Tardiff v. Knox County

Citation365 F.3d 1
Decision Date09 April 2004
Docket NumberNo. 04-1165.,No. 04-1065.,04-1065.,04-1165.
PartiesLaurie TARDIFF, Plaintiff, Appellee, v. KNOX COUNTY, Daniel Davey, Defendants, Appellants. Michele Nilsen, et al. Plaintiffs, Appellees v. York County, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Peter T. Marchesi with whom Wheeler & Arey, P.A., John J. Wall, III, and Monaghan Leahy, LLP were on brief for appellants Knox County, Daniel Davey and York County.

Robert J. Stolt with whom Sumner H. Lipman, Lipman, Katz & McKee, P.A., Dale Thistle, Law Office of Dale Thistle and Frank DiPrima were on brief for appellee Laurie Tardiff.

Robert J. Stolt for appellees Michele Nilsen, et al.

Howard Friedman, J. Lizette Richards, Law Offices of Howard Friedman, P.C., David G. Webbert and Johnson & Webbert, L.L.P. on brief for appellees Michele Nilsen, et al.

James R. Pingeon, Massachusetts Correctional Legal Services, Inc., Deborah M. Golden, D.C. Prisoners' Legal Services Project, and William Claiborne on brief for Massachusetts Correctional Legal Services, and D.C. Prisoners' Legal Services Project, Amici Curiae.

Christina R.L. Norris, Donna A. Schneiter and Sarah Wunsch, American Civil Liberties Union of Massachusetts, on brief for American Civil Liberties Union of Massachusetts, Amicus Curiae.

Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOUDIN, Chief Judge.

Before us are orders certifying class actions in two jailhouse strip search cases. The two cases, arising before two different judges in the same court (Judges Carter and Hornby), are targeted at two different Maine counties (Knox and York). In each case, a named plaintiff seeks to represent others who (it is alleged) were improperly strip searched. Following certification of the classes, we allowed interlocutory appeals and now affirm.

Over the last few decades, a changed popular sensibility has produced a series of decisions curtailing what was once an apparently routine practice in many jails of strip searching arrestees not yet convicted of any crime.1 Such cases have included, or brought in their wake, lawsuits by those who were searched seeking damages from officials or governmental entities responsible for the searches. E.g., Miller v. Kennebec County, 219 F.3d 8, 12-13 (1st Cir.2000). These suits are ordinarily framed as Fourth Amendment claims for unconstitutional search and seizure and brought under 42 U.S.C. § 1983 (2000). Id.

Qualified immunity has defeated some of these claims against officials, e.g., Savard v. Rhode Island, 338 F.3d 23, 33 (1st Cir.2003) (en banc), cert. denied, 540 U.S. 1109, 124 S.Ct. 1074, 157 L.Ed.2d 895 (2004), but the doctrine does not protect counties, see Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Though not liable under a respondeat superior theory, Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), counties and like entities may be liable under section 1983 not only for their formal official acts and policies, but also, under some circumstances, for practices "so permanent and well settled" as to constitute established custom. Monell v. Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

In the first case before us — brought against Knox County, its sheriff, and unidentified officers — Laurie Tardiff filed such a section 1983 claim, asserting that she had been arrested for witness tampering after having been previously charged with violating an anti-harassment order. Tardiff v. Knox County, 218 F.R.D. 332, 334 (D.Me.2003). At the jail house, Tardiff alleged that she was taken to a shower area, ordered by a female corrections officer to disrobe, and required to "squat and cough" while the officer could see her vagina and anal area. Id.

Judge Carter, presiding in the case, called this a "strip and visual body cavity search," Tardiff, 218 F.R.D. at 334; Judge Hornby, faced with a similar description by the lead plaintiff in a parallel suit against York County, called the same thing a "strip search," Nilsen v. York County, 219 F.R.D. 19, 22, 25 (D.Me.2003). For simplicity's sake, we use "strip search" in this decision to cover the described conduct, recognizing that the phrase is used variously in different decisions and that there is a spectrum of possible search practices inflicting differing indignities. Just what happened to Tardiff and others may itself be disputed.

Tardiff sought to represent a class of persons similarly situated and in due course Judge Carter certified a class under Fed.R.Civ.P. 23(b)(3). Tardiff, 218 F.R.D. at 336. The class, as defined by the court, covered:

All people who after November 19, 1996, were subjected to a strip search and/or visual body cavity search without evaluation for individualized reasonable suspicion while being held at the Knox County Jail:

(1) after having been arrested on charges that did not involve a weapon, drugs, or a violent felony; or

(2) while waiting for bail to be set on charges that did not involve a weapon, drugs, or a violent felony; or

(3) while waiting for an initial court appearance on charges that did not involve a weapon, drugs, or a violent felony; or

(4) after having been arrested on a warrant that did not involve a weapon, drugs, or a violent felony.

Id.

In the second case, brought before Judge Hornby, a substitute lead plaintiffMichael Goodrich — was arrested for failing to report for probation and (he alleges) was strip searched with the same strip, squat and cough procedure as Tardiff. Nilsen 219 F.R.D. at 22. Like Tardiff, he alleged that this was done in accordance with a policy or custom of the county that was applied widely to arrestees including those charged with unthreatening offenses. Judge Hornby, acting shortly after Judge Carter, entered a comparable order certifying a class under Rule 23(b)(3). Id. at 19-20.2

In each case, the defendants sought interlocutory review of the class certification. We have discretion as to whether to entertain such an appeal. See Fed.R.Civ.P. 23(f) and 1998 advisory committee's note to subdivision (f). One reason for review is a threat of liability so large as to place on the defendant an "irresistible pressure to settle." Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 293 (1st Cir.2000). Although we thought it quite possible that the certification orders would survive review, the financial and similar information provided by the two counties in this case persuaded us to grant interlocutory review, which we expedited.

Nominally, review of decisions granting or denying class certification is for "abuse of discretion," Smilow v. S.W. Bell Mobile Sys., Inc., 323 F.3d 32, 37 (1st Cir.2003), but this chameleon phrase is misleading. Express standards for certification are contained in Rule 23, so an appeal can pose pure issues of law reviewed de novo or occasionally raw fact findings that are rarely disturbed. See id. Here, we are concerned with applying general standards to particular facts where the touchstone is "reasonableness" and review is deferential.3

All class actions certified under Rule 23 must meet certain prerequisites listed in subsection (a): there must be numerosity of class members, common questions of law or fact, the representative must be typical of the class, and his or her representation of the class must be adequate. Fed.R.Civ.P. 23(a). Here, these preconditions are admittedly satisfied. The defendants' attack is instead on the further requirement, for a(b)(3) class, that the court find that common questions "predominate" over individual ones and that the class action be "superior" to other methods of resolving the controversy. Fed.R.Civ.P. 23(b)(3).

Subsection (b)(3), the cute tiger cub that has grown into something unexpectedly fearsome in civil rights and mass tort litigation, is a joinder device for consolidating separate but similar claims — as opposed, for example, to disputes about a common fund, which is covered by subsection (b)(1)(B). The subsection lists non-exclusive factors for making the determination — the most pertinent here is manageability — but the "predominance" and "superiority" labels turn largely on the particular facts and issues presented. Some courts have allowed strip search class actions and others not.4

What here are the issues? The principal ones — and this is our own very rough cut — appear to be these: what rule, policy or custom as to strip searches was in force in each county during the periods in question; was it lawful as applied to groups or individual class members; if unlawful as to some categories of arrestees, were there still facts as to particular arrestees that justified a strip search; and if liability exists, what are the damages to each person injured? There are obviously other issues (e.g., as to individual defendants); but these four are likely the most important.

On the first issue — what rules, policies or customs prevailed — there is already deep disagreement between plaintiffs and defendants. So the question arises whose version is a court to assume for purposes of deciding whether a class action is even suitable? It is sometimes taken for granted that the complaint's allegations are necessarily controlling; but class action machinery is expensive and in our view a court has the power to test disputed premises early on if and when the class action would be proper on one premise but not another.5

In this case, whether there was a rule, policy or custom of automatically strip searching all or most categories of arrestees is on its face a common disputed issue — as both sides concede. Nothing here obliged the district courts to do more than view the issue as such and, so viewed, it weighs in favor of class action status. The issue is like any...

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