TN THE C1\TTED STATES DISTRICT COl'RT

FOR THE DISTRICT OF NEW MEXICO SHARON ALLlSO"l. on behalf of herself and the class

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of similarly situated persons;

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CASE NO:

LNCOLN COUVry BOARD OF COMMISST01\ERS. LINCOL!'> COuNT'{ SHERIFF'S DEPART\1ENT, LINCOLN COL~TY SHERIFF RICHARD VIRDEX N HIS INDTVIDL:AL A"D OFFICIAL CAPACITIES, COR1\ELL CO\1PA1\IES. I!'>C., CORRECTI01\AL S'r'STEMS, I:\C., UNCOL" COll,TY SIIERIFF DEPLT'{ tvl0RALES, LINCOLN COCNTY SHERIFF'S DEPlTIES DOES I TIIROL:GH 50. A1\D ROES I THROUIH 20, I\,CUJSIVE.

JlIRY TRIAL REQUESTED

Defendants.

CLASS ACTIO:\' COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL AND CQNSTITl~T10l\AL RIGHTS
AND FOR DECLARATORY A~D INJl"iCTIVE RELIEF

INTRODUCTION This is an action for declaratory and injunctive relief. damages. and punitive damages against L1:'>1COLN COUNTY BOARD OF CO\1MISSTO\,ERS, LT"lCOLN COC1\TY SIIERIFF'S DEPARTME1\T, LI\'COL"l COUNT'{ SHERIFF RICHARD VIRDE"J. Individually and in His Ofticial Capacity, COR"lELL COMPA"JTES, INC., CORRECTlO'\AL SYSTE\1S, INC., U1\COLN COliNTY SHERIFF DEPUTY MORALES, LlNCOL\: COuNTY SHERIFF'S DEPCTIES sucd under their iictitious names as DOES I THROUGH 50. and ROES I THROCGH 20, for violations of plaintiffs constitutional rights resulting from application of U:\COLN County's and the Sheriffs policies, practices. and customs concerning the lise of strip
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searches and visual body cavity searches in LINCOL~ County Jails. Plaintiff, for herself and all those in the class of similarly situated persons, seeks an order declaring illegal defendants' policy of subjecting detainees in their custody to strip and visual hody cavity searches before they are arraigned and \\'ithout having any reasonahle suspicion that the searches will he productive of contraband.
Defendants' strip search and visual body cavity search policies. practices, and customs violate those rights of plaintiff, and all those she represents. that are secured by the Fourth and Fourteenth Amendments to the United States Constitution and entitle plaintiff. and all those similarly situated. to reCO\'cr damages under the Federal Ci\'il Rights Act (42 U.S.c. § 1983).
Additionally. plaintiff includes. on hehalf ofhersclf and on behalf of all those she represents. a supplemental claim under !\ew Mexico state law against defendants for violation of the State constitutional right to be free from unreasonahle searches and seizures as defined in the State Constitution. Art. 11, Sec. 10. and pursuant to the Ne\\' Mexico Tort Claims Act.
Plainti ff alleges against Defendants upon knowledge as to herself and all matters of public record, and upon information and belief as to all other mallers, as follo\\'s:
1. JURISDICTION AND VE:'IUE This action is brought pursuant to 42 USC §§ 1983 and 1988, and the Fourth and Fourteenth Amendments to the Cnited States Constitution. Jurisdiction is founded upon 28 USC §§ 1331 and 1343(a)(3) and (4) and the aforementioned statutory and constitutional pro\'isions. I. Under 28 USC § I 367(a) the C0U11 has supplemental jurisdiction over the state claims alleged herein. 2. Venue is proper in this Court pursuant to 2R L'SC § 1391(b).
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II, PARTIES 3. PlaintiffSlIARO"\' ALLISO"\', and all those similarly situated. are. and at all matcrialtimcs herein. were residents of the state of New Mexico who were arrested within the period beginning three (3) years before the filing of this Complaint, and continuing to this date. and who were subjected to strip and/or visual body cavity searches at a I .lNCOL~ County Jail (hereinafter referred to as the "L~COLN County Jair'). prior to being arraigned andlor without the defendants first having. and recording in writing. a reasonable suspicion that the searches would be productive of contraband or weapons. 4. Defendant LINCOLN COCl\TY BOARD OF COM:.1ISSIONERS (hereinafter reli:rred to as "LI:\COLN COL.:!\ITY") is a political subdivision of the State orNew Mexico. Pursuant to § 4-46-1 :\MSA 1978, all suits or proceedings against a county are to be brought in the name of the board of county commissioners orthat county. At all material times hereto, LINCOLN COLINTY was a governmental entity and local public body as those tenns are defined in the New Mexico Tort Claims Act. §§ 41-4-3(B) and (C) 1\\1SA 1978. as amended. At all times material hereto. I.lKCOLN COLINTY was the employer andior supervisor of thc individually namcd defendants. Pursuant to §§ 4-44-19. 33-3-3 through S, and 33-3-13 '\MSA 1978. UI\COLN COLINTY had a statutory obligation to provide for the confinement of prisoners incarcerated under the County's jurisdiction. LINCOLN COU!\ITY had a stallltory obligation to appropriate funds and otherwise provide the necessary funding to maintain and operate a facility for the incarceration of prisoners under the jurisdiction orthe County. 5. Defendant CORNELL COMPAKIES. INC. ("COR!\IELL") is. on inlollllation and belief. a corporation organized under the laws of the State ofDc1aware, headquartered in Texas,
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and doing business in the State ofXew Mexico. On April 1.2005. CORNELL completed its acquisition L)f defendant CORRECTIOI\AL SYSTEMS, 1);('. (hereinafter "CS'''). which, at all times relevant hereto prior to April 1.2005. operated the LE....COLi\ COUl\TY jail under contract with LINCOLN COeNTY. At all material times hereto. CORI\ELL and its predecessors in intercsts. and their officers. employees. and agents acted under color of law and within the scope of their employment and agency.
6. Defendant CS1 is. on information and belief. a wholly-owned subsidiary of defendant CORNELL. and prior to April 1. 2005. was, on information and belief, a corporation organized under the laws of the State of Delaware, headquartered in San Diego, California. doing business in the State of \lew \1exico. Prior to April I. 2005. CSI operated the U\lCOL\,J COUNTY jail under contract with IJNCOLN COUNn". At all material times hercto. CSI and its oftlcers, employees. and agents acted under color ofla\\" .Uld within the scope of their employment and agency.
7. Defendant LlNCOL:"'- COU\lTY SHERIFF RICHARD VIRDEI\ is, and at all material times referred to herein. was a resident of LINCOl:"'- COUNTY and the duly elected Sheriff of UNCOl:"'- COUNTY. In addition. at all times material hereto. defcndant VIRDE\I was a law enforcement orticcr and public employee as those terms are defined in the :"'-e\\' ]'vfexico Tort Claims Act, §§ 41-4-3(0) and (F) :\'MSA 19n, as atnended and was acting within the scope of his duties as well as under color oflaw. He is sued in his individual and ofiicial capacities.
8. Defendant U]\COLN COl..J\lTY SHERIFF DEPUTY \10RALES is an agent and/or employee of defendants who, as part of his duties at the U".;COlN County Jail, subjected
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plaintiff. and others who she Tepresents. to pre-arraignment strip and/oT visual body cavity

searches without having. and recording in writing. a Teasonable suspicion that the seaTches would

he pToductive of contraband OT weapons. In addition. at all times mateTial heTcto, defendant

MOR..A.LES was a law enfoTcement officer and puhlic employee as those teTms are defined in the
** New \lexico Tort Claims Act. 41-4-3(0) and ~F) \:MSA 1978, as amended and was acting

within the scope of his duties as well as under color of/a\\'.

9.

Defcndants LINCOLN COUNTY SHERIFF DEPUTIES sued heTein by their

fictitious names (Docs 1 through 50) are all deputies who. as part of their duties at the LINCOLN

County .Tail. suhjected plaintiff. and al! those she Tepresents. to pre-arraignment strip and/oT

visual body cavity searchcs without having. and recoTding in writing, a reasonable suspicion that

the searches would be productive of contraband or weapons.

10. At all material times mentioned herein. each ofthc defendants was acting undeT

the coloT of la\\', to wit. under color of statutes, oTdinances. Tegulations, polic.ies, customs and

usages of the state ofNcw Mcxico. LNCOLN COUKTY. and/oT thc UNCOl\, COL:NTY

SHERIFF'S DEPARTMEJ\T.

11. Defendants whose names are not now known and who are sued by the fi ctitious

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

named defendants who oTdeTed, condoned, authoTized. c.overed up, OT WCTC otherwise associated

with the implementation of the illegal policy and practices relating to stTip seaTches complained

ofheTcin.

12. Defendants UJ\COlJ\ COUNTY, COR..~ELL, CSI. and VIRDE:\ were

Tesponsible for the sCTeening, hiring. training, monitoring, supeTvision, and disciplining of

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subordinate;: employees of the UKCOLN County Jail. and wcre the authoritics empowering the lJ\!COL\1 COl.~TY DEPUTIES to incarcerate prisoners under thcjurisdiction of Ll>,;COLN
COC"lT'r". Defendants LlNCOLK COUNTY, CORi\'ELL. csr, and VIRDEN were responsihle
for administering the Jail facilities and for making. overseeing. and implementing the policies, practices, and customs challenged herein relating to the operation of the LLNCOLK County Jail.
13. Plaintiffs allegations against LTNCOL:-.I COL~T''' arc based on acts and
omissions of the SHERTFF, his DEPUTIES. and the acts and omissions of CORN ELL and csr
and their cmployees. agents. and representati\'cs, as well as on acts and omissions of persons who are L1:-.1COLN COUNTY employees. and on UNCOL:\ COCJ\TY's breach of its duty to protect plaintiff. and all those she represents. from the wrongful conduct of said persons and cmployees.
14. Defendants UNCOLN COUNT\" SHERIFF'S DEPARnlE"lT. UKCOLN COUNTY SHERIFF RICHARD VTRDEK. in his individual and official capacity, COR."IELL, and CSI also maintained or permitted an oftlcial policy or custom of causing or penllitting the occurrence of the t)lles of wrongs complained of herein. which wrongs damaged plaintiff, and all those similarly situated, as herein alleged.
J 5. Class action plaintiffs are those similarly situated who. during the period beginning three (3) years before the filing of this Complaint. and continuing to this date, were suhjected by defcndants to pre-aITaiglllnent strip and/or yisual body ca\'ity searches without defendants haying, and recording in writing, a reasonable suspicion that the searches would be productive of contrahand or weapons.
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III.
FACTS 16. On or ahout May 26, 2005, plaintiff SHAROJ\ ALLlSOl\ (hereinaftcr referred to as "plaintiff') was arrested allegedly on an outstanding wammt for issuing a worthless S16.36 check in Alamogordo, New Mexico. Plaintiff was transported to the L1\1COLN County Jail by New Mexico State Police Ofliccr Samuel Houston. l..!pon arrival at the U\lCOL\I County Jail. and prior to any appearance before a judge and without there being any reasonable suspicion that she was concealing contrahand, plaintiff, pursuant to policies, practices, and procedures of defendants, and each of them, was suhjected to a visual hody cavity search (strip search) in violation of the Fourth ,md Fourteenth Amendments to the Cnitcd States Constitution and Article II, Section 10 of the Constitution of the State of\l"ew l\icxico. Plaintiffwas coerced, forced, and compelled to disrobe for the strip search in an area that could be ohserved by persons who were not participating in the search and who wcre of the opposite sex. 17. Within ninety (90) days of the aforesaid strip search, plaintifffi1cd a group Gm'ernmcnt Tort Claim for herself and for all persons similarly situated (a copy of said claim is attached hereto as Exhibit ;'A", and incorporated herein to the extent relevant by this reference). PlaintiJls group claim "as denied on or about July 8, 2005, allowing the filing of this class action complaint to include claims for state constitutional violatiolls. 18. Plaintiffis infornlcd and believes, and therefore alleges, that defendants routinely follow their policy, practice, and custOlll of subjecting pre-arraignmcnt detainees, including plaintiff, and all those she represents, to strip and visual body cavity searches without tirst having, and recording in writing, a reasonahle suspicion that the search will be productive of contraband or weapons.
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19. Plaintiff is infonned and believes. and thereon alleges. that defendants have the ahility to identify all such similarly situated plaintiffs, speciticallythose who, while in defendants' custody, at the LINCOLN County Jail within threc (3) years prior to the filing of this Complaint, were subjected to strip searches and/or visual body cavity searches prior to arraignmcnt without defendants first having. and recording. a reasonable suspicion that the searches would be productive of contraband or weapons.
20. Defendants LIKCOLN COUNTY, COR'-'ELL, CSI. and VIRDE)l are personally responsible for the promulgation and continuation of the strip search policy. practice, and custom pursuant to which plaintift~ and those she represents. were subjected to strip searches.
21. As a result of being subjected to the strip searches complained of herein, plainti ff. and each orthe persons similarly situated. suffered physical. mental, and emotional distress. invasion of privacy. and violation of due process of law and state and federal statutory and constitutional rights, and are entitled to recover damages according to proof.
IV. CLASS CLAIMS 22. The strip and visual body cavity searches to which plaintift~ and all those similarly situated. were subjected were perfollned pursuant to policies. practices, and customs of defendants LINCOLN COUNTY, CORNELL, CSI. and VIRDEN. the individual SHERIFF'S DEPUTIES sued herein by the fictitious names 1 through 50. and the individuals whose !lanleS arc not now known and who are sued by the fictitious names of ROES I through 20. The searches complained of herein were perfonncd without regard to the nature of the alleged ofrens~s for which plaintiff, and all those similarly situated, had been arrested. without regard to whether or not plaintiff. and those she represents. were eligible for being cited and released.
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without regard to whether or not plaintiff, and those similarly situat~d, were eligible for andior were released on his or her own recognizance, or on bail. FurthemlOre. the searches complained of herein were perfonned without defendants having a reasonable belief that the plaintitl or any of those similarly situated, so searched possessed wcapons or ('ontraband, and those facts being articulated and recorded in a supervisor-approved document. And the searches complained of herein were perfomled without defendants taking reasonable precautions to make certain that plaintiff, and each of those similarly situated, were not observed by others not involved in the search.
Plainti ff brings this action on her own behalf and on behalf of all persons similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure.
24. The class of plaintiffs is defined to include all persons arrested on charges not involving violence. drugs or weapons who, in thc period from and including three (3) years for Federal Claims and two (2) years for State Claims prior to the filing of this Complaint. and continuing until this matter is adjudicated and the practices complained of herein cease, were arrested and subjected to a pre-arrai!;'lU11ent strip and/or visual body cavity searches at the Ll~COL,\ County Jail without defendants first having. and recording in writing, a reasonable suspicion that the searches would be productive of contraband or ",'capons.
25. In accordance with Federal Rules of Civil Procedure. Rule 23(a). the members of the class are so numcrous that joinder of all members is impracti('al. Plainti ff docs not kno\\' tbe exact number of dass membcrs. Plaintiff is informed and be.lie\'es. and thereupon alleges, that there are more than 10 pcrsons per day who are arrested by defendants andior are in the custody
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of de fendants who are and have been subjected to thc searches complained of hcrein as a result of defendants' policy, practice. and custom relating to said searches.
26. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiff is infonned and believes. and thereupon alleges, that therc are many questions of fact common to the class including. but not limited to: (I) whether defendants routinely subject all persons arrested to visual body cavity searches prior to arrai!,'Il1l1ent if they intend such persons to be housed in the LIKCOLN County lail; (2) whether persons are subjected to strip and/or visual body cavity searches prior to arraignment without there bcing any reasonable suspicion, based on specific or articulable facts, to believe any particular arrcstee has concealed drugs, weapons, and/or contraband in hodi Iy cavities which could be detected by means of a strip and'or visual body cavity search; (3) whether the strip andlor visual hody cavity searches are conducted in an area of privacy so that thc searches calIDot be observed by persons not participating in the searches; and, (4) whether the strip and/or visual body cavity searches arc reasonably related to defendants' penological interest to maintain the security of the jail and whether or not there arc less intrusive methods for protecting any such interest.
27. In accordance with Federal Rules ofCivill'rocedure, Rule 23(a). plaintiffis informed and believes, and thereupon alleges, that therc are many questions of law cOlllmon to the class including. but not limited to: (I) whether defendants may pcr[onn strip and/or visual body cavity searches on persons prior to their arraignment without reasonable suspicion. based on specific or articulable facts, to believe any particular prearraignment detainee has conc.ealed drugs. weapons and/or contraband which would likely be disco\"CTed by a strip and/or visual body cavity search: (2) whether defendants may perfoml strip and/or visual body cavity searches on
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persons without first reasonably relating the strip search of the subject to defendants' penological interest to maintain the security of the jail and detemlining if there is a less intrusive method to protect that interest; (3) whether strip and/or visual body cavity searches may be conducted in areas where the search can be observed by people not participating in the search without violating plaintiffs' State and Federal constitutional rights and plaintiffs State statutory rights; (4) whether or not defendants' strip search policy and procedure is in accordance w'ith the State and/or Federal Constitution; (5) whether or not plaintiffs state claims are barred by the provisions of ~ew Mexico Tort Claims Act; and, (6) whether or not defendants have an immunity defense to plaintiffs claims under Section 41-4-12 of the New Mexico Tort Claims Act.
28. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the representative plaintiffis typical of the class. Plaintiffw<\s arrested on a minor olTense not involving violence, drugs or wcapons and was searched, prior to arraignment, without defendants having a reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or contraband (and without the facts supporting any such suspicion being articulated in a supcrvisor-approved writing). Representative plainti rfhas the same interests and suffered the same type of injuries as all of the class members. Plaintiirs claims arose because of defendants' policy, practice, and custom of suhjecting arrestees to strip aI1lUor visual body cavity searches before arraignment without having, and recording in writing, a reasonable suspicion that the search would be productive of contraband or weapons. Each class member suffered actual damages as a result of being SUbjected to a strip and/or visual body cavity search. The actual damages suffered hy the representative plaintiff is similar in t~ve and amount to the actual damages suffered by each class member.
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29. In accordance with Federal Rules of Civil Procedure. Rule 23(a). the represcntative plail1liffwill fairly and adequately protect the class interests. Plaintiffs interests are consistent with and not al1lagonistic to the interests of the class.
30. In accordance with Federal Rules of Ciyi I Procedure. Rule 23(b)( I)(A). prosecution of separate actions by individuall1lembers of the class would create a risk that inconsistent or varying adjudications with respect to indi,idualmcmbers of the class would establish incompatible standards of conduct for the panies opposing the complaint.
J 1. In accordance with Federal Rules or Civil Procedure. Rule 23(b)( 1)(B), prosecution of separate actions by indiyidualmembcrs of the class \\'ould create a risk of inconsistent adjudications with respect to individual mcmbers orthe class which would. as a practical matter. suhstantial1y impair or impede the interests of the other mcmbers orthe class to protect their interests.
32. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffis informed and believes, and thereupon al1cges, that defendants have acted on grounds general1y applicable to the class. therehy making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
33. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3). this class action is superior to other available methods for the fair and equitable adjudication of the contra,usy between the parties. Plaintiff is infonned and believes, and thereupon alleges. that the interests ofmemhers of the class in individually controlling the proscclition of a separate action is low, in that most class members would be unable individually to prosecute any action at all. Plaintiff also is infol111ed and believes. and thereupon alleges. that the amounts at stake for
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individuals are so small that separate suits would be impracticahle. Plaintiff is infol111cd and belie\'es. and thereupon alleges, that most members of the class will not he ahle to find counsel to reprcsent them. Plainti ff is in[ol111ed and believes. and thereupon alleges, that it is desirable to concentrate all litigation in one forum because all of the c1ainls arise in the same location; i.e., the LI:-.ICOLN County Jail. It will promote judicial efficiency to resolve the common questions of law and fact in one forum, rather than in multiple courts.
34. PlaintilT does not know the identities of all of the class members. Plaintiff is informed and belie\cs. and thereupon alleges. that the identities of the class members may be ascertained from records maintaincd by defendants L1NCOI.N COUI\TY. COR'i'ELL CSI. VIRDE:-.I and the LINCOLl'\ COUJ\TY SHERIFF'S DEPARTME:-.IT. PlaintilTis infoI111ed and bclie\es, and thereupon alleges, that defendants' records reflect the identities, including addresses and telephonc numhers. of the persons who have heen held in custody in the LINCOL~ County .Tails. I'laintiffis informed and nelieves. and thereupon alleges. Ihat records of, and maintained by defcndants reflect who was subject to a strip and/or visual body cavity search. when the search occurred, where the search occurred. \\'hether any reasonable sllspicion for the search existed and was recorded in a supervisor-appro\'<!d writing. whether the search \\'as \'ideotaped, when persons searchcd were arraigned. and the charges on which such persons were arrested. Plaintiff is informed and believes. and thereupon alleges, that all orthe foregoing infonnation is contained in defendants' computer system and that the information necessary to identify the class members, by last known addresses. and the dates and reasons for their arrests andior release from custody. is readily available from said computer systcm.
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35. In accordance with Federal Rules of Civil Proccdure, Rule 23(c)(2)(b), class

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

individual notice to all members who can bc identified through r~asonable effort. Plaintiffis

informed ami helieves, and thereupon alleges, that defendants' computer records contain a last

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

class memhers at such last known address by first class mail. Plaintiff contemplates that the

notice will infonTI class memhers of the following:

J.

The pendency of the class action and the issues common to the class:

11. The nature of the action:

III. Their right to "opt ouC of the action within a givcn time, in which event

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

1\'. Their right. if they do not "opt out," to be represented by their own counsel

and to enter an appearance in the case: otherwise they wi II be represented

by the named class plaintiff and the named class plaintiffs counsel; and

v. Their right, ifihcy do not "opt out," to share in any rccovery in favor of

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

issues ad\'erse to the class.

V.
FIRST CAUSE OF ACTIO:'ti (Civil Rights Violations Under 42 USC § 1983)

36. Plaintiff incorporates by reference into this cause of action the allegations in each

of the preceding paragraphs, as fully as ifrealleged and set forth herein.

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37. Defendants' policies. practices. and customs regarding the strip and visual body cavity searches complained of herein violated plaintiffs. and all those similarly situated's, clc,lrly established rights under the Fourth Amendment to be fi'ce from unreasonable searches and seizures. violated plaintiffs. and all those similarly situakd·s. clearly established rights to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged plaintiff. and all those similarly situated, as herein alleged. entitling plaintiff, ,md all class memhers, to recover damages for said constitutional violations pursuant to 4~ U.S.c. § 1983.
WHEREFORE, plaintiff prays for relief. for herself and [or all persons similarly situated, as hereunder appears.
VI. SECOND CAUSE OF ACTION (Claims Arising Under the New Mexico Tort Claims Act on hehalf of PlaintilT and all persons similarly situated) 38. Plaintiff incorporates by referenced into this cause of action each of the allegations in the preceding paragraphs. as fully as ifrealleged and set forth herein. 39. The conduct. policies, practices, and customs of defendants. described above, resulted in personal and bodily injury to plaintiff. and those she seeks to represent, in that the strip and visual body cavity searches complained o[herein violated the rights of plaintiff, and all those similarly situated. to be free from unreasonable searches and seizures as secured by Article
n. Section 10 of the New Mexico Constitution and directly and proximately damaged plaintiff.
and each of those similarly situated, as herein alleged, entitling said plaintiff. and each of those she represents, to recover damages.
40. Defendant VIRDE)I, as supervisory law enforcement officers. had the duty in any activity actually undertakcn by him to cxercise [or the safety of others that care ordinarily
15

exercised by a reasonable. prudent. and qualified law enforcement supervisor in light of the nature of what was being done. In addition. defendant VIRDEi\ had a duty to properly screen. hirc. train. monitor. supervise. and/or discipline those working at the COUNTY jail. Defendant VIRDE)J knew or reasonably should have known of the infot111ation described herein.
41. Defendant VIRDEI\ breached the foregoing duties by failing to screen, hire. train, monitor, supervise. and/or disciplinc personnel employed at the COUNTY jail, and by failing to adopt appropriate policies. procedures. and protocols, by failing to implement appropriate supplemental training. by failing to appropriately discipline subordinate officers. and by failing to take other appropriate and usual supervisory actions to correct the problems and to prevent the harm which resulted to plaintiff. and all those similarly situated, as a result of the acts and omissions of defendants complained of herein.
42. L1:-.1COLN COUNTY is the govcmrnental entity which had immcdiate sllpcryisory responsibility over the actions of employees and agents ofT.TNCOLN COU],>;}""Y, including, but not limited to. defendant VIRDEN. Therefore. LI],>;COL],>; COl;\:TY is jointly and severally liable for all injuries and damages caused by the negligence of any of its municipal officials, employees. or agents under the doctrine of"icarious liability.
43. The conduct of the defendants, and each of them, was a direct and proximate cause of the injuries and damages to plaintiff. and tbose she seeks to rcpresent.
44. All of the acts andlor omissions which constitute the basis for liability herein come within the scope of the waivers of immunity contained within tbe Kcw :.vlexico Tort Claims Act.
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45. To the extent required. plaintiffhas givcn written notice of the claims contained herein in compliance with the New \1exico T0l1 Claims Act, § 41-4-l6(A)-(C) \1MSA 1978. as amended.
WHEREFORE. plaintiff prays for relief, for herself and for all persons similarly situated, as hereunder appears.
VIf. THIRD CAL'SE OF ACTION (Claims Arising Under New Mexico Common Law on behalfofplaintiffand all those similarly situated) 46. Plaintiff incorporates by rcference into this cause of action the allegations in each of the preceding paragraphs. to the extent relevant. as fully as if rcalleged and set forth herein. 47. The acts and omissions ofdcfcndants COR,\ELL. CSI. and VIRDEN. as sct forth abo\'c, gi\'e rise to liability based on assault. invasion ofpri\'acy. and intentional infliction of emotional distress. 48. As a direct and proximate cause of said defendants', and each of their. conduct. plaintiffs. and all those similarly situated. were damaged as set forth herein. WHEREFORE, plaintiffprays for rclief,'for hcrsclfand for all persons similarly situated. as hercunder appears.
VIII.
FOURTH CAt:SE OF ACTIO]li (Declaratory and Injunctive Relief) 49. Plaintiff incorporates by reference into her fourth cause of action the allegations of the preceding paragraphs, as fully as ifrealleged and sct forth herein.
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50. Plaintiff. on behalf of herself and the members of the class, seeks ajudgment

declaring that Defendants must cease the activities described herein and enjoining Defendants

from any further strip se~rches without individualized re~sonablc suspicion.

51. The constitutional violations alleged herein arisc from official policics and

practices sanctioned by Defendants. The hann which plaintiff and the members of the class have

sustained are directly traceable to these officially sanctioned policies and procedures.

52. Plaintiff and members of the class do not have a plain, adequate. speedy, or

complete remedy at law to addrcss the wrongs alleged in this Complaint, and they will suiTer

irreparable injury as a result of Dcfcndants' misconduct unless injunctive and declaratory relief is

- l!ranted. Plaintiff and members ofthc class arc in real and immediate danger of sustaining future.

~

~

direct injury as a result of Defendants' official policies imd practices that arc ongoing at the time

of this suit.

53. )Jo cognizable burden will be placed on Defendants by rcquiring that no strip

searches be undertaken without individualized reasonable suspicion. The public interest would

be greatly enhanced by enforcement of policies and practices which adhere to the requirements of

the state and federal Constitutions. Absent injunctive relief. there is no gu~rantec that the

Defendants will cease their illegal policies and practices as alleged hcrein.

54. By reason of the foregoing, plaintiff and members of the class are entitled to

declaratory and injunctive relief as set forth abovc.

IX. DAMAGES

55. The above paragraphs are incorporated herein by reference as if fully set lorth in

this paragraph.

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56. As a direct and proximate result of the wrongful and lmlawful actions of Defendants, described above, plaintiff and the members of the class wcre injured and have suffered and continue to suffer damages, including but not limited to distress, anguish, suffering, humiliation, deprivation of constitutional rights, and other incidental, consequential, and special dalnagcs.
57. Defendants' acts and omissions. as set forth herein. were malicious, reckless, wanton. oppressive, and/or fraudulent, justifying an award of punitive damages against the indi\'idually named defendants in their personal capacities, and against defcnd,mts COR1\ELL COMPANIES. INC'.. CORRECTIO\:AL SYSTEMS, IKe.. LlNCOLN COUNTY SHERIFF RICHARD VIRDEl\, AND LINCOLN COUNT'r' SHERIFF DEPUTY MOR.A.LES. for the purpose ofpunishmcnt and to dcter others [rom the commission of like offenses.
X. PRAYER WHEREFORE, plaintiff. on behalfofhcrsclfand on behalfofthe members of the class represented herein, respectfully prays for and demands judgmcnt against the Defendants as follows: (a) For judgment against defendants for compensatory damages. special damages, consequential damages and incidental damages undcr any or all of the causes of action, in an amount to be deterl1lincd at the trial of this
cause; (b) For judgment declaring the rights of the partics: (e) For injunctivc relict; (d) For reasonable attomcys' fees and costs incurred herein:
19

(e) For pre-judgment and post-judgment interest in amounts to be dctermined

according to law;

(f) For an award of punitive and exemplary damages. in all anlount to be

detcrmined at the trial of this cause; and

(g) For such other and further relief as the Court deems just and proper.

JL'RY TRIAL REQl:EST

COMES NOW plaintiff Sharon Allison, by and through her counsel. below listed. on hcr

own behalf and on behalf of a class of similarly situated pcrsons. and hereby dcmands trial by

jury pursuant to the tcnns and conditions of Federal Rules of Civil Procedure 38, in regard to all

issues in thc above-referenced cause.

,

DATED: August 16.2005 :]i\_it_te_d_.----E:;~-"

\1ark E. Merin. SBN 43849 Jeffrey I. Sch\\"arzschild, SBN 192086 Cathleen A. Williams, SBN 68029 LAW OFFICE OF MARK E. \-1ERIN 2001 P Street, Suite 100 Sacramcnto, CA 95814 (916) 443-6911 - Telephonc (916) 447-8336 - Facsimilc mark:ii"'markmcrin.com - E-mail

Andrew C. Schwartz, SBN 64578 CASPER, MEADOWS, SCHWARTZ & COOK 2121 N California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 - Telephone (925) 947-1131 - facsimile schwartz@cmsiaw.com - E-mail

20

Robert R. Rothstein ROTHSTEll\, OOI\ATELL!. HCGHES, DAHLSTROM, SCHOE'IBURG & BIE:--"'VENl.J, LLP P.O. Box 8180 Santa Fe,l\ew Mexico 87504-8180 (505) 988-8004 - Telephone (505) 982-0307 - Facsimile rrr0"·rothsteinlaw.com - E-mail Attomcyfor Plain/ijJ.i· and Iii£' Class
21

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

SHARON ALLISON, on behalf of herself and the class of similarly situated persons;

Plaintiffs,

v.

NO. CV 05-881 WPJ/WDS

LINCOLN COUNTY BOARD OF COMMISSIONERS; CORNELL COMPANIES, INC., a Delaware Corporation; CORRECTIONAL SYSTEMS, INC., a Delaware Corporation; MIKE HOLM, individually and in his official capacity; ROGER JEFFERS, individually and in his official capacity; PETER MORALES, individually and in his official capacity; LUCY VEGA, individually and in her official capacity; LINCOLN COUNTY DETENTION CENTER CORRECTIONS OFFICERS DOES 1 THROUGH 50 and ROES 1 THROUGH 20, inclusive;

JURY TRIAL REQUESTED

Defendants.

AMENDED CLASS ACTION COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CIVIL AND CONSTITUTIONAL RIGHTS AND FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION
This is an action for declaratory and injunctive relief, damages, and punitive damages against the Lincoln County Board of Commissioners, Cornell Companies, Inc., Correctional Systems, Inc., Lincoln County Detention Center Wardens Mike Holm and Roger Jeffers, Lincoln County Detention Center Corrections Officers Peter Morales, Lucy Vega and other unknown Lincoln County Detention Center Corrections officers and officials sued under their

fictitious names as Does 1 through 50 and Roes 1 through 20, for violations of Plaintiff’s constitutional rights resulting from the application of Lincoln County Detention Center policies, practices, and customs concerning the use of strip searches and visual body cavity searches in the Lincoln County Detention Center. Plaintiff, for herself and all those in the class of similarly situated persons, seeks an order declaring illegal Defendants’ policy of subjecting detainees in their custody to strip and visual body cavity searches before they are arraigned and without having any reasonable suspicion that the searches will be productive of contraband.
Defendants’ strip search and visual body cavity search policies, practices, and customs violate those rights of Plaintiff, and all those she represents, which are secured by the Fourth and Fourteenth Amendments to the United States Constitution and which entitle Plaintiff, and all those similarly situated, to recover damages under the Federal Civil Rights Act, 42 U.S.C. § 1983.
Additionally, Plaintiff includes, on behalf of herself and on behalf of all those she represents, supplemental claims under New Mexico state law against Defendants for violation of the State constitutional right to be free from unreasonable searches and seizures as defined in the New Mexico Constitution, Art. II, § 10, and pursuant to the New Mexico Tort Claims Act and New Mexico common law.
Plaintiff alleges against Defendants upon knowledge as to herself and all matters of public record, and upon information and belief as to all other matters, as follows:
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I. JURISDICTION AND VENUE This action is brought pursuant to 42 USC §§ 1983 and 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC §§ 1331 and 1343(a)(3) and (4) and the aforementioned statutory and constitutional provisions. 1. Under 28 USC § 1367(a), the Court has supplemental jurisdiction over the state claims alleged herein. 2. Venue is proper in this Court pursuant to 28 USC § 1391(b).
II. PARTIES 3. Plaintiff Sharon Allison (hereinafter referred to as “Plaintiff”), and all those similarly situated, are, and at all material times herein, were persons who were arrested within the period beginning three years prior to the filing of the original Complaint in this case on August 22, 2005, and continuing to this date, and who were subjected to strip and/or visual body cavity searches at the Lincoln County Detention Center (hereinafter referred to as “LCDC”), prior to being arraigned and/or without Defendants first having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons. 4. Defendant Lincoln County Board of Commissioners (hereinafter referred to as “Lincoln County”) is a political subdivision of the State of New Mexico. Pursuant to § 4-46-
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1 NMSA 1978, all suits or proceedings against a county are to be brought in the name of the board of county commissioners of that county. At all material times hereto, Lincoln County was a governmental entity and local public body as those terms are defined in the New Mexico Tort Claims Act, §§ 41-4-3(B) and (C) NMSA 1978, as amended. At all times material hereto, Lincoln County was a party to written contracts with Defendant Cornell Companies, Inc. and/or Defendant Correctional Systems, Inc. which authorized those private entities to operate LCDC on behalf of Lincoln County. Despite these written contracts, Lincoln County had a non-delegable duty to assure that the policies and procedures of LCDC complied with applicable constitutional standards and accepted corrections practices as well as to assure that the constitutional rights of persons detained or confined in LCDC were not violated. Pursuant to §§ 4-44-19, 33-3-3 through 8, and 33-3-13 NMSA 1978, Lincoln County had a statutory obligation to provide for the confinement of prisoners incarcerated under the county’s jurisdiction. Lincoln County had a statutory obligation to appropriate funds and otherwise provide the necessary funding to maintain and operate a facility for the incarceration of prisoners under the jurisdiction of Lincoln County.
5. Defendant Cornell Companies, Inc. (hereinafter referred to as “Cornell”), on information and belief, is a corporation organized under the laws of the State of Delaware, headquartered in Texas, and doing business in the State of New Mexico. On April 1, 2005, Cornell completed its acquisition of Defendant Correctional Systems, Inc. (hereinafter referred to as “CSI”), which, at all times material hereto and prior to April 1, 2005, operated
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LCDC under a written contract with Lincoln County. At all material times hereto, Cornell and its predecessors in interest, their officers, employees, and agents acted under color of law and within the course and scope of their employment and agency.
6. CSI, on information and belief, is now a wholly-owned-owned subsidiary of Cornell, and prior to April 1, 2005, on information and belief, was a corporation organized under the laws of the State of Delaware, headquartered in San Diego, California, doing business in the State of New Mexico. Prior to April 1, 2005, CSI operated LCDC under a written contract with Lincoln County. At all material times hereto, CSI and its officers, employees, and agents acted under color of law and within the scope of their employment and agency.
7. Defendant Mike Holm (“hereinafter referred to as “Holm”), upon information and belief, was, at all times material hereto, a resident of Lincoln County, New Mexico. Until approximately April, 2005, Holm was employed by CSI and/or Cornell as the Warden of LCDC. In that capacity, he was responsible for assuring that LCDC’s policies and procedures complied with constitutional standards and correctional practices. In particular, he was responsible for the preparation, promulgation and implementation of LCDC policies regarding searches of detainees and inmates, including those which were in effect at the time of the strip search of Plaintiff and others similarly situated to her. During his tenure as Warden, Holm was the immediate supervisor of Defendants Peter Morales, Lucy Vega and Does 1 - 50. In addition, at all times material hereto, Holm was a law enforcement officer
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and public employee as those terms are defined in the New Mexico Tort Claims Act, §§41-43 (D) and (F) NMSA 1978, as amended, and was acting within the course and scope of his duties as well as under color of law. In regard to Plaintiff’s §1983 claims, Holm is sued in both his individual and official capacities.
8. Defendant Roger Jeffers (“hereinafter referred to as “Jeffers”), upon information and belief, is now and at all times material hereto was a resident of Lincoln County. Commencing on or about April 1, 2005, Jeffers was employed by CSI and/or Cornell as the Warden of LCDC. In that capacity, he was responsible for assuring that LCDC’s policies and procedures complied with constitutional standards and correctional practices. In particular, he was responsible for the preparation, promulgation and implementation of LCDC policies and procedures regarding searches of detainees and inmates, including those policies and procedures regarding searches which had been formulated by Holm which Jeffers continued to enforce and implement and which remained in force and effect at the time of the detention of Plaintiff and others similarly situated. During his tenure as Warden, Jeffers was the immediate supervisor of Defendants Peter Morales, Lucy Vega and Does 1through 50. In addition, at all times material hereto, Jeffers was a law enforcement officer and public employee as those terms are defined in the New Mexico Tort Claims Act, §§41-4-3 (D) and (F) NMSA 1978, as amended, and was acting within the course and scope of his duties as well as under color of law. In regard to Plaintiff’s § 1983 claims, Jeffers is sued in both his individual and official capacities.
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9. Defendant Peter Morales (hereinafter referred to as “Morales”), upon information and belief, is now and at all times material hereto was a resident of Lincoln County. At all times material hereto, Morales was an employee of CSI and/or Cornell who, as part of his duties at LCDC, subjected Plaintiff, and others whom she represents, to prearraignment strip and/or visual body cavity searches without having, and recording in writing, a reasonable suspicion that such searches would be productive of contraband or weapons. In addition, at all times material hereto, Morales was a law enforcement officer and public employee as those terms are defined in the New Mexico Tort Claims Act, §§ 414-3 (D) and (F) NMSA 1978, as amended, and was acting within the course and scope of his duties as well as under color of law.
10. Defendant Lucy Vega (hereinafter referred to as “Vega”), upon information and belief, is now and at all times material hereto has been a resident of Lincoln County. At all times material hereto, Vegas was an employee of CSI and/or Cornell who, as part of her duties at LCDC, subjected Plaintiff, and others whom she represents, to pre-arraignment strip and/or visual body cavity searches without having, and recording in writing, a reasonable suspicion that such searches would be productive of contraband or weapons. In addition, at all times material hereto, Vega was a law enforcement officer and public employee as those terms are defined in the New Mexico Tort Claims Act, §§ 41-4-3 (D) and (F) NMSA 1978, as amended, and was acting within the course and scope of her duties as well as under color of law.
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11. Defendants LCDC Corrections Officers Does 1 - 50 are, or were, natural persons whose identities are not known who were employed as corrections officers by CSI and/or Cornell at LCDC during the relevant time period. As part of their duties, Does 1 - 50 subjected Plaintiff, and/or those she represents, to pre-arraignment strip and/or visual body cavity searches without having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons. All such persons were law enforcement officers and public employees as those terms are defined in the New Mexico Tort Claims Act §§ 41-4-3 (D) and (F) NMSA 1978, as amended, and were acting within the course and scope of their duties as well as under color of law.
12. Defendant Roes 1 - 20 are natural persons whose identities are not known and who are sued by the fictitious names of Roes 1 - 20. Such persons were agents and/or employees of Lincoln County, CSI and/or Cornell who participated in formulating, promulgating, implementing and/or condoning the policies under which the searches of Plaintiff and others whom she represents took place. In addition, Defendants include agents and/or employees of Lincoln County, CSI and/or Cornell who ordered, condoned, authorized, covered up, or were otherwise associated with the implementation of the illegal and unconstitutional policies and practices of LCDC relating to strip searches complained of herein.
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13. At all material times mentioned herein, all Defendants were acting under the color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages of the State of New Mexico and/or Lincoln County.
14. Lincoln County, Cornell, CSI, Holm and/or Jeffers were responsible for the screening, hiring, training, monitoring, supervision and disciplining of subordinate employees of LCDC, and were the authorities empowering LCDC to incarcerate persons under the jurisdiction of Lincoln County. Lincoln County, Cornell, CSI, Holm and Jeffers were responsible for administering LCDC and for formulating, overseeing, and implementing the policies, practices, and customs challenged herein relating to the operation of the LCDC.
15. Plaintiff’s allegations against Lincoln County are based on acts and omissions of Cornell, CSI, Holm, Jeffers and their employees, agents and representatives, as well as on acts and omissions of persons who are Lincoln County employees, and on Lincoln County’s breach of its duty to protect Plaintiff, and all those she represents, from the wrongful conduct of said persons and employees.
16. Lincoln County, Cornell, and CSI also maintained or permitted an official policy or custom of causing or permitting the occurrence of the types of wrongs complained of herein, which wrongs damaged Plaintiff, and all those similarly situated, as herein alleged.
17. Class action plaintiffs are those similarly situated who, during the period beginning three years before the filing of the original Complaint herein on August 22, 2005, and continuing to this date, were subjected by Defendants to pre-arraignment strip and/or
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visual body cavity searches without Defendants having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
III. FACTS 18. On or about May 27, 2005, Plaintiff was arrested by New Mexico State Police Officer Samuel Houston near Carrizozo, New Mexico, allegedly on an outstanding warrant for issuing a worthless $16.36 check in Alamogordo, New Mexico. Plaintiff was transported by Officer Houston to LCDC. Upon arrival at LCDC, and prior to any appearance before a judge and without there being any reasonable suspicion that she was concealing contraband, Plaintiff, pursuant to policies, practices, and procedures of Defendants, and each of them, was subjected to a strip search and visual body cavity search in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article II, Section 10 of the Constitution of the State of New Mexico. Plaintiff was coerced, forced, and compelled to disrobe for the strip search in an area in which she was observed while naked by persons who were not participating in the search and who were of the opposite sex. 19. Within ninety days of the aforesaid strip search, Plaintiff submitted a notice under the New Mexico Tort Claims Act for herself and for all persons similarly situated (a copy of said notice is attached hereto as Exhibit “A”, and incorporated herein to the extent relevant by this reference). Plaintiff’s group claim was denied on or about July 8, 2005, allowing the filing of this class action complaint to include claims against public employees for which immunity has been waived under the New Mexico Tort Claims Act.
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20. Plaintiff is informed and believes, and thereupon alleges, that Defendants routinely followed their policy, practice, and custom of subjecting pre-arraignment detainees, including Plaintiff and all those she represents, to strip and visual body cavity searches without first having, and recording in writing, a reasonable suspicion that the search would be productive of contraband or weapons.
21. Plaintiff is informed and believes, and thereupon alleges, that Defendants have the ability to identify all such similarly situated plaintiffs, specifically those who, while in Defendants’ custody, at LCDC within three years prior to the filing of the original Complaint herein on August 22, 2005, were subjected to strip searches and/or visual body cavity searches prior to arraignment without Defendants first having, and recording, a reasonable suspicion that the searches would be productive of contraband or weapons.
22. Lincoln County, Cornell, CSI, Holm and/or Jeffers are personally responsible for the promulgation and continuation of the strip search policy, practice, and custom pursuant to which Plaintiff, and those she represents, were subjected to strip searches.
23. As a result of being subjected to the strip searches complained of herein, Plaintiff, and each of the persons similarly situated, suffered physical, mental, and emotional distress, invasion of privacy, and violation of due process of law and state and federal statutory and constitutional rights, and are entitled to recover damages according to proof.
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IV. CLASS CLAIMS 24. The strip and visual body cavity searches to which Plaintiff, and all those similarly situated, were subjected were performed pursuant to policies, practices, and customs of Defendants. The searches complained of herein were performed without regard to the nature of the alleged offenses for which Plaintiff, and all those similarly situated, had been arrested, without regard to whether or not Plaintiff, and those she represents, were eligible for being cited and released, without regard to whether or not Plaintiff, and those similarly situated, were eligible for and/or were released on their own recognizance, or on bail. Furthermore, the searches complained of herein were performed without Defendants having a reasonable belief that Plaintiff, or any of those similarly situated, possessed weapons or contraband, and those facts being articulated and recorded in a supervisor-approved document. The searches complained of herein were performed without Defendants taking reasonable precautions to make certain that Plaintiff, and each of those similarly situated, was not observed by others not involved in the search. 25. Plaintiff brings this action on her own behalf and on behalf of all persons similarly situated pursuant to Rule 23, Federal Rules of Civil Procedure. 26. The class of plaintiffs is defined to include all persons arrested on charges not involving violence, drugs or weapons who, in the period from and including three years for federal and New Mexico common law claims and two years for New Mexico Tort Claims Act claims prior to the filing of the original Complaint herein on August 22, 2005, and
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continuing until this matter is adjudicated and the practices complained of herein cease, were arrested and subjected to pre-arraignment strip and/or visual body cavity searches at LCDC without Defendants first having, and recording in writing, a reasonable suspicion that the searches would be productive of contraband or weapons.
27. In accordance with Rule 23(a), Federal Rules of Civil Procedure, the members of the class are so numerous that joinder of all members is impractical. Plaintiff does not know the exact number of class members. Plaintiff is informed and believes, and thereupon alleges, that there are three to ten persons per day who were taken into the custody of Defendants and who were subjected to the searches complained of herein as a result of Defendants’ policy, practice, and custom relating to said searches.
28. In accordance with Rule 23(a), Federal Rules of Civil Procedure, Plaintiff is informed and believes, and thereupon alleges, that there are many questions of fact common to the class including, but not limited to: (1) whether Defendants routinely subjected all persons arrested to strip searches and/or visual body cavity searches prior to arraignment if they intended such persons to be housed in LCDC; (2) whether persons were subjected to strip searches and/or visual body cavity searches prior to arraignment without there being any reasonable suspicion, based on specific or articulable facts, to believe any particular arrestee had concealed drugs, weapons, and/or contraband in bodily cavities which could be detected by means of a strip and/or visual body cavity search; (3) whether the strip and/or visual body cavity searches were conducted in an area of privacy so that the searches would not be
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observed by persons not participating in the searches; and, (4) whether the strip and/or visual body cavity searches were reasonably related to Defendants’ penological interest in maintaining the security of the jail and whether or not there were less intrusive methods for protecting any such interest.
29. In accordance with Rule 23(a), Federal Rules of Civil Procedure, Plaintiff is informed and believes, and thereupon alleges, that there are many questions of law common to the class including, but not limited to: (1) whether Defendants may perform strip and/or visual body cavity searches on persons prior to their arraignment without reasonable suspicion based on specific or articulable facts to believe any particular prearraignment detainee has concealed drugs, weapons and/or contraband which would likely be discovered by a strip and/or visual body cavity search; (2) whether Defendants may perform strip and/or visual body cavity searches on persons without first reasonably relating the strip search of the subject to Defendants’ penological interest in maintaining the security of the jail and determining if there is a less intrusive method to protect that interest; (3) whether strip and/or visual body cavity searches may be conducted in areas where the search can be observed by people not participating in the search without violating plaintiffs’ state and federal constitutional rights and plaintiffs’ state statutory or common law rights; (4) whether or not Defendants’ strip search policies and procedures are in accordance with the state and/or federal constitutions; (5) whether or not plaintiffs’ state claims are actionable under the provisions of the New Mexico Tort Claims Act; and, (6) whether or not New Mexico has
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waived any immunity defense for claims of this type when brought pursuant to the provisions of the New Mexico Tort Claims Act.
30. In accordance with Rule 23(a), Federal Rules of Civil Procedure, the claims of Plaintiff are typical of the class. Plaintiff was arrested on a minor offense not involving violence, drugs or weapons and was searched, prior to arraignment, without Defendants having a reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or contraband (and without the facts supporting any such suspicion being articulated in a supervisor-approved writing). Plaintiff has the same interests and suffered the same type of injuries as all of the class members. Plaintiff’s claims arose because of Defendants’ policy, practice, and custom of subjecting arrestees to strip and/or visual body cavity searches before arraignment without having, and recording in writing, a reasonable suspicion that the search would be productive of contraband or weapons. Each class member suffered actual damages as a result of being subjected to a strip and/or visual body cavity search. The actual damages suffered by Plaintiff is similar in type and amount to the actual damages suffered by each class member.
31. In accordance with Rule 23(a), Federal Rules of Civil Procedure, Plaintiff will fairly and adequately protect the class interests. Plaintiff’s interests are consistent with and not antagonistic to the interests of the class.
32. In accordance with Rule 23(b)(1)(A), Federal Rules of Civil Procedure, prosecution of separate actions by individual members of the class would create a risk that
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inconsistent or varying adjudications with respect to individual members of the class would establish incompatible standards of conduct for the parties opposing the complaint.
33. In accordance with Rule 23(b)(1)(B), Federal Rules of Civil Procedure, prosecution of separate actions by individual members of the class would create a risk of inconsistent adjudications with respect to individual members of the class which would, as a practical matter, substantially impair or impede the ability of other members of the class to protect their interests.
34. In accordance with Rule 23(b)(2), Federal Rules of Civil Procedure, Plaintiff is informed and believes, and thereupon alleges, that Defendants have acted on grounds generally applicable to the class, thereby making appropriate the final injunctive or declaratory relief with respect to the class as a whole.
35. In accordance with Rule 23(b)(3), Federal Rules of Civil Procedure, this class action is superior to other available methods for the fair and equitable adjudication of the controversy between the parties. Plaintiff is informed and believes, and thereupon alleges, that the interests of members of the class in individually controlling the prosecution of a separate action is low, in that most class members would be unable individually to prosecute any action at all. Plaintiff also is informed and believes, and thereupon alleges, that the amounts at stake for individuals are so small that separate suits would be impracticable. Plaintiff is informed and believes, and thereupon alleges, that most members of the class will not be able to find counsel to represent them. Plaintiff is informed and believes, and
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thereupon alleges, that it is desirable to concentrate all litigation in one forum because all of the claims arose in Lincoln County. It will promote judicial efficiency to resolve the common questions of law and fact in one forum, rather than in multiple courts.
36. Plaintiff does not know the identities of all of the class members. Plaintiff is informed and believes, and thereupon alleges, that the identities of the class members may be ascertained from records maintained by Defendants. Plaintiff is informed and believes, and thereupon alleges, that Defendants’ records reflect the identities, including addresses and telephone numbers, of the persons who have been held in custody in LCDC. Plaintiff is informed and believes, and thereupon alleges, that records maintained by Defendants reflect who was subject to a strip and/or visual body cavity search, when the search occurred, where the search occurred, whether any reasonable suspicion for the search existed and was recorded in a supervisor-approved writing, whether the search was videotaped, when persons searched were arraigned, and the charges on which such persons were arrested. Plaintiff is informed and believes, and thereupon alleges, that all of the foregoing information is contained in Defendants’ computer system and/or in paper files maintained by Defendants and that the information necessary to identify the class members, by last known addresses, and the dates and reasons for their arrests and/or release from custody, is readily available from said computer system and/or documents.
37. In accordance with Rule 23(c)(2)(b), Federal Rules of Civil Procedure, class members must be furnished with the best notice practicable under the circumstances,
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including individual notice to all members who can be identified through reasonable effort. Plaintiff is informed and believes, and thereupon alleges, that Defendants’ records contain a last known address for class members. Plaintiff contemplates that individual notice will be given to class members at such last known address by First Class U.S. mail. Plaintiff contemplates that the notice will inform class members of the following:
i. The pendency of the class action and the issues common to the class; ii. The nature of the action; iii. Their right to “opt out” of the action within a given time, in which
event they will not be bound by a decision rendered in the class action; iv. Their right, if they do not “opt out,” to be represented by their own
counsel and to enter an appearance in the case; otherwise they will be represented by the named class Plaintiff and the named class Plaintiff’s counsel; and v. Their right, if they do not “opt out,” to share in any recovery in favor of the class, and conversely to be bound by any judgment on the common issues adverse to the class.
V. FIRST CAUSE OF ACTION (Civil Rights Violations Under 42 USC § 1983) 38. Plaintiff incorporates by reference into this cause of action the allegations in each of the preceding paragraphs, as fully as if realleged and set forth herein.
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39. Defendants’ policies, practices, and customs regarding the strip and visual body cavity searches complained of herein violated Plaintiff’s, and all those similarly situated’s, clearly established rights under the Fourth Amendment to be free from unreasonable searches and seizures, violated Plaintiff’s, and all those similarly situated’s, clearly established rights to due process and privacy under the Fourteenth Amendment, and directly and proximately damaged Plaintiff, and all those similarly situated, as herein alleged, entitling Plaintiff, and all class members, to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983.
WHEREFORE, Plaintiff prays for relief, for herself and for all persons similarly situated, as hereunder appears.
VI. SECOND CAUSE OF ACTION (Claims Arising Under the New Mexico Tort Claims Act on behalf of Plaintiff and all persons similarly situated) 40. Plaintiff incorporates by reference into this cause of action each of the allegations in the preceding paragraphs, as fully as if realleged and set forth herein. 41. The conduct, policies, practices, and customs of Defendants, described above, resulted in personal and bodily injury to Plaintiff, and those she seeks to represent, in that the strip and visual body cavity searches complained of herein violated the rights of Plaintiff, and all those similarly situated, to be free from unreasonable searches and seizures as secured by Article II, Section 10 of the New Mexico Constitution and directly and proximately damaged
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Plaintiff, and each of those similarly situated, as herein alleged, entitling said Plaintiff, and each of those she represents, to recover damages.
42. Holm and Jeffers, as Wardens of LCDC, had the duty in any activity actually undertaken by each of them to exercise for the safety of others that care ordinarily exercised by a reasonable, prudent, and qualified corrections supervisor in light of the nature of what was being done. In addition, Holm and Jeffers had a duty to properly screen, hire, train, monitor, supervise, and/or discipline those working at LCDC, including Morales and Vega. Holm and Jeffers knew or reasonably should have known of the information described herein.
43. Holm and Jeffers breached the foregoing duties by failing to properly screen, hire, train, monitor, supervise, and/or discipline personnel employed at LCDC, and by failing to adopt appropriate policies, procedures, and protocols, by failing to implement appropriate supplemental training, by failing to appropriately discipline subordinate officers, and by failing to take other appropriate and usual supervisory actions to correct the problems and to prevent the harm which resulted to Plaintiff, and all those similarly situated, as a result of the acts and omissions of Defendants complained of herein.
44. Lincoln County is the governmental entity which had immediate supervisory responsibility over the actions of employees and agents of Lincoln County, including, but not limited to, Holm, Jeffers, Morales and Vega. Therefore, Lincoln County is jointly and
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severally liable for all injuries and damages caused by the negligence of any of its municipal officials, employees, or agents under the doctrine of vicarious liability.
45. The conduct of Defendants, and each of them, was a direct and proximate cause of the injuries and damages to Plaintiff, and those she seeks to represent.
46. All of the acts and/or omissions which constitute the basis for liability herein come within the scope of the waivers of immunity contained within the New Mexico Tort Claims Act.
47. To the extent required, Plaintiff has given written notice of the claims contained herein in compliance with the New Mexico Tort Claims Act, § 41-4-16 NMSA 1978, as amended.
WHEREFORE, Plaintiff prays for relief for herself and for all persons similarly situated, as hereunder appears.
VII. THIRD CAUSE OF ACTION (Claims Arising Under New Mexico Common Law on behalf of Plaintiff and all those similarly situated) 48. Plaintiff incorporates by reference into this cause of action the allegations in each of the preceding paragraphs, to the extent relevant, as fully as if realleged and set forth herein. 49. The acts and omissions of Holm, Jeffers, Morales and Vega, as set forth above, give rise to liability based on assault, invasion of privacy, and intentional infliction of emotional distress.
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50. The acts and omissions of Holm, Jeffers, Morales and Vega, as set forth above, occurred within the course and scope of their employment. Therefore, Cornell and CSI are vicariously liable for all such acts and omissions as well as the resultant injuries and damages.
51. As a direct and proximate cause of Defendants’ conduct, Plaintiff, and all those similarly situated, were damaged as set forth herein.
WHEREFORE, Plaintiff prays for relief for herself and for all persons similarly situated, as hereunder appears.
VIII. FOURTH CAUSE OF ACTION (Declaratory and Injunctive Relief) 52. Plaintiff incorporates by reference into this cause of action the allegations in each of the preceding paragraphs, to the extent relevant, as fully as if realleged and set forth herein. 53. Plaintiff, on behalf of herself and the members of the class, seeks a judgment declaring that Defendants’ strip search policies and procedures violate constitutional rights under the federal and New Mexico constitutions, declaring that Defendants must cease the activities described herein and enjoining Defendants from any further strip searches of prearraignment detainees without individualized reasonable suspicion.
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54. The constitutional violations alleged herein arise from official policies and practices sanctioned by Defendants. The harm which Plaintiff and the members of the class have sustained are directly traceable to these officially sanctioned policies and procedures.
55. Plaintiff and members of the class do not have a plain, adequate, speedy, or complete remedy at law to address the wrongs alleged herein, and they will suffer irreparable injury as a result of Defendants’ misconduct unless injunctive and declaratory relief is granted. Plaintiff and members of the class are in real and immediate danger of sustaining future, direct injury as a result of Defendants’ official policies and practices that are ongoing at the time of this suit.
56. No cognizable burden will be placed on Defendants by requiring that no strip searches be undertaken without individualized reasonable suspicion. The public interest would be greatly enhanced by enforcement of policies and practices which adhere to the requirements of the state and federal Constitutions. Absent injunctive relief, there is no guarantee that the Defendants will permanently cease their illegal policies and practices as alleged herein.
57. By reason of the foregoing, Plaintiff and members of the class are entitled to declaratory and injunctive relief as set forth above.
IX. DAMAGES 58. The above paragraphs are incorporated herein by reference as if fully set forth in this paragraph.
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59. As a direct and proximate result of the wrongful and unlawful actions of Defendants, described above, Plaintiff and the members of the class were injured and have suffered and continue to suffer damages, including but not limited to emotional distress, anguish, suffering, humiliation, deprivation of constitutional rights, and other incidental, consequential, and special damages.
60. Defendants’ acts and omissions, as set forth herein, were malicious, reckless, wanton, oppressive, and/or fraudulent, justifying an award of punitive damages under the First Cause of Action herein against Holm, Jeffers, Morales and Vega, in their individual capacities, and against Cornell and CSI for the purpose of punishment and to deter there Defendants and others from the commission of like offenses. In addition, for the same reasons and purposes, said acts and omissions justify an award against Holm, Jeffers, Morales, Vega, Cornell and CSI under the Third Cause of Action herein.
X. PRAYER WHEREFORE, Plaintiff, on behalf of herself and on behalf of the members of the class represented herein, respectfully prays for and demands judgment against Defendants as follows: (a) For judgment against Defendants for compensatory damages, special damages, consequential damages and incidental damages under any or all of the causes of action, in an amount to be determined at the trial of this cause; (b) For judgment declaring the rights of the parties;
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(c) For injunctive relief; (d) For reasonable attorneys’ fees and costs incurred herein pursuant to 42
U.S.C. § 1988; (e) For pre-judgment and post-judgment interest in amounts to be
determined according to law; (f) For an award of punitive and exemplary damages in an amount to be
determined at the trial of this cause; and (g) For such other and further relief as the Court deems just and proper.
JURY TRIAL REQUEST COMES NOW Plaintiff Sharon Allison, by and through her counsel, below-listed, on her own behalf and on behalf of a class of similarly situated persons, and hereby demands trial by jury pursuant to the terms and conditions of Rule 38, Federal Rules of Civil Procedure, in regard to all issues in the above-referenced cause.
Respectfully submitted, LAW OFFICE OF MARK E. MERIN
By: Signed Electronically (6/28/06) Mark E. Merin, SBN 43849 Jeffrey I. Schwarzschild, SBN 192086 Cathleen A. Williams, SBN 68029 2001 P Street, Suite 100 Sacramento, CA 95814 (916) 443-6911 - Telephone (916) 447-8336 - Facsimile mark@markmerin.com - E-mail
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CASPER, MEADOWS, SCHWARTZ & COOK
By: Electronically Signed (6/28/06) Andrew C. Schwartz, SBN 64578 2121 N. California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 - Telephone (925) 947-1131 - Facsimile schwartz@cmslaw. com - E-mail
ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP
By: Electronically Signed (6/28/06) Robert R. Rothstein P.O. Box 8180 1215 Paseo de Peralta Santa Fe, New Mexico 87504-8180 (505) 988-8004 - Telephone (505) 982-0307 - Facsimile rrr@rothsteinlaw.com - E-mail
Attorneys for Plaintiff and the Class
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading was served upon
the following counsel by first-class U.S. mail, postage prepaid, on the 28th day of June, 2006.
Patrick D. Allen, Esq. Yenson, Lynn, Allen & Wosick, P.C. 4908 Alameda Blvd. NE Albuquerque, New Mexico 87113-1736
Signed Electronically 6/28/06 ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, SCHOENBURG & BIENVENU, LLP
S:\Bob\6472\Pleadings\Amended Complaint.wpd
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 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

SHARON ALLISON, on behalf of herself and the class of similarly situated persons,
Plaintiffs,
vs.
LINCOLN COUNTY BOARD OF COMMISSIONERS; CORNELL COMPANIES, INC., a Delaware Corporation; CORRECTIONAL SYSTEMS, INC., a Delaware Corporation; MIKE HOLM, individually and in his official capacity; ROGER JEFFERS, individually and in his official capacity; PETER MORALES, individually and in his official capacity; LUCY VEGA, individually and in her official capacity; LINCOLN COUNTY DETENTION CENTER CORRECTIONS OFFICERS DOES 1 THROUGH 50 and ROES 1 THROUGH 20, inclusive;
Defendants.

NO. CIV-05-0881 WPJ/WDS

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

I. INTRODUCTION Plaintiff Sharon Allison, representing herself and all others similarly situated in an action filed as a class action, and Defendants LINCOLN COUNTY BOARD OF COMMISSIONERS, CORNELL COMPANIES, INC., CORRECTIONAL SYSTEMS, INC., MIKE HOLM, ROGER JEFFERS, PETER MORALES, and LUCY VEGA, (the Plaintiff and Defendants are referred to

collectively as “the Parties”), by and through their respective counsel, jointly move the Court for preliminary approval of their agreement to settle this case.
The Parties specifically request that this Court enter an Order (1) preliminarily approving the Parties’ Stipulation of Settlement (attached as Exhibit A) (2) conditionally certifying the proposed Settlement Class, (3) appointing the named Plaintiff as Class Representative, (4) appointing counsel for Plaintiff as Class Counsel, (5) approving the form and manner of Notice to be sent to Settlement Class Members and the Summary Notice to be published in various media, (6) approving the Claim Form, (7) setting deadlines with respect to, claims, opt outs and objections, and (8) setting a date for a final fairness hearing. Judicial preliminary approval is appropriate where a case settles as a class action before certification. (Manual for Complex Litigation, 4th Ed., ¶ 21.132.)
II. STATEMENT OF FACTS/HISTORY OF LITIGATION A. Facts
On August 22, 2005, Plaintiff Sharon Allison, on behalf of herself and all persons similarly situated, filed a Complaint in the above-captioned matter in which she challenged, pursuant to 42 U.S.C. § 1983 and New Mexico state law, certain practices of Defendants including the strip search of certain detainees at the Lincoln County Detention Center, prior to arraignment, and sought damages and declaratory and injunctive relief. The Complaint was subsequently amended to add additional named Defendants discovered following the filing of the initial Complaint. The First Amended Complaint was filed on June 28, 2006.
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As a result of discovery initiated by the Parties which included exchange of documents, interrogatories, and depositions, it was discovered that, until Defendant Cornell issued revised policies for the Lincoln County Detention Center on August 31, 2005, correctional officers working at the Lincoln County Detention Center routinely strip searched all pre-arraignment detainees before admitting those detainees to the secure portion of the facility. From a statistical sampling of the files of approximately 3,000 persons booked at Lincoln County Detention Center during the period from August 22, 2002, until August 31, 2005, the Parties estimate that approximately 1,200 persons who were arrested on charges not involving violence, drugs or weapons, were strip searched prior to arraignment during their booking at the Lincoln County Detention Center
On July 12 and 13, 2006, the Parties participated in a mediation, presided over by Paul Bardacke of the firm Sutin, Thayer & Browne, PC, and, following mediation, arrived at an agreed Stipulation of Settlement, a copy of which is attached hereto as Exhibit A. That Stipulation of Settlement defines the “Settlement Class” and provides a method to notify members of the class of the terms of the proposed settlement and their entitlement to receive compensation under the settlement, to object to the settlement at a fairness hearing before this Court, or to opt out of the settlement. B. Terms Of The Settlement
The terms of the settlement, fully described in the Stipulation of Settlement attached hereto as Exhibit A, are summarized as follows.
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1. Certification Of The Class The Settlement Class is defined in the Stipulation of Settlement as “all persons
arrested on charges not involving violence, drugs or weapons, on or between August 22, 2002, and August 31, 2005, who were strip searched at the Lincoln County Detention Center prior to arraignment.” The Parties estimate that there are approximately 1,200 Settlement Class Members (“SCMs”). The Parties agree that the action should be conditionally certified as a class action under Federal Rules of Civil Procedure 23.
2. Monetary Relief To Settlement Class Members (SCMs) a. Payment to the Settlement Class
The Stipulation of Settlement provides that Defendants will deposit a settlement fund of $1,600,000.00 into an interest earning qualified settlement fund account within 30 days of the date of this Court’s preliminary approval. At least $750,000.00 will be available for distribution to qualified claimants with the possibility that additional funds will be added to those available for distribution if the cost of claims administration is less than the $150,000.00 allocated to cover the costs of such administration. The Claims Administrator will pay out of the Settlement Fund to each SCM who submits a valid and timely Claim Form a pro-rata share of the amount of the Settlement Fund available for payment of claims, determined by the Claims Administrator after the submission of all qualified claims. If 25% of those persons eligible for payment submit a Claim Form, each claimant will receive approximately $2,300.00.
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b. Incentive Payment Under the Stipulation of Settlement, the Class Representative will receive $100,000.00 for her contribution to the investigation and prosecution of this case which also includes payment for the particular emotional distress she experienced as a result of being strip searched at the Lincoln County Detention Center. Defendants have agreed not to oppose this request.
c. Equitable Relief The Parties have agreed that the strip search policies at the Lincoln County Detention Center were changed after Plaintiff filed this lawsuit and, therefore, Plaintiff’s request for equitable relief is moot. (A copy of the revised strip search policies is attached as Exhibit 1 to the Stipulation of Settlement).
d. Attorneys’ Fees & Costs Under the Stipulation of Settlement, $600,000.00 of the Settlement Fund will be allocated to pay Plaintiffs’ attorneys’ fees, gross receipts tax on fees and litigation expenses, subject to approval of the Court. Defendants have agreed not to oppose this request.
e. Release of Claims The Plaintiff and SCMs who do not opt out of the settlement will release the Defendants from any and all claims which are based upon or could be based upon or arise from the facts alleged in this lawsuit. The full terms of the release are set forth in paragraph 19 of the Stipulation of Settlement.
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f. Notice and Opt Out Procedures The Stipulation of Settlement provides for a detailed Notice to be sent by mail to all SCMs informing them (in English and Spanish) of their rights under the Stipulation of Settlement and for a summary Notice (in English and Spanish) to be published in local newspapers informing SCMs of the settlement and directing them to sources of additional information. In addition, announcements summarizing the settlement are to be made in English and Spanish on local radio stations. The Stipulation of Settlement provides that SCMs have two options for responding to the Notice. An SCM may (1) remain an SCM and be eligible to submit a Claim Form or (2) request exclusion from the Settlement Class and opt out. SCMs who request exclusion from the Settlement Class and opt out will not be deemed to have released the Defendants from any claims and may pursue any claims they have against the Defendants, but will not receive any payments from the Settlement Fund. SCMs who do nothing will be deemed to have released their claims but will receive no payment from the Settlement Fund. SCMs who submit claims will be eligible to receive payments from the Settlement Fund as specified in the Stipulation of Settlement and as calculated by the Claims Administrator. SCMs who do not elect to opt out may also present objections to the Court at the final fairness hearing.
g. Claims Administration Up to $150,000.00 will be allocated to cover the costs of claims administration, including locating members of the class, providing notice to the class, and processing/paying the SCMs’
6

claims. Any unused amount of this $150,000.00 shall revert to the Settlement Fund benefiting SCMs and be distributed to them, pro-rata.
III. ARGUMENT A. Settlement Agreement Merits Preliminary Approval
Preliminary approval of a proposed settlement is part of a two-step process required before a class action can be settled. Manual for Complex Litigation Fourth (hereinafter “Manual”) § 21.632 (Fed. Jud. Ctr. 2004). In considering preliminary approval, courts make a preliminary evaluation of the fairness of the settlement. “Where the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no oblivious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the range of possible approval, preliminary approval is granted.” In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997); see also Manual § 21.632. “Once preliminary approval is bestowed, the second step of the process ensues: notice is given to the class members [of the terms of the proposed settlement and of a hearing] at which class members and the settling parties may be heard with respect to final court approval.” NASDAQ, 176 F.R.D. at 102; Manual at §§ 21.633-34.
In considering whether to grant a motion for preliminary approval of a proposed settlement agreement, the Court utilizes a “threshold inquiry” intended merely to reveal conspicuous defects. In re Inter-Op Hip Prosthesis Liability Litig., 204 F.R.D. 330, 337-38 (N.D. Ohio 2001). Ultimately, of course, before a settlement can be fully approved, the Court must determine that a settlement is fair, reasonable and adequate. Jones v. Nuclear Pharmacy,
7

Inc., 741 F.2d 332, 324 (10th Cir. 1984). At the preliminary approval stage, however, the Court should evaluate, based on the terms of the Stipulation of Settlement, the contents of the record, and the controlling legal authority whether “the proposed settlement is sufficiently reasonable, adequate, fair and consistent with the requirements of Fed.R.Civ.P. 23 to warrant notice . . . to the class members and a fairness hearing.” Marcus v. Kan. Dep’t of Revenue, 206 F.R.D. 509, 513 (D. Kan. 2002).
Considering the issues, evidence, and nature of the settlement negotiations, preliminary approval is appropriate in this case. First, the proposed settlement was the culmination of a series of informed, non-collusive negotiations. Settlement discussions began during the discovery process, were adversarial in nature, and involved all of the parties with varying interests. After the matter was referred to mediation, the parties prepared mediation briefs and spent two days negotiating settlement with the assistance of a very experienced mediator, Paul Bardacke of the firm Sutin, Thayer and Brown, P.C. Following mediation, the parties and their representatives continued negotiations until they arrived at the agreed Stipulation of Settlement. The course of settlement negotiations rises well above the threshold for preliminary approval.
Second, the terms of the Stipulation of Settlement are fair, reasonable, and adequate to resolve the dispute. Liability was serious contested. Both sides developed evidence to support their claims and defenses. Plaintiff believes her class would have been certified. Defendants believe they would have defeated class certification and, in any event, would have been permitted to defend claims on an individual basis. All Parties predicted protracted litigation. Most courts, in considering approval of a class action settlement, note the advantages of avoiding
8

lengthy and expensive litigation. See, e.g., Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) (recognizing “the strong judicial policy that favors settlements, particularly where complex class action litigation is concerned”); Wald v. Wolfsom (In re United States Oil and Gas Litig.), 967 F.2d 489, 493 (11th Cir. 1992) (“Complex litigation . . . can occupy a court’s docket for years on end, depleting the resources of the parties and the taxpayers while rendering meaningful relief increasingly elusive”). The Parties here recognized the advantages of settlement over continued litigation.
The Settlement Fund established here is a meaningful benefit to SCMs. Plaintiffs’ counsel, who are experienced in this type of litigation, believe the Class Members’ chances of obtaining better results by continuing the litigation or by pursuing separate claims are uncertain at best. (Exhibit B, Merin Affidavit.) Duhaime v. John Hancock Mut. Life Ins. Co., 177 F.R.D. 54, 69 (D. Mass 1997) (approving settlement agreement and noting that settlement “provides class members with timely relief without having to risk the uncertainty of outcome, duration, and expense inherent in continuing the litigation”).
Finally, the Stipulation of Settlement does not grant unduly preferential treatment to the Class Representative or segments of the class. NASDAQ, 176 F.R.D. at 102. In this instance, through non-collusive negotiation, the Stipulation of Settlement includes an incentive award of $100,000 to the Class Representative. Plaintiff submits that the proposed incentive award is reasonable and is intended to recognize the significant time and efforts expended by Plaintiff Sharon Allison on behalf of the Class and the risks she undertook in bringing this lawsuit. Ingram v. The Coca Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) (“Courts routinely approve
9

incentive awards to compensate named plaintiffs for the services they provide and the risks they incurred during the course of the class action litigation”, quoting In re Southern Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)). The Class Representative contributed substantial time and energy in support of the action, including extensive participation in discovery, case strategy, case management, and mediation. Van Vranken v. Atlantic Richfield Co., 901 F.Supp 294, 299 (N.D. Cal. 1995) (in considering an incentive award, the court may consider the risk to the class representatives, both financial and otherwise: the personal difficulties encountered by the class representatives; the amount of time and effort spent on litigation; the duration of the litigation; and the personal benefit – or lack thereof – enjoyed by the class representative as a result of the litigation). Given her contribution throughout this litigation, Plaintiff contends that the individual payment to Sharon Allison of $100,000 is not excessive. Cf. Ingram, 200 F.R.D. at 694 (approving $300,000 incentive award to each named plaintiff). The Defendants have agreed not to oppose the amount proposed to be paid to Plaintiff Allison as an incentive. B. The Court Should Appoint Class Representative And Class Counsel And
Conditionally Certify The Class
The instant case, which alleges that the Defendants’ practices affected a large group of individual detainees in the Lincoln County Detention Center is exactly the sort of dispute that Fed.R.Civ.P. 23 is designed to remedy. For that reason, the Parties urge the Court to appoint Class Representative and Class Counsel, and to conditionally certify the Class under Rule 23. Courts have regularly certified classes of a similar nature. See, e.g., Tardiff v. Knox County, 365
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F.3d 1 (1st Cir. 2004) (upholding certification of class of arrestees challenging counties’ alleged policies of conducting routine strip searches of all pre-arraignment detainees); Blihovde v. St. Croix County, Wis., 219 F.R.D. 607 (W.D. Wis. 2003) (certifying class of persons strip searched at county jail); Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000) (certifying class of prearraignment detainees to strip searches without individualized reasonable suspicion); Bull v. San Francisco, USDC, N.D. C 03-1840 CRB (Order of 6/10/04) (certifying class of persons strip searched and/or placed in safety cells at county jail); Gallagher v. San Mateo, USDC, N.D. C 040448 SBA (Order of 10/31/05) (certifying class of persons strip searched at county jail); Leyba v. Santa Fe County Board of Commissioners, USDC, D.N.M. CIV-05-0036 BB/ACT (Order of 7/24/06) (certifying class of persons strip searched prior to arraignment at county jail). Because Plaintiff meets all of the technical requirements of Rule 23, and because it is fair and efficient to resolve all claims together, the Court should conditionally certify the Class in this case.
1. The Court Should Appoint The Class Representative And Class Counsel This Motion seeks appointment of named Plaintiff Sharon Allison as the Class Representative. She is an appropriate representative because she was subjected to the same policy and practices that allegedly violated the rights of all of the other Class members. Furthermore, Plaintiff has acted in the best interest of the Class and has no conflict of interest which would preclude her from serving as the Class Representative. The Motion also seeks appointment of Mark E. Merin of the Law Office of Mark E. Merin, Andrew C. Schwartz of the law firm of Casper, Meadows, Schwartz & Cook, and Robert R. Rothstein of the firm Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu,
11

LLP, as Class Counsel. These lawyers are all experienced in the areas of civil rights law and class action litigation of strip search cases, and none has any conflict of interest which would preclude him from serving as Class Counsel. All of these lawyers have been involved in this litigation from the time the lawsuit was filed, and all have participated in the negotiations that led to the Stipulation of Settlement. (Exhibit B, Affidavit of Mark Merin; Exhibit C, Affidavit of Andrew C. Schwartz; Exhibit D, Affidavit of Robert R. Rothstein.)
2. The Proposed Settlement Class Meets The Requirements Of Rule 23(A) A class must have the following prerequisites in order to be certified under Fed.R.Civ.P. 23(a): “(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.” Lopez v. City of Santa Fe, 206 F.R.D. 285, 288 (D.N.M. 2002) (certifying settlement class); Fed.R.Civ.P. 23(a). Here the proposed Class clearly satisfies all of the Rule 23(a) requirements.
a. The Class Is So Numerous That Joinder Is Impracticable The Settlement Class in this case is estimated to include approximately 1,200 individuals. (See Exhibit B, Merin Affidavit.) Joinder of so many individual members would be impracticable, and accordingly, this Court should find that the numerosity requirement of Rule 23(a) is satisfied in this case. See 1 H. Newberg & A. Conte, Newberg on Class Actions § 3.5, at 246 (4th ed. 2002) (in most cases where class size numbers in the hundreds, numerosity is not an issue).
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b. There Are Questions Of Law And Fact Common To The Class The commonality requirement is met if putative class members’ grievances share a common question of law or fact. Lopez, 206 F.R.D. at 288. “Commonality requires only a single issue common to the class, and the fact that the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.” Id. at 289 (internal quotations marks & citations omitted); see also Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). The claims on behalf of the Class before the Court share numerous common questions of fact and law. Most importantly, the case is dominated by the factual and legal questions of whether the Defendants’ policies and procedures with respect to strip searches of prearraignment detainees violated the rights of the SCMs. Resolving these questions would depend in large part upon evidence that would apply to the Settlement Class as a whole. Thus, the Rule 23(a)(2) commonality requirement is satisfied.
c. Plaintiffs’ Claims Are Typical Of The Settlement Class And There Are No Conflicts
The proposed Class Representative presents claims that are typical of those of the Settlement Class. “A . . . plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and if his or her claims are based on the same legal theory.” Lopez, 206 F.R.D. at 289 (internal quotation marks & citations omitted); see also In re American Medical Systems, Inc., 75 F.3d 1069, 1082 (6th Cir. 1996) (citing Newberg on Class Actions § 3.13, at 3-76 (3d. ed 1992).
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In this case, the proposed Class Representative claims that she was strip searched in violation of her rights. (Amended Complaint ¶ 18.) These claims are also brought on behalf of the Settlement Class. (Amended Complaint ¶¶ 24-26.) The Amended Complaint alleges that named Plaintiff Sharon Allison’s claims arise out of the same events, practices and course of conduct that give rise to the alleged class-wide injury at issue. (Amended Complaint at ¶¶ 2830.) As such, it is manifest that the typicality requirement is met.
d. The Class Representative Has Fairly And Adequately Protected The Interests Of The Settlement Class
The purpose of the adequacy of representation requirement is to “protect the legal rights of absent class members.” Lopez, 206 F.R.D. at 289 (internal quotation marks & citations omitted); see also Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 721 (11th Cir. 1987). “In order to adequately represent the class, two requirements must be met: (1) the class representative must not have interests antagonistic to those of the class, and (2) the attorneys representing the class must be qualified, experienced, and generally able to conduct the proposed litigation.” Lopez, 206 F.R.D. at 289-9; see also Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993); Cross v. Nat’l Trust Life Ins. Co., 553 F.2d 1026, 1031 (6th Cir. 1977).
The first requirement, an absence of any conflict between the Class Representative and the Settlement Class, is satisfied because both the Class Representative and the SCMs allege they have been harmed by the Defendants’ allegedly unlawful practices. Because the Class Representative and the SCMs have allegedly suffered harm as a result of the Defendants’
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practices, there are no antagonistic or conflicting interests that would prevent the Class Representatives from safeguarding the rights of absent SCMs.
The second requirement is also met. Counsel for the Plaintiffs are qualified and experienced in class action and civil rights litigation. (Exhibits B, C & D, Merin, Schwartz & Rothstein Affidavits.) Class Counsel have diligently pursued this case on behalf of the Named Plaintiff and absent SCMs and are continuing to do so. Thus, the adequacy requirement is met.
3. The Proposed Settlement Class Satisfied The Rule 23(B) Requirements Once the Court finds that the prerequisites of Rule 23(a) are satisfied, the Court must determine whether or not the action is maintainable as a class action under one or more provisions of Rule 23(b). See, e.g., Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976).) Class certification under Rule 23(b)(3) is appropriate when “questions of law or fact common to the members of the class predominate” and “a class action is superior to other available methods” of adjudicating the controversy. Fed.R.Civ.P. 23(b)(3); Wilfong v. Rent A Center, Inc., 2001 WL 1795093 (S.D. Ill. 2001) at *7-8. Here, Plaintiff’s claim is properly certified under Rule 23(b)(3) because Plaintiff satisfies both the “predominance” and the “superiority” requirements. To satisfy the predominance requirements. Plaintiff must show that one or more common issues predominate over individual issues and that one trial of common issues is superior to conducting literally hundreds or thousands of separate trials. Fed.R.Civ.P. 23(b)(3). The primary purpose of Rule 23(b)(3) is to promote efficiency and to take advantage of the economy that results from jointly adjudicating a large number of claims that share one or more common questions. Fed.R.Civ.P. 23 Advisory Committee Notes, 1966 Amendments; see
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also Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1196 (6th Cir. 1988) (goal of Rule 23(b)(3) is “to achieve the economies of time, effort, and expense”).
“Common issues predominate within the meaning of Rule 23(b)(3) when they constitute a significant part of the litigation.” Wilfong, 2001 WL 1795093 at *8; see also Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir. 1986). The predominance requirement addresses efficiency by making certain that class wide issues outweigh individual issues. See Sterling, 855 F.2d at 1197. The claims in the present case are based on what Plaintiff alleges to be a single course of conduct: the Defendants’ policy of strip searching all pre-arraignment detainees without individualized reasonable suspicion. Thus, Plaintiffs face a common set of factual and legal issues and a common cause of injury that predominates over individual questions.
Moreover, since all SCMs have the right to opt out of the settlement, there is nothing that prevents any Plaintiff from continuing to prosecute his or her claim for monetary relief individually. See, e.g., In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 330, 347 (N.D. Ohio 2001); Fed.R.Civ.P. 23(b)(3)(A). Further, the relief provided in the Stipulation of Settlement would not be available in the absence of the class treatment. See Hip Prosthesis, 204 F.R.D. at 347-48. C. The Court Should Approve The Proposed Settlement Notices And Authorize Their
Dissemination
“[I]n any proceeding [that] is to be accorded finality,” due process requires that interested parties be provided with “notice reasonably calculated, under . . . the circumstances, to apprise
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[them] of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The notice must be reasonably calculated to reach interested parties and where the names and addresses of the interested parties are known, due process requires mailed notices. Id. at 318-19; Dejulius v. Sprint Corp., 429 F.3d 935 (10th Cir. 2005).
The contents of class notice must “fairly apprise the . . . members of the class of the terms of the proposed settlement and of the options that are open to them in connection with [the] proceedings.” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1995) (quoting Weinberger v. Kendrick, 698 F.2d 61, 70 (2d Cir. 1982)). Class notice is sufficient if it “may be understood by the average . . . class member.” In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1104 (5th Cir. 1997); see also Churchill Village LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (“notice is satisfactory if it generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.”) (internal quotation marks & citation omitted).
Here, the proposed notices (Exhibits 3 and 4 to the Stipulation of Settlement attached hereto as Exhibit A) and their method of dissemination provided in paragraphs 6, 49, 50 and 51 of the Stipulation of Settlement meet these requirements. The proposed notices clearly and concisely inform SCMs of all the relevant aspects of the litigation: (a) the Class definition and statement of claims; (b) the litigation history; (c) the terms of the Stipulation of Settlement; (d) the binding effect of any judgment approving the Settlement on those who do not opt out; (e) the right to object to the Settlement and the procedure for doing so; (g) whom to contact to obtain
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additional information regarding the Settlement or the litigation; (h) the amount of compensation requested for the Class Representative to compensate her for her services to the Class; and (i) the amount requested for reasonable attorneys’ fees and costs. Thus, the notices provide all the information necessary for SCMs to make an informed decision with respect to whether to remain in or opt out of the Settlement Class or whether to object to the proposed Settlement. Further, delivery by first class mail to the SCMs’ last known addresses is designed to reach the members in the most expeditious and economical way. In addition, summary notice of the Settlement will be published in local newspapers and will be broadcast on three radio stations in order to notify SCMs who are not notified of the Settlement through other means. D. The Court Should Schedule A Fairness Hearing And Approve The Proposed
Schedule For The Mailing Of Settlement Notices, The Return Of Opt Outs, And The Filing Of Objections

The Parties propose the following sequence of events and deadlines, assuming the Court

grants this Motion for Preliminary Approval:

Publications and Mailing of Notice Package to Class:

Within thirty (30) days after preliminary approval of the Stipulation of Settlement

Opt Out Deadline:

120 days after preliminary approval of the Stipulation of Settlement

Objections to Settlement:

120 days after preliminary approval of the Stipulation of Settlement

Claims Deadline:

120

days after preliminary approval of the

Stipulation of Settlement

Fairness Hearing:

At

least 150 days after preliminary approval of the

Stipulation of Settlement

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IV. CONCLUSION

For the foregoing reasons, the Parties respectfully request that the Court issue its Order,

substantially in the form attached hereto as Exhibit E.

(1) Preliminarily approving the Stipulation of Settlement;

(2) Conditionally certifying the proposed Settlement Class;

(3) Appointing Named Plaintiff as Class Representative;

(4) Appointing counsel for Named Plaintiff herein as Class Counsel;

(5) Approving the form and manner of Notice to be sent to SCMs and Summary

Notice to be published in various media in accordance with the Stipulation of

Settlement;

(6) Approving the Claim Form and setting deadlines with respect to, claims, opt outs,

and objections; and

(7) Setting a date for a formal fairness hearing.

DATED: October 25, 2006 Respectfully submitted,

2001 Sacram (916)

LAW OFFICE OF MARK E. MERIN /s/ - “Mark E. Merin”
By: __________________________________________ Mark E. Merin LAW OFFICE OF MARK E. MERIN P Street, Ste. 100 ento, California 95814 443-6911

Robert ROTHSTEI DAHL Post 1215

R. Rothstein N, DONATELLI, HUGHES,
STROM, SCHOENBURG & BIENVENU, LLP Office Box 8180 Paseo de Peralta

19

Santa (505)
Andrew
2121 Walnut (925)
of

Fe, New Mexico 87504-8180 988-8004
C. Schwartz CASPER, MEADOWS, SCHWARTZ & COOK
N California Boulevard, Suite 1020 Creek, CA 94596
947-1147
Attorneys for Plaintiff Sharon Allison, on behalf herself and all those similarly situated

DATED: October 25, 2006 Respectfully submitted,

YENSON, LYNN, ALLEN & WOSICK, P.C.

/s/

- “Patrick D. Allen”

By:___________________________________

Patrick D. Allen

4908

Alameda Blvd NE

Albuquerque,

NM 87113-1736

(505)

266-3995

Attorneys for Defendants

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

SHARON ALLISON, on behalf of herself and the class of similarly situated persons;

Plaintiffs,

v.

NO. CV 05-881 WPJ/WDS

LINCOLN COUNTY BOARD OF COMMISSIONERS; CORNELL COMPANIES, INC., a Delaware Corporation; CORRECTIONAL SYSTEMS, INC., a Delaware Corporation; MIKE HOLM, individually and in his official capacity; ROGER JEFFERS, individually and in his official capacity; PETER MORALES, individually and in his official capacity; LUCY VEGA, individually and in her official capacity; LINCOLN COUNTY DETENTION CENTER CORRECTIONS OFFICERS DOES 1 THROUGH 50 and ROES 1 THROUGH 20, inclusive;

Defendants.

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT COMES NOW Plaintiff Sharon Allison (“Plaintiff”), by and through her counsel, below-listed, and in response to the Court’s direction at the hearing on January 30, 2007, hereby provides the following supplemental authority in support of the Joint Motion for Preliminary Approval of Class Action Settlement. The Court specifically requested that Plaintiff provide additional briefing on the proposed class representative incentive payment to Plaintiff in the amount of $100,000.

Class representative incentive awards are intended to recognize the significant time and efforts expended by class representatives on behalf of the class and the risks that they undertook in bringing a lawsuit. Ingram v. The Coca Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001)(awarding incentive awards of $300,000 to each plaintiff and holding that “courts routinely approve incentive awards to compensate named plaintiffs for the services they provide and the risks they incurred during the course of the class action litigation” (quoting In re Southern Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)); see also, Huguley v. Gen. Motors Corp., 128 F.R.D. 81, 85 (E.D. Mich. 1989) (“Named plaintiffs and witnesses are entitled to more consideration than class members generally because of the onerous burden of litigation that they have borne.”). In considering incentive awards, the Court may consider the risk to the class representative, financial and otherwise; the personal difficulties encountered by the class representative; the amount of time and effort spent on litigation; the duration of the litigation; and the personal benefit—or lack thereof—enjoyed by the class representative as a result of the litigation. Van Vranken v. Atlantic Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995).
In the present case, these factors weigh in favor of the agreed-upon incentive award for Plaintiff. She was willing to allow her name to appear on the complaint, which she knew would receive significant publicity. She made personal sacrifices in order to pursue this case on behalf of the class. Plaintiff had a particularly strong individual case that would likely have resulted in a significant award if her case had been pursued individually. Instead,
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Plaintiff chose to pursue a recovery that, while less beneficial to her, provided a benefit to hundreds of others.
Plaintiff was required to submit to deposition and other public scrutiny into embarrassing details of her personal life, including her arrest. In addition, she spent hours reviewing information provided in discovery, providing information to counsel, participating in depositions, answering written discovery, attending mediations, and assisting counsel in countless other ways in the pursuit and eventual settlement of this case. Ultimately, pressures associated with the lawsuit were an important factor in Plaintiff’s decision to move away from Lincoln County.
In addition to the discussion of the class representative incentive award set forth at pages 9-10 of the Joint Motion for Preliminary Approval of Class Action Settlement [Doc. No. 51], Plaintiff submits the following additional authority in support of the proposed payment in this case:
1. Bull, et al. v. Sacramento County, et al., (Sacramento County Superior Court No. 01 AS 01545, Order and Judgment of Dismissal entered on 10/22/2004). In this class action lawsuit challenging the Sacramento County Jail’s strip search policies, Plaintiff Mary Bull received a class representative incentive payment of $150,000. A description of the case is set forth in the Affidavit of Mark Merin, Exhibit “1" hereto, and a copy of the Superior Court’s Order is attached as Exhibit “A” to Mr. Merin’s Affidavit. The case involved an
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overall settlement in the amount of $4,924,406.25 and provided for an average per claimant payout of $1,499.06. 2. Haney, et al. v. Miami-Dade County, et al., (United States District Court for the Southern District of Florida, Miami Division, Case No. 04-20516 CIV, Agreed Order and Judgment of Dismissal entered on October 6, 2005). This case involved a class action challenging the strip search policies of the MiamiDade County Corrections and Rehabilitation Department. Class representative Mary Haney received a court-approved incentive payment of $135,000. The overall settlement amount of the case was $3,287,740.00 with an average per claim award of $2,515.49. The case is discussed in Mr. Merin’s Affidavit, Exhibit “1" hereto at page three and a copy of the Court’s Agreed Order and Judgment of Dismissal is attached as Exhibit “B” to Mr. Merin’s Affidavit. 3. Katie Kelley Mareau, et al. v. Regents of the University of California, et al., (First Judicial District Court (County of Santa Fe), No. SF 96-2430 (C), Order of January 25, 2002). This class action arose from State law challenges to the practice of Los Alamos National Laboratory in performing autopsies on deceased laboratory employees and other persons without consent of next of kin. Class representative Katie Kelley Mareau received a court-approved payment of $75,000 as a class representative. A copy of the Court’s Order Approving Allocation and Distribution of Settlement Amounts and Award of
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Attorneys Fees, Litigation Expenses and Incentive Awards is attached hereto as Exhibit “2". As can be seen from the foregoing examples and the material previously provided to the Court, the sum of $100,000 which has been agreed upon by all parties as part of the overall settlement of this case is not without precedent and is justified by the unusual circumstances involved in Plaintiff’s services as class representative in this case. In addition to the information previously provided to the Court, and in supplementation of the points raised at the hearing on preliminary approval on January 30, 2007, Plaintiff’s counsel Mark E. Merin has set forth additional factors regarding Plaintiff’s service in this case which make the proposed payment of $100,000 reasonable and justified. That information is set forth in Mr. Merin’s Affidavit, Exhibit “1" hereto at pages 3-5. As the Court observed at the hearing, it took particular courage for Plaintiff to agree to be the sole class representative in what was a controversial and potentially unpopular cause. WHEREFORE, for all of the foregoing reasons, Plaintiff respectfully requests that this Court enter its order granting the Joint Motion for Preliminary Approval of Class Action Settlement, including the class representative incentive payment.
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Respectfully submitted,
LAW OFFICE OF MARK E. MERIN
By: Signed Electronically (2/9/07) Mark E. Merin, SBN 43849 Jeffrey I. Schwarzschild, SBN 192086 Cathleen A. Williams, SBN 68029 2001 P Street, Suite 100 Sacramento, CA 95814 (916) 443-6911 - Telephone (916) 447-8336 - Facsimile mark@markmerin.com - E-mail
CASPER, MEADOWS, SCHWARTZ & COOK
By: Electronically Signed (2/9/07) Andrew C. Schwartz, SBN 64578 2121 N. California Boulevard, Suite 1020 Walnut Creek, CA 94596 (925) 947-1147 - Telephone (925) 947-1131 - Facsimile schwartz@cmslaw. com - E-mail
ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP
By: Electronically Signed (2/9/07) Robert R. Rothstein P.O. Box 8180 1215 Paseo de Peralta Santa Fe, New Mexico 87504-8180 (505) 988-8004 - Telephone (505) 982-0307 - Facsimile rrr@rothsteinlaw.com - E-mail
Attorneys for Plaintiff Sharon Allison
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CERTIFICATE OF SERVICE I hereby certify that on the 9th day of February, 2007, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Patrick D. Allen, Esq. Attorney for Defendants (pallen@ylawfirm.com)
/s/ Robert R. Rothstein, Attorney at Law ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, SCHOENBURG & BIENVENU, LLP
S:\Bob\6472\Pleadings\Supp. Memorandum in support of Joint Motion.wpd
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 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

SHARON ALLISON, on behalf of herself and the class of similarly situated persons;

Plaintiffs,

vs.

Civil No. 05-881 WJ/WDS

LINCOLN COUNTY BOARD OF COMMISSIONERS; CORNELL COMPANIES, INC., a Delaware Corporation; CORRECTIONAL SYSTEMS, INC., a Delaware Corporation; MIKE HOLM, individually and in his official capacity; ROGER JEFFERS, individually and in his official capacity; PETER MORALES, individually and in his official capacity; LUCY VEGA, individually and in her official capacity; LINCOLN COUNTY DETENTION CENTER CORRECTIONS OFFICERS DOES 1 THROUGH 50 and ROES 1 THROUGH 20, inclusive,

Defendants.

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND
CONDITIONALLY CERTIFYING THE CLASS

THIS MATTER comes before the Court pursuant to the parties’Joint Motion for

Preliminary Approval of Class Settlement (Doc. 51). The Court has considered the facts and legal

authorities set forth in the motion, the exhibits to the motion and the Supplemental Memorandum

in Support of Join Motion (Doc. 55). The Court has also considered the representations of

counsel at a hearing conducted on January 30, 2007. In light of the representations of the parties

and the relevant law, I conclude with reservations that there is good cause for preliminary

approval of the class action settlement and for conditionally certifying the class.

Preliminary approval of a proposed class settlement is the first step of a two part process required for class action settlement. Manual for Complex Litigation Fourth § 21.632 (Fed. Jud. Ctr. 2004) (hereinafter “Manual”). While the court must make a fairness determination for preliminary approval, at the preliminary stage a court does not undertake a full and complete fairness review. Inter-Op Hip Prosthesis Liability Litigation, 204 F.R.D. 330, 350 (N.D. Ohio 2001) (citing Manual § 30.41 at 236-37 (3rd ed. 1995)). Generally, a court grants preliminary approval “where a proposed settlement appears to be the product of serious, informed, noncollusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of a the class, and falls within the range of possible [final] approval.” In re NASDAQ Market-Makers Antitrust Litigation, 176 F.R.D. 99, 102 (S.D.N.Y. 1997) (citing Manual § 30.41 (3rd ed. 1995)). “In making a preliminary assessment of the fairness of the proposed settlement agreement, the Court’s intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” Inter-Op Hip Litigation, 204 F.R.D. at 350. When a settlement is the result of extensive negotiations by experienced counsel, the Court should presume it is fair. Id. at 351 (citing Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir. 1983); Duhaime v. John Hancock Mut. Life Ins. Co., 177 F.R.D. 54, 68 (D. Mass. 1997); In re Orthopedic Bone Screw Prods. Liab. Litig., 176 F.R.D. 158, 184 (E.D. Pa. 1997)).
I have carefully reviewed the Stipulation of Settlement, attached to the Joint Motion as Exhibit A, and the full contents of the record in this case. In light of the above principles of law, I
2

conclude that the settlement is the result of informed, serious, arms-length negotiations between the parties with no overreaching, fraud or collusion. I also conclude that the proposed settlement has no obvious deficiencies and falls within the range of possible final approval.1 Accordingly, I will grant the parties motion for preliminary approval of the settlement.
I have also carefully reviewed the proposed Settlement Notices. The parties propose to send individual notice in English and Spanish to persons identified as potential class members. The parties also propose to publish notice in local newspapers and provide radio announcements in both English and Spanish. This notice meets the due process requirements because it is resaonably calculated to reach interested parties, and, to the extent the identity of individual parties is known, notice is being mailed individually. See Mullane v. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Dejulius v. Sprint Corp., 429 F.3d 935 (10th Cir. 2005). The contents of the notice inform potential class members of the terms of the class settlement and the options of potential class members in a manner that may be understood by the average class member. Accordingly, I will approve the proposed settlement notices and authorize their dissemination.
The parties have proposed deadlines for publication and mailing of notice to the potential class, for allowing potential class members to opt out of the class, for the filing by potential class members of objections to settlement, for filing by potential class members of claims and for the fairness hearing. I find these deadlines reasonable and will herein adopt them.
1At the hearing on this matter, I ruled that the parties had made a prima facie showing sufficient for preliminary approval with regard to the basic settlement agreement and the attorneys’fees provision. However, I ordered supplemental briefing on the issue of the incentive award for the class representative. While I continue to have reservations about the proposed incentive award, there is no obvious deficiency for purposes of the preliminary analysis.
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With regard to conditional certification of the class, a class must meet the following prerequisites under Fed. R. Civ. P. 23(a) for certification: “(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.” Lopez v. City of Santa Fe, 206 F.R.D. 285, 288 (D.N.M. 2002); Fed. R. Civ. P. 23(a).
The proposed Settlement Class in this case consists of approximately 1,200 individuals. Joinder of this many persons would be impracticable, and I conclude that the numerosity requirement is met. The commonality requirement is met if putative class members’grievances share a common question of law or fact. Lopez, 206 F.R.D. at 288. The claims on behalf of the class share several common questions of fact and law, and this case is dominated by the common issue whether Defendants policies and procedures with regard to strip searches of pre-arraignment detainees violated the rights of the members of the proposed Settlement Class. Resolving the issues with regard to each member of the class would depend largely upon common evidence. Accordingly, I conclude that the commonality requirement is met with respect to the proposed Settlement Class.
With regard to typicality, a plaintiff’s claim is typical “if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and if his or her claims are based on the same legal theory.” Lopez, 206 F.R.D. 289. In this case, the proposed class representative brings claims based on her allegations that, when she was a pre-arraignment detainee at the Lincoln County Detention Center, she was strip searched in violation of her rights. She brings these claims on behalf of the proposed class of persons who were subjected to the
4

same practices and course of conduct that gave rise to the alleged class-wide injury at issue. Accordingly, the typicality requirement is met.
The purpose of the adequacy requirement is to protect the legal rights of absent class members. Lopez, 206 F.R.D. at 289. “In order to adequately represent the class, two requirements must be met: (1) the class representative must not have interests antagonistic to those of the class; and (2) the attorneys representing the class must be qualified, experienced, and generally able to conduct the proposed litigation.” Lopez, 206 F.R.D. at 289-90. There is no conflict and no antagonistic interests between the proposed class representative and the members of the class. She alleges the same harm arising from the same course of conduct as the members of the proposed class. Based on the record in this case it is clear that proposed class counsel are highly qualified and experienced. Accordingly, I conclude that the adequacy requirement is met.
Based on the above, I conclude that the proposed settlement class with the proposed class representative meets the requirements Fed. R. Civ. P. 23(a). Having found this, I must now proceed to determine whether the requirements of Fed. R. Civ. P. 23(b) have been met. Class certification under Rule 23(b) is appropriate when “questions of law or fact common to the members of the class predominate” and “a class action is superior to other available methods” of adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). In this case, Plaintiff’s claim meets both the predominance and superiority requirements. As already noted, the claims of the proposed class all arise from the alleged practice of the Defendants with regard to conducting strip searches of pre-arraignment detainees. The common legal issue whether this conduct violated the rights of the proposed class members predominates in this case, and a common trial of this issue is superior to conducting hundreds or even more than a thousand trials over this issue. Accordingly, I
5

conclude that the requirements of Fed. R. Civ. P. 23(b) are met and I will conditionally certify the class, appoint Plaintiff as the class representative, and appoint Plaintiff’s counsel as class counsel.
IT IS THEREFORE ORDERED THAT: 1. The Court preliminarily approves the Stipulation of Settlement as fair, reasonable and adequate. Neither this preliminary order of approval nor the Stipulation of Settlement is a finding or an admission by Defendants of any liability or wrongdoing whatsoever. 2. The Court concludes that (1) the Settlement Class (as that term is defined in the Stipulation of Settlement) is so numerous that joinder of all member is impracticable, (2) there are questions of law and fact common to the Settlement Class, (3) the claims of the Plaintiff Sharon Allison (“Plaintiff”) are typical of the claims of the Settlement Class, (4) the Plaintiff will fairly and adequately protect the interests of the Settlement Class, (5) the questions of law and fact common to the members of the Settlement Class predominate over any questions affecting only individual members, and (6) a class action is superior to other available methods for the fair and efficient adjudication of this controversy. 3. Pursuant to Fed. R. Civ. P. 23 and the Stipulation of Settlement, the Court hereby conditionally certifies a Settlement Class as that term is defined in Paragraph 14 of the Stipulation of Settlement. 4. The Court appoints Sharon Allison as Class Representative. 5. The Court appoints Mark E. Merin of the Law Office of Mark E. Merin, Andrew C. Schwartz of Casper, Meadows Schwartz and Cook, and Robert R. Rothstein of Rothstein, Donatelli, Hughes, Daholstrom, Schoenburg & Bienvenu, LLP as Class Counsel.
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6. The Court approves the Administrator, as that term is defined in the Stipulation of Settlement, to be stipulated to by the parties or to be determined by further order of the Court, and authorizes the Administrator to perform those duties as defined in the Stipulation of Settlement.
7. The Court approves the Class Notice in the form attached to the Stipulation of Settlement as Exhibit 4. The Court approves the Claim Form attached to the Stipulation of Settlement as Exhibit 3.
8. Within thirty (30) days of the entry of this Order, the Defendants shall provide to the Administrator and Class Counsel the “Database” as that term is defined in Paragraph 8 of the Stipulation of Settlement and shall transmit by wire transfer or certified funds the Settlement Fund (as defined in Paragraphs 27-28 of the Stipulation of Settlement) to the Administrator or the Administrator’s designee for deposit in an interest-bearing qualified settlement fund.
9. The Administrator is directed to mail the Class Notice and Claim Form (“Notice Package”) to all members of the Settlement Class as set forth in the Stipulation of Settlement. The Administrator is further directed to publish the Notice as set forth in the Stipulation of Settlement and to ensure that announcements are made on the radio as set forth in the Stipulation of Settlement.
10. Such dissemination of the Class Notice is the best notice practicable under the circumstances, within the meaning of Fed. R. Civ. P. 23(c)(2)(B).
11. The Court shall conduct a Final Approval Hearing on November 1, 2007 at 9:00 a.m. to determine whether the Stipulation of Settlement should be finally approved as fair,
7

reasonable and adequate to the Settlement Class, and whether judgment should be entered accordingly.
12. Any Settlement Class member who so desires may object to the proposed settlement, or the proposed form of Final Approval, provided that the Class member refrains from opting out of the Settlement Class and otherwise complies with the procedures described in the Class Notice.
13. The Final Approval Hearing may be continued or adjourned by order of the Court without further notice to the Class.
14. If the Stipulation of Settlement is finally approved by the Court, then upon the occurrence of the effective date, all Settlement Class members who do not timely exclude themselves from the Settlement Class – whether or not they file a timely and valid Claim Form, or any claim at all – shall be barred and enjoined from asserting any of the claims released in the Stipulation of Settlement, shall conclusively be deemed to have released any and all such claims, and shall be subject to and bound by the provisions of the Stipulation of Settlement and the Final Judgment.
15. Until the Court finally determines whether the Stipulation of Settlement should be approved, no member of the Settlement Class who has not timely and validly opted out of the settlement may commence or prosecute any action or proceeding in any forum asserting any of the claims that are the subject of the Stipulation of Settlement.
UNITED STATES DISTRICT JUDGE
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DISC, MTNDDL, REFER
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:05-cv-00881-WJ-WDS

Allison v. Lincoln Cty Bd Comm, et al Assigned to: District Judge William P. Johnson Referred to: Magistrate Judge W. Daniel Schneider Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 08/22/2005 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Sharon Allison on behalf of herself and the class of similarly situated persons

represented by Andrew C Schwartz Casper Meadows Schwartz & Cook 2121 N California Blvd #1020 Walnut Creek, CA 94596 (925) 947-1147 Fax: 947-1131 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathleen A Williams Law Office of Mark E Merin 2001 P Street #100 Sacramento, CA 95814 (916) 443-6911 Fax: 447-8336 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey I Schwarzschild Law Office of Mark E Merin 2001 P Street #100 Sacramento, CA 95814 (916) 443-6911 Fax: 447-8336 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Merin Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R Rothstein

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V. Defendant Lincoln County Board of Commissioners
Defendant Lincoln County Sheriff's Department TERMINATED: 06/28/2006
Defendant Cornell Companies Inc.
Defendant Correctional Systems, Inc.
Defendant Richard Virden Lincoln County Sheriff, in his individual and official capacities TERMINATED: 06/28/2006 Defendant
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Rothstein Law Firm P.O. Box 8180 1215 Paseo de Peralta Santa Fe, NM 87504-8180 505-988-8004 Fax: 505-982-0307 Email: rrr@rothsteinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick D Allen 4908 Alameda, NE Albuquerquer, NM 87113-1736 505 266 3995 Fax: 505 268 6694 Email: pallen@ylawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick D Allen (See above for address) TERMINATED: 06/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick D Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick D Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick D Allen (See above for address) TERMINATED: 06/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Morales Lincoln County Sheriff Deputy
Defendant Lincoln County Sheriff's Deputies Does 1 through 50, and Roes 1 through 20, inclusive TERMINATED: 06/28/2006
Defendant Mike Holm
Defendant Roger Jeffers individually & in official capacity
Defendant Lucy Vega individually & in her official capacity
Defendant Lincoln County Detention Center Corrections Officers 1 through 50 and Roes 1 through 20, inclusive

represented by Patrick D Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/22/2005
08/22/2005 08/22/2005 08/22/2005 08/22/2005 08/24/2005

#

Docket Text

1 CLASS ACTION COMPLAINT for damages for violations of civil & constitutional rights & for declaratory & injunctive relief with jury demand (6 Summons(es) issued) (referred to Magistrate Judge W. D. Schneider) (pz) Modified on 08/24/2005 (Entered: 08/24/2005)
LETTER re: consent to proceed before a U.S. Magistrate Judge (pz) (Entered: 08/24/2005)
2 MOTION by pltf for attorney Mark E Merin to appear pro hac vice (pz) (Entered: 08/24/2005)
3 MOTION by pltf for attorney Andrew C Schwartz to appear pro hac vice (pz) (Entered: 08/24/2005)
4 MOTION by pltf for attorney Jeffrey I Schwarzschild to appear pro hac vice (pz) (Entered: 08/24/2005)
FILING FEE PAID: on 8/22/05 in the amount of $250.00, receipt #: 505169. (pz) (Entered: 08/24/2005)

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08/25/2005 08/30/2005
09/06/2005 09/06/2005
09/06/2005 09/06/2005 09/06/2005 09/06/2005 09/07/2005 09/27/2005 10/19/2005
10/19/2005 10/20/2005 10/21/2005
11/29/2005 11/29/2005 12/07/2005 12/07/2005

SUMMONSES issued as to deft Cornell Companies & registered agent for Correctional Systems (td) (Entered: 08/25/2005)
5 ORDER by Magistrate Judge Robert H. Scott granting pltfs' motions for attorney Jeffrey I Schwarzschild [4-1] Andrew C Schwartz [3-1] Mark E Merin to appear pro hac vice [2-1] (cc: all counsel) (vv) (Entered: 08/30/2005)
6 NOTICE by pltf of refusal to consent to proceed before a U.S. Magistrate Judge (pz) (Entered: 09/07/2005)
8 RETURN OF SERVICE executed upon Tammy Maddox, Linoln County Clerk for deft Lincoln County Board of Commissioners on 8/29/05 (td) (Entered: 09/08/2005)
9 RETURN OF SERVICE executed upon Undersheriff David O'Brien for deft Lincoln County Sheriff's Department 8/29/05 (td) (Entered: 09/08/2005)
10 RETURN OF SERVICE executed upon deft Correctional Systems on 8/26/05 (td) Modified on 11/14/2005 (Entered: 09/08/2005)
11 RETURN OF SERVICE executed upon Undersheriff David O'Brien for deft Sheriff Richard Virden on 8/29/05 (td) (Entered: 09/08/2005)
12 RETURN OF SERVICE executed upon deft Morales on 8/29/05 (td) (Entered: 09/08/2005)
7 MINUTE ORDER: Case reassigned to District Judge William P. Johnson (cc: all counsel) (pz) (Entered: 09/07/2005)
13 RETURN OF SERVICE executed upon defendant Cornell Companies on 9/9/05 (pz) (Entered: 09/27/2005)
14 ENTRY OF APPEARANCE for defendants Lincoln Cty Bd Comm, Lincoln County, Cornell Companies, Correctional Systems, Morales by Patrick D Allen * (vv) (Entered: 10/19/2005)
15 ANSWER by defendants [1-1] * (vv) (Entered: 10/19/2005)
16 NOTICE of refusal to consent to proceed before US Magistrate Judge by defts (ln) (Entered: 10/21/2005)
17 INITIAL SCHEDULING ORDER by Magistrate Judge W. D. Schneider Rule 16 scheduling conference set for 12/6/05 at 9:30 am; provisional discovery plan & IPTR due 11/29/05 (cc: all counsel) * (vv) (Entered: 10/21/2005)
18 CERTIFICATE of service by plaintiff of initial disclosures to counsel on 11/29/05 * (vv) (Entered: 11/29/2005)
19 PROVISIONAL DISCOVERY PLAN by parties (vv) (Entered: 11/29/2005)
20 CLERK'S MINUTES: before Magistrate Judge W. D. Schneider Rule 16 scheduling conference held * (vv) (Entered: 12/07/2005)
21 CERTIFICATE of Service by defts of initial disclosures to counsel on 12/7/05 (pr) (Entered: 12/08/2005)

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12/16/2005 12/22/2005 12/22/2005
12/23/2005 01/05/2006 01/06/2006 01/11/2006 01/11/2006 01/11/2006 01/11/2006 02/06/2006 02/09/2006 02/09/2006
02/13/2006 02/17/2006 02/17/2006

22 ORDER by Magistrate Judge W. D. Schneider setting settlement conference for 7/11/06 at 9:00 am (cc: all counsel) * (vv) (Entered: 12/16/2005)
23 NOTICE of hearing Jury selection/trial set for 7/17/06 at 1:30 pm before Judge Johnson in Roswell (cc: all counsel) * (vv) (Entered: 12/22/2005)
24 INITIAL PRE-TRIAL REPORT by District Judge William P. Johnson and Magistrate Judge W. D. Schneider; Discovery set for 12/6/06; mtn filing ddl set for 2/6/06; proposed pretrial order due 4/24/06; pretrial conference set for 9:00 am on 6/26/06; jury trial set for 1:30 pm on 7/17/06; Estimated # of Trial Days: 2-6 weeks; Chances of Settlement: unknown at this time (cc: all counsel) (vv) (Entered: 12/23/2005)
25 MINUTE ORDER: Pretrial conference & Jury trial vacated (cc: all counsel) * (vv) (Entered: 12/23/2005)
26 CERTIFICATE of service by defendant Lincoln County of 1st interrogatories, request for production to counsel on 1/4/06 * (vv) (Entered: 01/05/2006)
27 CERTIFICATE of service by plaintiff of request for entry upon land for inspection to counsel on 1/6/06 * (vv) (Entered: 01/06/2006)
28 CERTIFICATE of service by defendant of ntc of deposition to counsel on 1/10/06 (vv) (Entered: 01/11/2006)
29 CERTIFICATE OF SERVICE by pltf Sharon Allison of 1st request for production of documents to counsel on 01/11/06* (ln) (Entered: 01/12/2006)
30 CERTIFICATE OF SERVICE by pltf Sharon Allison of 1st set of interrogatories to counsel on 01/11/06* (ln) (Entered: 01/12/2006)
31 CERTIFICATE OF SERVICE by pltf Sharon Allison of 1st request for admission to counsel on 01/11/06* (ln) (Entered: 01/12/2006)
32 CERTIFICATE of service by plaintiff of 1st interrogatories, request for production to counsel on 2/6/06 * (vv) (Entered: 02/06/2006)
33 UNOPPOSED MOTION by defendant for protective order (vv) (Entered: 02/09/2006)
34 CERTIFICATE by defts Lincoln Cty Bd of Comm, Lincoln Cty Sheriff's Dept, Richard Virden, Cornell Companies, Inc., Correctional Systems, Inc. & Deputy Morales of Service of notice of non-appearance for Deposition to counsel on 02/09/06 (nc) (Entered: 02/10/2006)
35 CERTIFICATE of service by defendants of answers to interrogatories, responses to request for admissions & production to counsel on 2/13/06 * (vv) (Entered: 02/13/2006)
36 PROTECTIVE ORDER by Magistrate Judge W. D. Schneider : granting joint motion for protective order [33-1] (cc: all counsel) (vv) (Entered: 02/17/2006)
37 NOTICE of hearing Jury selection/trial set for 7/23/07 at 1:30 pm before Judge Johnson in Roswell, NM (cc: all counsel) * (vv) (Entered: 02/21/2006)

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38 AMENDED INITIAL PRE-TRIAL REPORT by District Judge William P. Johnson and Magistrate Judge W. D. Schneider; Discovery set for 12/6/06; mtn filing ddl set for 2/6/07; proposed pretrial order due 4/24/07; pretrial conference set for 9:00 am on 7/9/07; jury trial set for 1:30 pm on 7/23/07; Estimated # of Trial Days: 2-6 weeks; Chances of Settlement: unknown at this time (cc: all counsel) (vv) Modified on 02/23/2006 (Entered: 02/23/2006)
39 MOTION by plaintiff for leave to file amended complaint * (vv) (Entered: 04/12/2006)
40 CERTIFICATE of service by defendant of responses to 2nd request for production to counsel on 4/25/06 * (vv) (Entered: 04/26/2006)
41 RESPONSE by defendant to motion for leave to file amended complaint [39-1] * (vv) (Entered: 05/01/2006)
42 JOINT MOTION to vacate settlement conference * (vv) (Entered: 05/04/2006)
43 UNOPPOSED MOTION by plaintiff to exceed page limitation for reply brief * (vv) (Entered: 05/10/2006)
44 ORDER by Magistrate Judge W. D. Schneider granting pltf's motion to exceed page limitation for reply brief [43-1] (cc: all counsel) (vv) (Entered: 05/12/2006)
45 REPLY by plaintiff to response to motion for leave to file amended complaint [39-1] * (vv) (Entered: 05/15/2006)
46 ORDER by Magistrate Judge W. D. Schneider granting joint motion to vacate settlement conference [42-1] (cc: all counsel) (vv) (Entered: 06/01/2006)
47 UNOPPOSED MOTION by plaintiff to extend time to file class certification mtns and to disclose expert witnesses * (vv) (Entered: 06/26/2006)
48 ORDER by District Judge William P. Johnson granting pltf's motion for leave to file amended complaint [39-1] (cc: all counsel) * (vv) (Entered: 06/26/2006)
49 AMENDED COMPLAINT [1-1] by plaintiff; jury demand terminating defendants Lincoln County, Richard Virden, Lincoln County; adding Mike Holm, Roger Jeffers, Lucy Vega, Lincoln Cty Det Cntr (vv) (Entered: 06/29/2006)
50 ORDER by Magistrate Judge W. D. Schneider granting pltf's motion to extend time to file class certification mtns [47-1] & to disclose expert witnesses [47-2] (cc: all counsel) (vv) (Entered: 08/03/2006)
51 JOINT MOTION for preliminary approval of class action settlement * (vv) (Entered: 10/27/2006)
52 CERTIFICATE of service by pltf of joint mtn for preliminary approval of class action settlement [with exhibits A-E] to counsel on 10/27/06 * (vv) (Entered: 10/27/2006)
53 NOTICE of Hearing on Motion for Preliminary Approval of Class Action Settlement 51 : Motion Hearing set for 1/30/2007 01:30 PM in Albuquerque 540 Bonito Courtroom before District Judge William P. Johnson. (mg) (Entered: 01/12/2007)

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54 Clerk's Minutes for hearing on Joint Motion for Preliminary Approval of Settlement and Conditional Class Certification held on 1/30/2007 before Judge William P. Johnson. (Court Reporter T. Garrett.) (rg) (Entered: 01/30/2007)
55 MEMORANDUM in Support of Joint Motion for Preliminary Approval of Class Action Settlement filed by Sharon Allison. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Rothstein, Robert) (Entered: 02/09/2007)
56 ORDER by Judge William P. Johnson granting preliminary approval of Class Action Settlement and conditionally certifying the Settlement Class and setting a Final Approval Hearing for 11/1/2007 09:00 AM in Albuquerque - 540 Bonito Courtroom.(mag) (Entered: 05/01/2007)
57 MINUTE ORDER vacating July 9, 2007 Pre-Trial Conference and July 23, 2007 Jury Trial in Roswell, New Mexico per Order Granting Preliminary Approval of Class Action Settlement 56 entered 5/1/07. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (mag) (Entered: 06/07/2007)

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[CONTENT] August 22, 2005 | Mark E. Merin | Sacramento | California | Andrew C. Schwartz | Walnut Creek | California | Robert R. Rothstein | Santa Fe | New Mexico | 42 | the United States | District Court | New Mexico | the Lincoln County Detention Center |||  ||| Fourth | the United States ||| Cornell Companies, Inc. and/or Correctional Systems, Inc. | CSI | the Detention Center | the Lincoln County Board of Commissioners | Lincoln County ||| First Amended Complaint | June 28, 2006 | Cornell/CSI ||| Cornell | the Lincoln County Detention Center |||  ||| approximately 3,000 | Lincoln County Detention Center | August 22, 2002 | August 31, 2005 | approximately 1,200 ||| July 12 and 13, 2006 | Stipulation of Settlement ||| Stipulation | between August 22, 2002 | August 31, 2005 | the Lincoln County Detention Center ||| $1.6 million ||| 750,000 ||| 100,000 ||| 600,000 | 150,000.00 ||| The District Court | William P. Johnson ||| November 29, 2007 [SUMMARY] On August 22, 2005, a female plaintiff represented by attorneys Mark E. Merin of Sacramento, California, Andrew C. Schwartz of Walnut Creek, California, and Robert R. Rothstein of Santa Fe, New Mexico, filed a class action civil rights lawsuit pursuant to 42 U.S.C. § 1983 in the United States District Court for New Mexico, challenging the strip search and visual body cavity search policy in effect at the Lincoln County Detention Center.  The policy at issue required that all persons housed in the Detention Center undergo strip and visual body cavity searches before they were arraigned and without reasonable suspicion that the searches would produce contraband or weapons.  Plaintiff maintained that the policy violated the Fourth and Fourteenth Amendments to the United States Constitution, as well as state constitutional provisions and tort law, and sought monetary damages, declaratory and injunctive relief, and class certification.  Named as defendants were Cornell Companies, Inc. and/or Correctional Systems, Inc. ("CSI") (the company that had contracted to operate the Detention Center), the Lincoln County Board of Commissioners, and past and present Lincoln County Sheriffs.  A First Amended Complaint, filed on June 28, 2006, added individuals defendants associated with Cornell/CSI and deleted the county sheriffs as defendants.

Almost immediately after the suit was filed, Cornell issued revised strip search policies for the Lincoln County Detention Center. 

The parties engaged in extensive discovery, which included exchange of documents, interrogatories, and depositions.  The parties took a statistical sampling of the files of approximately 3,000 persons booked at Lincoln County Detention Center during the period from August 22, 2002, until August 31, 2005 and estimated that  approximately 1,200 persons who were arrested on charges not involving violence, drugs or weapons, were strip searched.

On July 12 and 13, 2006, the parties participated in mediation and arrived at an agreed Stipulation of Settlement.  Under the Stipulation, the settlement class was defined as: "all persons arrested on charges not involving violence, drugs or weapons, on or between August 22, 2002, and August 31, 2005, who were strip searched at the Lincoln County Detention Center prior to arraignment."  Defendants agreed to pay $1.6 million for settlement of the class claims.  Of that fund, $750,000 was earmarked for distribution to qualified claimants that submitted a claim form.  The named plaintiff was to receive $100,000.  $600,000 was allocated for attorneys' fees and $150,000.00 to cover the costs of claims administration. 

 

The District Court (District Judge William P. Johnson) granted preliminary approval of the class action settlement and conditionally certified the settlement class.  Following a fairness hearing on November 29, 2007, the settlement was approved.

