Case 2:07-cv-00726-FCD-EFB Document 1 Filed 04/16/2007 Page 1 of 12

1 LAW OFFICE OF MARK E. MERIN Mark E. Merin, SBN. 043849
2 2001 P Street, Suite 100 Sacramento, California 95814
3 Telephone: (916) 443-6911 Facsimile: (916) 447-8336
4 Email: mark@markmerin.com

5 Attorneys for Plaintiffs

6

—o0o—

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

—o0o—

10 MICHAEL TODD, on behalf of himself and CASE NO:

11 all those similarly situated;

CLASS ACTION COMPLAINT

12

Plaintiffs,

DEMAND FOR JURY TRIAL

13 v.

14 COUNTY OF SOLANO; SOLANO

COUNTY SHERIFF GARY R. STANTON, 15 IN HIS INDIVIDUAL AND OFFICIAL

16

CAPACITIES; SOLANO COUNTY SHERIFF’S DEPUTIES DOES 1 through

100, and ROES 1 through 20, inclusive, 17

Defendants. 18

19

20 PLAINTIFF ALLEGES:

21

INTRODUCTION

22

This is an action for declaratory and injunctive relief, damages, and punitive damages

23 against the COUNTY OF SOLANO, SOLANO COUNTY SHERIFF GARY R. STANTON,

24 Individually and in His Official Capacity, SOLANO COUNTY SHERIFF’S DEPUTIES sued

25 under their fictitious names as DOES 1 THROUGH 100, and ROES 1 through 20, for violations

26 of plaintiff’s constitutional rights resulting from application of SOLANO COUNTY’S and the

27 SHERIFF’S policies, practices, and customs concerning the use of strip and visual body cavity

28 searches in SOLANO COUNTY Jails. Plaintiff seeks an order declaring illegal defendants’ policy

MICHAEL TODD, et al. v. SOLANO COUNTY, et al.

Page 1 of 12 CLASS ACTION COMPLAINT

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1 of subjecting detainees in their custody to strip and visual body cavity searches before they are

2 arraigned and without having any reasonable suspicion that the searches will be productive of

3 contraband. Plaintiff further seeks an order declaring illegal defendants’ policy of conducting the

4 complained of searches in areas which can be and are observed by persons not participating in the

5 searches.

6

Defendants’ strip search and visual body cavity search policies, practices, and customs

7 violate those rights of plaintiff, and all those he represents, that are secured by the Fourth and

8 Fourteenth Amendments to the United States Constitution and entitles plaintiff, and all those

9 similarly situated, to recover damages under the Federal Civil Rights Act (42 U.S.C. § 1983).

10

JURISDICTION

11

This action is brought pursuant to 42 USC §§ 1983 and 1988, and the Fourth and

12 Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC

13 §§ 1331 and 1341(3) and (4) and the aforementioned statutory and constitutional provisions.

14

PARTIES

15

1. Plaintiff MICHAEL TODD, and all those similarly situated, are, and at all

16 material times herein, were citizens of the United States and residents of the state of California,

17 who were arrested within the period beginning two (2) years before the filing of this

18 Complaint, and continuing to this date, and who were subjected to strip and/or visual body

19 cavity searches at a SOLANO COUNTY Jail (hereinafter referred to as the “SOLANO

20 COUNTY Jail”), prior to being arraigned and without the defendants first having, and

21 recording in writing, a reasonable suspicion that the searches would be productive of

22 contraband or weapons.

23

2. Defendant SOLANO COUNTY SHERIFF GARY R. STANTON is, and at all

24 material times referred to herein, was the duly elected Sheriff of SOLANO COUNTY, responsible

25 for administering the Jail facilities and for making, overseeing, and implementing the policies, 26 practices, and customs challenged herein relating to the operation of the SOLANO COUNTY Jails.

27 He is sued in his individual and official capacities. 28 \\\

MICHAEL TODD, et al. v. SOLANO COUNTY, et al.

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1

3. Defendants SOLANO COUNTY SHERIFF’S DEPUTIES sued herein by their

2 fictitious names (Does 1 through 100) are all deputies who, as part of their duties at the SOLANO

3 COUNTY Jail, subjected plaintiff, and all those he represents, to pre-arraignment strip and/or

4 visual body cavity searches without having, and recording in writing, a reasonable suspicion that

5 the searches would be productive of contraband or weapons and/or conducted the complained of

6 searches so that they could be observed by persons not participating in the searches.

7

4. At all material times mentioned herein, each of the defendants was acting under the

8 color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages

9 of the state of California, the COUNTY OF SOLANO, and/or the SOLANO COUNTY Sheriff’s

10 Department.

11

5. Defendants whose names are not now known and who are sued by the fictitious

12 names of ROES 1 through 20, are all agents and/or employees of one or another of the above

13 named defendants who ordered, condoned, authorized, covered up, or were otherwise associated

14 with the implementation of the illegal policy and practices relating to the strip searches complained

15 of herein.

16

6. Defendant SOLANO COUNTY is, and at all material times referred to herein, was

17 a division of the state of California, that maintained or permitted an official policy or custom or

18 practice causing or permitting the occurrence of the types of wrongs complained of herein, which

19 wrongs damaged plaintiff, and all those similarly situated, as herein alleged. Plaintiff’s allegations

20 against the COUNTY are based on acts and omissions of the SHERIFF and his DEPUTIES and

21 on acts and omissions of persons who are COUNTY employees, and on the COUNTY’s breach

22 of its duty to protect plaintiff, and all those he represents, from the wrongful conduct of said

23 persons and employees.

24

7. Defendant SOLANO COUNTY SHERIFF GARY R. STANTON, in his Individual

25 and Official Capacity, also maintained or permitted an official policy or custom of causing or 26 permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged

27 plaintiff, and all those similarly situated, as herein alleged. 28 \\\

MICHAEL TODD, et al. v. SOLANO COUNTY, et al.

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1

8. Class action plaintiffs are those similarly situated who, during the period beginning

2 two (2) years before the filing of this Complaint, and continuing to this date, were subjected by

3 defendants to pre-arraignment strip and/or visual body cavity searches without defendants having,

4 and recording in writing, a reasonable suspicion that the searches would be productive of

5 contraband or weapons, and/or who were strip searched prior to arraignment in an area that was

6 observable by persons not participating in the search.

7

FACTS

8

9. On or about September 1, 2006, plaintiff MICHAEL TODD (hereinafter referred

9 to as “plaintiff”) was arrested on charges not involving violence, drugs or weapons and transported

10 to the SOLANO COUNTY Justice Center Detention Facility (a SOLANO COUNTY Jail) where,

11 prior to arraignment, he was taken to an area where he was forced to submit to a strip search in a

12 group with at least ten (10) other persons who were not participating in the search. He, together

13 with the other persons strip searched, were required to remove all of their clothing and to lift their

14 genitals for inspection and to bend over and expose their rectal areas for individual inspection.

15

10. Plaintiff was again subjected to a strip search, in a group, prior to arraignment, prior

16 to being transferred to the SOLANO COUNTY Jail on Claybank Road.

17

11. Plaintiff is informed and believes, and thereupon alleges, that defendants routinely

18 follow their policy, practice, and custom of subjecting pre-arraignment detainees, including

19 plaintiff, and all those he represents, to strip and visual body cavity searches without first having,

20 and recording in writing, a reasonable suspicion that the searches will be productive of contraband

21 or weapons. Plaintiff is further informed and believes, and thereupon alleges, that defendants

22 routinely follow their policy, practice, and custom of conducting the complained of searches in the

23 presence of persons not participating in the searches.

24

12. Plaintiff is informed and believes, and thereupon alleges, that defendants have the

25 ability to identify all such similarly situated plaintiffs, specifically those who, while in defendants’ 26 custody, at the SOLANO COUNTY Jails within two (2) years prior to the filing of this Complaint,

27 were subjected to strip searches and/or visual body cavity searches prior to arraignment without 28 defendants first having, and recording in writing, a reasonable suspicion that the searches would

MICHAEL TODD, et al. v. SOLANO COUNTY, et al.

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1 be productive of contraband or weapons.

2

13. Defendant SOLANO COUNTY SHERIFF GARY R. STANTON is personally

3 responsible for the promulgation and continuation of the strip search policy, practice, and custom

4 pursuant to which plaintiff, and all those he represents, were subjected to strip searches.

5

14. As a result of being subjected to the strip searches complained of herein, plaintiff,

6 and each of the persons similarly situated, suffered physical, mental, and emotional distress,

7 invasion of privacy, and violation of due process of law, and is entitled to recover damages

8 according to proof but, at a minimum, $4,000 as specified in California Civil Code §§ 52 and §

9 52.1(b).

10

CLASS CLAIMS

11

15. The strip and visual body cavity searches to which plaintiff, and all those similarly

12 situated, were subjected were performed pursuant to policies, practices, and customs of defendants

13 COUNTY OF SOLANO, SOLANO COUNTY SHERIFF GARY R. STANTON, the individual

14 SHERIFF’S DEPUTIES sued herein by the fictitious names 1 through 100, and the individuals

15 whose names are not now known and who are sued by the fictitious names of ROES 1 through 20.

16 The searches complained of herein were performed without regard to the nature of the alleged

17 offenses for which plaintiff, and all those similarly situated, had been arrested, without regard to

18 whether or not plaintiff, or those he represents, was eligible for cite and release under Penal Code

19 § 853.6, without regard to whether or not plaintiff, and each of those similarly situated, was

20 eligible for and/or was released on his or her own recognizance. Furthermore, the searches

21 complained of herein were performed without defendants having a reasonable belief that the

22 plaintiff, or any of those similarly situated, so searched possessed weapons or contraband, and

23 those facts being articulated and recorded in a supervisor-approved document. Finally, the

24 searches complained of herein were performed without defendants taking reasonable precautions

25 to insure that plaintiff, and each of those similarly situated, was searched in an area affording 26 privacy and was not observed by others not participating in the search.

27

16. Plaintiff brings this action on his own behalf and on behalf of all persons similarly

28 situated pursuant to Rule 23, Federal Rules of Civil Procedure.

MICHAEL TODD, et al. v. SOLANO COUNTY, et al.

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1

17. The class is defined to include all persons who, in the period from and including

2 two (2) years prior to the filing of this Complaint, and continuing until this matter is adjudicated

3 and the practices complained of herein cease, were arrested and subjected to a pre-arraignment

4 strip and/or visual body cavity search at SOLANO COUNTY Jails without defendants first having,

5 and recording in writing, a reasonable suspicion that the search would be productive of contraband

6 or weapons. In addition, the class also includes all those persons who were subjected to pre-

7 arraignment strip and/or visual body cavity searches in the presence of persons who were not

8 participating in said searches (Group Strip Searches).

9

18. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of

10 the class are so numerous that joinder of all members is impractical. Plaintiff does not know the

11 exact number of class members. Plaintiff is informed and believes, and thereupon alleges, that

12 there are more than 20 persons per day who are arrested by defendants and/or in the custody of

13 defendants and are subjected to the searches complained of herein as a result of defendants’ policy,

14 practice, and custom relating to said searches.

15

19. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff is

16 informed and believes, and thereupon alleges, that there are many questions of fact common to the

17 class including, but not limited to: (1) whether defendants routinely subject all persons arrested to

18 visual body cavity searches prior to arraignment whether or not they intend such persons to be

19 housed in the SOLANO COUNTY Jails; (2) whether defendants routinely subject all persons

20 arrested to visual body cavity searches prior to arraignment if they intend such persons to be

21 housed in SOLANO COUNTY Jails; (3) whether persons are subjected to strip and/or visual body

22 cavity searches prior to arraignment without there being any reasonable suspicion, based on

23 specific or articulable facts, to believe anyparticular arrestee has concealed drugs, weapons, and/or

24 contraband in bodily cavities which could be detected by means of a strip and/or visual body cavity

25 search; (4) whether the strip and/or visual body cavity searches are conducted in an area of privacy 26 so that the searches cannot be observed by persons not participating in the searches; (5) whether

27 the strip and/or visual body cavity searches are conducted in groups; and, (6) whether the strip 28 and/or visual body cavity searches are reasonably related to defendants’ penological interest to

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1 maintain the security of the jail and whether or not there are less intrusive methods for protecting

2 any such interest.

3

20. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff is

4 informed and believes, and thereupon alleges, that there are many questions of law common to the

5 class including, but not limited to: (1) whether defendants may perform strip and/or visual body

6 cavity searches on persons prior to their arraignment without reasonable suspicion, based on

7 specific or articulable facts, to believe any particular pre-arraignment detainee has concealed drugs,

8 weapons and/or contraband which would likely be discovered by a strip and/or visual body cavity

9 search; (2) whether defendants may perform strip and/or visual body cavity searches on persons

10 without first reasonably relating the use of the subject search to defendants’ penological interest

11 to maintain the security of the jail and determining if there is a less intrusive method to protect that

12 interest; (3) whether strip and/or visual body cavity searches may be conducted in areas where the

13 search can be observed by people not participating in the search without violating plaintiffs’

14 Federal constitutional rights; (4) whether or not defendants’ strip search policy and procedure is

15 in accordance with the Federal Constitution; and (5) whether or not defendants’ policy and

16 procedure of conducting pre-arraignment strip searches in groups violates plaintiffs’ Federal

17 Constitutional rights to privacy.

18

21. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the

19 representative plaintiff are typical of the class. Plaintiff was searched, prior to arraignment,

20 without reasonable suspicion that a strip or visual body cavity search would produce drugs,

21 weapons or contraband (and without the facts supporting any such suspicion being articulated in

22 a supervisor-approved writing). Representative plaintiff has the same interests and suffered the

23 same type of injuries as all of the other class members. Plaintiff’s claims arose because of

24 defendants’ policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity

25 searches before arraignment without having, and recording in writing, a reasonable suspicion that 26 the search would be productive of contraband or weapons. Each class member suffered actual

27 damages as a result of being subjected to a strip and/or visual body cavity search. The actual 28 damages suffered by the representative plaintiff is similar in type and amount to the actual damages

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1 suffered by each class member.

2

22. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative

3 plaintiff will fairly and adequately protect the class interests. Plaintiff’s interests are consistent

4 with and not antagonistic to the interests of the class.

5

23. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A),

6 prosecutions of separate actions by individual members of the class would create a risk that

7 inconsistent or varying adjudications with respect to individual members of the class would

8 establish incompatible standards of conduct for the parties opposing the complaint.

9

24. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B),

10 prosecutions of separate actions by individual members of the class would create a risk of

11 inconsistent adjudications with respect to individual members of the class which would, as a

12 practical matter, substantially impair or impede the interests of the other members of the class to

13 protect their interests.

14

25. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiff is

15 informed and believes, and thereupon alleges, that defendants have acted on grounds generally

16 applicable to the class, thereby making appropriate the final injunctive or declaratory relief with

17 respect to the class as a whole.

18

26. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action

19 is superior to other available methods for the fair and equitable adjudication of the controversy

20 between the parties. Plaintiff is informed and believes, and thereupon alleges, that the interests

21 of members of the class in individually controlling the prosecution of a separate action is low, in

22 that most class members would be unable individually to prosecute any action at all. Plaintiff also

23 is informed and believes, and thereupon alleges, that the amounts at stake for individuals are so

24 small that separate suits would be impracticable. Plaintiff is informed and believes, and thereupon

25 alleges, that most members of the class will not be able to find counsel to represent them. Plaintiff 26 is informed and believes, and thereupon alleges, that it is desirable to concentrate all litigation in

27 one forum because all of the claims arise in the same location; i.e., the SOLANO COUNTY Jails. 28 It will promote judicial efficiency to resolve the common questions of law and fact in one forum,

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1 rather than in multiple courts.

2

27. Plaintiff does not know the identities of all of the class members. Plaintiff is

3 informed and believes, and thereupon alleges, that the identities of the class members may be

4 ascertained from records maintained by COUNTY OF SOLANO and by defendant SHERIFF

5 GARY R. STANTON and the defendants’ Sheriff’s Department. Plaintiff is informed and

6 believes, and thereupon alleges, that defendants’ records reflect the identities, including addresses

7 and telephone numbers, of the persons who have been held in custody in the SOLANO COUNTY

8 Jails. Plaintiff is informed and believes, and thereupon alleges, that records of, and maintained by

9 defendants reflect who was subject to a strip and/or visual body cavity search, when the search

10 occurred, where the search occurred, whether any reasonable suspicion for the search existed and

11 was recorded in a supervisor-approved writing, whether the search was conducted in a group, when

12 persons searched were arraigned, and the charges on which such persons were arrested. Plaintiff

13 is informed and believes, and thereupon alleges, that all of the foregoing information is contained

14 in defendants’ computer system and that the information necessary to identify the class members,

15 by last known addresses, and the dates and reasons for their arrests and/or release from custody,

16 is readily available from said computer system.

17

28. In accordance with Federal Rules of Civil Procedure, Rule 23(c)(2)(b), class

18 members must be furnished with the best notice practicable under the circumstances, including

19 individual notice to all members who can be identified through reasonable effort. Plaintiff is

20 informed and believes, and thereupon alleges, that defendants’ computer records contain a last

21 known address for class members. Plaintiff contemplates that individual notice will be given to

22 class members at such last known address by first class mail. Plaintiff contemplates that the notice

23 will inform class members of the following:

24

i. The pendency of the class action and the issues common to the class;

25

ii. The nature of the action;

26

iii. Their right to “opt out” of the action within a given time, in which event

27 28 \\\

they will not be bound by a decision rendered in the class action;

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1

iv. Their right, if they do not “opt out,” to be represented by their own counsel

2

and to enter an appearance in the case; otherwise they will be represented

3

by the named class plaintiff(s) and the named class plaintiff(s)’ counsel;

4

and

5

v. Their right, if they do not “opt out,” to share in any recovery in favor of the

6

class, and conversely to be bound by any judgment on the common issues

7

adverse to the class.

8

COUNT ONE

9

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

10

on behalf of Plaintiff and all persons similarly situated)

11

29. Plaintiff re-alleges and hereby incorporates herein the preceding paragraphs of this

12 complaint, to the extent relevant, as if fully set forth.

13

30. Defendants’ policies, practices, and customs regarding the strip and visual body

14 cavitysearches complained of herein violated the rights of plaintiff, and all those similarly situated,

15 under the Fourth Amendment to be free from unreasonable searches and seizures; violated the

16 rights of plaintiff, and all those similarly situated, to due process and privacy under the Fourteenth

17 Amendment; and directly and proximately damaged plaintiff, and all those similarly situated, as

18 herein alleged, entitling plaintiff, and all class members, to recover damages for said constitutional

19 violations pursuant to 42 U.S.C. § 1983.

20

WHEREFORE, plaintiff prays for relief, for himself and for all persons similarly situated,

21 as hereunder appears.

22

PRAYER FOR RELIEF

23

WHEREFORE, plaintiff, on behalf of himself and all those similarly situated, seeks

24 judgment as follows:

25

1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily

26 and permanently, defendants’ policies, practices, and customs of subjecting pre-arraignment

27 detainees to strip and visual body cavity searches without having a reasonable suspicion that such 28 searches would be productive of contraband or weapons and conducting said searches in a non-

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1 private area observable by persons not participating in the search;

2

2. Certification as a class action of plaintiff’s complaints concerning defendants’

3 policy, practice, and customs of subjecting pre-arraignment detainees to strip and visual body

4 cavity searches without having a reasonable suspicion that such searches would be productive of

5 contraband or weapons;

6

3. For compensatory, general, and special damages for each representative and for

7 each member of the class of plaintiffs, as against all defendants;

8

4. Exemplary damages as against each of the individual defendants in an amount

9 sufficient to deter and to make an example of those defendants;

10

5. Attorneys’ fees and costs under 42 U.S.C. § 1988; and

11

6. The cost of this suit and such other relief as the court finds just and proper.

12 DATED: April 16, 2007

Respectfully submitted,

13

LAW OFFICE OF MARK E. MERIN

14 /s/ - “Mark E. Merin”

15 BY:

16

Mark E. Merin

Attorney for Plaintiffs

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1

DEMAND FOR A JURY TRIAL

2

A JURY TRIAL IS DEMANDED on behalf of plaintiff, and all those he seeks to represent.

3 DATED: April 16, 2006

Respectfully submitted,

4

LAW OFFICE OF MARK E. MERIN

5

6

/s/ - “Mark E. Merin”

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BY: Mark E. Merin Attorney for Plaintiffs

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1 LAW OFFICE OF MARK E. MERIN

Mark E. Merin, SBN. 043849

2 Joshua Kaizuka, SBN 212195

2001 P Street, Suite 100

3 Sacramento, California 95814 Telephone: (916) 443-6911

4

Facsimile: (916) 447-8336 Email: mark@markmerin.com

5 Attorneys for Plaintiffs

6

Co0oC

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

Co0oC

10 MICHAEL TODD, JAMESY K. DAVIS,

CASE NO: 2:07-cv-00726-FCD-EFB

11

DEANGELA HARRIS, CARMEN HARRIS ROBINSON, BRADLEY WOLFE, on behalf FIRST AMENDED CLASS ACTION

of themselves and all those similarly situated; COMPLAINT 12

Plaintiffs,

DEMAND FOR JURY TRIAL

13 v.

14 COUNTY OF SOLANO; SOLANO

COUNTY SHERIFF GARY R. STANTON,

15

IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; SOLANO COUNTY

16

SHERIFF’S DEPUTIES DOES 1 through 100, and ROES 1 through 20, inclusive,

17

Defendants.

18

19

PLAINTIFFS ALLEGE:

20

INTRODUCTION

21

This is an action f or declaratory and injunctive relief, damages, and punitiv e damages

22 against the COUNTY OF SOLANO, SOLANO COUNTY SHERIFF GARY R. STANTON,

23 Individually and in His Official Capaci ty, SOLANO COUNTY S HERIFF’S DEPUTIES s ued

24 under their fictitious names as DOES 1 THROUGH 100, and ROES 1 through 20, for violations of

25 plaintiffs’ constitutional rights r esulting from application of SOLANO COUNTY’S and the

26 SHERIFF’S policies, practices, and custom s concerning the use of stri p and visual body cavity

27 searches in SOLANO COUNTY Jails. Plaintiffs seek an order declaring illegal defendants’ policy

28 of subjecting detainees in their custody to strip and visual body cav ity searches before they are

1
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 2 of 13

1 arraigned and without having any reasonable suspicion that the se arches will be productive of

2 contraband. Plaintiffs further seek an order d eclaring illegal defendants’ policy of c onducting the

3 complained of searches in areas which can be an d are observed by persons not participating in the

4 searches.

5

Defendants’ strip search and visual body cavity search polic ies, practices, and customs

6 violate those rights of plaintiffs, and all those they repres ent, that are secured by the Fourth and

7 Fourteenth Amendments to the Un ited States C onstitution and entitle plaintiffs, and all thos e

8 similarly situated, to recover damages under the Federal Civil Rights Act (42 U.S.C. ' 1983).

9

JURISDICTION

10

This action is brought pursuant to 42 USC '' 1983 and 1988, and the Fourth and

11 Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC

12 '' 1331 and 1341(3) and (4) and the aforementioned statutory and constitutional provisions.

13

PARTIES

14

1. Plaintiffs MICHAEL TODD, JAMESY K. DAVIS, DEANGELA HARRIS,

15 CARMEN HARRIS ROBINSON, BRADLEY WOLFE, and all those similarly situated, are, and

16 at all material times herein, were citizens of the United States and residents of the state of

17 California, who were arrested within the period beginning two (2) years before the filing of this

18 Complaint, and continuing to this date, and who were subjected to strip and/or visual body cavity

19 searches at a SOLANO COUNTY Jail (hereinafter referred to as the “SOLANO COUNTY Jail”),

20 prior to being arraigned and without the defendants first having, and recording in writing, a

21 reasonable suspicion that the searches would be productive of contraband or weapons.

22

2. Defendant SOLANO COUNTY SHERIFF GARY R. STANTON is, and at all

23 material times referred to herein, was the duly elected Sheriff of SOLANO COUNTY, responsible

24 for administering the Jail facilities and for making, overseeing, and implementing the policies,

25 practices, and customs challenged herein relating to the operation of the SOLANO COUNTY

26 Jails. He is sued in his individual and official capacities.

27

3. Defendants SOLANO COUNTY SHERIFF’S DEPUTIES sued herein by their

28 fictitious names (Does 1 through 100) are all deputies who, as part of their duties at the SOLANO

2
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 3 of 13

1 COUNTY Jail, subjected plaintiffs, and all those they represent, to pre-arraignment strip and/or

2 visual body cavity searches without having, and recording in writing, a reasonable suspicion that

3 the searches would be productive of contraband or weapons and/or conducted the complained of

4 searches so that they could be observed by persons not participating in the searches.

5

4. At all material times mentioned herein, each of the defendants was acting under the

6 color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages

7 of the state of California, the COUNTY OF SOLANO, and/or the SOLANO COUNTY Sheriff’s

8 Department.

9

5. Defendants whose names are not now known and who are sued by the fictitious

10 names of ROES 1 through 20, are all agents and/or employees of one or another of the above

11 named defendants who ordered, condoned, authorized, covered up, or were otherwise associated

12 with the implementation of the illegal policy and practices relating to the strip searches complained

13 of herein.

14

6. Defendant SOLANO COUNTY is, and at all material times referred to herein, was

15 a division of the state of California, that maintained or permitted an official policy or custom or

16 practice causing or permitting the occurrence of the types of wrongs complained of herein, which

17 wrongs damaged plaintiffs, and all those similarly situated, as herein alleged. Plaintiffs’

18 allegations against the COUNTY are based on acts and omissions of the SHERIFF and his

19 DEPUTIES and on acts and omissions of persons who are COUNTY employees, and on the

20 COUNTY’s breach of its duty to protect plaintiffs, and all those they represent, from the wrongful

21 conduct of said persons and employees.

22

7. Defendant SOLANO COUNTY SHERIFF GARY R. STANTON, in his Individual

23 and Official Capacity, also maintained or permitted an official policy or custom of causing or

24 permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged

25 plaintiffs, and all those similarly situated, as herein alleged.

26

8. Class action plaintiffs are those similarly situated who, during the period beginning

27 two (2) years before the filing of this Complaint, and continuing to this date, were subjected by

28 defendants to pre-arraignment strip and/or visual body cavity searches without defendants having,

3
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

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1 and recording in writing, a reasonable suspicion that the searches would be productive of

2 contraband or weapons, and/or who were strip searched prior to arraignment in an area that was

3 observable by persons not participating in the search.

4

FACTS

5

9. On or about September 1, 2006, plaintiff MICHAEL TODD (hereinafter referred to

6 as “TODD” or collectively as “plaintiffs”) was arrested on charges not involving violence, drugs

7 or weapons and transported to the SOLANO COUNTY Justice Center Detention Facility (a

8 SOLANO COUNTY Jail) where, prior to arraignment, he was taken to an area where he was

9 forced to submit to a strip search in a group with at least ten (10) other persons who were not

10 participating in the search. He, together with the other persons strip searched, were required to

11 remove all of their clothing and to lift their genitals for inspection and to bend over and expose

12 their rectal areas for individual inspection.

13

10. Plaintiff TODD was again subjected to a strip search, in a group, prior to

14 arraignment, prior to being transferred to the SOLANO COUNTY Jail on Claybank Road.

15

11. On or about November 1, 2005, plaintiff JAMESY K. DAVIS (hereinafter referred

16 to as “DAVIS” or collectively as “plaintiffs”) was arrested on charges not involving violence,

17 drugs or weapons and transported to the SOLANO COUNTY Justice Center Detention Facility (a

18 SOLANO COUNTY Jail) where, prior to arraignment, he was taken to an area where he was

19 forced to submit to a strip search in a room with the door open where other persons who were not

20 participating in the search could see him being strip searched. He was required to remove all of

21 his clothing and to lift his genitals for inspection and to bend over and expose his rectal area for

22 inspection.

23

12. On or about November 18, 2005, plaintiff DEANGELA HARRIS (hereinafter

24 referred to as “HARRIS” or collectively as “plaintiffs”) was arrested on charges not involving

25 violence, drugs or weapons and transported to the SOLANO COUNTY Justice Center Detention

26 Facility (a SOLANO COUNTY Jail) where, prior to arraignment, she was taken to an area where

27 she was forced to submit to a strip search in a group including at least two (2) other women, who

28 were not participating in the search and forced to submit to a strip search in a room where she was

4
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 5 of 13

1 required to remove all of her clothing and to lift her breasts for inspection and to bend over and

2 expose her vaginal and rectal areas for inspection.

3

13. On or about June 2005, plaintiff HARRIS was arrested and transported to the

4 SOLANO COUNTY Justice Center Detention Facility (a SOLANO COUNTY Jail) where, prior

5 to arraignment, she was taken to an area where she was forced to submit to a strip search in a

6 group with at least two (2) other women who were not participating in the search. She was

7 required to remove all of her clothing and to lift her breasts for inspection and to bend over and

8 expose her vaginal and rectal areas for inspection.

9

14. On or about August 23, 2005, plaintiff CARMEN HARRIS ROBINSON

10 (hereinafter referred to as “ROBINSON” or collectively as “plaintiffs”) was arrested on charges

11 not involving violence, drugs or weapons and transported to the SOLANO COUNTY Justice

12 Center Detention Facility (a SOLANO COUNTY Jail) where, prior to arraignment, she was taken

13 to an area where she was forced to submit to a strip search in a room where she was required to

14 remove all of her clothing and to lift her breasts for inspection and to bend over and expose her

15 vaginal and rectal areas for inspection.

16

15. On or about February 22, 2006, plaintiff ROBINSON was again arrested on charges

17 not involving violence, drugs or weapons and transported to the SOLANO COUNTY Justice

18 Center Detention Facility (a SOLANO COUNTY Jail) where, prior to arraignment, she was taken

19 to an area where she was forced to submit to a strip search in a room where she was required to

20 remove all of her clothing and to lift her breasts for inspection and to bend over and expose her

21 vaginal and rectal areas for inspection.

22

16. On or about July 19, 2006, plaintiff BRADELY WOLFE (hereinafter referred to as

23 “WOLFE” or collectively as “plaintiffs”) was arrested on charges not involving violence, drugs or

24 weapons and transported to the SOLANO COUNTY Justice Center Detention Facility (a

25 SOLANO COUNTY Jail) where, prior to arraignment, he was taken to an area where he was

26 forced to submit to a strip search in a group with at least two (2) other persons who were not

27 participating in the search. He and the other persons strip searched were required to remove all of

28 their clothing and to lift their genitals for inspection and to bend over and expose their rectal areas

5
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 6 of 13

1 for inspection.

2

17. Plaintiffs are informed and believe, and thereupon allege, that defendants routinely

3 follow their policy, practice, and custom of subjecting pre-arraignment detainees, including

4 plaintiffs, and all those they represent, to strip and visual body cavity searches without first having,

5 and recording in writing, a reasonable suspicion that the searches will be productive of contraband

6 or weapons. Plaintiffs are further informed and believe, and thereupon allege, that defendants

7 routinely follow their policy, practice, and custom of conducting the complained of searches in the

8 presence of persons not participating in the searches.

9

18. Plaintiffs are informed and believe, and thereupon allege, that defendants have the

10 ability to identify all such similarly situated plaintiffs, specifically those who, while in defendants’

11 custody, at the SOLANO COUNTY Jails within two (2) years prior to the filing of this Complaint,

12 were subjected to strip searches and/or visual body cavity searches prior to arraignment without

13 defendants first having, and recording in writing, a reasonable suspicion that the searches would be

14 productive of contraband or weapons.

15

19. Defendant SOLANO COUNTY SHERIFF GARY R. STANTON is personally

16 responsible for the promulgation and continuation of the strip search policy, practice, and custom

17 pursuant to which plaintiffs, and all those they represent, were subjected to strip searches.

18

20. As a result of being subjected to the strip searches complained of herein, plaintiffs,

19 and each of the persons similarly situated, suffered physical, mental, and emotional distress,

20 invasion of privacy, and violation of due process of law, and are entitled to recover damages

21 according to proof but, at a minimum, $4,000 as specified in California Civil Code '' 52 and '

22 52.1(b).

23

CLASS CLAIMS

24

21. The strip and visual body cavity searches to which plaintiffs, and all those similarly

25 situated were subjected, were performed pursuant to policies, practices, and customs of defendants

26 COUNTY OF SOLANO, SOLANO COUNTY SHERIFF GARY R. STANTON, the individual

27 SHERIFF’S DEPUTIES sued herein by the fictitious names 1 through 100, and the individuals

28 whose names are not now known and who are sued by the fictitious names of ROES 1 through 20.

6
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 7 of 13

1 The searches complained of herein were performed without regard to the nature of the alleged

2 offenses for which plaintiffs, and all those similarly situated, had been arrested, without regard to

3 whether or not plaintiffs, or those they represent, were eligible for cite and release under Penal

4 Code ' 853.6, without regard to whether or not plaintiffs, and each of those similarly situated,

5 were eligible for and/or were released on their own recognizance. Furthermore, the searches

6 complained of herein were performed without defendants having a reasonable belief that the

7 plaintiffs, or any of those similarly situated, so searched possessed weapons or contraband, and

8 those facts being articulated and recorded in a supervisor-approved document. Finally, the

9 searches complained of herein were performed without defendants taking reasonable precautions

10 to insure that plaintiffs, and each of those similarly situated, were searched in an area affording

11 privacy and was not observed by others not participating in the search.

12

22. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly

13 situated pursuant to Rule 23, Federal Rules of Civil Procedure.

14

23. The class is defined to include all persons who, in the period from and including

15 two (2) years prior to the filing of this Complaint, and continuing until this matter is adjudicated

16 and the practices complained of herein cease, were arrested and subjected to a pre-arraignment

17 strip and/or visual body cavity search at SOLANO COUNTY Jails without defendants first having,

18 and recording in writing, a reasonable suspicion that the search would be productive of contraband

19 or weapons. In addition, the class also includes all those persons who were subjected to pre-

20 arraignment strip and/or visual body cavity searches in the presence of persons who were not

21 participating in said searches (Group Strip Searches).

22

24. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of

23 the class are so numerous that joinder of all members is impractical. Plaintiffs do not know the

24 exact number of class members. Plaintiffs are informed and believe, and thereupon allege, that

25 there are more than 20 persons per day who are arrested by defendants and/or in the custody of

26 defendants and are subjected to the searches complained of herein as a result of defendants’ policy,

27 practice, and custom relating to said searches.

28 \\\

7
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 8 of 13

1

25. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

2 informed and believe, and thereupon allege, that there are many questions of fact common to the

3 class including, but not limited to: (1) whether defendants routinely subject all persons arrested to

4 visual body cavity searches prior to arraignment whether or not they intend such persons to be

5 housed in the SOLANO COUNTY Jails; (2) whether defendants routinely subject all persons

6 arrested to visual body cavity searches prior to arraignment if they intend such persons to be

7 housed in SOLANO COUNTY Jails; (3) whether persons are subjected to strip and/or visual body

8 cavity searches prior to arraignment without there being any reasonable suspicion, based on

9 specific or articulable facts, to believe any particular arrestee has concealed drugs, weapons, and/or

10 contraband in bodily cavities which could be detected by means of a strip and/or visual body

11 cavity search; (4) whether the strip and/or visual body cavity searches are conducted in an area of

12 privacy so that the searches cannot be observed by persons not participating in the searches; (5)

13 whether the strip and/or visual body cavity searches are conducted in groups; and, (6) whether the

14 strip and/or visual body cavity searches are reasonably related to defendants’ penological interest

15 to maintain the security of the jail and whether or not there are less intrusive methods for

16 protecting any such interest.

17

26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

18 informed and believe, and thereupon allege, that there are many questions of law common to the

19 class including, but not limited to: (1) whether defendants may perform strip and/or visual body

20 cavity searches on persons prior to their arraignment without reasonable suspicion, based on

21 specific or articulable facts, to believe any particular pre-arraignment detainee has concealed

22 drugs, weapons and/or contraband which would likely be discovered by a strip and/or visual body

23 cavity search; (2) whether defendants may perform strip and/or visual body cavity searches on

24 persons without first reasonably relating the use of the subject search to defendants’ penological

25 interest to maintain the security of the jail and determining if there is a less intrusive method to

26 protect that interest; (3) whether strip and/or visual body cavity searches may be conducted in

27 areas where the search can be observed by people not participating in the search without violating

28 plaintiffs’ Federal constitutional rights; (4) whether or not defendants’ strip search policy and

8
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 9 of 13

1 procedure is in accordance with the Federal Constitution; and (5) whether or not defendants’

2 policy and procedure of conducting pre-arraignment strip searches in groups violates plaintiffs’

3 Federal Constitutional rights to privacy.

4

27. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the

5 representative plaintiffs are typical of the class. Plaintiffs were strip searched, prior to

6 arraignment, without reasonable suspicion that a strip or visual body cavity search would produce

7 drugs, weapons or contraband (and without the facts supporting any such suspicion being

8 articulated in a supervisor-approved writing). Representative plaintiffs have the same interests and

9 suffered the same type of injuries as all of the other class members. Plaintiffs’ claims arose

10 because of defendants’ policy, practice, and custom of subjecting arrestees to strip and/or visual

11 body cavity searches before arraignment without having, and recording in writing, a reasonable

12 suspicion that the search would be productive of contraband or weapons. Each class member

13 suffered actual damages as a result of being subjected to a strip and/or visual body cavity search.

14 The actual damages suffered by representative plaintiffs are similar in type and amount to the

15 actual damages suffered by each class member.

16

28. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative

17 plaintiffs will fairly and adequately protect the class interests. Plaintiffs’ interests are consistent

18 with and not antagonistic to the interests of the class.

19

29. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A),

20 prosecutions of separate actions by individual members of the class would create a risk that

21 inconsistent or varying adjudications with respect to individual members of the class would

22 establish incompatible standards of conduct for the parties opposing the complaint.

23

30. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B),

24 prosecutions of separate actions by individual members of the class would create a risk of

25 inconsistent adjudications with respect to individual members of the class which would, as a

26 practical matter, substantially impair or impede the interests of the other members of the class to

27 protect their interests.

28 \\\

9
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 10 of 13

1

31. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffs are

2 informed and believe, and thereupon allege, that defendants have acted on grounds generally

3 applicable to the class, thereby making appropriate the final injunctive or declaratory relief with

4 respect to the class as a whole.

5

32. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class

6 action is superior to other available methods for the fair and equitable adjudication of the

7 controversy between the parties. Plaintiffs are informed and believes and thereupon allege, that

8 the interests of members of the class in individually controlling the prosecution of a separate action

9 is low, in that most class members would be unable individually to prosecute any action at all.

10 Plaintiffs also are informed and believe, and thereupon allege, that the amounts at stake for

11 individuals are so small that separate suits would be impracticable. Plaintiffs are informed and

12 believe, and thereupon allege, that most members of the class will not be able to find counsel to

13 represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to

14 concentrate all litigation in one forum because all of the claims arise in the same location; i.e., the

15 SOLANO COUNTY Jails. It will promote judicial efficiency to resolve the common questions of

16 law and fact in one forum, rather than in multiple courts.

17

33. Plaintiffs do not know the identities of all of the class members. Plaintiffs are

18 informed and believe, and thereupon allege, that the identities of the class members may be

19 ascertained from records maintained by COUNTY OF SOLANO and by defendant SHERIFF

20 GARY R. STANTON and the defendants’ Sheriff’s Department. Plaintiffs are informed and

21 believe, and thereupon allege, that defendants’ records reflect the identities, including addresses

22 and telephone numbers, of the persons who have been held in custody in the SOLANO COUNTY

23 Jails. Plaintiffs are informed and believe, and thereupon allege, that records of, and maintained by

24 defendants reflect who was subject to a strip and/or visual body cavity search, when the search

25 occurred, where the search occurred, whether any reasonable suspicion for the search existed and

26 was recorded in a supervisor-approved writing, whether the search was conducted in a group,

27 when persons searched were arraigned, and the charges on which such persons were arrested.

28 Plaintiffs are informed and believe, and thereupon allege, that all of the foregoing information is

10
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 11 of 13

1 contained in defendants’ computer system and that the information necessary to identify the class

2 members, by last known addresses, and the dates and reasons for their arrests and/or release from

3 custody, is readily available from said computer system.

4

34. In accordance with Federal Rules of Civil Procedure, Rule 23(c)(2)(b), class

5 members must be furnished with the best notice practicable under the circumstances, including

6 individual notice to all members who can be identified through reasonable effort. Plaintiffs are

7 informed and believe, and thereupon allege, that defendants’ computer records contain a last

8 known address for class members. Plaintiffs contemplate that individual notice will be given to

9 class members at such last known address by first class mail. Plaintiffs contemplate that the notice

10 will inform class members of the following:

11

i. The pendency of the class action and the issues common to the class;

12

ii. The nature of the action;

13

iii. Their right to Aopt out@ of the action within a given tim e, in which

14

event they will not be bound by a decision rendered in the class action;

15

iv. Their right, if they do not Aopt out,@ to be represented by their own

16

counsel and to enter an appearance in the case; otherwise th ey will be

represented by th e named class plaintiffs and the nam ed class 17

plaintiffs’ counsel; and 18
v. Their right, if they do not “opt out,” to share in any recovery in favor 19
of the class, and conversely to be bound by any judgm ent on the

20 common issues adverse to the class.

21

COUNT ONE

22

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

23

on behalf of Plaintiffs and all persons similarly situated)

24

35. Plaintiffs re-alleges and hereby incorporates herein the preceding paragraphs of this

25 complaint, to the extent relevant, as if fully set forth.

26

36. Defendants’ policies, practices, and customs regarding the strip and visual body

27 cavity searches complained of herein violated the rights of plaintiffs, and all those similarly

28 situated, under the Fourth Amendment to be free from unreasonable searches and seizures;

11
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 12 of 13

1 violated the rights of plaintiffs, and all those similarly situated, to due process and privacy under

2 the Fourteenth Amendment; and directly and proximately damaged plaintiffs, and all those

3 similarly situated, as herein alleged, entitling plaintiffs, and all class members, to recover damages

4 for said constitutional violations pursuant to 42 U.S.C. ' 1983.

5

WHEREFORE, plaintiffs pray for relief, for them selves and for all p ersons similarly

6 situated, as hereunder appears.

7

PRAYER FOR RELIEF

8

WHEREFORE, plaintiffs, on beha lf of themselves and all those similarly situated, seek

9 judgment as follows:

10

1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily

and permanently, defendants’ policies, practices , and custom s of subjecting pre-arraignm ent 11

detainees to strip and visual body cavity searches without havi ng a reasonable suspicion that 12
such searches would be productive of contraband or weapons and conducting said searches in a 13
non-private area observable by persons not participating in the search;

14 2. Certification as a class action of plai ntiffs’ complaints concerning defendants’

15 policy, practice, and cu stoms of subjecting pre-arraignm ent detainees to strip and visual body

16 cavity searches without having a reasonable suspic ion that such searches would be productive of

17 contraband or weapons;

18

3. For compensatory, general, and special d amages for each represen tative and for

19 each member of the class of plaintiffs, as against all defendants;

20

4. Exemplary damages as against each of the individual defendants in an a mount

21 sufficient to deter and to make an example of those defendants;

22

5. Attorneys’ fees and costs under 42 U.S.C. ' 1988; and

23

6. The cost of this suit and such other relief as the court finds just and proper.

24 DATED: July 28, 2008

Respectfully submitted,

25

LAW OFFICE OF MARK E. MERIN

26

/s/ - “Mark E. Merin”

BY: _____________________________________

27

Mark E. Merin

Attorney for Plaintiffs

28

12
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 25 Filed 07/29/08 Page 13 of 13

1

DEMAND FOR A JURY TRIAL

2

A JURY T RIAL IS DEMANDE D on behalf of pl aintiffs, and all th ose they seek to

3 represent.

4 DATED: July 28, 2008 5

Respectfully submitted, LAW OFFICE OF MARK E. MERIN

6

/s/ - “Mark E. Merin”

7

BY:______________________________________ Mark E. Merin

8 S:\WpWork\Strip Search Cases\Todd, Michael\Pleadings\Complaint - First Amended.doc

Attorney for Plaintiffs

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13
FIRST AMENDED CLASS ACTION COMPLAINT; DEMAND FOR JURY TRIAL Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

 1 LAW OFFICE OF MARK E. MERIN

Mark E. Merin, SBN. 043849

2 Joshua Kaizuka, SBN 212195

2001 P Street, Suite 100

3 Sacramento, California 95811 Telephone: (916) 443-6911

4

Facsimile: (916) 447-8336 Email: mark@markmerin.com

5 Attorneys for Plaintiffs

6

7 A PROFESSIONAL CORPORATION Terence J. Cassidy, SBN 99180

8 350 University Ave., Suite 200

Sacramento, California 95825

9 Telephone: 916.929.1481

10

Facsimile: 916.927.3706 E-Mail: tcassidy@porterscott.com

11 Attorneys for Defendants
12 COUNTY OF SOLANO and GARY R. STANTON

13 ---o0o---
14 UNITED STATES DISTRICT COURT
15 EASTERN DISTRICT OF CALIFORNIA

16

---o0o---

17

18 MICHAEL TODD, JAMESY K. DAVIS,

CASE NO: 2:07-cv-00726-FCD-EFB

DEANGELA HARRIS, CARMEN HARRIS

19 ROBINSON, BRADLEY WOLFE, on behalf ORDER GRANTING SETTLEMENT of themselves and all those similarly situated; AND DISMISSAL OF ACTION

20 21 v.

Plaintiffs,

DATE: TIME:

22

COUNTY OF SOLANO; SOLANO COUNTY SHERIFF GARY R. STANTON,

CTRM: JUDGE:

23

IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; SOLANO COUNTY

SHERIFF=S DEPUTIES DOES 1 through

24 100, and ROES 1 through 20, inclusive,

NOT SET 10:00 a.m. 2, 15th Floor Hon. Frank C. Damrell, Jr.

25

Defendants.

26

GOOD CAUSE APPEARING from the joint m otion of the parties f or approval of the

27 Stipulation of Settlement, this court hereby approves the Stipulation of Settlement. No notice must

28 be given to any group of persons of this settlement.

1
ORDER GRANTING SETTLEMENT AND DISMISSAL OF ACTION Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

1

Based on the written materials on file and good cause appearing therefore:

2

a. The Settlement is approved;

3

b. The Complaint is dismissed;

4

c. The claims of Plaintiffs MI CHAEL TODD, JAMES Y K. DAVIS,

5

DEANGELA HARRIS, CARMEN HARRIS ROBINSON, BRADL EY

6

WOLFE and those listed in Exhibit A hereto are dismissed with prejudice.

7

IT IS SO ORDERED.

8 DATED: September 28, 2009

9

__________________________________

FRANK C. DAMRELL, JR.

10

UNITED STATES DISTRICT JUDGE

11

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2
ORDER GRANTING SETTLEMENT AND DISMISSAL OF ACTION Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

 Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 1 of 10

1 LAW OFFICE OF MARK E. MERIN

Mark E. Merin, SBN. 043849

2 Joshua Kaizuka, SBN 212195

2001 P Street, Suite 100

3 Sacramento, California 95811 Telephone: (916) 443-6911

4

Facsimile: (916) 447-8336 Email: mark@markmerin.com

5 Attorneys for Plaintiffs

6

7 A PROFESSIONAL CORPORATION Terence J. Cassidy, SBN 99180

8 350 University Ave., Suite 200

Sacramento, California 95825

9 Telephone: 916.929.1481

10

Facsimile: 916.927.3706 E-Mail: tcassidy@porterscott.com

11 Attorneys for Defendants
12 COUNTY OF SOLANO and GARY R. STANTON

13

---o0o---

14

UNITED STATES DISTRICT COURT

15

EASTERN DISTRICT OF CALIFORNIA

16

---o0o---

17 MICHAEL TODD, JAMESY K. DAVIS,

CASE NO: 2:07-cv-00726-FCD-EFB

DEANGELA HARRIS, CARMEN HARRIS

18 ROBINSON, BRADLEY WOLFE, on behalf JOINT MOTION FOR ORDER

of themselves and all those similarly situated; APPROVING STIPULATION OF

19 20 v.

Plaintiffs,

SETTLEMENT AND DISMISSAL OF COMPLAINT

21 22

COUNTY OF SOLANO; SOLANO COUNTY SHERIFF GARY R. STANTON, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; SOLANO COUNTY

DATE: TIME: CTRM: JUDGE:

NOT SET 10:00 a.m. 2, 15th Floor Hon. Frank C. Damrell, Jr.

23

SHERIFF=S DEPUTIES DOES 1 through 100, and ROES 1 through 20, inclusive,

24

Defendants.

25

I. INTRODUCTION

26

On April 16, 2007, plaintiff MICHAEL TODD f iled an action against the COUNTY OF

27 SOLANO, SOLANO C OUNTY SHERIFF GARY R, S TANTON, in his individual and official

28 capacities, and SOLANO COUNTY SHERIFF’S DEPU TIES sued fictitiously as DOES 1 through

1

JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 2 of 10

1 100 and ROES 1 through 20. Mr. TODD filed the action on behalf

of him self and all those

2 similarly situated for damages, injunctive and class relief for all persons who were strip searched at

3 Solano County Jails, prior to arraignment, without defendants having any reasonable suspicion that

4 the searches would be productive of contraband. Plaintiff also alleged that defendants had a policy

5 of conducting strip searches in ar eas which could be observed by pe rsons not participating in the 6 searches, in violation of the 4th and 14th Amendments of the United States Constitution.

7

The complaint was filed as a result of Mr . TODD’s experience following his arrest on

8 September 1, 2006, on charges not involving viol ence, drugs or weapons, following which he

9 alleged he was transported to the Solano County Justice Center Detention Facility (Solano County

10 Jail), and taken to an area where he submitted to a strip sea rch in a group of several other persons

11 who were not participating in the search.

12

Defendants filed a tim ely denial that plaintiff was st rip searched and/or that they had a

13 policy or practice of which plaintiff complained.

14

On or about July 29, 2008, afte r completing initial discovery, plaintiff filed an am ended

15 complaint adding f our additional plaintiffs, JAMESY K. DAVIS, DEANGELA HARRIS,

16 CARMEN HARRIS ROBINSON, and BRADLEY WOLFE who alleged that they, too, had been

17 arrested on charges not involving violence, drug s or weapons and transported to Solano County

18 Jail where, prior to a rraignment, they were strip searched in gro ups in vio lation of their

19 constitutional rights. During the pendency of this action and, as a result of publicity that the action

20 had been filed, a group of additional persons contacted plaintiffs’ attorney’s office and alleged that

21 they fell within the allegations alleged in the complaint.

22

After extensive discovery, which included the de positions of all of the plaintiffs as well as

23 depositions of twenty-four (24) officers and em ployees of defendants, the parties have determined

24 that while prior to Novem ber 2003, defendants ha d a policy and practice of strip searching all

25 persons to be housed in Solano County Jail, often in groups, prior to arraignm ent, they, they

26 discovered in 2003 that the policy did not com ply with federal law and revise d the policy so as to

27 bring it in to compliance with f ederal law and a ll custodial staff was trained in the new policy.

28 Specifically, Captain Ferrara issued a memorandum on July 7, 2003 to all custody staff infor ming

2
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 3 of 10

1 them of the modification of the strip search proc edures and training sessions were then conducted

2 with all correctional officers consistent with that memorandum.

3

Although a revised policy was issued on November 20, 2003, that revision erroneously

4 included a provision that specified that all persons going into housing would be strip searched even

5 though it was the explicit policy of S olano County not to strip search persons merely because they

6 were to be housed and custodial staf f had been tr ained not to strip search persons merely because

7 they were to be housed unless there was reasonable suspicion for a strip search.

8

A corrected version of the strip search policy was issued in March 2007.

9

While persons arrested and held at the So lano County Jail m ay have, on occasion, bee n

10 strip searched in violation of the defendants’ st rip search policy, those is olated instances were

11 unauthorized, in violation of policy, and inadvertent.

12

Accordingly, the parties agree that certificatio n of this action as a class action would be

13 inappropriate as no class, prem ised on the existence of a policy, practice or custom of defendants,

14 exists and if a motion were made to certify class, that motion would most likely be denied. Instead

15 of further litigating this case, the parties entered into negotiations to settle the claim of the persons

16 who contacted plaintiffs’ counsel’s office and alle ged that they were st rip searched, illegally,

17 during the period within two years of the filing of the original TODD com plaint. As a result o f

18 these negotiations the parties reached agreement and now request the Court to approve a

19 Stipulation of Settlem ent, a copy of which is att ached to the Declaration of Mark E. Merin as

20 Exhibit A, filed herewith. This stip ulation provides for compensation to each of the individu al

21 plaintiffs in the amount of $12,500, compensation to each of the persons listed on Exhibit 4 to th e

22 Stipulation of Settlement (attached as Exhibit A to the Declara tion of Mark E. Merin, f iled

23 herewith), who contacted plaintiffs’ counsel’s office alleging th at they fall within the allegations

24 alleged in the com plaint in the amount of $750 if they were brought to Solano County Jail

25 following arrest for a felony, or in the amount of $1,000 if they we re arrested on a m isdemeanor

26 that falls within the s tatute of limitations and we re not otherwise sub ject to strip search; and a

27 $100,000 payment to counsel for attorn ey’s fees and costs incurred in the prosecution of this

28 litigation. The settlement check shall be made payable to the Law Office of Mark E. Merin Client

3
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 4 of 10

1 Trust Account. Mr. Merin shall deposit those funds into his Client Trust Account and shall handle

2 the disbursement of settlement funds to representative plaintiffs and those persons listed on Exhibit

3 4.

4

As the complaint was f iled as a class ac tion complaint, the parties are spe cifically

5 requesting that the Court approve the settlement without ordering notice to be given to the persons

6 who were housed at Solano Count y Jail prior to arraignm ent since there are no ascertainable

7 members of a “class.”

8

II. FACTS

9

Plaintiff MICHAEL TODD was arrested on September 1, 2006 on charges not involving

10 violence, drugs or weapons and tr ansported to Solano County Justice Center Detention Facility, a

11 Solano County Jail, where, prior to arraignment, he alleged he was taken to an area where he wa s

12 strip searched in a group with several other persons who were not officially participating in the

13 search.

14

Plaintiff JAMESY K. DAVIS on November 1, 2005, on charges not involving violence,

15 drugs or weapons, transported to S olano County Jail where, prior to arraignm ent, he alleged he

16 was taken to an area an d strip searched in a roo m where other individuals not participating in the

17 search could see him being strip searched.

18

Plaintiff DEANGELA HARRI S was arrested Nove mber 18, 2005, on charges not

19 involving violence, drugs or weapons, transported Solano County Jail where, prior to arraignment,

20 she alleged was strip searched together with two other women who were also strip searched.

21

On August 23, 2005, plaintiff CARMEN HARRI S ROBINSON was arrested on charges

22 not involving violence, dr ugs or weapons and transported to Solano County Jail where, prior to

23 arraignment, she alleged she was required to su bmit to a strip search. On February 22, 2006, Ms.

24 ROBINSON was again arrested on charges not involving violence, drugs or weapons and alleged

25 she was again strip searched at the Solano County Jail prior to arraignment.

26

On July 19, 2006, BRADLEY WOLFE was arrest on charges not involving violence, drugs

27 or weapons, transported to Solano County Jail w here, prior to arraignment, he alleged he was strip

28 searched in a group with at least two other persons.

4
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 5 of 10

1

The strip searches described by plaintiffs proceeded in similar fashion:

2

They were required to rem ove all of their clothing and to bend over

exposing their rectal areas for insp ection and to lift or spread their

3

genitals for inspection.

4

Defendants adamantly denied having a policy, practice or custom, following the is suance

5 of the memorandum by Captain Ferrara dated July 7, 2003, the training sessi ons and their revised

6 policy in N ovember 2003, of strip searching persons going into housing and/or st rip searching

7 persons in groups. Defendants ackn owledged, however, that prior to the change in their policy in

8 2003, it was the practice of the ja il to strip search al l persons going into housing since they

9 understood that strip search to be permitted by state and federal law. They also acknowledged that

10 prior to the change, for convenience of the instit ution, persons were strip searched in groups if

11 several persons were being transported into housing simultaneously.

12

The depositions of twenty-four (24) officers co nfirmed that defendants’ representation that

13 the strip search policy and pract ice was brought into conform ance with state and federal law in

14 2003 and, with few exceptions, all of the deposed officers stated that they had revised their policies

15 and practices to conform to the ins titution’s requirements by the end of 2003. Thus, if pers ons

16 were strip searched at the Solano County Jail within two years prior to the TODD complaint, those

17 strip searches either were performed on reasonable suspicion or in violation of defendants’ official

18 policies. In any even t, if strip s earches occurred, they were unrec orded, unauthorized, and

19 impossible to corroborate or disprove.

20

III. HISTORY OF THE LITIGATION

21

Following the filing of the com plaint on April 16, 2007, defendants file d a timely answer.

22 The parties then undertook the initiation of discove ry and in July, 2008, filed an am ended

23 complaint adding four addition plaintiffs.

24

As persons alleging that they had been stri p searched at Solano County Jail came forward

25 and contacted plaintiffs’ counsel, plaintiffs directed interrogato ries and written discovery to

26 defendants in an attempt to corroborate the allegations of such persons.

27

To ascertain the policies and practices of defendants, plaintiffs noticed and took the

28 depositions of twenty-four (24) officers and agents of defendants and pres ented named plaintiffs

5
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 6 of 10

1 for deposition by defendants. The result of such extensive discovery was the determination that

2 although an erroneous written polic y had been issued w hich failed to include the specific

3 modifications which were designed to bring the strip search policy into conformance with state and

4 federal law, custodial staff had been appropriately trained and th eir practices conform ed to state

5 and federal law.

6

Claims of being str ip searched in violation of constitutional protections were both

7 exceptional and unsustainable. In any event, when the error in existing written policy relating to

8 strip searches at Solano County Jail was discovered a corrected version was issued in March, 2007,

9 fully comporting with state and federal law.

10

IV. THERE IS NO CLASS

11

While plaintiffs’ versions of being strip sear ched at Solano County Jail often in groups are

12 similar, and suggest a pattern of illegality, va rious circumstances suggest explanations for the

13 plaintiffs’ claims:

14

1. Many of the plaintiffs had also been arrested prior to Novem ber, 2003, when the

15

Solano County strip search polices and practices were revised and could be

16

confusing earlier strip searches-outside of the statu te of limitations-with the

17

circumstances they faced when arrested on subsequent occasions.

18

2. For other plaintiffs, and indeed other pe rsons who contacted plaintiffs’ counsel’s

19

office complaining of being strip searched at Solano County Jails, there m ay have

20

been reasonable suspicion for thos e strip searches based either on a history of

21

criminal conduct or circumstances apparent to jail officers at the tim e the plaintiffs

22

and others were brought to the facility. There is no way, at this point, given the

23

paucity of available records, either to p rove or to disprove the fact of the strip

24

searches or any justification-reasonable suspicion-for them.

25

3. Under these circumstances, it seems highly unlikely that plaintiffs would be able to

26

indentify persons who should receive no tice of this proposed settlem ent or

27

otherwise participate in ongoing litigation of the plaintiffs’ claim s. In short,

28

plaintiffs do not have sufficient information or sufficient evidence of which to move

6
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 7 of 10

1

for class certification and further disc overy is unlikely to uncover any such

2

evidence. If plaintiffs were requ ired to move for class certif ication based on the

3

evidence available to them, they would be unlikely to prevail.

4

V. TERMS OF SETLLEMENT

5

Defendants’ present policy which was issued in March, 2007, purports to express the

6 policy and practice continuously in effect since November, 2003, and, in all respects, conform s to

7 applicable state and federal law. A copy of the policy revised March 2007, is attached as Exhibit 3

8 to the Stipulation of Settlement (attached as Exhibit A to the Declaration of Mark E. Merin, filed

9 herewith).

10 A. Payment of Named Plaintiffs

11

Because the nature and legality of the searches of plaintiffs, includ ing whether or not they

12 were strip searched and whether or not they were strip searched in areas where the search could be

13 seen by others, is highly contested and depends on the resolution of credibility determinations, the

14 outcome of a contested proceeding is uncertain. Accordingly, the parties consider it appropriate to

15 resolve the named plaintiffs’ complaint by paying to each of them the sum of $12,500 in return for

16 a dismissal with prejudice of the within complaint.

17 B. Payment to Other Persons Who Contact Plaintiffs’ Counsel’s Office

18

Persons contacted plaintiffs’ counsel’s offi ce, upon learning of the pendency of the TODD

19 action, complaining that they, too, fell within th e allegations alleged in the com plaint and who

20 were not otherwise subject to st rip search. Plaintiffs have obt ained records relating to these

21 individuals, but, aside from undertaking extensive additional discovery which, if prior experience

22 is an indication, will not produce de finitive evidence that the claim ants were strip searched or that

23 there was n o reasonable suspicion for those search es, there is noth ing further that could b e

24 accomplished to prov e plaintiffs claims that th ey were s trip searched pursuant to defendants’

25 policy. Accordingly, weighing the cost of proceeding with furthe r discovery versus compensation

26 for those claimants in line with previous resolution of strip search actions, the parties have agreed

27 that the persons on the list a ttached as Exhibit 4 to the S tipulation of Settlement (attached a s

28 Exhibit A to the Declaration of Mark E. Merin, filed herewith) will receive $750 each if they were

7
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 8 of 10

1 arrested on felony charges and $1,000 each if they were arrested on misdemeanor charges.

2 C. Attorney’s Fees and Costs

3

Throughout the litigation of this action, plai ntiffs’ counsel has expended over 300 hours in

4 the preparation and litigation of this complaint, its amendment, the discovery of relevant facts, and

5 negotiation of a settlement and the making of this m otion for approval of that settlement. While

6 fees at a rate of $450 per hour would exceed $135,000, and costs to date, expended by plaintiffs’

7 counsel exceed $15,000, defendants have agreed to pa y and plaintiffs have agreed to accept the

8 total of $100,000 in payment of attorney’s fees and all costs associated with this litigation.

9

VI. THE PARTIES REQUEST AN APPROVAL OF THE STIPULATION OF

SETTLEMENT WHICH PROVIDES THAT NO NOTICE WILL BE GIVEN TO

10

MEMBERS OF THE CLASS

11

Rule 23(e)(1)(A) requires the Cour t to “app rove any settlem ent, voluntary dism issal, or

12 compromise of the claim s, issues, or defenses of a certified class period.” Subpart(1)(b) requires

13 the Court to “direct notice in a reas onable manner to all class m embers who will be bound by a

14 proposed settlement, voluntary dism issal, or com promise.” Although it m ight appear that Court

15 approval and notice are m andatory on dism issal or compromise of a class suit, the authors of

16 Newberg on Class Actions, Fourth Edition, Section 11:66 observe that:

17

“On closer analysis a notice is not mandatory on all instances but ‘shall be given to

18

all members of the class in such a manner as the Court directs.’ Broadly

interpreted, this language is su fficiently flexible to pe rmit the Court to approval a

19

dismissal or compromise by the names plai ntiffs individually, but to determine that

no class notice at all is required, w hen the dismissal or compromise will not result

20

in any prejudice to the cla ss. Thus, generally speaki ng, while notice to the class

21

will effectuate the po licies behind the rule, judicial discretion is permitted for withholding notice in instances when notic e would issue unnecessarily or force the

22

Court to employ unneeded alternative methods to circumvent the policy when

dismissal of the class liti gation is otherwise proper.” – Four, Newberg on Class

23

Actions, Section 11.66.

24

This is an appropriate case for the Court to exercise its discretion by not requiring notice to

25 be given of the proposed stipulated settlement for the following reasons:

26

1. No class has been certif ied and, indeed, there is no ascertainable class of persons

27

who were s trip searched, pr ior to arraignm ent, without reasonable suspicion that

28

they possessed contraband or weapons, fo r whom a class certification could be

8

JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 9 of 10

1

made. In the absence of identifiable members of a punitive class, the pa rties have

2

no idea as to whom notice could or should be given.

3

2. Settlement of named plaintiffs’ claims with payment to addition al persons who

4

contacted plaintiffs’ counsel’s office is not res judicata to any other claim; no one is

5

foreclosed from bringing an individual action under this proposed settlem ent. To

6

the contrary, if there are other persons who could bring another action as a result of

7

being illegally strip searched at Solano County Jails, the running of the statute of

8

limitations on any such claim has been and will be tolled u ntil the dismissal of the

9

TODD complaint. Since no notices have gone out advising persons of the filing of

10

TODD’s claim, it is unlikely that there ar e any putative plaintiffs who are relying

11

on the pendency of the TODD actio n to litigate a class claim on their behalf. It is

12

unlikely that any perso ns will or could be pr ejudiced by the settlem ent of this

13

complaint.

14

If notice were required to be given, it would have to be given to all persons who were

15 housed at the Solano County Jail from the period from April 16, 2005, to date in order to include

16 any potential punitive plaintiff; even the giving of such notice would be inordina tely expensive,

17 would be unnecessary, and would likely cause confusion among the persons who received the

18 notice. For all of these reasons , the parties respectfully request the Court to exercise its sound

19 discretion in this instance and approve the part ies’ negotiate stipulat ed settlement without

20 imposing on the parties any notice of proposed settlement requirements.

21

VII. CONCLUSION

22

The parties believe that the proposed settlement of this action is bo th fair and reasonable.

23 The named plaintiffs are not only being com pensated for their experiences for their experiences at

24 Solano County Jail, but also for having participated actively in the prosecuti on of this litigation.

25 Furthermore, their actions have resulted in the clarification of the So lano County policies which

26 prohibit strip searches of persons merely because they are going to be housed.

27

Attorney’s fees and costs were negotiated following a tabulation of the num ber of hours

28 devoted to the litig ation and are less than two-thirds of what they would have been had the Court

9
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

Case 2:07-cv-00726-FCD-EFB Document 37-1 Filed 09/25/09 Page 10 of 10

1 awarded fees following a motion for an award of attorney’s fees pursuant to 42 USC Section 1988.

2

Accordingly, respectfully request th e court to approve the stipulation of settlement and to

3 enter its order dismissing the complaint and the claims of named plaintiffs, with prejudice.

4 DATED: September 24, 2009

Respectfully submitted,

5

LAW OFFICE OF MARK E. MERIN

6

7

/s/ - “Mark E. Merin”

BY:____________________________________

8

Mark E. Merin

Attorneys for Plaintiffs

9

DATED: September 24, 2009

Respectfully submitted,

10

PORTER SCOTT

11

12

/s/ - “Terence J. Cassidy”

13

BY:____________________________________

Terence J. Cassidy

14

Attorneys for Defendants

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10
JOINT MOTION FOR ORDER APPROVING STIPULATION OF SETTLEMENT AND DISMISSAL OF COMPLAINT Todd, et al. v. Solano County, et al.; USDC, No. Dist., Case No. 2:07-cv-00726-FCD-EFB

 1

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IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 MICHAEL TODD, on behalf of himself

and all those similarly situated,

11

Plaintiffs,

12

vs.

No. CIV S-07-0726 FCD EFB

13 COUNTY OF SOLANO, SOLANO COUNTY SHERIFF GARY R. STANTON,
14 IN HIS INDIVIDUAL CAPACITIES, SOLANO COUNTY SHERIFF’S DEPUTIES
15 DOES 1 through 20, inclusive,

16

Defendants.

ORDER

17

/

18

This case was before the undersigned on January 30, 2008, for hearing on defendants’

19 motion to compel the California Department of Justice’s compliance with a subpoena duces

20 tecum pursuant to Fed. R. Civ. P. 45(c)(2)(B)(1). Specifically, defendants seek to compel

21 information relating to plaintiff’s criminal history from the California Department of Justice

22 (“DOJ”) on the basis that it is relevant to the claims and defenses in this suit.

23

This federal question case concerns claims brought pursuant to 42 U.S.C. §§ 1983 and

24 1988, for alleged constitutional violations by defendants in connection with strip searches at the

25 Solano County Jails. On October 17, 2007, defendants served a subpoena duces tecum on the

26 custodian of records at the California DOJ. The subpoena sought records “concerning the

1

1 criminal history of Michael James Todd,” the plaintiff in this action. See Exh. A to Robertson

2 Decl. Notice of the subpoena was completed on all parties, including the plaintiff through his

3 attorney of record.

4

Defendants seek the subpoenaed records in order to obtain an accurate and objective

5 summary of the criminal history records of the plaintiff given the nature of the claims asserted.

6 More specifically, a primary issue in this case is whether the strip search of plaintiff was

7 constitutional. In determining whether a strip search is warranted inside a jail context, officers

8 must consider several factors, including the nature of the offense and detainee’s prior arrest

9 record. See Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), overruled on other grounds,

10 Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999); Way v. County of Ventura, 445

11 F.3d 1157, 1162 (9th Cir. 2006).

12

Plaintiff has filed no objection to subpoena. The Department of Justice has objected to

13 production on the basis of state law. See Cal. Pen. Code §§ 11175, 11076, 11105 and 11141, et

14 seq., Cal. Civ. Code § 1798, et seq.; Cal. Evid. Code § 1040.

15

For the reasons stated on the record at the hearing, the court finds the DOJ’s objections

16 unavailing. See Pagano v. Oroville Hosp., 145 F.R.D. 683, 687 (E.D. Cal. 1993); Fed. R. Civ. P.

17 1 (“These rules govern the procedure in the United States district courts in all suits of a civil

18 nature. . . .”); see also Doubleday v. Ruh, 149 F.R.D. 601, 612 (E.D. Cal. 1993) (holding that

19 “under principles of federalism, state legislatures are not free to legislate what a federal court

20 may order produced in the way of documentation” and that Cal. Pen. Code § 11101, et seq. did

21 not bar plaintiff from obtaining the requested information).

22 ////

23 ////

24 ////

25 ////

26 ////

2

1

Accordingly, the court grants defendants’ motion to compel pursuant to Fed. R. Civ. P.

2 45(c)(2)(B). The DOJ shall produce the documents responsive to defendants’ October 17, 2007,

3 subpoena duces tecum within ten days.

4

SO ORDERED.

5 DATED: February 1, 2008.

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 Case: 2:07-cv-726 As of: 06/17/2012 04:47 PM PDT 1 of 5
CIVIL, CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:07−cv−00726−FCD−EFB

Todd v. Solano et al Assigned to: Judge Frank C. Damrell, Jr Referred to: Magistrate Judge Edmund F. Brennan Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/16/2007 Date Terminated: 09/29/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Michael Todd

represented by Mark E. Merin Law Office of Mark E. Merin 1010 F Street Suite 300 Sacramento, CA 95814 916−443−6911 Fax: 916−447−8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jamesy K. Davis

represented by Mark E. Merin (See above for address) LEAD ATTORNEY

Plaintiff DeAngela Harris

represented by Mark E. Merin (See above for address) LEAD ATTORNEY

Plaintiff Carmen Harris Robinson

represented by Mark E. Merin (See above for address) LEAD ATTORNEY

Plaintiff Bradley Allen Wolfe

represented by Mark E. Merin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant County Of Solano

represented by Terence John Cassidy Porter Scott, APC 350 University Avenue Suite 200 Sacramento, CA 95825 (916) 929−1481 x316 Fax: (916) 927−3706 Email: tcassidy@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address)

Case: 2:07-cv-726 As of: 06/17/2012 04:47 PM PDT 2 of 5

Defendant
Gary R. Stanton Solano County Sheriff

Stephen W. Robertson Porter Scott 350 University Avenue Suite 200 P.O. Box 255428 Sacramento, CA 95825 (916) 929−1481 x420 Fax: (916) 927−3706 Email: srobertson@porterscott.com TERMINATED: 08/18/2008
represented by Terence John Cassidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Merin (See above for address) ATTORNEY TO BE NOTICED
Stephen W. Robertson (See above for address) TERMINATED: 08/18/2008

V. Unknown Department of Justice

represented by Ashante Latrice Norton Attorney General's Office for the State of California Department of Justice 1300 I Street P.O. Box 944255 Sacramento, CA 94244−2550 (916) 322−2197 Fax: (916) 324−5567 Email: Ashante.Norton@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/16/2007
04/16/2007 04/17/2007 04/17/2007
04/17/2007 04/20/2007

# Docket Text
1 CLASS ACTION COMPLAINT against all defendants by Michael Todd; Demand for Jury Trial. Attorney Merin, Mark E. added.(Merin, Mark) (Carlos, K). (Entered: 04/16/2007)
2 CIVIL COVER SHEET by Michael Todd (Merin, Mark) (Entered: 04/16/2007)
RECEIPT number 12964 for $350.00 for New Case Filing Fee from Mark E. Merin. (Manzer, C) (Entered: 04/17/2007)
4 SUMMONS ISSUED as to *County Of Solano, Gary R Stanton* with answer to complaint due within *20* days. Attorney *Mark E. Merin* *2001 P Street* *Suite 100* *Sacramento, Ca 95814*. (Manzer, C) (Entered: 04/17/2007)
5 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Manzer, C) (Entered: 04/17/2007)
6 SUMMONS RETURNED EXECUTED by Michael Todd. County Of Solano served on 4/18/2007, answer due 5/8/2007; Gary R Stanton served on 4/18/2007, answer due 5/8/2007. (Merin, Mark) (Entered: 04/20/2007)

Case: 2:07-cv-726 As of: 06/17/2012 04:47 PM PDT 3 of 5

05/08/2007 05/29/2007 06/12/2007 01/02/2008 01/02/2008 01/02/2008 01/03/2008 01/08/2008
01/08/2008 01/16/2008 01/23/2008 01/30/2008
02/01/2008 03/07/2008

7 STIPULATION for Extension of Time to Respond to Complaint by County Of Solano, Gary R Stanton. Attorney Cassidy, Terence John added. (Cassidy, Terence) (Entered: 05/08/2007)
8 ANSWER to COMPLAINT with Jury Demand by County Of Solano, Gary R Stanton.(Cassidy, Terence) Modified on 5/31/2007 (Engbretson, K.). (Entered: 05/29/2007)
9 NOTICE by County Of Solano, Gary R Stanton. of Change of Firm Name (Cassidy, Terence) (Entered: 06/12/2007)
10 MOTION to COMPEL DOJ's Response to Subpoena Duces Tecum by County Of Solano, Gary R Stanton. Attorney Robertson, Stephen W. added.Motion Hearing set for 1/23/2008 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Robertson, Stephen) (Entered: 01/02/2008)
11 MEMORANDUM of POINTS and AUTHORITIES in Support of 10 Motion to Compel by County Of Solano, Gary R Stanton. (Robertson, Stephen) Modified on 1/3/2008 (Engbretson, K.). (Entered: 01/02/2008)
12 DECLARATION of Stephen W. Robertson in Support of 10 Motion to Compel by County Of Solano, Gary R Stanton. (Robertson, Stephen) Modified on 1/3/2008 (Engbretson, K.). (Entered: 01/02/2008)
13 CERTIFICATE of SERVICE by County Of Solano, Gary R Stanton re 12 DECLARATION, 11 MEMORANDUM, 10 MOTION to COMPEL DOJ's Response to Subpoena Duces Tecum. (Robertson, Stephen) (Entered: 01/03/2008)
14 MINUTE ORDER by CRD:The 01/23/08 hearing on defendants' motion to compel 10 third party California Department of Justice's compliance with a subpoena duces tecum pursuant to Fed. R. Civ. P. 45(c)(2)(B)(i) is continued to 1/30/2008 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. The California Department of Justice shall file an opposition, if any, to the motion by January 16, 2008, and defendants shall file a reply thereto, if any, by January 23, 2008. The Clerk is directed to serve this order on the Custodian of Records of the California Department of Justice at 4949 Broadway, Sacramento, California 95820. (Text Only Entry) (Cannarozzi, N) (Entered: 01/08/2008)
SERVICE BY MAIL: 14 Minute Order served on the Custodian of Records of the California Department of Justice at 4949 Broadway, Sacramento, California 95820.(Cannarozzi, N) (Entered: 01/08/2008)
15 MEMORANDUM/RESPONSE in OPPOSITION re 10 MOTION to COMPEL DOJ's Response to Subpoena Duces Tecum and DECLARATION OF ASHANTE L. NORTON Attorney Norton, Ashante Latrice added. (Norton, Ashante) Modified on 1/17/2008 (Dillon, M). (Entered: 01/16/2008)
16 REPLY to RESPONSE to MOTION re 10 Motion to Compel Response to Subpoena Duces Tecum. (Robertson, Stephen) Modified on 1/24/2008 (Matson, R). (Entered: 01/23/2008)
17 MINUTES (Text Only) for MOTION HEARING held on 1/30/2008 before Magistrate Judge Edmund F. Brennan re Deft's Motion to Compel DOJ's Response to Subpoena Duces Tecum 10 .All parites present. After consideration, the Court granted Deft's Motion for the reasons as stated on the record. Court order to follow. Defendants Counsel Stephen Robertson present.DOJ Counsel Ashante Norton, DAG present. Court Reporter/CD Number: ECRO, CD 1 of 1. (Cannarozzi, N) (Entered: 01/30/2008)
18 ORDER signed by Magistrate Judge Edmund F. Brennan on 2/1/08 GRANTING 10 MOTION to COMPEL. The DOJ shall produce the documents responsive to defendants 10/17/07 subpoena duces tecum within ten days.(Dillon, M) (Entered: 02/01/2008)
19 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell, Jr on 3/7/08. A joint status report shall be filed no later than 4/7/2008. The parties are reminded that failure to file a joint status report, in a timely manner, may result in the imposition of sanctions. (Price, M) (Entered: 03/07/2008)

Case: 2:07-cv-726 As of: 06/17/2012 04:47 PM PDT 4 of 5

04/07/2008 04/17/2008
07/28/2008 07/28/2008 07/29/2008 07/29/2008 07/31/2008
08/18/2008 01/15/2009 03/11/2009 03/12/2009
03/31/2009

20 JOINT STATUS REPORT by County Of Solano, Gary R Stanton. (Robertson, Stephen) (Entered: 04/07/2008)
21 STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Frank C. Damrell, Jr on 4/16/08. Discovery pre−certification shall be completed by 8/11/08. And Discovery post−certification shall be completed by 6/19/09. Disclosure of Expert Witness: Pre−certification expert disclosure is due 9/08/08. Rebuttals expert disclosures are due by 09/26/08. All pre−certification expert discovery shall be completed by 10/24/08. Motion hearing schedule: Plaintiffs Motion for Class Certification shall be filed by 12/12/08; Defendants opposition shall be filed by 01/09/09. Plaintiffs reply shall be filed by 01/3009. The hearing on the Motion shall be heard on 2/10/09 at 10:00 a.m. The Final Pretrial Conference is set for 1/15/2010 at 01:30 PM. The Jury Trial is set for 3/23/2010 at 09:00 AM. (Mena−Sanchez, L) (Entered: 04/17/2008)
22 STIPULATION and PROPOSED ORDER Permitting Plaintiffs to File First Amended Complaint by Michael Todd. (Attachments: # 1 Exhibit A)(Merin, Mark) (Entered: 07/28/2008)
23 STIPULATION and PROPOSED ORDER Extending Pre−Certification Discovery Deadline by Michael Todd. (Merin, Mark) (Entered: 07/28/2008)
24 STIPULATION and ORDER 22 signed by Judge Frank C. Damrell, Jr on 7/29/08 ORDERING that Plaintiffs' may file their First Amended Complaint. Defendants must file a response to the First Amended Complaint within 20 days of it being electronically filed and served. (Krueger, M) (Entered: 07/29/2008)
25 First AMENDED COMPLAINT against all defendants by Jamesy K. Davis, DeAngela Harris, Carmen Harris Robinson, Bradley Allen Wolfe, Michael Todd. Attorney Merin, Mark E. added.(Merin, Mark) (Entered: 07/29/2008)
26 AMENDED STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Frank C. Damrell, Jr on 7/31/08: After reviewing the parties Stipulation to amended the pre−certification discovery deadline the Court EXTENDS all deadlines as follows: Discovery Pre−Certification shall be completed by 10/24/08, and all Discovery Post−Certification shall be completed by 9/25/09. Experts Disclosures Pre−Certification are due 11/21/08, with Rebuttals due by 12/12/08 and all Pre−Certification Expert Discovery shall be completed by 1/12/09. Post−Certification Expert Disclosures due by 10/9/09, with Rebuttals due by 10/29/09, and Post−Certification Expert Discovery shall be completed by 11/30/09. Pltf's Motion for Class Certification shall be filed by 3/13/09, with Opposition due by 4/10/09, Reply due 5/1/09, and the Hearing on the Motion shall be 5/29/09 at 10:00 AM. Post−Certification Dispositive Motions shall be heard by 1/29/2010. Final Pretrial Conference set for 4/9/2010 at 1:30 PM, and Jury Trial set for 6/15/2010 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Krueger, M) (Entered: 07/31/2008)
27 ANSWER to AMENDED COMPLAINT and Demand for Jury Trial by County of Solano, Gary R Stanton.(Cassidy, Terence) (Entered: 08/18/2008)
28 NOTICE of Unavailability of Counsel by County Of Solano, Gary R Stanton. (Cassidy, Terence) (Entered: 01/15/2009)
29 STIPULATION and PROPOSED ORDER to re−set hearing on plaintiffs' Motion for Class Certification. (Merin, Mark) Modified on 3/12/2009 (Marciel, M). (Entered: 03/11/2009)
30 STIPULATION and ORDER 29 to re−set hearing signed by Judge Frank C. Damrell, Jr. on 3/11/2009. Motion for Class Certification Hearing is CONTINUED to 7/24/2009 at 10:00 AM in Courtroom 2 (FCD). Plaintiffs' Motion shall be filed no later than 5/11/2009; defendants' Opposition shall be filed no later than 6/4/2009; and plaintiffs' Reply shall be filed no later than 6/29/2009. (Marciel, M) (Entered: 03/12/2009)
31 STIPULATION and PROPOSED ORDER to re−set Briefing Schedule regarding plaintiffs' Motion for Class Certification. (Cassidy, Terence) Modified on 4/2/2009 (Marciel, M). (Entered: 03/31/2009)

Case: 2:07-cv-726 As of: 06/17/2012 04:47 PM PDT 5 of 5

04/01/2009 06/03/2009 06/04/2009
09/03/2009 09/04/2009
09/25/2009 09/29/2009

32 STIPULATION and ORDER signed by Judge Frank C. Damrell, Jr on 3/31/09 ORDERING the Plaintiffs' Motion for class certification shall be filed no later than 6/4/09; Defendants' Opposition shall be filed no later than 6/25/09; and Plaintiffs' Reply shall be filed no later than 7/9/09. (Becknal, R) (Entered: 04/01/2009)
33 STIPULATION and PROPOSED ORDER for Request to Reset Hearing on Plaintiffs' Motion for Class Certification; Continue Post−Certification Cut−Off Dates; Continue Final Pre−Trial Conference; [Proposed] Order by Michael Todd, Jamesy K. Davis, DeAngela Harris, Carmen Harris Robinson, Bradley Allen Wolfe. (Merin, Mark) (Entered: 06/03/2009)
34 STIPULATION and ORDER signed by Judge Frank C. Damrell, Jr on 6/4/09 ORDERING that the hearing on Plaintiff's MOTION for Class Certification is RESET to 9/18/2009 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Plaintiffs' MOTION shall be e−filed and e−served no later than 7/30/09 (before 5:00 p.m.); Defendants' opposition (if any) shall be e−filed and e− served no later than 8/19/09 (before 5:00 p.m.); and Plaintiffs' reply (if any) shall be e−filed and e−served no later than 9/03/09 (before 5:00 p.m.). The post−Certification of Discovery deadline is CONTINUED to 11/30/2009. The Post−Certification Expert Witnesses Disclosures deadline is CONTINUED to 12/11/2009. The last day for Post−Certification expert discovery is to be completed by 1/29/2010. The Final Pretrial Conference, presently set for 4/9/10 is CONTINUED to 5/7/10 at 1:30 P.M. (Mena−Sanchez, L) (Entered: 06/04/2009)
35 NOTICE of SETTLEMENT ; Request for 30 days to file settlement documents by Michael Todd, County Of Solano, Gary R Stanton, Jamesy K. Davis, DeAngela Harris, Carmen Harris Robinson, Bradley Allen Wolfe. Attorney Merin, Mark E. added. Dismissal due within 20 days pursuant to LR 16−160. (Merin, Mark) (Entered: 09/03/2009)
36 ORDER RE: SETTLEMENT AND DISPOSITION signed by Judge Frank C. Damrell, Jr. on 9/4/09 ORDERING that pursuant to the representation of the parties, in the above action, the court has determined that this case has settled. In accordance with the provisions of Local Rule 16−160, dispositional documents are to be filed on or before October 9, 2009. All dates/hearings set in this matter, to include any pending motions, are hereby VACATED. FAILURE TO COMPLY WITH THIS ORDER MAY BE GROUNDS FOR THE IMPOSITION OF SANCTIONS ON ANY AND ALL COUNSEL AS WELL AS ANY PARTY OR PARTIES WHO CAUSE NON−COMPLIANCE WITH THIS ORDER. (Becknal, R) (Entered: 09/04/2009)
37 JOINT MOTION for Order Approving Stipulation of Settlement and Dismissal of Complaint by Michael Todd, County Of Solano, Gary R Stanton, Jamesy K. Davis, DeAngela Harris, Carmen Harris Robinson, Bradley Allen Wolfe. (Attachments: # 1 Points and Authorities, # 2 Declaration of Mark E. Merin, # 3 Exhibit A # 4 Proposed Order, # 5 Exhibit A to Proposed Order)(Merin, Mark) Modified on 9/28/2009 (Duong, D). (Entered: 09/25/2009)
38 ORDER signed by Judge Frank C. Damrell, Jr on 9/28/09 ORDERING the settlement is APPROVED; complaint is DISMISSED; and the claims of pltfs are DISMISSED WITHOUT PREJUDICE. CASE CLOSED. (Carlos, K) (Entered: 09/29/2009)


On April 16, 2007, Plaintiff, represented by private attorney Mark E. Merin, filed a 42 U.S.C. § 1983 class action lawsuit in the U.S. District Court for the Eastern District of California challenging the Solano County Sheriff's policies and practices concerning the use of strip and visual body cavity searches in Solano County Jail.  Plaintiff alleged that such searches, conducted in the absence of any reasonable suspicion of contraband or weapons, violated the Fourth and Fourteenth Amendments to the U.S. Constitution.  In September 2009, two years after the defendants revised their search policies to comply with federal law, the parties settled with the defendant paying $110,000 in damages and $100,000 in attorney fees.