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Boone v. City of Philadelphia

November 3, 2009

NAKISHA BOONE, ET AL.
v.
CITY OF PHILADELPHIA



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

The parties have moved for the certification of a class and approval of a settlement in this case involving the policy of the City of Philadelphia to strip-search all pretrial detainees upon admission to the Philadelphia Prison System (PPS). Class counsel has also moved for an award of attorneys' fees and reimbursement of out-of-pocket expenses. After a hearing held on September 29, 2009, the Court grants these motions and enters final judgment and an order of dismissal.

I. Background

A. History of the Litigation

Class representative Nakisha Boone brought this class action on behalf of herself and all others who were strip-searched after being charged with a misdemeanor or other minor crime. Ms. Boone was arrested for violating a bench warrant with an underlying charge of endangering the welfare of a child. She was strip-searched before being placed into detention. She argued that PPS's policy of strip-searching all pretrial detainees upon admission was unconstitutional. The complaint named the City, the PPS, the Prisons Commissioner, members of the Prisons' Board of Trustees and three of the prison's Deputy Commissioners as defendants.

The class was defined in the complaint as

[a]ll persons who have been or will be placed into the custody of the PPS after being charged with misdemeanor violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip searched upon entry into PPS pursuant to the policy, custom and practice of the PPS and the City of Philadelphia.

Compl. at 7. The class period commenced on April 21, 2003, and was to extend until the defendants were enjoined from or otherwise ceased enforcing the policy. Id.

The parties engaged in extensive discovery from July 2005 until November 2005. This initial period of discovery focused on the PPS's policy. It included the production of documents relating to the prison policies, an inspection of the PPS facility, and depositions of prison officials and staff.

The plaintiff filed a motion for partial summary judgment on the issue of the constitutionality of the defendants' blanket strip-search policy on January 23, 2006. The defendants responded to the plaintiff's motion a month later and filed their own motion for summary judgment, to which the plaintiff responded.

In their motion, the defendants argued in part that the search policy was justified by the PPS's need for security and safety. They maintained that the policy was necessary to prevent detainees from smuggling contraband into the prison system. See Def. Mot. for Summary Judgment at 21-23. They also argued that the search of Ms. Boone was reasonable due to her prior history of criminal charges, which included a conviction for simple assault, possession of an instrument of crime, recklessly endangering another person, and criminal conspiracy. See id. at 32; Parties' Motion for Class Cert. and Settlement at 4-5.

Oral argument on the parties' summary judgment motions was held before the Court on April 27, 2006. After the hearing, the Court dismissed with prejudice the individually-named defendants and the PPS from the case upon stipulation of the parties. The City remained as the sole defendant. The parties also stipulated to a discovery and briefing schedule with respect to class certification. The Court denied both parties' summary judgment motions without prejudice and held that the parties would have the opportunity to renew their motions after the issue of class certification was resolved.

In response to the City's argument that the search of Ms. Boone was reasonable based upon her criminal history, the plaintiff amended the complaint to add class representative George Byrd. Mr. Byrd was charged with driving under the influence when admitted to the prison. He had no previous history of violent crime. See Mem. in Support of Plaintiff's Unopposed Motion to Amend the Class Action Compl. at 2.

The parties conducted additional discovery on the issue of class certification for almost six months. They interviewed hundreds of class members to establish that a substantial number of pretrial detainees would be within the class definition. They also reviewed hundreds of the prison's disciplinary records to determine how many misdemeanor detainees attempted to smuggle contraband into the PPS facility.

The plaintiffs filed their motion for class certification on February 16, 2007, and the defendants responded on April 16, 2007. The plaintiffs also filed a motion for preliminary injunction on March 23, 2007.

A hearing on both of the plaintiffs' motions was held on June 28, 2009. At the hearing, the City informed the Court that it was preparing procedures for the use of equipment that would be used in lieu of strip-searching.

In view of the City's proposed change in policy, the Court referred the matter to Magistrate Judge Elizabeth Hey for settlement. Negotiations began in July of 2007. The parties met with Judge Hey eleven times over the course of the year. These negotiations concluded with a mediation held on July 21, 2008, before retired Magistrate Judge James R. Melinson, in which settlement was reached.

After reaching the settlement, the parties memorialized the terms in a Settlement Agreement, prepared for the administration of the settlement, and drafted the class notice. They executed the proposed Settlement Agreement on February 20, 2009.

B. The Settlement Agreement

The Settlement Agreement divides the Settlement Class into two subclasses, defined as follows:

All persons who were placed into the custody of the Philadelphia Prison System after being charged with misdemeanors; summary offenses; traffic infractions, civil commitments, or other minor crimes; or bench warrants and/or probation violations where the underlying charge was a misdemeanor, summary offense or other minor crime; and who were strip-searched in the absence of reasonable suspicion upon their entry into the Philadelphia Prison System pursuant to the policy, custom and practice of the Philadelphia Prison System and the City of Philadelphia. The class period commences on April 21, 2003 and extends to, and includes, October 9, 2007.

Subclass I: All persons in the Settlement Class, EXCEPT for persons who (1) were charged with certain violence, drug and/or weapons (hereinafter "VDW") related misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.

Subclass II: All persons in the Settlement Class who were

(1) charged with VDW misdemeanor charges at the time of their admission, or (2) were charged with bench warrants and/or probation violations where the underlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission.

Settlement Agreement at 7.

The Settlement Agreement recognized that the City had changed its policy to stop strip-searching all pretrial detainees on a blanket basis and to stop strip-searching misdemeanor detainees in the absence of reasonable suspicion. See id. at 10. The City adopted a model policy that uses modern technology such as metal-detecting chairs and ion scanners to thoroughly search all pretrial detainees without a strip-search. See Parties' Mot. for Class Cert. and Settlement at 3.

The Settlement Agreement states that the City's current written policy has been reviewed by the City of Philadelphia Law Department for compliance with state and federal law. The City maintains that the current policy is constitutional. The Settlement Agreement requires that all correction officers have access to the policy. Current and new corrections officers have been, and will continue to be, trained on the policy. The Settlement Agreement also states that the policy will be posted in the intake area of the PPS. See Settlement Agreement at 10-11.

The Settlement Agreement creates a fund to compensate the class members in the amount of $5,900,000. See id. at 8. All administrative expenses, including the costs of settlement administration, website maintenance, notice to class members and attorneys' fees, costs and incentive awards will be deducted from the settlement fund prior to determining the amount of distribution. See id. at 11-12. An amount of the fund, not to exceed $330,000, was to be dedicated to the settlement administrator to cover the costs of notice and administration. See id. at 11.

Class counsel agreed that they would not seek more than 30% of the entire Settlement Fund in attorneys' fees. See id. at 14. The Settlement Agreement also states that an award of $15,000 will be requested for each of the class representatives.

The Settlement Agreement provides that the total amount of the fund dedicated to members of Subclass I is $5,170,000, to be granted pro rata to each class member who submits a timely claim form, in an amount not to exceed $3,000 per class member. The amount dedicated for Subclass II is $400,000, with a cap of $100 per claimant. See id. at 12. If the final approval of the settlement is appealed and some portion of the Settlement Fund is not subject to the dispute, the undisputed portion was to be distributed in accordance with the Settlement Agreement. See id. at 14.

Notice was to be provided by the direct mailing of class notice and a claim form to all identifiable individuals in the Settlement Class. The Settlement Agreement also provides that notice would be given by television advertisement. The settlement administrator was also instructed to establish a website and maintain a toll-free number. Copies of the class notice and claim form were to be available by request over the phone, and downloadable copies of the documents would be available at the website. See id. at 15-16.

The Settlement Agreement provided the method for class members to submit requests for exclusion in writing. It also provided the process for objecting to the settlement, including the reservation of the right to appeal final judgment of the settlement. See id. at 16-17.

The Settlement was preliminarily approved by this Court on March 6, 2009.

C. Notice to the Class

The claims administrator attests that notice went out to 37,159 putative class members on May 1, 2009, by way of regular mail. See Parties' Mot. for Class Cert. and Settlement, Affidavit of RSM McGladrey, Inc., Exhibit C. All mail that was undeliverable because of inaccurate addresses was investigated using a locator database to ascertain the correct address and then re-mailed to the members of the class where possible.

The administrator also contracted with a website administrator to create a website that provided information to the class in both English and Spanish. The administrator also established a toll-free phone number and handled incoming telephone calls and written correspondence from prospective class members. See id.

The administrator provided further notice by way of publication in the Philadelphia Tribune, Philadelphia Al Dia and the Philadelphia Daily News on May 4, 2009, and again in the Philadelphia Daily News on August 17, 2009. Finally, the administrator provided notice through television during the weeks of April 27, 2009 and May 4, 2009. See Parties' Mot. for Class Cert. and Settlement at 1-2.

D. The Response of the Class

The claims administrator received 7,647 claims forms, 5,321 of which represent claimants who appear in the City's records, a claims rate of 15%. See id. Exhibit C.*fn1 Five members of the class opted out. See Parties' Mot. for Class Cert. and Settlement at 2.

The parties report that the individual members of Subclass I will receive approximately $1,400. Members of Subclass II will receive approximately $100. See id.

Due to the volume and response of the class, the administrator spent an extra $211,220.00 above the original $330,000 earmarked for class administration costs. The parties have requested that the Court award an additional $100,000.00 to the administrator, providing a total of $430,000 in administrative costs. See id.

Three objectors submitted written objections to the proposed settlement. Two of the objectors, Kuwsh Muhammad and Thomas R. Mundy, object to issues concerning the second subclass. See Objection of Kuwsh Muhammad; Objection of Thomas R. Mundy.

Mr. Muhammad is a member of Subclass II because he was arrested on violent, drug or weapons-related charges. He objects to the difference in recovery amount between the two subclasses. Mr. Mundy is a member of Subclass II because of a previous felony conviction. He objects to his exclusion from Subclass I based upon this previous conviction.

The third objector, Aole Blackman/Wright, objects to the fees and costs that will be deducted from the fund. See Objection of Aole Blackman/Wright. None of the objectors appeared at the fairness hearing.

E. Attorney's Fees, Expenses, and Class Representative Awards Class counsel have requested 30% of the Settlement Fund

for attorney's fees, which amounts to a payment of $1,770,000.00. See Pl.'s Joint Mot. for Fees and Expenses at 1. Class counsel also seeks reimbursement for out-of-pocket expenses of $70,094.24. See Declaration of Daniel C. Levin of October 2, 2009. Finally, class counsel requests a special award of $15,000 for the two named class representatives. See Pl.'s Joint Mot. for Fees and Expenses at 21-22.

II. Discussion

The Court decides the following four ...


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