Wright et al v. City of Wilmington
Filing
52
REPORT AND RECOMMENDATIONS- granting 30 MOTION to Amend/Correct, denying as moot 15 MOTION for Protective Order, denying as moot 10 MOTION to Dismiss, denying as moot 17 Motion to Compel, denying 3 MOTION to Certify Class. Pleas e note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 2/16/2016. Signed by Judge Sherry R. Fallon on 1/28/2016. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAYVON WRIGHT, ANTOINE MURREY,)
KEITH MEDLEY, GREGORY GRIFFIN, )
and RASHAD EL,
)
)
Plaintiffs,
)
)
v.
)
CITY OF WILMINGTON,
Defendant.
Civil Action No. 13-1966-SLR-SRF
)
)
)
)
REPORT AND RECOMMENDATION
I.
INTRODUCTION
Presently before the court in this in this civil rights action, brought under 42 U.S.C. §
1983, are the following motions: (1) a motion to certify class filed by plaintiffs Keith Medley
("Medley"), Antoine Murrey ("Murrey"), and Jayvon Wright ("Wright") (collectively,
"plaintiffs") 1 (D.I. 3); (2) a motion to dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6) filed by the City of Wilmington (the "City" or "defendant") (D.I.
10); (3) defendant's motion for a protective order (D.I. 15); (4) plaintiffs' motion to compel (D.I.
17); and (5) plaintiffs' motion to amend the complaint and add members of the proposed class
(D.I. 30). For the following reasons, I recommend that the court deny plaintiffs' motion to
certify class, deny as moot defendant's motion to dismiss, deny as moot defendant's motion for a
protective order, deny as moot plaintiffs' motion to compel, and grant plaintiffs' motion to
amend.
1
Plaintiffs seek to include additional plaintiffs as class representatives by way of their proposed
amended complaint. (D.I. 30 at if 5) For the reasons discussed at§ III.A, infra, I recommend
that the court deny plaintiffs' request to add Gregory Griffin ("Griffin") and Rashad El ("El") as
class representatives. For the reasons discussed at§ III.B.2, infra, I recommend that Griffin and
El be added as plaintiffs in the present case.
II.
BACKGROUND2
Plaintiffs initiated this civil rights action under 42 U.S.C. § 1983 on November 21, 2013,
alleging that pursuant to policy and custom, the City handcuffs, transports, searches and
imprisons individuals based on reasonable suspicion rather than probable cause in violation of
the United States Constitution and relevant federal and state law. (D.I. 30, Ex. A at if 27)
Specifically, plaintiffs' proposed amended complaint alleges three separate instances of
constitutional violations by police officers involving five named plaintiffs. (Id at ifif 47-127)
The first instance occurred on November 23, 2011, when Wright allegedly observed
Officer Devon Jones ("Jones"), a member of the Wilmington Police Department ("WPD"),
performing a search of Wright's friend Eduardo Griffin ("Eduardo") over the hood of a police
vehicle. (Id at if 47) Wright walked toward the search, stopped eight to ten feet away from
Eduardo and Jones, and asked Eduardo ifhe needed Wright to call Eduardo's parents for him.
(Id at if 48) Jones responded, "What the [expletive] do you want, shouldn't you be playing
basketball." (Id at if 49) After Wright turned to walk away, Jones allegedly grabbed his arm,
tackled him to the ground, and proceeded to assault Wright for three to five minutes. (Id at ifif
50-51) Wright asked Jones what he was doing, but Jones did not respond to Wright or to his
mother and uncle standing nearby. (Id
at~~
52-54)
Following the assault, Jones handcuffed Wright, searched his pockets, placed him in the
back of a police car, and transported him to a police station. (Id at ifif 58-61) During the course
of these events, Jones never informed Wright that he was under arrest, or identified the crime he
was suspected of committing. (Id at if 60) Wright claims that after he arrived at the station,
2
For purposes of the motion to amend the complaint, the facts alleged in plaintiffs' proposed
amended complaint will be taken as true.
2
officers handcuffed him to a bench and performed an inventory search of his personal effects.
(Id at if 62) After being moved into a jail cell, Wright's handcuffs were removed and he was
told he was being charged with resisting arrest. (Id at ifif 63-64) No one questioned Wright in
the cell, and he was released approximately two hours later. (Id at ifif 65-66) Wright was
charged with loitering and disorderly conduct, but both charges were dismissed prior to trial and
Wright was not charged with resisting arrest. (Id at ifif 67-69)
The second incident occurred on or about March 15, 2013, when plaintiffs Medley and
Murrey were confronted by WPD officers with guns drawn as they left an apartment complex.
(Id at ifif 71-73) The officers instructed both Medley and Murrey to get down on the ground,
and the men responded by lying face down on the pavement. (Id at ifif 74-75) The officers
handcuffed Medley and Murrey, patted them down for weapons, and searched their persons. (Id
at ifif 77-78) One of the officers removed Murrey' s car keys from his pocket, and drove and
searched the vehicle. (Id at ~if 80-82)
The officers then asked Medley and Murrey which apartment unit they had come from,
and brought the men back into an apartment in the complex. (Id at ~if 83-85) The officers
escorted Murrey to a bedroom, removed his handcuffs, and compelled him to remove his
clothing before searching his mouth and between his buttocks. (Id at ifif 86-87, 90-91) The
officers then instructed Murrey to re-dress, handcuffed him again, and returned him to the
apartment's living room. (Id at ifif 92-94) Murrey alleges that one officer held a Taser several
inches from him during this process, and that the Taser would be deployed ifhe moved. (Id at
irir 88-89)
The officers subsequently brought Medley to the bedroom, removed his handcuffs, and
compelled him to remove all of his clothing before searching his mouth and between his
3
buttocks. (Id at ifif 95-97, 100-102) After the search, the officers instructed Medley to re-dress,
handcuffed him again, and returned him to the apartment's living room. (Id at ifif 102-103)
Medley alleges that one officer held a Taser during this process, and he was told that the Taser
would be deployed if he moved. (Id at ifif 98-99)
The officers then searched the apartment unit, and seized a cell phone and a pair of bolt
cutters. (Id at ifif 104, 106) No officer showed Medley or Murrey a search warrant for the
apartment or any other location. (Id at if 105) Medley and Murrey were transported to a police
station, placed in a cell for approximately one hour, and were subsequently released with no
charges filed. (Id at ifif 108-10) The officers did not inform Medley or Murrey why they had
been detained. (Id at if 111)
The third incident occurred on February 3, 2013, when four WPD police officers,
including Officer Andrew Schaub, asked proposed plaintiffs Gregory Griffin and Rashad El if
they had seen which way certain unidentified people fled near the intersection of Lobdell Street
and Chapel Street in Wilmington. 3 (Id at ifif 113-114) Griffin responded, "I don't know, I didn't
see anything." (Id at if 115) The officers took Griffin and El into custody without explanation,
handcuffed them and placed them into a police vehicle. (Id at ifif 116-118) The officers
transported Griffin and El to a police station, where they were handcuffed to a bench. (Id at ifif
119-122, 124) The officers searched Griffin's body until a commanding officer interrupted them
and apologized to Griffin. (Id at if 123) The officers also searched El's body. (Id at if 125)
Neither Griffin nor El was told why they were taken into custody, and neither was charged with a
crime. (Id at ifif 126-127)
3
Plaintiffs' motion to amend the complaint includes averments as to two additional plaintiffs,
Griffin and El, which the court will accept as true for the purposes of deciding the motion to
amend.
4
Plaintiffs' proposed amended complaint alleges that the WPD maintains a written policy
permitting an individual to be taken into custody, handcuffed, transported to the police station,
and held for no more than two hours based on reasonable suspicion. (Id at ~ 29) Under the
WPD's investigatory detention policy, it is normal procedure to handcuff persons suspected of a
crime and transport them to a police station based only on reasonable suspicion. (Id at~ 31)
Plaintiffs also rely on the WPD's Directive 6.lO(K) (the "Directive") in the proposed
amended complaint to establish a factual basis for their allegations that the WPD maintains an
unconstitutional written policy of detaining, transporting, and searching individuals based only
on reasonable suspicion. (Id. at ~~ 37) The Directive allegedly authorizes officers to exceed the
scope of 11 Del. C. § 1902, and assumes many individuals will be detained without probable
cause. (Id at~ 32) According to plaintiffs' proposed amended complaint, the WPD maintains a
Turnkey Prisoner Log ("turnkey log") containing easily identifiable records of individuals
detained pursuant to the Directive. (Id at~~ 38-43)
III.
DISCUSSION
A.
Motion for Class Certification
Plaintiffs move for class certification pursuant to Rule 23 of the Federal Rules of Civil
Procedure, defining the class as follows:
All persons who have been handcuffed, transported, searched, and imprisoned by
Wilmington Police Department based only upon reasonable suspicion of a crime
during a period lasting from November 22, 2011 to the date on which the WPD is
enjoined from enforcing its policy and custom of unlawfully handcuffing,
transporting, searching, and imprisoning citizens based only upon reasonable
suspicion, in contravention of the Constitution, the laws of the United States, and
the laws of Delaware. Specifically excluded from the class are Defendant and any
and all of its respective affiliates, legal representatives, heirs, successors,
employees or assignees.
(D.I. 3 at 1)
5
Pursuant to Federal Rule of Civil Procedure 23(a), the court may certify a class only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there
are questions of law or fact common 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 adequately protect the interests of the class.
In addition to these four requirements, the Third Circuit has adopted an ascertainability
requirement, which is generally considered as a "preliminary matter" before turning to the
explicit requirements of Rule 23. Carrera v. Bayer Corp., 727 F.3d 300, 305 (3d Cir. 2013)
(characterizing class ascertainability as "an essential prerequisite of a class action."); see also
Byrdv. Aaron's Inc., 784 F.3d 154, 162 (3d Cir. 2015). To plead ascertainability, (1) "the class
must be defined with reference to objective criteria;" and (2) "there must be a reliable and
administratively feasible mechanism for determining whether putative class members fall within
the class definition." Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013) (citing
Marcus v. BMW ofN Am., LLC, 687 F.3d 583, 593-94 (3d Cir. 2012)). "If class members are
impossible to identify without extensive and individualized fact-finding or 'mini-trials,' then a
class action is inappropriate." Marcus, 687 F.3d at 593.
A class may only be certified if all four elements of Rule 23(a) are met and at least one
part of Rule 23(b) is met. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 n.6
(3d Cir. 2008). Plaintiffs seek certification under both Rule 23(b)(2) and Rule 23(b)(3). (D.1. 3
at ifif 10-11, 14) A Rule 23(b)(2) class is one in which "final injunctive or ... declaratory relief
is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) sets forth
two additional requirements for class certification: (1) common questions must predominate
over questions affecting only individual members; and (2) class resolution must be superior to
6
other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P.
23(b)(3); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997).
1.
Ascertainability
In support of the motion to certify class, plaintiffs argue that a review of WPD incident
reports over a period of two years is a feasible and economical way to ascertain the class without
extensive or individualized fact finding. (D.I. 3 at if 16; D.I. 18 at if 23) In response, defendant
alleges that the proposed class in the present matter is not ascertainable because the court would
need to conduct individual inquiries regarding each police detention involving individuals who
were handcuffed, transported, searched, and imprisoned by the WPD, and whether those actions
were based on reasonable suspicion or probable cause. (D.I. 12 at ifif 11-12)
Plaintiffs have failed to establish the ascertainability of the class in the present matter. To
ascertain members of plaintiffs' proposed class, the court would have to engage in individualized
fact-finding and "mini-trials" in contravention of Third Circuit precedent. See Carrera v. Bayer
Corp., 727 F.3d 300, 305 (3d Cir. 2013). Sifting through the WPD's records to determine which
individuals were detained under the circumstances identified in plaintiffs' proposed class, and
then determining whether each of those individuals was detained based on reasonable suspicion
or probable cause·, is precisely the kind of inquiry the Third Circuit has held is inappropriate.
2.
Numerosity
Numerosity requires a finding that the putative "class is so numerous that joinder of all
members is impracticable." Fed. R. Civ. P. 23(a)(l); see Newton v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 259 F.3d 154, 168 (2001). "No single magic number exists satisfying the
numerosity requirement," but the Third Circuit generally has approved classes of forty or more.
Behrend v. Comcast Corp., 245 F .R.D. 195, 202 (E.D. Pa. 2007); Stewart v. Abraham, 275 F .3d
7
220, 226-27 (3d Cir. 2001). Other relevant factors in the numerosity inquiry include the "ease of
identifying members and determining addresses, the ease of service on members if joined,
geographical dispersion and whether proposed members of the class would be able to pursue
remedies on an individual basis." Liberty Lincoln Mercury, Inc. v. Ford Marketing Corp., 149
F.R.D. 65, 74 (D.N.J. 1993).
Plaintiffs contend that this action satisfies the numerosity requirement under Rule 23(a)
because the potential number of class members and their dispersed geographical locations render
joinder impracticable, and plaintiffs have shown sufficient circumstantial evidence for the court
to rely on common sense in certifying the class. (D.I. 3 at~~ 2-4) In the alternative, plaintiffs
request precertification discovery. (D.I. 18
at~
4) In response, defendant argues that plaintiffs'
allegations do not demonstrate a pattern of conduct, and plaintiffs' ability to identify only three
potential class members and two alleged incidents4 at this stage in the litigation suggests that
they will be unable to justify class certification. (D.I. 12 at~~ 16-19)
The five plaintiffs 5 identified in the amended complaint are not sufficient in number to
warrant class certification. The turnkey log and other evidence referenced by plaintiffs may
supply the identities of additional class members sufficient to meet the numerosity requirement,
and the Third Circuit encourages the district court to conduct a "rigorous analysis" of the
evidence and arguments that "resolve[s] all factual or legal disputes relevant to class
certification." Marcus, 687 F.3d at 591 (citing In re Hydrogen Peroxide Antitrust Litig., 552
F.3d 305, 316, 307 (3d Cir. 2009)). However, precertification discovery would be futile in this
4
As defendant's answering brief on the motion to certify class was filed prior to plaintiffs'
motion to amend the complaint, it does not address the third incident alleged by plaintiffs
regarding Griffin and EL
5
For purposes of the court's class certification analysis, the court will consider the allegations in
the proposed amended complaint regarding Griffin and EL
8
case because it cannot remove the obstacles to class certification under Rule 23(b), discussed at§
III.A.6 & 7, infra. See Fed. R. Civ. P. 23(d)(l)(D); Thompson v. Merck & Co., Inc., 2004 WL
62710, at *2 (E.D. Pa. Jan. 6, 2004) (stating that a court may order class allegations to be
stricken where "no amount of additional class discovery will alter the conclusion that the class is
not maintainable.").
3.
Commonality
In support of their motion to certify class, plaintiffs contend that this case presents only
one common question of law regarding whether the WPD policy and custom of handcuffing,
transporting, searching and imprisoning individuals based only upon reasonable suspicion is
constitutional. (D.I. 3 at ,-r 5) Plaintiffs suggest that this common question of law can be
resolved by an analysis of common facts relating to purported class members, namely that they
were each subjected to and injured by the alleged policy and custom at issue. (Id) Defendants
respond that issues of fact relating to the existence or absence of probable cause will diverge
between purported class members. (D.I. 12 at ,-r,-r 22-23)
Commonality is satisfied when "the named plaintiffs share at least one question of fact or
law with the grievances of the prospective class." Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.
1994). "Rule 23(a)(2)'s commonality requirement does not require identical claims or facts
among class members. [E]ven a single common question will do." Marcus, 687 F.3d at 597
(internal citations and quotation marks omitted); see also Hanlon v. Chrysler Corp., 150 F.3d
1011, 1019 (9th Cir. 1998) ("The existence of shared legal issues with divergent factual
predicates is sufficient, as is a common core of salient facts coupled with disparate legal
remedies within the class."). The Third Circuit has held that "'class relief is consistent with the
need for case-by-case adjudication,' especially where '[i]t is unlikely that differences in the
9
factual background of each claim will affect the outcome of the legal issue."' Baby Neal, 43
F.3d at 57 (citing Califano v. Yamasaki, 442 U.S. 682, 701 (1979)).
In the case at bar, plaintiffs have sufficiently established commonality. Although certain
issues of fact may vary by class member, the same issue of law applies to all potential class
members' claims regarding "whether the WPD policy and custom of handcuff, transport, search,
and imprisonment based solely on reasonable suspicion is Constitutional." (D.I. 3
at~
5) Thus,
the named plaintiffs "share at least one question of ... law with the grievances of the prospective
class." Baby Neal, 43 F.3d at 56. The commonality requirement does not require a common set
of identical facts among all class members when a common question of law exists. See Marcus,
687 F.3d at 597. Defendant's reliance on the Supreme Court's decision in Wal-Mart Stores, Inc.
v. Dukes is misplaced because the plaintiffs in that case were unable to identify a specific
employment practice that was challenged. 131 S. Ct. 2541, 2555-56 (2011). In contrast,
plaintiffs in the present action identify a specific policy of handcuffing, transporting, searching,
and imprisoning suspects based on reasonable suspicion.
4.
Typicality
"Typicality ... derives its independent legal significance from its ability to screen out
class actions in which the legal or factual position of the representatives is markedly different
from that of other members of the class even though common issues of law or fact are present."
Marcus, 687 F.3d at 598 (internal quotations omitted). However, "[c]omplete factual similarity
is not required; just enough factual similarity so that maintaining the class action is reasonably
economical and the interests of the other class members will be fairly and adequately protected
in their absence." In re Schering Plough Corp. ER/SA Litig., 589 F.3d 585, 598 (3d Cir. 2009).
In assessing typicality, courts within the Third Circuit consider the following three factors:
10
(1) the claims of the class representative must be generally the same as those of
the class in terms of both (a) the legal theory advanced and (b) the factual
circumstances underlying that theory; (2) the class representative must not be
subject to a defense that is both inapplicable to many members of the class and
likely to become a major focus of the litigation; and (3) the interests and
incentives of the representative must be sufficiently aligned with those of the
class.
In re Schering Plough, 589 F.3d at 599.
In support of their motion to certify class, plaintiffs allege that the typicality requirement
is satisfied because any defenses applicable to the class representatives would also apply to
members of the class as a whole, and all class members are seeking the same relief. (D.I. 3 at~
8) In response, defendant alleges that questions regarding whether probable cause was present as
to each class member would become a major focus of the litigation, noting that the Wright
incident resulted in two criminal charges, and plaintiffs fail to allege a lack of probable cause in
the Medley and Murrey incident. 6 (D.I. 12 at~~ 28-29) Defendant further contends that
individualized proof of damages is required because the requested relief is not limited to
declaratory and injunctive relief. (Id.
at~
30)
Defendant plans to assert a defense of probable cause, but there is insufficient
information regarding the other members of the class to determine whether the class as a whole
will be subject to defenses applicable to the class representatives. See In re Schering Plough,
589 F.3d at 600 ("[N]o conclusion as to [the proposed class representative's] typicality can be
reached without knowing more about the composition of the class"). However, a definitive
resolution of this inquiry would not remove the obstacles to class certification under Rule 23(b),
discussed at§ 111.A.6 & 7, infra. See Fed. R. Civ. P. 23(d)(l)(D); Thompson v. Merck & Co.,
6
Defendant's response refers to the original complaint, but the court notes that the amended
complaint reflects no changes in the factual allegations regarding Medley and Murrey. (D.1. 30,
Ex. A at~~ 71-112)
11
Inc., 2004 WL 62710, at *2 (E.D. Pa. Jan. 6, 2004) (stating that a court may order class
allegations to be stricken where "[n ]o amount of additional class discovery will alter th[ e]
conclusion" that the class is not maintainable).
5.
Adequacy
Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect
the interests of the class." Fed. R. Civ. P. 23(a)(4). This analysis requires the court to determine
"(1) whether the representatives' interests conflict with those of the class and (2) whether the
class attorney is capable ofrepresenting the class." See Newton v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 259 F.3d 154, 185 (3d Cir. 2001).
The adequacy requirement is not met under the facts of the present case due to
foreseeable conflicts between Wright and the proposed class. Plaintiffs define the proposed class
to include "[a]ll persons who have been handcuffed, transported, searched, and imprisoned by
Wilmington Police Department based only upon reasonable suspicion of a crime." (D .I. 3 at 1)
However, the amended complaint expressly states that Wright "was charged with two
misdemeanors, loitering and disorderly conduct." (D.I. 30, Ex. A at if 67) On its face, this
allegation distinguishes Wright from the other proposed class representatives and suggests that
he will fall outside the scope of the proposed class.
6.
Rule 23(b)(2) requirements
Rule 23(b)(2) is intended for classes where "final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). A
class certified under Rule 23'(b)(2) must not primarily seek individualized awards of money
damages. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2560 (2011). Where, as here, the
putative class seeks injunctive and declaratory relief as well as compensatory damages, the Third
12
Circuit measures the predominance of money damages in the Rule 23 (b) context using the
"incidental damages" standard set forth by the Fifth Circuit to determine whether the monetary
damages are incidental to the injunctive and declaratory relief sought. See Hohider v. United
Parcel Serv., Inc., 574 F.3d 169, 198-99 (3d Cir. 2009). The Supreme Court upheld application
of the incidental damages standard, explaining that "incidental damage should not require
additional hearings to resolve the disparate merits of each individual's case." Wal-Mart Stores,
131 S. Ct. at 2560 (quoting Allison v. Citgo Petroleum Corp., 151F.3d402, 415 (5th Cir. 1998)).
"[T]he recovery of incidental damages should typically be concomitant with, not merely
consequential to, class-wide injunctive or declaratory relief," and should not depend "on the
intangible, subjective differences of each class member's circumstances." See Allison, 151 F.3d
at 415.
Plaintiffs contend that all damages requested in this case meet the requirements of Rule
23(b)(2) because no individualized hearings on damages will be required and no new substantive
legal or factual issues will be presented. (D.I. 3 at~ 12) Defendant argues that the disparate
factual circumstances of each of potentially thousands of investigatory detentions would require
individualized injunctive or declaratory relief, and that class certification under Rule 23(b)(2) is
inappropriate because each class member would be entitled to an individualized award of money
damages upon a showing of liability. (D.I. 12 at~ 37-38)
Pursuant to the proposed amended complaint, plaintiffs seek "[a] judgment against
Defendant ... awarding damages to Plaintiffs and each Member of the Proposed Class in an
amount to be determined by a jury and/or the Court on both an individual and a Class-wide
basis." (D.I. 30, Ex. A at 19, ~ 2) Plaintiffs also seek a declaratory judgment declaring
defendant's policy and custom unconstitutional, and an injunction enjoining defendant from
13
perpetuating the allegedly unconstitutional policy and custom. (Id at ifif 3-4) However,
plaintiffs also expressly seek "[a]ll lawful damages, including compensatory damages in an
amount to be determined, against Defendant," as well as attorneys' fees and costs. (Id. at ifif 5-6)
The requested money damages are not incidental to the injunctive and declaratory relief
sought. Plaintiffs seek compensatory damages, which "necessarily implicate[] the subjective
differences of each plaintiffs circumstances; they are an individual, not class-wide, remedy."
Allison, 151 F.3d at 417. Determining each class member's monetary damages will require an
individualized analysis of the factual circumstances of his or her detention. Therefore, plaintiffs
fail to satisfy the requirements of Rule 23(b)(2).
7.
Rule 23(b)(3) requirements
To qualify for class certification under Rule 23(b)(3), "(a) common questions must
predominate over any questions affecting only individual members; and (b) class resolution must
be superior to other available methods for the fair and efficient adjudication of the controversy."
In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231, 247 (D. Del. 2002) (citingAmchem
Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997)). The predominance element of Rule
23(b)(3) "tests whether proposed classes are sufficiently cohesive to warrant adjudication by
representation." Teva Pharm. USA, Inc. v. Abbott Labs., 252 F.R.D. 213, 227 (D. Del. 2008)
(citing Amchem, 521 U.S. at 623; In re Warfarin, 391 F.3d at 527). The predominance
requirement incorporates the commonality requirement, but "predominance is significantly more
demanding, requiring more than a common claim." Newton v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 259 F.3d 154, 187 (3d Cir. 2001). In assessing the superiority factor, the court must
"balance, in terms of fairness and efficiency, the merits of a class action against those of
alternative available methods of adjudication." Teva Pharm. USA, 252 F.R.D. at 231 (citing In
14
re Prudential, 148 F.3d at 316). The primary purpose of certifying cases under Rule 23(b)(3) is
"to vindicate the rights of people who individually would be without the strength to bring their
opponents into court [and] ... overcome[] the problem of small recoveries, which do not provide
enough incentive for individual actions to be prosecuted." Jn re Warfarin, 212 F.R.D. at 247
(citing Amchem Products, 521 U.S. at 617).
Plaintiffs argue that common questions of law and fact regarding the constitutionality of
WPD's alleged detention policy predominate over any questions affecting only individual class
members, and pursuing individualized litigation would be impracticable and would increase
delay and expense for both the parties and the court. (D .I. 3 at ~~ 14-15) Defendant responds
that individual control of the prosecution of this action would be in the best interest of the
putative class members, and the failure to join other potential claimants may preclude
maintenance of individual claims after settlement or judgment. (D.I. 12 at~ 40) Defendant also
contends that plaintiffs have failed to offer a reason that claimants cannot present their claims
individually, and notes that 42 U.S.C. § 1983 actions are routinely filed on an individual basis in
this court. (Id.)
The requirements of Rule 23 (b)(3) are not satisfied in the present action because the need
for individualized findings of the factual circumstances and relevant legal classifications
surrounding each detention precludes class certification. The predominance requirement cannot
be met when each individual's "claim raises radically different factual and legal issues from
those of other plaintiffs." Georgine v. Amchem Prods. Inc., 83 F.3d 610, 618 (3d Cir. 1996),
aff'd, Amchem, 521 U.S. 591. In this case, the factual circumstances of detention vary
significantly even between the five named plaintiffs, and each class member's inclusion would
require an analysis of whether the facts and legal character of the detention comport with
15
plaintiffs' theory, and whether probable cause was present in each individual case. (D.I. 30, Ex.
Bat~~
47-127) Plaintiffs have failed to establish that common questions predominate over
concerns affecting only individual class members.
In light of the foregoing analysis, I recommend that the court deny plaintiffs' motion to
certify class. Plaintiffs have failed to establish the ascertainability, numerosity, and adequacy
factors of the Rule 23(a) analysis. Further, because a determination of the proper measure of
monetary damages for each class member would require individualized analysis of the factual
circumstances surrounding detention, certification under Rule 23(b)(2) is improper. Plaintiffs
also do not satisfy the predominance requirement of Rule 23(b)(3), because the legal character of
each class member's detention depends on individualized factual circumstances.
B.
Motion to Amend Pursuant to Rule 15(a)
1.
Legal Standard
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that after a responsive
pleading has been filed, a party may amend its pleading "only with the opposing party's written
consent or the court's leave," and "[t]he court should freely give leave when justice so requires."
The decision to grant or deny leave to amend lies within the discretion of the court. See Foman
v. Davis, 371 U.S. 178, 182 (1962); In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997). The Third Circuit has adopted a liberal approach to the amendment of
pleadings. See Dole v. Arco, 921F.2d484, 487 (3d Cir. 1990). In the absence of undue delay,
bad faith, or dilatory motives on the part of the moving party, the amendment should be freely
granted, unless it is futile or unfairly prejudicial to the non-moving party. See Foman, 371 U.S.
at 182; In re Burlington, 114 F .3d at 1434.
16
An amendment is futile if it is frivolous, fails to state a claim upon which relief can be
granted, or "advances a claim or defense that is legally insufficient on its face." Koken v. GPC
Int'!, Inc., 443 F. Supp. 2d 631, 634 (D. Del. 2006). The standard for assessing futility of
amendment under Fed. R. Civ. P. 15(a) is the same standard oflegal sufficiency applicable under
Fed. R. Civ. P. 12(b)(6). Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Specifically, the
amended pleading must fail to state a claim upon which relief could be granted even after the
district court "tak[es] all pleaded allegations as true and view[ s] them in a light most favorable to
the plaintiff." Winer Family Trustv. Queen, 503 F.3d 319, 331 (3d Cir. 2007); see also Great W
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010).
2.
Analysis
A municipality may only be held liable under § 1983 when the "execution of a
government's policy or custom ... inflicts the injury." Andrews v. City ofPhila., 895 F.2d 1469,
1480 (3d Cir. 1990). A government policy is established by a "decisionmaker possess[ing] final
authority," and a custom arises from a "course of conduct ... so permanent and well settled as to
virtually constitute law." Id (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986);
Monell v. Dep 't ofSoc. Servs. of the City ofNY, 436 U.S. 658 (1978)). Accordingly, a plaintiff
seeking to recover from a municipality must: "(1) identify an allegedly unconstitutional policy
or custom; (2) demonstrate that the municipality, through its deliberate and culpable conduct,
was the 'moving force' behind the injury alleged; and (3) demonstrate a direct causal link
between the municipal action and the alleged deprivation of federal rights." Holmes v. City of
Wilmington, C.A. No. 13-842-SLR, 2015 WL 467989, at *9 (D. Del. Feb. 4, 2015) (citing Bd of
County Comm'rs ofBryan County, Okla. v. Brown, 520 U.S. 397 (1997)).
17
a.
Policy
Policy is created when a "decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action issues an official proclamation, policy, or edict."
Andrews v. City ofPhila., 895 F.2d 1469, 1480 (3d Cir. 1990) (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986)) (internal quotations omitted). In addition to showing the
existence of a policy, 7 "the plaintiff must also demonstrate that, through its deliberate conduct,
the municipality was the 'moving force' behind the injury alleged." Bd. of County Comm 'rs, 520
U.S. 397, 404; see also Glover v. City of Wilmington, 966 F. Supp. 2d 417, 432 ("The
unconstitutional policy or custom can only be the basis for a Monell violation ifthere is a 'causal
link' between the unconstitutional policy or custom ... and the injury.").
Defendant contends that the proposed amended complaint fails to state a claim on policy
grounds because the Directive is not unconstitutional on its face. (D.1. 31 at 8-9) Moreover,
defendant argues that the proposed amended complaint fails to allege the requisite causal link
between the Directive and the injuries sustained by plaintiffs or the absence of probable cause.
(Id at 11) In response, plaintiffs contend that the Directive supports an unconstitutional policy
because it improperly equates arrests and administrative detentions by assuming that many
suspects will be detained and transported without probable cause under 11 Del. C. § 1902. (D.I.
33 at 5-6)
The proposed amended complaint sufficiently alleges a policy in violation of 42 U.S.C. §
1983 because it identifies the Directive as an allegedly unconstitutional policy that caused
plaintiffs' injuries. The amended complaint quotes the portion of the Directive stating that
7
The parties do not dispute the existence of a policy. Therefore, the court will not address this
issue.
18
[m ]any people are picked up as suspects in a particular crime. Until they have
been identified and arrested, we musf remember that they are only suspects. The
majority of such detentions result in the person being released without criminal
charges being placed. They should not be brought to Central or taken from one
location to another, then released to find their own means of transportation.
Officers are to offer to transport them back to the location where they were
originally stopped and provide them with an explanation of why they were
detained.
(D.I. 30, Ex. A
at~
35) The proposed amended complaint then sets forth plaintiffs'
interpretation of the Directive, stating that the Directive "makes it clear that WPD has a written
policy of detaining, transporting, and imprisoning persons merely suspected of a crime based
solely on reasonable suspicion." (D.I. 30, Ex. A
at~
37) The three incidents described by
plaintiffs in the proposed amended complaint, taken as true, support plaintiffs' allegations
regarding the practical application of the Directive because each incident involved the detention
and transportation of individuals without the identification of specific charges. (Id
at~~
4 7-127)
Viewing plaintiffs' characterization of the Directive's language in conjunction with the facts
surrounding the three incidents set forth in the amended complaint, the court concludes that a
reasonable jury could credit plaintiffs' allegations.
The proposed amended complaint also sufficiently demonstrates a direct causal link
between the Directive and the alleged deprivation of federal rights. Specifically, the amended
complaint states that,
[p]ursuant to this WPD policy and custom each member of the Class, including
the named Plaintiffs, were handcuffed, transported, searched, and imprisoned
based only on reasonable suspicion that they had committed a crime.
As a direct and proximate result of the unlawful policy and custom of WPD
handcuffing, transporting, searching, and imprisoning individuals based only on
reasonable suspicion, each member of the class, including the named Plaintiffs has suffered a loss of their liberty, physical injuries, psychological pain,
humiliation, suffering and mental anguish.
19
(D.I. 30, Ex. A at ifif 45-46) Defendant's contention that an officer's subjective belief of the
existence of probable cause constitutes an absolute defense to plaintiffs' allegations is not
persuasive in the context of a Rule 15 analysis, as plaintiffs' allegations are deemed true and
discovery is required to ascertain the merits of the affirmative defenses.
Defendant alleges that the court should disregard the deposition testimony of Gestwicki
and Schifano quoted by plaintiffs in the proposed amended complaint because the testimony is
taken out of context. (D .I. 3 0 at 11) However, at this stage of the proceedings, the facts set forth
in the amended complaint must be taken as true. See Winer Family Trust v. Queen, 503 F.3d
319, 331 (3d Cir. 2007). The court cannot properly resolve challenges to the admissibility or
characterization of this testimony at the pleadings stage.
b.
Custom
Customs, as opposed to policies, are "practices of state officials so permanent and wellsettled as_to virtually constitute law." Wooleyhan v. Cape Henlopen Sch. Dist., C.A. No. 10-153,
2011 WL 4048976, at *4 (D. Del. 2011) (citing Berg v. County ofAllegheny, 219 F.3d 261, 275
(3d Cir. 2000)). A plaintiff may demonstrate the existence of a custom "by showing the practice
is so well-settled and widespread that the policymaking officials have either actual or
constructive knowledge of it." Id. Although a single incident by a lower level employee acting
under color of law cannot establish either an official policy or custom, "if custom can be
established by other means, a single application of the custom suffices to establish that it was
done pursuant to official policy and thus to establish the agency's liability." Fletcher v.
O'Donnell, 867 F.2d 791, 793 (3d Cir. 1983) (Citing Okla. City v. Tuttle, 471 U.S. 808 (1985)) .
. Defendant argues that three alleged incidents over a period of eighteen months are
insufficient as a matter of law to establish a custom, pattern, or practice pursuant to 42 U.S.C. §
20
1983, especially because the factual allegations regarding the majority of the named plaintiffs do
not support a custom claim under plaintiffs' theory. 8 (D .I. 31 at 14-15) In response, plaintiffs
contend that the WPD implemented the practice with respect to each of the five named plaintiffs,
and the turnkey log will facilitate identification of other potential class members. (D.I. 33 at 1314) Moreover, plaintiffs contend that a single application of the alleged custom is sufficient to
establish the existence of an official policy under the facts of this case. (Id)
The proposed amended complaint alleges facts that, taken as true, establish the existence
of a custom of handcuffing, transporting, searching, and detaining individuals based only on
reasonable suspicion in violation 42 U.S.C. § 1983. Allegations regarding the five named
plaintiffs, Gestwicki and Schifano's testimony, and the contents of the turnkey log plausibly
show that the "practice is so well-settled and widespread that the policymaking officials have
either actual or constructive knowledge of it." Wooleyhan, 2011 WL 4048976, at *4.
Specifically, the proposed amended complaint states that it is "normal procedure to place persons
suspected of a crime in handcuffs and transport them to the police station based only on
reasonable suspicion" when conducting an investigatory detention. (D.I. 30, Ex. A
at~
31)
Further, plaintiffs allege that in each of the three specific incidents described in the amended
complaint, plaintiffs were detained, searched, brought to a WPD facility, and eventually released.
(D.I. 30, Ex. A
at~~
47-127) Although Wright was allegedly charged with two misdemeanors
after he was detained, the amended complaint indicates that Medley, Murrey, Griffin, and El
were not charged with any crime, and none of the named plaintiffs were told why they had been
Although Griffin and El are not currently class representatives in this action based on the
court's disposition of the motion to certify class, the amended complaint names them as
plaintiffs, and factual allegations regarding the incident involving Griffin and El may still be
properly considered with regard to plaintiffs' § 1983 allegations.
21
8
detained initially. (D.I. 30, Ex. A
at~~
67, 110, 111, 126, 127) Finally, the amended complaint
asserts that the turnkey log identifies other individuals who have been transported to and
detained in jail pursuant to an investigatory detention. (D.I. 30, Ex. A at~ 39)
Defendant cites City of Oklahoma v. Tuttle for the proposition that showing a pattern in a
42 U.S.C. § 1983 claim requires "considerably more proof than a single incident." 471 U.S. 808,
824 (1985). The court in Tuttle concluded that "[p]roof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker." Id Defendant's assertion that two incidents are
insufficient as a matter of law to establish a pattern of conduct ignores the proposition that a
single application of a well-settled custom is sufficient if it was done pursuant to official policy.
Wooleyhan, 2011 WL 4048976, at *4. Viewed in combination with the factual allegations
regarding the remaining incidents, Gestwicki and Schifano's testimony, and plaintiffs' proposed
interpretation of the turnkey log, plaintiffs have alleged sufficient facts to demonstrate a settled
practice. (D.I. 30, Ex. A
at~~
29, 31, 38-44, 47-127) Alternatively, the amended complaint
sufficiently identifies a custom beyond a single incident by describing the turnkey log and
· Gestwicki and Schifano' s testimony, both of which suggest that the practice of detaining
suspects based only on reasonable suspicion was well-established. See Fletcher, 867 F.2d at
793. At the pleadings stage, plaintiffs have pleaded plausible § 1983 claims.
c.
Moving force
Plaintiffs have also alleged sufficient facts to show that the municipality is the moving
force behind the alleged injury. A pleading sufficiently alleges the "moving force" requirement
when it establishes that "the municipal action was taken with the requisite degree of culpability
22
and a causal link exists between the action and the deprivation." Wooleyhan, 2011 WL 4048976,
at *4. When a plaintiff claims a municipal practice or custom violates federal law on its face,
"issues of fault and causation are straightforward: proof the authorized decision maker deprived
the plaintiff of a federally protected right necessarily establishes the municipality acted culpably
and that the municipal action was the moving force behind the plaintiffs injury." Id. Plaintiffs
allege that they were deprived of federal rights under§ 1983 and the Fourth and Fourteenth
Amendments of the United States Constitution as a result of their detention, search, handcuffing,
and transport. (D.I.30, Ex. A
at~~
38-44, 47-127) Assuming the truth of the amended
complaint's factual allegations regarding the three incidents and the turnkey log, the amended
complaint plausibly alleges that the WPD's custom of handcuffing, searching, transporting, and
imprisoning individuals based on reasonable suspicion resulted in plaintiffs' injuries.
d.
Failure to train
Defendant contends that the proposed amended complaint fails to specifically identify the
allegedly deficient training, or establish a pattern of constitutional violations sufficient to charge
policymaking officials with knowledge of the need for changes to training. (D .I. 31 at 16) In
response, plaintiffs argue that a reasonable inference may be drawn that the officers were trained
to enforce the unconstitutional policy because defendant admitted to maintaining the
unconstitutional policy. (D.I. 33 at 16) Plaintiffs allege that they need not identify specific
training deficiencies at this stage, as long as the pleaded facts show that the need for more or
different training is apparent and the inadequacy of the current training is likely to result in a
constitutional violation. (Id.)
A plaintiff alleges a failure to properly train or supervise employees under 42 U.S.C. §
1983 when "the failure to train amounts to deliberate indifference to the rights of persons with
23
whom the police come into contact." City of Canton, Ohio v. Harris 489 U.S. 378, 390 (1989).
To show a failure to train or supervise amounts to deliberate indifference, a plaintiff must
demonstrate that "(l) municipal policymakers know that employees will confront a particular
situation; (2) the situation involves a difficult choice or a history of employees mishandling; and
(3) the wrong choice by an employee will frequently cause deprivation of constitutional rights."
Carter, 181 F.3d at 357 (citing Walker, 974 F.2d at 297-98)). A failure to train may amount to
deliberate indifference "where the need for more or different training is obvious, and inadequacy
[is] very likely to result in violation of constitutional rights." Carter, 181 F.3d at 357 (citing
Canton, 489 U.S. at 389).
The allegations in the amended complaint, taken as true, sufficiently establish
deficiencies in training amounting to deliberate indifference. Specifically, the proposed
amended complaint states that defendant "failed to adequately and properly supervise and train
its police officers in various aspects of law enforcement procedure, including but not limited to,
the nature and existence of probable cause, on the constitutional limitations on investigative
stops, detentions, searches and seizures, and on the [l]aws of Delaware." (D.I. 30, Ex. A
at~
133) Although this allegation lacks specific details regarding the training program, "the Third
Circuit has recognized ... that a plaintiff cannot be expected to know what training was in place
or how training procedures were adopted without the benefit of discovery." Arnold v. Minner,
C.A. No. 04-1346-JJF, 2005 WL 1501514 (D. Del. 2005) (citing Carter v. City ofPhila., 181
F.3d 339 (3d Cir. 1999)). The Third Circuit has determined that a plaintiff may reasonably
surmise that a pattern of misconduct reflects inadequate training and supervision, but the plaintiff
cannot be "expected to know, without discovery, exactly what training policies were in place or
how they were adopted." Carter, 181 F.3d at 358. Allowing discovery on plaintiffs' claim for
24
failure to train is appropriate in the present case to establish the precise nature of the policies.
For the foregoing reasons, I recommend that the court grant the motion to amend the complaint
as to the policy, custom or practice, and failure to train claims. Plaintiffs may file within thirty
days an amended complaint which conforms to the recommendations herein, i.e., denial of
certification of class but allowance of individual plaintiffs' § 1983 claims.
C.
Motion to Dismiss Pursuant to Rule 12(b)(6)
Having recommended that the court grant plaintiffs' motion to amend, I recommend that
the court deny defendant's motion to dismiss as moot. Defendant may file an answer or motion
in response to the amended complaint in accordance with Rule 12.
D.
Motion for Protective Order & Motion to Compel
In support of its motion for a protective order, defendant requests that the court preclude
discovery until defendant's motion to dismiss and plaintiffs' motion to certify class are resolved.
(D.I. 15) In response to defendant's motion for a protective order, plaintiffs filed a motion to
compel defendant to produce certain pre-certification discovery. (D .I. 17) In light of the fact
that the court recommends denial of the motion to dismiss as moot and denial of the motion to
certify class, I recommend that defendant's motion for a protective order and plaintiffs' motion
to compel be denied as moot.
IV.
CONCLUSION
. For the reasons discussed above, I recommend that the court deny plaintiffs' motion to
certify class (D.I. 3), deny as moot defendant's motion to dismiss (D.1. 10); deny as moot
defendant's motion for a protective order (D.I. 15); deny as moot plaintiffs' motion to compel
(D.I. 17); and grant plaintiffs' motion to amend (D.I. 30).
25
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b). The failure of a party to object to legal conclusions may result in the loss
of the right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874,
878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006).
The parties are directed to the Court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available at
http://www.ded.uscourts.gov/court-info/local-rules-and-orders/general-orders.
Dated: January _2R_, 2016
herry R. Fall n
UNITED\:JS
26
AGISTRATE JUDGE
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