O'Day, et al v. Nassau County, et al

Filing 353

FINDINGS OF FACT AND CONCLUSIONS OF LAW: The Court's Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52 on the issue of general damages sustained by class members are set forth in the attached Memorandum and Order. The parties are directed to appear on Friday, October 1, 2010 at 3:00 p.m. to discuss the next phase of the proceeding. Ordered by Senior Judge Denis R. Hurley on 9/22/2010. (Gapinski, Michele)

-ARL O'Day, et al v. Nassau County, et al

Doc. 353

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------X MEMORANDUM AND ORDER In re NASSAU COUNTY STRIP SEARCH CASES -------------------------------X A P P E A R A N C E S: For Plaintiffs: Giskan Solotaroff Anderson & Stewart LLP 11 Broadway Suite 2150 New York, New York 10004 By: Robert L. Herbst, Esq. Oren Giskan, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 By: Vera M. Scanlon, Esq. Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 By: Matthew D. Brinckerhoff, Esq. Mariann Wang, Esq. Wolf Haldenstein Adler Freeman & Herz, LLP 270 Madison Avenue New York, New York 10016 By: Jeffrey G. Smith, Esq. Martin Restituyo, Esq. For Defendants: John Ciampoli Nassau County Attorney One West Street Mineola, New York 11501 By: Dennis J. Saffran, Esq. Liora Ben-Sorek, Esq. HURLEY, Senior District Judge The captioned case, a class action,1 was tried before 99-CV-2844(DRH)

The class definition is "all persons arrested for misdemeanors or non-criminal offenses in Nassau County who

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me, non-jury, on the issue of general damages sustained by class members as a result of being unconstitutionally2 strip searched at the Nassau County Correctional Center ("NCCC") following their arrests for non-criminal offenses and/or misdemeanors. The purpose of this decision is to provide my Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52. BACKGROUND After extensive pretrial motion practice, including numerous unsuccessful efforts to achieve class certification, plaintiffs, proffering a reconfigured proposed class definition, requested certification pursuant to Fed. R. Civ. P. 23(b)(3) or, in the alternative, for partial certification as

thereafter were strip searched at the Nassau County Correctional Center pursuant to defendants' blanket policy, practice and custom which required that all arrestees be strip-searched upon admission to the facility, from May 20, 1996 until and including June 1, 1999." (Jan. 16, 2007 Order at 2.) In 1999, the Hon. Leonard D. Wexler of the Eastern District of New York held that Nassau County's blanket policy of strip searching all newly admitted misdemeanor and non-criminal charged detainees at the NCCC violated clearly established Fourth Amendment law. Shain v. Ellison, 53 F. Supp. 2d 564 (E.D.N.Y. 1999), aff'd in part and remanded in part, 273 F.3d 56 (2d Cir. 2001). Following Judge Wexler's 1999 decision, Nassau County reported that it "had officially ended its blanket strip search policy." Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004). And, as explained in the text, infra, defendants in the present case have conceded liability as to subject strip searches leaving solely the issue of damages to be resolved. -22

to liability pursuant to then Fed. R. Civ. P. 23(c)(4)(A). Defendants countered by conceding liability, acknowledging that the strip searches of the class members for non-felony offenses were conducted -- with a few possible exceptions which were never pursued ­ absent reasonable suspicion to believe that such arrestees had contraband on their persons upon admissions to the NCCC. Based on defendants' concession, I deleted the liability issue from the certification analysis and found that the damages sustained by the various class members required individual analysis, i.e. did not lend themselves to class treatment. My resulting orders denying the requested relief,

as well as reconsideration of that denial -- dated September 23, 2003 and November 7, 2003 -- were appealed by plaintiffs to the Second Circuit Court of Appeals. The Circuit, by decision

dated August 24, 2006, reversed those orders "to the extent they denied certification as to the issue of liability," In re Nassau County Strip Search Cases, 461 F.3d 219, 222 (2d Cir. 2006), and directed me "to certify a class on the issue of liability pursuant to the definition set forth in the September 23 decision . . . [and] consider anew whether to certify a class as to damages as well." Id. at 231. Accordingly, I

certified a class as to liability as directed, and also sought input from counsel concerning the damages certification issue.

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As a result of that process, the Court, as detailed in its March 27, 2008 Memorandum and Order, reported at 2008 WL 850268, concluded that the general damages sustained by each class member attributable to the affront to human dignity necessarily entailed in being illegally strip searched satisfied the predominance requirement of Fed. R. Civ. P. 23(b)(3) and thus extended class certification to include damages. A jury trial was scheduled to begin on November 30, 2009 on the issue of general damages with the special injuries sustained by individual class members to be resolved in a subsequent damages phase or phases of the proceeding. On

November 26, 2009, counsel for plaintiffs and defendants contacted chambers indicating that their respective clients waived the right to a jury trial to the extent of placing the general damages determination in my hands. The trial was held

on November 30, December 1, 2, 3, 7, 8, 9, 10, 14, 15, and 16, 2009, with counsels' post-trial submissions being finalized via the filing of Defendants' Amended Reply to Plaintiffs' Proposed Findings of Fact on April 23, 2010. Evidence at trial was presented in various forms including the testimony of multiple class members describing the strip searches to which they were subjected upon admission to NCCC, and of numerous correction officers detailing their

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procedures in conducting, cumulatively thousands of such searches during the class period, with the goal being to provide me with an understanding of the steps involved in the process as well as the surrounding circumstances. Initially my Findings of Fact will be provided, followed by Conclusions of Law including the general damages awarded per strip search. FINDINGS OF FACT 1. Each class member was stripped searched by

a correction officer ("CO") upon admission to NCCC following an arrest for a misdemeanor or non-criminal offense absent reasonable suspicion to believe that he or she harbored contraband;3 some class members, due to more than one such admission, were strip searched on more than one occasion. 2. All strip searches of new admittees took

place in the operations area on the first floor of the D Building at the NCCC in either the Male Clothing Room ("MCR")

All class members were necessarily strip searched given the definition of the class. However, the precise size of the class has not yet been determined. Although the parties agree that the non-felony admittees during the class period, and concomitant searches, total approximately 17,000 and 23,000 respectively, defendants contend that not all such admittees were strip searched; some, as the result of the practice of "book and bail," were released from the correctional facility after admission but prior to a strip search being conducted due to bail being posted on their behalf in the interim. (See Trial Transcript ("Tr.") 1911:1-1912:4.) That issue is presently sub judice. -5-

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or Female Clothing Room ("FCR") depending upon the gender of the new admittee. 3. (Tr. at 784:19-25.) It is undisputed that a correction officer

of the same gender as the inmate conducted each search. 4. The parties agree that about 15% of the (Tr. at

strip searched new admittees were female and 85% male. 1909:1-1911:9.) 5.

There was no written procedure or policy in

effect at the NCCC governing the manner in which strip searches were to be conducted, nor was the topic a subject of in-house training. (See, e.g., Tr. at 943:7-944:19, 951:4-24, 1055:25-

1057:3, 1058:12-15, 1186:6-9, 1187:6-9, 1301:10-12, 1803:11-14, 1873:20-25, 1876:22-25; Pound Dep. Tr. (Court Ex. 4) at 106:19107:2.) The Court is mindful that in some of the above cited testimonial references provided in support of these two factual findings, the CO witnesses -- some of whom conducted hundreds of strip searches of new admittees during the relevant time frame (Tr. at 826:22-25, 967:17-19, 1142:11-14) -- did not recall ever seeing a written document or having received inservice training on strip searches as distinct from denying their existence. However, the pervasiveness of the failure to

recollect such institutional guidance being furnished, viewed in conjunction with the absence of convincing, countervailing

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evidence causes me to conclude that neither was provided. Moreover, managerial oversight as to the manner in which strip searches were conducted appears to have been nonexistent. at 944:16-25.) 6. Not only was there an absence of in-service (Id.

training, none of the testifying COs recalled receiving training at the Police Academy on the subject. (See, e.g., Tr. at 1057:21-25, 1298:15-18, 1649:5-7.) Some officers believed

they learned the procedure from colleagues (id. at 1058:16-21, 1624:4-7, 1717:25-1718:3) and, in any event, all testified that they developed their own procedure over time which was in the main consistently followed subject to occasional modifications based primarily on such factors as the age and/or physique of the subject being searched. (See, e.g., id. at 827:5-12, 938:713 (Cpl. Keith Jorgensen: "Everyone has their own method of doing it"); id. at 942:7-25, 1240:11-13, 1414:24-1415:1.) 7. Not surprisingly, given the absence of a

written procedure or formal training, the manner in which the strip searches were conducted varied from class member to class member although there were common core elements. For example,

class member Mary P.4 described the search to which she was subjected on February 16, 1998 thusly: she was directed to, and

Given the sensitivity of the subject matter, the Court has elected to refer to testifying class members by their first names and the first letter of their last names. -7-

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did remove her clothes (Tr. 61:16-62:3), and then, as ordered by the CO, she "lifted [her] arms" (id. at 63:8-21), "lifted and moved her breasts up and then side to side" (id. at 64:1), "r[a]n [her] fingers through [her] hair" (id. at 64:17-18), "squat[ted]," "cough[ed]," "wiggled her toes," "ben[t] over," "cough[ed again]," and "spread [her buttock] cheeks," as well as "st[u]ck out [her] tongue [and] move[d] it side to side." (Id. at 64:23-65:6.) For class member Heidi K., parts of the

search occurred while she was clothed, with the CO beginning the process by checking her hair (id. at 292:1-10) and visually examining her opened mouth (id. 292:14-16). Heidi K. then, as

directed, "undress[ed]," "st[ood] with [her] legs apart and lift[ed her] arms above [her] head," "turn[ed] around . . . ben[t] over and spread [her] buttocks." 293:18.) The strip searches of male inmates again differed inter se (both as to the number of steps and, to a lesser extent, the sequence in which shared steps were performed), and from those experienced by their female counterparts primarily because of physiological differences. Thus, for example, class member Stuart S. detailed the steps of his strip search upon admission to NCCC as beginning with the instruction to "get completely undressed," followed by directions to "run [his] fingers through [his] hair," "flip (Id. at 292:18-

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[his] ears over," "raise his hands straight up" and then "turn around, . . . bend over, and . . . spread [his] cheeks." at 407:19-409:25.) (Tr.

Class member Gregg W. reported that, after

removing all his clothing as directed, the CO "instructed [him] to go through a series of movements . . . [which he did starting with] run[ning his] fingers through [his] hair," "raising [his] arms above [his] head," "open[ing his] mouth, rais[ing his] tongue [and] run[ning] [his] fingers between [his] gum and . . . lips," and then "turn[ing] around . . . exposing the bottoms of [his] feet," and "grab[bing] . . . and spreading [his buttock] cheeks." (Id. at 550:16-552:1.) Class

member Christopher W.'s strip search testimony partially parallels that of Greg W.'s but he, unlike Greg W., was asked to "squat," not bend over or "spread [his] butt cheeks."5 at 1389:18-1390:21.) Although the steps involved in the strip searches varied during the class period based on, inter alia, the inmate's gender, physique, and the identity of the officer conducting the search, each class member was made to endure the gross indignity of being required "to undertake certain movements while he [or she was] naked" (Tr. at 938:21-24), under the scrutiny of the searching officer to assure - as (Id.

Christopher W., unlike the other class members who testified, was called to the stand by the defense as part of their case. (Tr. 1377:3-6.) -9-

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explained in footnote 10, infra, - that no contraband was secreted in any of the inmate's orifices or elsewhere. 8. There is no credible evidence that a CO In

ever touched a class member during the search process.

making that determination, I recognize that class members Heidi K. and Michael F. testified to the contrary with Heidi K. reporting that during her search on October 7, 1996, the officer "put her hands through my hair" (Tr. at 292:9-10), and Michael F. testifying vis-a-vis the search of his person on July 29, 1997 that the officer "fluffed [his] hair . . ., patted underneath [his] arms [a]nd . . . pushed . . . each of the ears forward" (id. at 653:1-15). Although that testimony

dovetails with one of the steps in the 1997 Lesson Plan to be discussed infra,6 given the absence of like testimony from any other search victims, and the credible testimony provided by the officers of having never touched an inmate during a search process (see, e.g., id. at 831:20-25, 1007:14-18, 1631:7-19), I find it is far more probable than not that the recollections of class members Heidi K. and Michael F. of what transpired regarding those particulars over a decade before are

The Court notes that while the lesson plan recites that the searching officer should run his fingers or a wide-tooth comb through an inmate's hair, CO Pound, the author of the lesson plan, testified at his deposition that he "would never do that. [He] would never put [his] hands on an inmate. The inmate would do that." (Pound Dep. (Court Ex. 4) at 73:7-13.) -10-

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incorrect.7 9. Strip searches were conducted during all

three tours at the correctional facility, those being the morning, afternoon, and evening tours. The "vast majority of .

. . searches occurred on the 1430 to . . . 2300 tour," i.e. "the afternoon tour." (Tr. at 1163:5-11.) During that tour,

it was not unusual in the MCR for two, or possibly on "extremely rare" occasions, three officers to be conducting strip searches of a like number of male inmates simultaneously or with a partial overlap in the procedures. 11; see also id. at 996:6-12, 1807:1-5.) (Id. at 1170:2-

It was far less

likely that more than one search would be underway at any given time in the FCR (id. at 1370:23-1371:2), or that more than one CO would be present in the room during a search (id. at 1254:22-25). For both sexes, a CO only strip searched one inmate at a time. 24.) 10. For males, Cpl. Jorgensen testified, and I (Tr. at 996:20-997:8, 1253:13-19, 1370:19-

Neither the testifying class members nor COs were able to identify the other with respect to any particular search. NCCC has essentially no records to fill that void by linking a particular officer to a strip searched inmate. Accordingly, each officer testified based on the strip search procedure he or she used during the class period, with the class members relying on their memories to reconstruct the details of the subject searches. -11-

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so find, that the searches occurred while the inmate was located in a three sided stall, the rear of which was the search room wall, with the two side partitions being 5' 10" in height. (Tr. 807:15-18.)8 The searching officer stood in

front of, and typically several feet from the stall opening during the search process (id. at 1005:20-22, 1388:4-14, 1630:15-21), thereby partially shielding the inmate from the view of others who may have been in the room during the search. The situation for females was essentially the same as for the males as to the size of the stalls (Tr. at 808:4-7) and as to the searches being conducted while the inmate was in a stall. 11. In reaching the conclusion that strip

searches were conducted while the inmate was standing alone in a stall, I considered the contrary testimony given by some of plaintiffs' witnesses. Although such class members as Heidi K.

(Tr. at 291:21-25, 293:21-294:3, 295:12-16), Greg W. (id. at 564:15-17, 568:21-23), and Christopher W. (id. at 1386:14-17), testified that they were strip searched while in a stall -- consistent with the testimony of all defense witnesses to whom the subject was broached -- class member Kevin M. testified to having been searched while standing in front, not within a

Each stall was also 34" wide, with the entrance being 30" in width given a two inch lip on each side of the front opening; the depth of stalls were 48". (Tr. at 807:9-14.) -12-

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stall.

(Id. at 173:8-174:22.)

At the time, according to Kevin

M., three or four other inmates were going through the same process at the same location in his presence. 22.)9 (Id. at 178:19-

And class member Mary P. reported, on direct, that she

and a "Spanish woman" (id. at 55:9-11) were both directed simultaneously, by the same correction officer (id. at 67:6-8), to remove their clothing while both inmates were "right next to each other" in "a very small stall" (id. at 62:9-25 (emphasis added)). To my inquiry as to whether she and the other woman

were in the "same stall," she responded in a somewhat convoluted fashion thusly: "[w]e were right next to each other" separated by "6 inches," coupled with the comment "[j]ust like a board . . . [t]hat's all . . . [no] door." 68:4.) On cross examination, Mary P. explained that the "board" was a partition separating two stalls (Tr. at 84:2585:4) and that she was not claiming -- notwithstanding her earlier testimony that "[w]e were in a stall, a very small stall" (id. at 62:25) -- that both women were searched in the same stall. In any event, given, inter alia, the lack of (Id. at 67:21-

clarity as to this critical part of her testimony, I do not

Parenthetically, class member Oscar A. - discussed infra in text - testified that he did not see any stalls in the room where he was strip searched (Tr. at 481:21-23), even though it is uncontroverted that all male class members were strip searched in the same room which room contained stalls. -13-

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accept as accurate her rendition as to what transpired when she was strip searched including where she was searched in relation to both the stalls in the FCR and to other women under discussion, or that one CO orchestrated both searches simultaneously. Kevin M.'s testimony about himself and four others being stripped while positioned side by side in front of the stalls is similarly not convincing. It fails to dovetail

with other evidence in the record I found to be credible, such as the testimony of Cpl. Weisdorfer and of Cpl. Jorgensen each of whom testified that he invariably used the stalls for their intended purpose, viz. to house an inmate during the strip search process. (See Tr. at 1003:1-10, 829:4-9.) To do

otherwise would serve no constructive purpose,10 and would raise the specter of a tense scenario becoming more so with a likely diminution of the officer's control of the situation. In sum, I find that the subject strip searches occurred in MCR or FCR stalls, i.e. not in front of or

In so concluding, the Court has considered, and rejected as devoid of evidentiary support, the notion advanced by plaintiffs "that the primary purpose . . . of the strip search procedure was to inculcate submission to authority rather than seriously to search for contraband in the bodily orifices of those being strip searched." (Pls.' Comments on Defs.' Proposed Findings of Fact and Conclusions of Law ("Pls. Comments") at 19.) To the contrary, the purpose of the search was to see if an inmate was harboring contraband on his or her person. (See, e.g., Tr. at 997:3-5, 1120:24-1122:1, 1585:9-12.) -14-

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otherwise outside the stalls. 12. Notwithstanding my finding that the

searches occurred within the stalls, I reject the notion advanced by the defense that "the stall provided complete privacy from everyone other than [the] C.O. conducting the search." (Defs.' Proposed Findings of Fact and Conclusions of From the evidence it is

Law ("Defs.' Prop. Findings") at 3.)

more likely than not that other COs if in the room (as certainly would not be unusual, for example, during a MCR afternoon search), as well as inmate workers and/or other new admittees upon entering or leaving the area, saw class members in various states of undress. That evidence includes not only

testimony of various witnesses concerning the layout of the strip search areas and the usual locations of the strip search participants, but also a number of the photographs in evidence such as defendants' UU5 (Tr. at 1667:1-22, 1672:8-13), as supplemented by my personal inspection, with counsel, of those areas during the course of the trial. Under the attendant

circumstances, surely some of the class members were viewed while being strip searched by others besides the officer conducting the search. (See also, e.g., id. at 297:2-6 (given

that class member Heidi K. could see the CO at the desk during the strip search presumably that officer could also see her); id. at 1635:3-25 (CO Rogers testified that he has seen inmate

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workers sitting at the desk in the MCR during the strip search process, i.e. being at the same vantage point as the CO referenced in Heidi K.'s testimony); id. at 1665:13-23, 1667:17-22.) 13. Although it is clear to me that class

members were surely observed by individuals besides the searching COs for the reasons provided in the prior paragraph, I do not accept as credible the testimony of Oscar A. concerning that subject. of clarity. His testimony was less than a model

Initially he seems to say that upon entering the

MCR (Tr. at 467:4-5; see also id. at 486:6-9) he observed an "underdressed" inmate (id. at 467:10) in "the corner of the room" (id. at 486:11) and was told that the naked inmate was being punished, coupled with a warning that the same punishment would be inflicted on "whoever want[s] to be funny, you go, stand up naked in the corner of the room." (Id. at 495:4-14.)

Later, Oscar A. explained that he saw the naked inmate before he, Oscar A., entered the room, while he was in the "frame of the door." (Id. at 492:5-6.) Oscar A. also explained that

when he spotted the naked inmate in the corner, he saw another man, apparently at the end point of being strip searched, "five feet" from the first, so that the two were naked simultaneously. (Id. at 489:19-23.) As noted in footnote 9,

supra, Oscar A. did not recall that the MCR had stalls, nor was

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his recollection refreshed upon being shown photographs of the room. The scenario portrayed by Oscar A. is devoid of any support elsewhere in the record, and is directly at odds with the credible testimony provided by CO Rogers (Tr. at 1638:8-10), who signed Oscar A.'s clothing card (id. at 1636:11637:3), and accordingly, may, but not necessarily, have been the searching officer or at least one of the officers on duty at the time. Simply put, having observed Oscar A.'s demeanor

and viewing this portion of his testimony in the context of the total evidence, I find that plaintiffs have not established that this incident occurred or, incidently, that a strip search was ever conducted during the relevant time frame at NCCC to punish an inmate. 14. In addition to not accepting the above

discussed portions of Oscar A.'s testimony, Mary P.'s testimony about her observing three men in the large room looking at her while she was undressed with respect to a later transportation search is not found to be credible. Not only is the relevance of what may have occurred during a post-admission transportation search problematic with respect to the issue of general damages caused by class members being illegally strip searched upon their admission to NCCC, but, as noted earlier, I have significant

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reservations as to this witness's credibility. I find that no credible evidence has been presented to establish that one or more class members were likely to be, or were observed by a member of the opposite sex while being strip searched upon admission to NCCC. 15. Several of the plaintiff class members

objected to the language and/or tone of voice used by the COs during the strip search process. 20, 728:11-16.) Class member Kevin M. testified that as he spread his buttock cheeks, as directed during his strip search on March 29, 1997, the CO conducting the search said "that the boys are going to love this" (Tr. at 179:22-180:1-13), to which Kevin M. responded "you must really love your job" (id. at 180:14-18). The exchange ended with the CO supposedly saying: (Id. at 180:19-20.) Kevin M. (See, e.g., Tr. 179:22-180:1-

"Shut the F up and get dressed."

was arrested and strip searched again at NCCC on April 23, 1998. (Id. at 199:17-200:12.) The CO at that time, unlike his

counterpart a year earlier, was reported by the witness to have conducted the strip search in a professional manner, free of rude comments or remarks. (Id. at 272:25-273:5.)

As previously explained, I do not believe Kevin M.'s testimony as to having been strip searched together with other inmates while positioned in front of stalls in the MCR.

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My reservations concerning his testimony as to that critical issue carries over to his testimony vis-a-vis the purported verbal exchange. Simply put, plaintiffs have not established

by a fair preponderance of the credible evidence that the CO who conducted that search used the language ascribed to him by Kevin M. As to the tone of voice employed by COs, the evidence fails to indicate that it was inappropriate given the context. Even Kevin M., while unconvincing complaining as to

what was said, explained that the general tone of the CO's comments, i.e. "bark[ing] orders," was akin to the practice "in the military" of issuing "quick commands." (Tr. at 276:2-24.)

That Mary Beth P. perceived the "demeanor or tone" of the female CO in her case as being "offensive" in the sense "she was talking down to [her]" is certainly understandable under the circumstances, that perception, while arguably germane to the special damages portion of her claim, is insufficient to suggest that the tone utilized by the COs was more authoritative than required and, thus, should be deemed an aggravating factor relevant for purposes of assessing general damages. To the contrary, I find based primarily on the

credible evidence provided by the testifying COs, that the subject searches were conducted in a professional, business like manner. (See also id. at 350:11-25 (class member Heidi K.

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acknowledges COs demeanor as being professional albeit "very authoritative and commanding"); id. at 426:9-25, 588:17-25; id. at 698:24-699:11 (class member Michael F. describes CO's "abrupt" demeanor as being a "no nonsense" approach).) 16. Class member Michael F. testified that the

CO who strip searched him utilized a flashlight "to look in [his] mouth and ears." (Tr. at 657:16-20, 700:19-701:1.) Although that testimony dovetails with one of the steps in the 1997 Lesson Plan to be discussed infra, none of the COs who testified said they were familiar with the 1997 Lesson Plan either as a result of his or her training at the Police Academy11 or otherwise, and all the witnesses -- both those searched (except Michael F.) and those conducting the searches -- either did not mention or denied that an officer used a flashlight during a search. Moreover, a review of the record

listing Michael F.'s personal property at the time he was admitted to the facility includes a flashlight, suggesting he saw a flashlight that day but not in the hands of a CO. at 887:3-7.) (Id.

That fact, coupled with, inter alia, his several

earlier arrests and accompanying strip search or searches (id. at 686:16-25, 689:21-691:8), as well as the time lapse between the search now under discussion and the time of his testimony,

11

Each of the testifying COs attended the Academy prior to -20-

1997.

causes me not to accept this portion of what he had to say. 17. Several male class members testified that

they were required to lift their scrotums during the course of being strip searched. 21.) (See, e.g., Tr. at 2017:10-13, 2051:15-

None of the testifying COs testified that that step was However, it will be recalled

included in his search procedure.

that none of the COs were able to definitively identify a particular class member that he searched. The testifying class

members similarly could not identify the CO who strip searched them. There is no reason to believe that the testifying COs

were the only officers who searched male new admittees to NCCC during the class period. Although I have found that the COs

who testified endeavored to accurately depict their respective search procedures, any lack of synchronization between their testimony and that of class members does not mean that either necessarily fabricated what transpired. Based on the trial

evidence, I conclude that although a requirement that a male inmate lift his scrotum during a strip search was not the standard practice, it did occur with some frequency. In

reaching that conclusion, I have considered the April 3, 2000 Declaration of Jerome P. Donahue, ("Donahue") a Deputy Undersheriff in the Nassau County Sheriff's Department. Therein Donahue avers that "[t]he strip search procedure for

all inmates charged with misdemeanors or less consisted of the

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inmate being asked by the Corrections Officer to run both hands' fingers through his hair to dislodge any contraband, to raise his arms exposing his arm pits, to grab his testicles, lift them and squat down to ensure that no contraband is hidden in his groin area and open his mouth and move his tongue." (Donahue's Apr. 3, 2000 Decl. (Court Ex. 3) at ¶ 13.) That

declaration was submitted "in opposition to plaintiffs' motion to certify a class action." (Id. at ¶ 1.)12

In arguing that the Donahue Declaration should not be accepted into evidence and, if accepted, should be afforded little weight, defendants endeavor that supposedly "Donahue did not himself conduct any strip searches of new admits during the class period," that he "did not write or draft the affidavit himself" and that during his trial testimony he "acknowledge[d] that the reference to lifting testicles was a mistake." (Defs.' Prop. Findings at 15.)

However, during cross examination Donahue admitted that he had "occasion to go . . . into the male clothing room as a supervisor" and that he "saw strip searches being done . . . but . . . didn't observe them being completed." 2102:6-21.) (Tr. at

He further acknowledged that he recalled signing

each of the two declarations, viz. Court's exhibit 2 and 3,

Deputy Undersheriff Donahue submitted a like Declaration fifteen months earlier in Shain, 53 F. Supp. 2d 564 in which the above quoted language appears verbatim. (Court Ex. 2, ¶ 9.) -22-

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that he read each of them for accuracy prior to signing them, that he understood the declarations made were made "under the penalty of perjury," and that his sworn statements were being submitted to advance defendants' position. 2104:15.) (Id. at 2103:17-

He also acknowledged that he met with counsel "with

respect to the preparation of these documents [i.e. his Declaration in Shain and in the current case]." 2105:12-16.) (Id. at

During an examination before trial he indicated

that he "understood that the statement about the strip search procedure itself was based on [his] knowledge of how things were done." (Id. at 2107:3-6.) Under the circumstances,

defendants' effort at trial and in their post-trial submissions to distance themselves from the witness's sworn declarations is unavailing.13 In sum, it appears that some class members were required to lift their scrotum as part of the strip search process. 18. Among the plaintiffs' Proposed Findings of

Fact is the following: "If a person refused to submit to a strip search upon admission, it would be met with a show of force in which officers would come into the strip search room

Cpl. Jorgensen testified at deposition that a direction that an inmate lift his scrotum was "optional" (Tr. at 941:4942:2), which calls into question the legitimacy of defendants' apparent bright line denial that such a step, as testified to by several class members, was part of some strip searches. -23-

13

and surround the person to ensure that the person submitted to the search." (Pls.' Proposed Findings of Fact and Conclusions Such episodes,

of Law ("Pls.' Prop. Findings") at 23, ¶ 89.)

however, may not legitimately be deemed part of the common or core experience of new admittees at the NCCC. CO Sutch, who

provided the information about shows of force to plaintiffs' counsel during cross examination testified that he had only seen it happen three or four times during the class period. (Tr. at 1797:5-11.) But beyond that, the testifying COs

provided the Court with their respective procedures for conducting strip searches without drawing a distinction between admittees that were charged with misdemeanor or lessor offenses and those facing felony charges. None of the class members

called to the witness stand by plaintiffs' counsel testified of experiencing or witnessing a show of force, nor is there any other evidence supporting that a class member was subjected to a show of force. 19. Concerning the duration of the searches

from beginning to end, the time varied depending on a number of factors including, inter alia, the amount of clothing worn by the inmate, the inmate's familiarity with the process, the speed with which the inmate complied with the directions given, and again, the number of steps involved in the particular CO's strip search procedure.

-24-

The thrust of the testimony of Cpl. Jorgensen was that the whole process took more than a minute and could, depending on the circumstances, take up to three minutes, and possibly longer. (Tr. 937:14-20.) Indeed, on cross, he

acknowledged that it "could take up to ten or 15 minutes" (id. at 937:24-25), if "[t]he inmate . . . injury, [or was] an older person." [had] an infirmity, an CO

(Id. at 971:24-972:9.) [the inmate] started

Sutch estimated that "[f]rom the time

getting undressed until the time [the strip search] was completed [was] . . . [f]ive minutes." 1787:6.) (Id. at 1786:25-

He, like Cpl. Jorgensen, acknowledged that the

process "could" extend to "fifteen minutes" depending on "how much clothes he was wearing, [and] how slow the process was going." (Id. at 1787:7-10.) The strip search process, in CO

Weisdorfer's view, "generally took between 2 and 3 minutes." (Id. at 1100:8-10.) In sum, I find that "the length of the strip search procedure varied depending on `a lot of variables,' and generally ranged from three minutes to five minutes . . . ." (Pls.' Prop. Findings at 20, ¶ 74.) Defendants do not take issue with that estimated time frame. (Defs.' Amended Reply to Pls.' Proposed Findings Instead, their objection

of Fact ("Defs.' Reply") at 17.)

targets the portion of plaintiffs' proffer that grafts onto the

-25-

five minute period the further claim that the strip search procedure "`generally ranged . . . [up] to 15 minutes for some new admittees who were older or moved more slowly.'" (Defs.' As

Reply at 17, quoting from ¶ 74 of Pls.' Prop. Findings.) aptly explained by defendants: No CO witness testified that the strip search procedure "generally" lasted 15 minutes. The testimony regarding "15 minutes" was given in response to a question regarding the maximum time a strip search "could take" (Jorgenson [sic] and Sutch). This hardly qualifies as the time a strip search "generally" took, and should not be construed as the timing of the typical new-admit search. Additionally, it is clear that the estimates cited to by plaintiffs in this regard encompassed the whole process of undressing, being searched, and getting dressed again. These estimates do not at all reflect the time that the inmate spent unclothed or performing the steps that comprised the actual strip search itself. (Defs.' Reply at 17.) This takes us to the single most important

finding of fact for present purposes, that being the period of time an inmate generally stood naked before the CO conducting the search while going through the various directed contortions.14 Here, again, estimates vary. (See, e.g., Tr.

The trial evidence on time of exposure was generally limited to the time an inmate was totally naked. Accordingly, the estimates in the text are based on that evidence and not, for example, to possible subsets of that condition such as how long a female inmate's breasts were uncovered while other private parts of her anatomy were clothed. -26-

14

252:20-22 (class member Kevin M. -- less than a minute); id. at 425:25-426:5 (class member Stuart S. acknowledged that "from the time . . . that the officer came to stand in front of [his] compartment and started giving [him] the instructions that [he] described, until the time [he was] able to put [his] underwear back on, no more than 20 seconds elapsed"); id. at 832:1-3 (Cpl. Jorgensen testified that generally an inmate he was strip searching would be fully unclothed for 10 to 15 seconds); id. at 1006:15-17 (CO Weisdorfer estimated that, pursuant to his "routine," the inmate generally was "fully unclothed" for "less than 5 seconds"); id. at 1396:8-11 (class member Christopher W. - naked for approximately one minute); id. at 1631:20-24 (CO Rogers estimates from the time "they took their underwear off until time [he] handed it back to them [was, he] guess[es] eight to ten seconds); id. at 1727:7-21 (CO Sutch testified that typically an inmate familiar with the process would be totally naked for "20 [to] 30 seconds" and for an inmate who lacked that familiarity "30 seconds to a minute"); id. at 2074:12-14 (class member Jamar W. stated he was in "the state of undress" for less than 45 seconds); id. at 2145:18-2146:5 (CO McGovern testified that inmates typically were fully naked when strip searched by him for "probably . . . 10 to 12 seconds"; at his deposition he estimated the relevant time frame to be "a minute or two" (id. at 2147:6-8), but at trial,

-27-

CO McGovern explained that he believed his answer at deposition was flawed and that "the fully naked portion of the strip search couldn't have been more than 10 to 20 seconds" (id. at 2150:9-23); see also id. at 2157:6-8 (CO Peletier said that typically an inmate would be fully disrobed for "30 [seconds], maybe a minute.").) Based on the above testimony and other evidence adduced at trial, including the various steps that the individuals were required to perform while naked and the apparent time required to complete those steps, I find that the plaintiff class members were typically naked for approximately 30 to 45 seconds. 20. In reaching the conclusion regarding the

period of time class members were typically naked, I considered, but ultimately rejected the testimony of class members Mary Beth P. and Michael F. Mary Beth P. was strip searched on September 22, 1996. On direct, she stated that she was "fully naked" for Maybe a little less." (Tr. 730:10-12.)

"ten minutes.

However, on cross examination, she was asked to go through the steps of her strip search and to give an estimate of the time devoted to each of those steps. Upon completion of that line

of inquiry, she conceded that the total time she was naked "might have been" less than ten minutes (id. at 740:10-12) and,

-28-

indeed, might have been a minute or less although she seemingly found that shorter period problematic, explaining that she "d[idn't] remember it being that short a period of time." at 740:5-9.) (Id.

Given Mary Beth P.'s uncertainty as to the time

she was totally naked, I attached little weight to this portion of her testimony. Seemingly, plaintiffs' counsel did the same

for her estimate as to this critical general damages element does not appear in their synopsis of her testimony (see Pls.' Prop. Findings at 14-15), and is likewise absent from the paragraph in their submission dealing with the time class members purportedly "stood fully naked in front of the officers." (Id. at 20-21, ¶ 75.) Michael F. was strip searched July 29, 1997, when he carried approximately "310 pounds" on his "[f]iveseven" frame. (Tr. at 644:1-9.) He testified, and I accept,

that there was no appropriately sized uniform readily available in the strip search room and, accordingly he was required to wait in a "separate room" for one to be produced from elsewhere in the correctional facility. (Id. at 655:6-19.) "[T]here

were two inmate workers in [that] room" (id. at 655:20-22), where he remained for "[a]round a half hour" while "still naked" (id. at 656:1-13), at least until he was given his "underpants [which he] put on." (Id. at 656:17-19.)

I cannot discern from the record when his

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underpants were furnished, i.e. for how long he remained totally unclothed during the strip search process. Moreover,

Michael F.'s experience represents an aberration from the typical strip search conducted of NCCC new admittees during the class period. As such, its sole relevance, if any, is tied to

Michael F.'s claim for special damages, not to the issue of general damages. And here, again, it warrants mention that

Michael F.'s situation, while detailed in plaintiffs' outline of his trial testimony, is not mentioned in their proposed Findings of Fact regarding the time period class members were naked during strip searches they were illegally required to endure. (See Pls.' Prop. Findings at 20-21, ¶ 75.) 21. Before proceeding to the Court's

Conclusions of Law, one last issue remains to be addressed: the admissibility of the 1997 Lesson Plan, (Pls.' Ex. 1), which plaintiffs sought to introduce into evidence at the trial.15 The Court reserved decision on that application after hearing arguments of counsel. (Tr. at 2137:19-2143:24.) The lesson plan

Some background is in order.

was developed by CO Pound ("Pound") while an instructor for new recruits using an earlier lesson plan he was given. Dep. at 44:11-23, 58:6-60:7.) (Pound

The lesson plan covered all

The admissibility of the 1997 Lesson Plan implicates a mixed question of fact and law. -30-

15

strip searches, not just strip searches of new admits. 70:13-22.)

(Id. at

It was not shown or distributed to the recruits. According to Pound, he

(Id. at 117:23-118:7, 135:13-136:3.)

used the lesson plan as a "brief overview" (id. at 56:25-57:3, 82:8-83:4, 127:13-22), modifying the plan as he taught (id. at 96:20-98:3, 138:16-140:11, 143:22-144:10). Pound never did a

new admit strip search (id. at 53:11-54:12); for the non-new admit strip searches he did conduct, he often departed from the strip search procedures set forth in the 1997 Lesson Plan. (Id. at 72:21-77:6.) It was Pound's "understanding" that the

COs conducting new admit strip searches "were using this procedure one through seven" referring to the seven steps listed in Phase III of the 1997 Lesson Plan. see also id. at 56:25-57:8.) (Id. at 72:2-16;

It is not clear whether Pound's

"understanding" was attributable to "personal knowledge," Fed. R. Evid. 602, or otherwise. Plaintiffs maintain that "[t]he only writing in existence on the procedure to be used to conduct a strip search is the 1997 lesson plan authored by CO Pound[.]" Findings at 17.) (Pls.' Prop.

As such, plaintiffs seek its admission as a

basis for this Court to find that the searches conducted upon class members comported in all material respects with the steps set forth in the lesson plan. In opposing the introduction into evidence of

-31-

the 1997 Lesson Plan, the defendants have synopized their position thusly: In seeking to introduce into evidence . . . the 1997 Lesson Plan, and then heavily relying on it in their proposed Findings of Fact, plaintiffs seek to draw the Court's attention away from evidence that demonstrates how the new-admit strip searches were actually conducted and experienced. They essentially propose that the Court should ascribe more weight to that document as a description of the class experience than to testimony by correction officers who actually conducted the searches of new admits during the relevant time period -- and they propose this despite the fact that not one of their own witnesses testified that the strip search he or she experienced matched the procedure set forth in that document. (Defs.' Reply at 10.) In plaintiffs' view, the 1997 Lesson Plan is admissible as "an admission by the County as well as a business record . . . ." (Pls.' Letter dated Nov. 17, 2009, filed as Proceeding in reverse order, the Court

Dkt. No. 274, at 6.)

will initially consider plaintiffs' proffer under Fed. R. of Evid. 803(6) which is based on the following excerpt from Pound's September 30, 2009 deposition: Q. Let me try again. I understand you were handed a document similar to this that had been prepared earlier and it was given to you by Sergeant Figliola? A. Yes.

Q. But when you prepared this document from that document, did you do that -32-

pursuant to your duties and responsibilities at the jail? A. Yes.

Q. Did you do it in the ordinary course of your duties and responsibilities and business at the jail? A. Yes.

Q. Did you make and keep this document in the course of your ordinary business at the jail? A. With the New York State Commission of Corrections lesson plan, yes. (Pound Dep. at 152:17-153:12 (referenced in Pls.' Prop. Findings at 17, n.5).) The answers given by Pound at his deposition are insufficient to warrant the 1997 Lesson Plan's receipt into evidence under Fed. R. Evid. 803(6). That the witness, at

deposition, answered the leading foundational questions asked by counsel in the affirmative is not dispositive on the issue of admissibility when the concomitant substantive evidence is to the contrary. In such a situation, form is necessarily

trumped by substance lest the purpose of the rules of evidence be perverted. See Fed. R. Evid. 102. Here, Pound prepared one The mere

lesson plan during his multiple years of service.

fact that the lesson plan was prepared while Pound was in the County's employ does render his work product a business record. The same is true of the predecessor plan upon which Pound's

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plan was modeled, the origins and use of which stand largely undeveloped. The business records exception to the hearsay

rule16 rests on the "regularity" and the "routine" embodied in the preparation of the record sought to be introduced; the "record must [also] be made contemporaneously with what it records or reports." 4 Fed'l Evidence § 8:77 (3d ed.). Simply

put, a juxtapositioning of the cited portions of the deposition testimony of Pound and, incidentally, of Sergeant Harrs as well,17 with the rationale underlying the business records exception indicates a misfit. See Seattle-First Nat'l Bank v.

Randall, 532 F.2d 1291, 1296 (9th Cir. 1976)(bank's loan procedure manual not admissible under the business records exception to the hearsay rule); Gonzalez v. City of Garden Grove, 2006 WL 5112757 (C.D.Cal. Dec. 4, 2006) (training manuals inadmissible hearsay); see also 4 Fed'l Evidence § 8:77 (3d Ed.) ("It seems that Fed. R. Evid. 803(6) does not embrace operating or procedural manuals . . . . do not fit the terms of the exception. Such documents simply They do not report or

assess particular matters . . . and the contemporaneity

Fed. R. Evid. 801(d) indicates that an admission by a party-opponent is not deemed an "exception" to hearsay rule but rather as being "exempt" from the rule as non-hearsay. Graham, Handbook on Evidence, § 801:15. Plaintiffs also refer to Sergeant Harrs' deposition, Court Exhibit 5, as to the purported significance of the 1997 Lesson Plan. (Pls.' Prop. Findings at 17-19.) -3417

16

requirement has no ready application, and they are not materials that are prepared on a regular or recurrent basis."); 12A Fed. Proc., L. Ed. § 33:445 ("Although the scope of [Rule 803(6)] is broad, it is not unlimited; for example, it does not embrace operating or procedural manuals, which are not records of any act, transaction, occurrence, or event as required by the Rule."). Although Hodgson v. Corning Glass Works, 474 F.2d

226, 234 & n. 10 (2d Cir. 1973) may, at first blush, appear to be contrary, the "Job Evaluation Plan" held admissible as a business record in that case consisted of job descriptions prepared through observation of actual job performance over two years. Plaintiffs present a more persuasive argument on their alternate ground for receiving the subject exhibit into evidence, viz. that the 1997 Lesson Plan constitutes an admission under Fed. R. Evid. 801(d)(2). at 234 n.10. testimony. Cf. Hodgson, 474 F.2d

That argument rests primarily on Pound's Based on that testimony, although the matter is

certainly not free from doubt given the possible Rule 602 problem, I have received plaintiffs' exhibit 1 into evidence. The 1997 Lesson Plan has been considered mainly in evaluating the testimony of Michael F. (see Findings of Fact No. 16) and Heidi K. (id. at No. 8). But beyond that, the

weight afforded to the lesson plan is de minimis given that the

-35-

pivotal issue is how were the new-admit strip searches actually conducted rather than the instructions on the subject that may have been provided at the academy. The Court's findings as to

that pivotal issue are detailed in Findings of Fact Nos. 7-17. From those factual findings, it is evident, and I so hold, that, contrary to the position advanced by plaintiffs, the strip searches conducted during the class period did not mirror or otherwise meaningfully comport with the steps set forth in the 1997 Lesson Plan. Instead, each CO developed his or her

strip search procedure independent of the lesson plan, which procedures understandably shared numerous common core elements, given the nature of the task being performed. In sum, I have received plaintiffs' exhibit 1 in evidence but the weight it has been afforded, given the other evidence in the record, has been slight. The above constitutes the Court's Findings of Fact. Attention will now be turned to the concomitant

Conclusions of Law. CONCLUSIONS OF LAW 1. Preliminarily, the Court will address

plaintiffs' claim that defendants are collaterally estopped from asserting strip procedures different from those "found" in Shain, see 53 F. Supp. 2d at 565-66. n.2.) (Pls.' Comments at 4-5 &

-36-

Collateral estoppel bars a party from relitigating an issue when "(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." Bank of New York v. First

Millennium, Inc., 607 F.3d 905, 918 (2d Cir. 2010) (internal quotations omitted). As collateral estoppel only "prevents the

relitigation of an issue that was raised, litigated, and actually decided by a judgment in a prior proceeding" "[i]f an issue was not actually decided in a prior proceeding, or if its decision was not necessary to the judgment, its litigation in a subsequent proceeding is not barred by [the doctrine]." Jim

Beam Brands Co. v. Beamish & Crawford Ltd., 937 F.2d 729, 734 (2d Cir. 1991). Moreover, "[a] determination whether the first

action or proceeding genuinely provided a full and fair opportunity requires consideration of the realities of the prior litigation, including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him." Algonquin Power Income Fund v.

Christine Falls of New York, Inc., 362 Fed. Appx. 151, 2010 WL 177244, at *3 (2d Cir. Jan. 20, 2010)(Summary Order) (internal

-37-

quotations omitted). Shain addressed whether that plaintiff "was entitled to summary judgment on the claim that the Nassau County strip search policy, which requires a strip/visual body cavity search [i.e. searches involving the removal of all clothes and a visual inspection of body cavities, not involving any touching of the person being stripped] of all prisoners remanded to custody of the NCCC [was] unconstitutional." Supp. 2d at 565 & n.2. 53 F.

Although the Shain court set forth the

strip search "procedures followed," the court's listing of those steps was not necessary for its decision. The focus of

Shain was on the constitutionality of the County's policy of strip searching newly admitted inmates, not the particular procedures employed to accomplish that goal. Cf. id. at 566

(stating that disputes as the actual inspection time was not material ); id. at 566-68 (setting forth the institutional concerns offered by the defendants but noting that given the state of the law, court could not properly consider that evidence). Moreover, the realities of that prior litigation

may have had the practical effect of discouraging the County from disputing the actual procedures employed. Given these

circumstances, plaintiffs have failed to establish that defendants are collaterally estopped from contending that the strip search procedure employed during the class period

-38-

differed from those described in Shain.

See Eurocrafters, Ltd.

v. Vicedomine, 183 Fed. Appx. 70, 2006 WL 1476126, *2 (2d Cir. May 25, 2006) (Summary Order). 2. As conceded by defendants, each class

member was unconstitutionally strip searched upon admission to NCCC following a non-felony arrest. 3. Each class member suffered the same injury

to human dignity inherent in the loss of the right to determine which individual or individuals may visually inspect that members's naked body, particularly his or her sexual organs, and under what circumstances.18 Accordingly, all members are

entitled to the same dollar amount per new admit strip search by way of a general damages award, recognizing, of course, that the same may not be said as to their individual claims for associated special damages which will be addressed later in the proceedings.19

The affront to human dignity occasioned by being illegally strip searched occurs each time an individual is thus victimized. Accordingly, given that some class members were subjected to more than one new admit strip search during the class period, the general damages award shall be per strip search, not per person. See this Court's March 27, 2008 Memorandum and Order regarding class certification for damage purposes (particularly the portion entitled "The Issue of General Damages for Dignity Harm Predominates") which is hereby incorporated by reference; not cited in the March 27, 2008 Memorandum and Order, but nonetheless relevant vis-a-vis the distinction between general
19

18

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4.

As to the amount of general damages to be

awarded per strip search, plaintiffs maintain it should be in the range of "five figures, at the very least." Comments at 43.) (Pls.'

In their view, "[t]here appear to be only two

`precedents' similar enough to be at all useful" (id. at 50), those being (1) the defendants "willingness to settle [, as they did,] the cases of the 10 individual plaintiffs in these consolidated actions for $35,000 each, with absolutely no proof of, no inquiry into, and no discovery about, the emotional distress or psychiatric harm to any of those 10" (id. at 51), and (2) the "class action strip search trial held [earlier this year] in the Northen District of Illinois [Young v. County of Cook, CV-06-552 (N.D. Ill.)(Kennelly, J.)"] in which, counsel for plaintiffs reports "Judge Kennelly conducted three trials of eight of plaintiffs' claims to help the parties determine a possible range of damages [after liability had already been established]," resulting in verdicts, "not yet . . . entered upon the public record" but said to be by "plaintiffs' counsel in that case" all "in five figures, i.e. $10,000 or more" (id.

and special damages is Martinez v. Port Authority of New York and New Jersey, 445 F.3d 158, 161 (2d Cir. 2006). For the Court's analysis in applying established Second Circuit jurisprudence concerning the general damages brought about by the loss of liberty necessarily inherent in a proven false arrest claim to the current unconstitutional strip search scenario, and for doing so in a Fed. R. of Civ. P. 23 context, see Mar. 27, 2008 Memorandum and Order at 8-13. -40-

at 51-52). The subject under discussion represents largely unchartered territory. As a result, as counsel for the parties

acknowledge, damage awards in other cases are a "dubious guide" to the task at hand. Comments at 50.) (Defs.' Prop. Findings at 23; Pls.'

Consistent with that caveat, plaintiffs'

proffered "two `precedents'" share a common inadequacy for present purposes, to wit, neither involved a damages assessment made in a wholly general damages context. While plaintiffs

suggest that a savings of time might be realized by blurring the distinction between general damages and the special damages claims of class members yet to be determined,20 to do so would run afoul of the pretrial rulings which established separate guidelines for the two stages of the proceeding. In keeping

with those guidelines, the testimony during the general damages stage was limited to descriptions from class members and COs regarding new admit strip searches at NCCC during the class period, with the goal being to provide the necessary information to the trier of fact so that a general damages award could be fashioned. (See, e.g., Mar. 27, 2008 Memorandum

"[I]f the Court's general damages verdict is substantial enough to provide reasonable compensation to the class, plaintiffs are considering foregoing the next stage of the compensatory damages case in an effort to move this case more expeditiously to a conclusion . . . ." (Pls.' Comments at 56-57 n.24.) -41-

20

and Order, reported at 2009 WL 706252, at 7-13.)

Specifically

excluded from the general damages trial was "any information concerning the effect that the search had upon [individual class members]," (Mar. 16, 2009 Memorandum and Order at 6). "This line of demarcation as to the permissible testimony will not negatively effect any [class member at the general damages trial] because to the extent such individual did sustain humiliation, embarrassment or emotional distress . . . those items may be pursued during the special damages portion of the proceedings." (Id. at 7.) Indeed, it would seem advisable ­ and I will solicit input from counsel at the appropriate time -- that the special damages jury be instructed, to prevent possible double counting, of the general damages award made to each class member for the inherent injury and resulting damage to all class members caused by being illegally strip searched. Cf.

Kerman v. City of New York, 374 F.3d 93, 125-26 (2004)("The damages recoverable for loss of liberty for the period spent in wrongful confinement are separable from damages recoverable for such injuries as physical harm, embarrassment, or emotional suffering [caused thereby]; even absent such other injuries, an award of several thousand dollars may be appropriate simply for several hours' loss of liberty. . . . The jury, however, was

[improperly] not instructed that Kerman was entitled to

-42-

compensatory damages for his loss of liberty.")(internal citations omitted). In sum, plaintiffs' value arguments premised on the settlements reached by the County with certain individual plaintiffs prior to class certification, and on what has transpired in Young v. County of Cook to date, are of marginal relevance. Defendants' position regarding general damages is multifaceted, beginning with the observation that an award of general damages must be based solely on the dignity injury upon which class certification was based. Findings at 18.) (Defs.' Prop.

That is followed by the argument that general

damages must be awarded only for the common injury experienced by all class members and, thus, "outlier" testimony must be disregarded. (Id. at 20.) Next urged by defendants is that

implicit in the very idea of a class action is the understanding that individual recovery is inherently lower than in an individual action. (Id. at 21.) Finally, defendants

maintain that "the damages awarded in strip search cases have been minimal absent aggravating factors suggesting a gratuitous or malicious effort to demean, debase, or degrade." (capitalizations omitted).) addressed in turn. (Id. at 23

These points will each be

-43-

A.

General Damages Have Been Determined in This

Case Based on the Affront to Human Dignity Necessarily Entailed in the Strip Searches to Which Class Members Were Subjected. As noted by defendants, the Court certified a damage class based upon the theory that "plaintiffs have suffered an injury to human dignity," and "has regularly reaffirmed this basic law of the case since then." Prop. Findings at 18.) (Defs.'

Defendants voice a concern, however,

that I may have reconfigured the basis for the certification of the general damages class, citing my statement on October 20, 2009 that perhaps "we shouldn't use the word `human dignity' in this case" (Oct. 20, 2009 Tr. at 83:12-13), and the text of the Proposed Preliminary Instruction to the Jury which I presented to counsel in November 2009. The Court's October 20th comment was triggered by its receipt of a report of Adam Schulman ("Schulman"), who defendants sought to call as an expert pursuant to Rule 702 of the Federal Rules of Evidence. follows: Human dignity is not injured or violated by conduct that is merely uncomfortable, intrusive or embarrassing. Rather, modern thinking about human dignity -- whether in Europe, where the concept plays an important role in the law, or in the United States, where it does not -- has developed in response to grave atrocities and crimes against humanity, including genocide, slavery and unethical human medical -44Therein Schulman opined as

experimentation (especially in the Nazi concentration camps but also, in the U.S., in the Tuskegee Syphilis Study). Conduct rises to the level of a violation of human dignity only when there is a deliberate and gratuitously malicious attempt to demean, debase, humiliate, or deny the humanity of the victim. Moreover, for conduct to constitute a serious violation of human dignity, warranting more than minimal damages, it must reflect a widespread or systematic practice of atrocities inflicting grave humiliation or degradation on human beings. (Expert Report of Schulman (Dkt. No. 175) at 2 (emphasis in original).) I denied defendants' request to call Schulman as a witness. In doing so, I gave the following explanation which

contains the snippet provided by defendants: [W]hat I am concerned about on the question of helping the jury and it being relevant is basically the premise upon which this learned individual report is based. This is based, as he has indicated, basically it is on international law. It is on the issue of bioethics. It is a very broad presentation by him, and I'm sure it is accurate as to the concept of human dignity within the parameters that he has discussed. It may be that we shouldn't use the word "human dignity" in this case. But the semantics doesn't change the substance. And that's the problem. It is basically that the good doctor is talking about one thing, and we are involved with something different. (Oct. 20, 2009 Tr. at 83:4-16.) In sum, the statement quoted by defendants, in -45-

the context in which it was uttered, should not be interpreted as a step towards altering the "basic law of the case." (Defs.' Prop. Findings at 18.) Instead, it represents a

comment tethered to my determination that Schulman's understanding of the concept of human dignity, based on European law (e.g. does not apply in a meaningful way, as indicated in his report, absent "a widespread or systematic practice of atrocities") is out-of-sync with our law which authorizes an award of general damages for certain wrongs, even if isolated, committed against a single individual such as, e.g., the arrestee in Kerman who was deprived of his liberty for one day which the Second Circuit opined might be worth "several thousand dollars" in and of itself. at 126. With respect to the text of the Proposed Preliminary Instruction to the Jury, that being the second reason fostering defendants' concern, I prepared that document in an effort to assist the jury scheduled to be selected to hear the case, and presented it to counsel for their input. response, both counsel shared a concern that the proposed ins