208 F.R.D. 69

United States District Court, S.D. New York.
Timothy S. MANEELY, on behalf of himself and all others similarly situated,
Plaintiff,

v.

CITY OF NEWBURGH, et al., Defendants.

No. 01 CIV. 2600(CM).

May 16, 2002.

Arrestee filed § 1983 action challenging constitutionality of city police department's policy of strip searching all pre-arraignment prisoners. On arrestee's motion for partial class certification, the District Court, McMahon, J., held that: (1) arrestee had standing to seek injunctive relief; (2) police department's revision of its strip search policy did not render action moot; and (3) partial class certification was warranted.

Motion granted.
*70 James Edward Monroe, Dupee & Dupee, P.C., Goshen, NY, for plaintiff.
David Merrill Posner, McCabe & Mack, LLP, Poughkeepsie, NY, Marilyn D. Berson, Newburgh, NY, Patrick T. Burke, Burke, Miele & Golden, Goshen, NY, James M. Fedorchak, Gellert & Cutler, P.C., Poughkeepsie, NY, for defendants.
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL CLASS
CERTIFICATION

MCMAHON, District Judge.
Plaintiff, Timothy S. Maneely, brings this action under 42 U.S.C. § 1983, alleging that the City of Newburgh maintained a policy of strip searching all pre-arraignment prisoners, including those arrested for misdemeanors and violations. Maneely seeks to represent a class of persons who were strip searched before arraignment, and in the absence of reasonable suspicion to believe that they were carrying or concealing weapons or contraband, between March 27, 1998 and March 27, 2001.
*71 Plaintiff moved simultaneously for class certification and summary judgment. Defendants asked the Court to defer issuing a ruling on the question of liability until the motion for class certification was decided. I agreed to this in an order dated November 15, 2001.
The class certification motion is granted, but limited to the issue of whether defendants maintained an unconstitutional strip search policy. The Court will decide that issue in the next 60 days and will issue an order affording appropriate relief to the class.
FACTUAL BACKGROUND
On June 4, 2000, Maneely was arrested and charged with one count of obstructing governmental administration in the second degree (a Class A Misdemeanor), one count of leaving the scene of an accident (a Class B Misdemeanor), and harassment in the second degree (a non-criminal offense). (Compl.¶ 8.) Maneely was approximately 20 years-old and had been arrested on one prior occasion as a youthful offender. (Compl.¶ 8.) The arresting officers took him to the City of Newburgh Police Department. (Compl.¶ 38.) At the police station, officers of the City of Newburgh Police Department ordered him to strip naked, bend over and squat revealing his sexual organs and anal cavity for visual inspection. (Compl. ¶ 38; 40.) He was then placed in a cell to await arraignment. According to Maneely, during the strip search he was informed by the arresting officer that everyone had to go through this procedure. (Compl.¶ 39;)
Maneely filed this action on March 27, 2001. Plaintiff argues that, from 1995, defendants instituted and enforced a policy that required the systematic strip search of all persons being held awaiting arraignment by the City of Newburgh Police Department. (Compl.¶ 2.) Defendants' policy did not distinguish between persons charged with lesser offenses, nor did it require officers to consider whether there was reasonable suspicion to believe that a particular detainee was carrying a weapon or contraband. (Id.)
This is not the first time defendants have been sued regarding their strip search policy. In Huck v. City of Newburgh, 275 A.D.2d 343, 712 N.Y.S.2d 149 (2000), decided on August 14, 2000, the plaintiff, Huck, alleged that she was improperly strip searched in a Newburgh police station. Huck had been arrested for possession of an unlicensed dog. Id., at 344, 712 N.Y.S.2d 149. She was taken to the police station and strip searched pursuant to the City of Newburgh's policy of strip searching all arrestees detained in a cell. There was no evidence that either the arresting officer or the person who performed the search suspected that she possessed any weapons or contraband. The Appellate Division therefore reversed a jury verdict in favor of the City, finding that the search was unconstitutional. Id.
Defendants argue that, on August 24, 2000, in response to the Appellate Division's decision in Huck, the Newburgh Police Department changed its policy regarding strip searches. (Def's Mem. of Law in Opp. to Class Certification, at 2.) This new policy was formalized in a memorandum dated October 2, 2000. (Id.) Plaintiff notes that the department made these changes only a few days after the defendants received plaintiff's Notice of Claim, which was served on or about August 16, 2000. Plaintiff argues that it was this Notice of Claim, and not the decision in Huck, or any earlier controlling precedents, that prompted defendants to change their formal policy.
In this action, plaintiff seeks: a declaratory judgment declaring that a strip search of a pre-arraignment arrestee undertaken absent reasonable suspicion that the arrestee is concealing weapons or other contraband is unconstitutional; (ii) an order enjoining defendants from implementing or enforcing such a policy; (iii) compensatory damages for the injuries caused by defendants' unlawful conduct; and (iv) punitive damages assessed against the individual defendants to deter such intentional, reckless and unlawful disregard for the well-settled Constitutional law of the United States and the State of New York. Plaintiff seeks class certification under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure.
*72 Defendants argue that the motion for class certification should be denied because questions about each class member's individual situation predominate over any common issues. They assert that as a result of the implementation of the revised protocol for strip searches in August 2000, plaintiff's claims for declaratory and injunctive relief are moot. Therefore compensatory and punitive damages are the only relief that the plaintiff seeks. Defendants further argue that, because the putative class action seeks only money damages, individual damage questions predominate over the common questions and a class action is not a superior method for adjudicating the controversy under Rule 23(b)(3). Fed.R.Civ.P. 23(b)(3).
DISCUSSION

The Supreme Court has held that district courts must conduct a "rigorous analysis" into whether the prerequisites of Rule 23 are met before certifying a class. General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); see also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). The district court has broad discretion in certifying a class, but class certification standards should be applied liberally. Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 179 (2d Cir.1990); Selby v. Principal Mut. Life Ins. Co., 197 F.R.D. 48, 54 (S.D.N.Y.2000). In deciding a motion for class certification, the district court must treat all of the allegations of the complaint as true. Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66 (E.D.N.Y.2000) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). "[T]he question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 133 (2d Cir.2001) (citing Eisen, 417 U.S. at 178, 94 S.Ct. 2140).
I. Standing and Mootness of Injunctive Relief
Defendants argue that the lead plaintiff does not have standing to seek injunctive or declaratory relief because there is no likelihood that he or any other potential class member will be subjected to this same conduct in the future. They also argue that any claim for injunctive relief would be moot since the policy has already been changed to conform with controlling precedent. Defendants contend that since this Court cannot grant injunctive relief to the class as a whole, individual questions of liability and damages would predominate over any common issues, and class certification is inappropriate. Therefore, I must first decide whether Maneely has standing to seek injunctive relief.

In order to meet the standing requirement of Article III of the United States Constitution, a plaintiff must demonstrate an injury in fact, causation of that injury, and a likelihood that the requested relief will redress that injury. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). A plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury in fact requirement, but must show a likelihood that he or she will be injured in the future. City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." Steel Co., 523 U.S. at 108, 118 S.Ct. 1003.
A. Standing
Defendants argue that Maneely has no standing to seek injunctive or declaratory relief because there is no likelihood that defendant will be subjected to this same conduct in the future.
Defendants rely on Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660. In Lyons, the plaintiff sought declaratory and injunctive relief against the Los Angeles police, claiming he had been illegally choked by Los Angeles police officers. Id. at 98, 103 S.Ct. 1660. Although he alleged that the Los Angeles police routinely applied choke holds and that he faced a threat of being illegally choked *73 again in the future, the Supreme Court held that plaintiff's allegations of future injury were too speculative and dismissed the case for lack of standing. Id. at 109-11, 103 S.Ct. 1660. The Court stated that in order to allege standing, Lyons would need to establish "(1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, ... or, (2) that the City ordered or authorized police officers to act in such manner." Id.

Following the standard set forth in Lyons, the Second Circuit has held that a plaintiff may have standing to seek injunctive relief against a police department if the alleged improper actions were conducted pursuant to a uniform practice or official policy. In Deshawn E. ex rel. Charlotte E. v. Safir, 156 F.3d 340, 343 (2d Cir.1998), the Second Circuit held that a group of plaintiffs had standing to sue for equitable relief where there was an officially-endorsed policy of submitting arrestees to coercive interrogations. In this case, plaintiff alleges that at the time that the department was given notice of this suit, there was an official policy of strip searching all arrestees who were detained in a cell. Maneely thus has standing to seek injunctive relief.
B. Mootness
Defendants argue that, as their strip search policy has been changed to conform with the law, plaintiff's claim for injunctive relief is moot. Plaintiff does not contest the department's contention that the policy has been changed. Instead, Maneely argues that an injunction is needed to prevent the department from reverting to its old ways once this lawsuit is finished.

The Supreme Court has stated that a "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of that practice." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). A suit will be rendered moot by a defendant's voluntarily change in a policy only if it is "absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). The party asserting mootness has a "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again." Id. (internal citations omitted).
Defendants claim that they did not change their behavior in response to this lawsuit, which was filed seven months after they changed their policy. However, defendants did receive plaintiff's Notice of Claim before they changed their policy. Furthermore, defendants' assertion that there is no basis for plaintiff to assume that the department will resume its old practices rings hollow, given how long it took them to conform their policy to law regarding the constitutionality of strip searches, which has been clear since at least 1995. See Shain v. Ellison, 273 F.3d 56, 62-66 (2d Cir.2001). [FN1] The fact that the department disregarded the law on strip searches for five years causes this Court to question defendants' sincerity about maintaining their policy in conformity with the law.
FN1. Actually the law has been settled for far longer. No law enforcement officer is permitted to search a misdemeanor arrestee absent individualized reasonable suspicion. In Weber v. Dell, 804 F.2d 796,
803 (2d Cir.1986), the Second Circuit held that:

the Fourth Amendment precludes prison officials from performing strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.

This holding was affirmed in Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir.1988) and Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994).


Defendants were wise to change their policy after Huck, and would be extremely foolish to revert back to an unconstitutional policy at this point. However, I agree with the reasoning in Mack v. Suffolk County, 191 F.R.D. 16, 22 (D.Mass.2000), that a police department's delay in conforming its behavior to controlling precedent increases the risk that the department will resume its old ways *74 at the end of pending litigation. Mack, 191 F.R.D. at 22 (holding that "[w]hile it is true that the ... Defendants' change in policy diminishes the chances that ... members of the proposed class will be strip searched without a reasonable suspicion of concealed weapons or contraband in the future, it does not eliminate that possibility. Absent the imperative imposed by an injunction, these Defendants are free to reinstate the objectionable practice at any time."). Given that it took the defendants well over five years to conform Newburgh's strip search policy with the law, it is not "absolutely clear" that defendants will not "return to their old ways." Laidlaw, 528 U.S. at 189, 120 S.Ct. 693. Thus, plaintiff's claim for injunctive relief is not moot.
II. Class Action Requirements
The basic criteria for the certification of a class action are:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a); Visa Check, 280 F.3d at 132-33; Shankroff v. Advest, Inc., 112 F.R.D. 190, 193 (S.D.N.Y.1986).
Additionally, one of the three elements of Rule 23(b) must also be satisfied. See Visa Check, 280 F.3d at 133; Bresson v. Thomson McKinnon Securities, 118 F.R.D. 339, 344-45 (S.D.N.Y.1988). In this case, plaintiff proceeds under Rule 23(b)(3). Therefore, class certification is appropriate only if "the Court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3).
A. Rule 23(a)
1. Numerosity

Rule 23(a)(1) provides that a member of a class may sue on behalf of all class members only if "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). Plaintiff need not prove the exact number of class members, only that the class is so numerous that the joinder of all potential plaintiffs would be difficult or inconvenient. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993); Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y.2000); Primavera Familienstiftung v. Askin, 178 F.R.D. 405, 409 (S.D.N.Y.1998).
Defendants concede that there are too many potential class members in this case for joinder to be practical. They argue instead that the number of potential plaintiffs is so large that it would be unmanageable. This argument relates to the manageability of the class, rather than the numerosity requirement.

Plaintiff has estimated from the statistical data of the City of Newburgh Police Department that several thousand pre-arraignment detainees or arrestees were strip searched between March 27, 1998 and March 27, 2001, the proposed class period. While one can fairly infer that some of those detainees/arrestees were strip searched in a constitutionally-compliant manner, one can also infer that there were enough unconstitutional searches that joinder of all members would be impracticable. Therefore, plaintiff has met the Rule 23 numerosity standard.
2. Commonality