The hand-held detector went off when it was waived over the groin area of the inmate. The pris- oner admitted that he had a weapon on his person but refused to submit to the strip search. He was eventually subdued and taken to the hospital. At the hospital, a round of live ammunition, a handcuff key and an encased razor blade were found in the inmate’s anus. The Young court held that the strip search was reasonable. Id.

I agree with the Young court that the officers in that case had individualized reasonable suspicion to search the inmate. Indeed, no other conclusion should have been reached. But that hardly settles the question before me, which is whether a policy of strip searching arrestees for no other reason than because they set off a walk-though metal detector or B.O.S.S. chair is constitutionally-compliant. Young has nothing to say on that issue.

Perhaps knowing that their new policy does not satisfy the Weber rule, defendants argue that Weber was implicitly overruled by the United States Su- preme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Supreme Court said the standard for reviewing the constitutionality of prison regulations was “whether the regulation is reasonably related to legitimate penological interests.” Unfortunately for the County, its argument that Turner overturned Weber was squarely rejected in Shain. 273 F.3d at 65. As I told the County at the trial in Lee v. Perez, I am in no position to make any ruling that runs counter to that clear holding.

However, even assuming arguendo that Turner

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overruled Weber, it hardly seems likely that any le- gitimate penological interest is served by strip searching every person who activates a metal de- tector.

[4][5] The four factors to be considered under Turner’s legitimate penological interest standard are: (1) whether there is a valid, rational connection between the regulation and a legitimate, neutral governmental interest; (2) whether there are altern- ative means of exercising the asserted constitutional right that remain open to the inmate; (3) what ex- tent the proffered accommodation of the asserted right will have on prison staff, prisoners’ liberty and the allocation of limited prison resources; and (4) whether the regulation represents an exaggerated response to prison concerns. Deference must be given to prison officials in evaluating their regula- tions. See also Bell, 441 U.S. at 546, 99 S.Ct. 1861.

Without any statistics from the OCCF suggest- ing that a significant number of misdemeanor ar- restees are concealing contraband when they arrive at OCCF, defendants have not made a convincing showing that there exists a rational connection between strip searching misdemeanor detainees who activate a metal detector and safe jail adminis- tration. And the question of whether there are non- burdensome alternatives to strip searching every in- mate who sets off a metal detector or B.O.S.S. chair is readily answered. There are a number of simple things that the corrections officers could do before conducting a strip search to satisfy the reasonable suspicion standard. For example, after patting the detainee down, corrections officers could ask the detainee to empty his pockets before sending him through the metal detector and B.O.S.S. chair. It might be possible, given the configuration of the fa- cility (about which I know almost nothing) for in- mates to change into prison jumpers before being walked through the machines; this would eliminate the possibility*76 that pocket change, belts, or met- al studs on Levis might set off the detector. Finally, when the crime charged and the circumstances of the arrest are such that carriage of contraband is

highly unlikely, inspection by a hand-held metal detector (such as the one used in Young ) could be used to verify the accuracy of a positive reading by the metal detector or B.O.S.S. chair before the drastic measure of a strip search is employed. Giv- en the documented fact that metal detectors over- detect, it is hard to see why any of these simple steps would be overly burdensome to the OCCF.

Thus, whether under Weber or Turner, plaintiffs have raised a serious question going to the merits concerning metal detector activation as a substitute for particularized determination of reas- onable suspicion.

2. The appearance of the influence of alcohol or drugs

Plaintiffs argue that there is no legal justifica- tion for strip searching detainees because they ap- pear to be under the influence of alcohol or drugs. From August 1, 2001 through May 31, 2002, 172 individuals were processed by the Orange County Jail after being arrested for driving while intoxic- ated. Of the documented instances where a strip search occurred, 66 individuals, or 38%, were strip searched because they “appeared to be under the in- fluence of drugs or alcohol.” (PX 6, PX 7.)

Numerous courts have held that an arrest for driving while intoxicated or public intoxication does not provide officers with reasonable suspicion to believe that a misdemeanor inmate is concealing weapons or contraband. See e.g., Stewart v. Lub- bock Co., 767 F.2d 153, 154–57 (5th Cir.1985) (holding that a policy permitting the strip search of persons arrested for misdemeanors, including pub- lic intoxication, without reasonable suspicion that the arrestee possessed weapons or contraband was unconstitutional); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984) (finding that the practice of strip searching a detainee charged with driving while in- toxicated is unconstitutional); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (stating that driving while intoxicated “though not a minor traffic of- fense, was nevertheless one not commonly associ- ated by its very nature with the possession of

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weapons or contraband”); Kidd v. Gowen, 829 F.Supp. 16, 19 (D.N.H.1993) (holding that the County Correctional Facility’s policy of strip- searching intoxicated protective custody detainees violated the Fourth Amendment because it permit- ted such searches without any individualized suspi- cion that the particular detainee might be securing weapons or contraband); and Draper v. Walsh, 790 F.Supp. 1553, 1557 (W.D.Okla.1991) (“public in- toxication by alcohol, which is a less serious of- fense than driving while intoxicated, is likewise an offense not commonly associated by its very nature with the possession of weapons or contraband”); see also Wilson v. Jones, 251 F.3d 1340, (11th Cir.2001) (holding that there was no evidence of reasonable suspicion to believe that arrestee charged with driving under the influence of alcohol was concealing weapons or any other type of con- traband, especially where arrestee was permitted to use the bathroom prior to the search, which indic- ated a lack of fear that she might flush any sub- stance down the toilet).

In Foote v. Spiegel, 118 F.3d 1416, 1426 (10th Cir.1997), the Tenth Circuit stressed the distinction between probable cause to believe that someone is under the influence and probable cause to believe that someone is hiding narcotics on their person. Being charged with driving under the influence, is distinct, for example, from being charged with smuggling drugs into the country or into a prison. As the Foote court noted:

it may be reasonable to believe that a person driv- ing while under the influence of marijuana could have marijuana in a pocket, a bag, or other con- tainer, or somewhere in the vehicle. However, … a strip search could be justified only if it were reasonable to believe persons driving while under the influence of marijuana, who have no particu- lar reason to expect they will be searched, routinely carry a personal stash in a body cavity. That belief is unreasonable.

[6] I, too, find that the appearance of intoxica- tion does not provide reasonable suspicion to be-

lieve that a suspect is concealing *77 weapons or contraband in a body cavity. In this regard, also, plaintiffs have demonstrated serious questions go- ing to the merits of this claim. I reach this conclu- sion without addressing (because I need not ad- dress) the constitutional propriety of searching Mr. Barnum.

3. Violation of Probation
The question of whether there is reasonable

suspicion to strip search an inmate who has come into the facility after a violation of probation is not as clear.

Between August 1, 2001 and February 14, 2002, 54 out of the 731 documented strip searches (or 7%) were conducted because the inmate was brought in for a probation or parole violation. (PX 6.) From February 15, 2002 through May 31, 2002, 27 out of the 275 total strip searches (or almost 10%) were justified because the inmate was brought in for a probation or parole violation. (PX 7.)

I have not been given any information from the defendants that leads me to believe that inmates who have violated parole or probation are more likely to be carrying weapons or contraband. In- deed, defendants have neither explained the nature of the parole violations, nor kept records showing how many violators had contraband on them when arrested. I therefore have no basis to conclude that parole violators as a class are highly likely to rep- resent a greater danger to the OCCF than any other misdemeanant who arrives at the facility. Being ad- mitted for a violation of probation or parole does not in and of itself provide individualized reason- able suspicion for a strip search.

C. Balance of the Hardships
I note that the balance of the hardships tips de-

cidedly in favor of the plaintiffs in this matter. Be- ing strip searched represents a serious intrusion that is often humiliating, even when performed in the most professional manner. See Bell v. Wolfish, 441 U.S. 520, 588, 99 S.Ct. 1861, 60 L.Ed.2d 447

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(1979) (stating that a visual body cavity search is a Plaintiffs’ request for a preliminary injunction “practice [that] instinctively gives us the most preventing defendants from maintaining its current pause”); Id. at 576–77, 99 S.Ct. 1861 (Marshall, J., strip search policy is therefore granted. Plaintiffs dissenting) (asserting that visual strip searches shall submit an order within 48 hours.

“represent one of the most grievous offenses against personal dignity and common decency”); Id. at 594, 99 S.Ct. 1861 (Stevens, J., dissenting) (remarking that visual body cavity searches are “clearly the greatest personal indignity”); Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir.1992) ( “One’s anatomy is draped with constitutional pro- tection…. [A] strip search, regardless how profes- sionally and courteously conducted, is an embar- rassing and humiliating experience.”); Mary Beth G. v. Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) (“strip searches involving the visual inspection of the anal and genital areas [are] demeaning, dehu- manizing, undignified, humiliating, terrifying, un- pleasant, embarrassing, repulsive, signifying de- gradation and submission”). Preventing the deprivation of plaintiffs’ constitutional right to be free from unreasonable searches of this most intrus- ive form is of utmost importance to this Court.

In contrast, the OCCF will not be unduly burdened by changing its strip search policy to con- form to this preliminary injunction ruling. The OC- CF is enjoined from strip searching a detainee based solely on the existence of a Section 5.3.1 factor. For example, corrections officers cannot strip search solely on a positive metal detector read- ing (under the OCCF’s current practice of using the detectors), solely on the fact that a misdemeanor detainee appears to be intoxicated, or solely be- cause he was admitted for a parole or probation vi- olation. Officers at the OCCF may only strip search a detainee if they have individualized reasonable suspicion to do so. They may—indeed, must—evaluate the crime charged, the circum- stances of the arrest, and the detainee’s characterist- ics, including the factors listed in Section 5.3.1. What the OCCF may not do is automatically strip search every detainee who meets any one of the cri- teria on that list. This will not place an undue hard- ship on the OCCF.

II. Class Certification
The Court’s May 29, 2002 decision in this case

noted that the preliminary injunction *78 hearing would assist the Court in determining whether class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure was appropriate, or if par- tial certification under Rule 23(b)(3) was the pre- ferred method of proceeding with class certifica- tion.

Rule 23(b)(2) provides for the maintenance of a class action if “the party opposing the class has ac- ted or refused to act on grounds generally applic- able to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole [.]” Fed.R.Civ.P. 23(b)(2). Class certification under Rule 23(b)(3) is appropriate only if “the court finds that the questions of law or fact common to the members of the class predominate over any ques- tions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the contro- versy.” Fed.R.Civ.P. 23(b)(3).

Class certification under Rule 23(b)(2) is ap- propriate where “broad, class-wide injunctive or de- claratory relief is necessary to redress a group-wide injury.” Robinson v. Metro–North Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir.2001).

[7] The Robinson court established an ad hoc approach to determining whether (b)(2) certifica- tion is appropriate in cases seeking anything other than incidental damages. Robinson, 267 F.3d at 164. The Second Circuit directed district courts to hold a class certification hearing to weigh “the rel- ative importance of the remedies sought.” Id. (citing Hoffman, 191 F.R.D. at 536). The district court should allow (b)(2) certification where:

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(1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought is predominant even though compensatory or punit- ive damages are also claimed, and (2) class treat- ment would be efficient and manageable, thereby achieving an appreciable measure of judicial eco- nomy.

Id. at 164 (internal citations omitted). The min- imum standard for allowing (b)(2) certification is (1) that a reasonable plaintiff would bring suit to obtain injunctive relief even if monetary recovery were not possible, and (2) injunctive relief would be “both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id. The court also warned that “insignificant or sham re- quests for injunctive relief should not provide cover for (b)(2) certification of claims that are brought es- sentially for monetary recovery.” Id.

Since I have now determined that a preliminary injunctive is appropriate in this case, I must weigh the importance of that relief compared to monetary damages. Defendants no longer strip search every inmate who walks through their doors. However, plaintiffs are likely to convince me at trial that de- fendants’ policy still raises constitutional concerns. Given the seriousness of a strip search, I find that a reasonable plaintiff would bring suit to obtain in- junctive relief to prevent future unconstitutional strip searches even if monetary recovery were not possible in this case.

[8] Plaintiffs also draw the Court’s attention to the fact that since the time this law suit was com- menced, the number of strip searches has decreased dramatically. From August 1, 2002 until February 14, 2002, 731 out of 1,115 detainees (or 66%) were strip searched. From February 15, 2002 until May 31, 2002, 275 out of 591 detainees (or 47%) were strip searched. This is a significant decrease in the percentage of detainees that were searched since the Jail was placed on notice of this lawsuit. Plaintiffs suggest, and this Court is inclined to agree, that the standards used by the Jail contain greater room for subjectivity than the Jail would like to admit. I

therefore find that injunctive relief may be import- ant to prevent the Jail from returning to its old ways once this lawsuit is completed.

If plaintiffs succeed on the merits of their claim, injunctive relief would be both reasonably necessary and appropriate. Plaintiffs’ request for in- junction relief is neither insignificant nor a sham, and class certification is therefore granted under Rule 23(b)(2).

The case will proceed in two stages. First, a tri- al will be held to decide what strip search policies the OCCF has maintained from 1991 to the present, whether those policies*79 are constitutional, and whether permanent injunctive relief is appropriate. If the class prevails on these issues, then individual plaintiffs can come forward to litigate the issue of whether their rights were violated and whether they suffered damages. As was true in Maneely v. City of Newburgh, No. 01 CIV 2600(CM), notice will have to be provided to the potential class members in or- der to ensure that their due process rights are pro- tected.

CONCLUSION
Plaintiffs’ motion for a preliminary injunction

preventing the OCCF from enforcing its current strip search policy is granted. Plaintiffs’ motion for class certification is granted pursuant to Rule 23(b)(2).

This constitutes the decision and order of the Court.

S.D.N.Y .,2002.
Dodge v. County of Orange 209 F.R.D. 65

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