Tardiff v. Knox County

United States Court of Appeals
For the First Circuit

No. 04-1065

LAURIE TARDIFF,

Plaintiff, Appellee,

v.

KNOX COUNTY, DANIEL DAVEY,

Defendants, Appellants.

No. 04-1165

MICHELE NILSEN, ET AL.

Plaintiffs, Appellees

v.

YORK COUNTY,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, Senior U.S. District Judge]
[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.
 Peter T. Marchesi with whom Wheeler & Arey, P.A., John J.
Wall, III, and Monaghan Leahy, LLP were on brief for appellants
Knox County, Daniel Davey and York County.
Robert J. Stolt with whom Sumner H. Lipman, Lipman, Katz &
McKee, P.A., Dale Thistle, Law Office of Dale Thistle and Frank
DiPrima were on brief for appellee Laurie Tardiff.
Robert J. Stolt for appellees Michele Nilsen, et al.
Howard Friedman, J. Lizette Richards, Law Offices of Howard
Friedman, P.C., David G. Webbert and Johnson & Webbert, L.L.P. on
brief for appellees Michele Nilsen, et al.
James R. Pingeon, Massachusetts Correctional Legal Services,
Inc., Deborah M. Golden, D.C. Prisoners' Legal Services Project,
and William Claiborne on brief for Massachusetts Correctional Legal
Services, and D.C. Prisoners' Legal Services Project, Amici Curiae.
Christina R. L. Norris, Donna A. Schneiter and Sarah Wunsch,
American Civil Liberties Union of Massachusetts, on brief for
American Civil Liberties Union of Massachusetts, Amicus Curiae.

April 9, 2004
 BOUDIN, Chief Judge. Before us are orders certifying

class actions in two jailhouse strip search cases. The two cases,

arising before two different judges in the same court (Judges

Carter and Hornby), are targeted at two different Maine counties

(Knox and York). In each case, a named plaintiff seeks to

represent others who (it is alleged) were improperly strip

searched. Following certification of the classes, we allowed

interlocutory appeals and now affirm.

Over the last few decades, a changed popular sensibility

has produced a series of decisions curtailing what was once an

apparently routine practice in many jails of strip searching

arrestees not yet convicted of any crime.1 Such cases have

included, or brought in their wake, lawsuits by those who were

searched seeking damages from officials or governmental entities

responsible for the searches. E.g., Miller v. Kennebec County, 219

F.3d 8, 12-13 (1st Cir. 2000). These suits are ordinarily framed

as Fourth Amendment claims for unconstitutional search and seizure

and brought under 42 U.S.C. § 1983 (2000). Id.

Qualified immunity has defeated some of these claims

against officials, e.g., Savard v. Rhode Island, 338 F.3d 23, 33

(1st Cir. 2003) (en banc), cert. denied, 124 S. Ct. 1074 (2004),

1
The trend began with the Supreme Court's decision in Bell v.
Wolfish, 441 U.S. 520 (1979). In this circuit, the leading cases
are Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57 (1st Cir.
2003); Miller v. Kennebec County, 219 F.3d 8 (1st Cir. 2000);
Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997).

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but the doctrine does not protect counties, see Owen v. City of

Independence, 445 U.S. 622, 650 (1980). Though not liable under a

respondeat superior theory, Bd. of the County Comm'rs v. Brown, 520

U.S. 397, 403 (1997), counties and like entities may be liable

under section 1983 not only for their formal official acts and

policies, but also, under some circumstances, for practices "so

permanent and well settled” as to constitute established custom.

Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978) (quoting

Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)).

In the first case before us--brought against Knox

County, its sheriff, and unidentified officers--Laurie Tardiff

filed such a section 1983 claim, asserting that she had been

arrested for witness tampering after having been previously charged

with violating an anti-harassment order. Tardiff v. Knox County,

218 F.R.D. 332, 334 (D. Me. 2003). At the jail house, Tardiff

alleged that she was taken to a shower area, ordered by a female

corrections officer to disrobe, and required to "squat and cough"

while the officer could see her vagina and anal area. Id.

Judge Carter, presiding in the case, called this a “strip

and visual body cavity search,” Tardiff, 218 F.R.D. at 334; Judge

Hornby, faced with a similar description by the lead plaintiff in

a parallel suit against York County, called the same thing a “strip

search,” Nilsen v. York County, 219 F.R.D. 19, 22, 25 (D. Me.

2003). For simplicity’s sake, we use "strip search" in this

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decision to cover the described conduct, recognizing that the

phrase is used variously in different decisions and that there is

a spectrum of possible search practices inflicting differing

indignities. Just what happened to Tardiff and others may itself

be disputed.

Tardiff sought to represent a class of persons similarly

situated and in due course Judge Carter certified a class under

Fed. R. Civ. P. 23(b)(3). Tardiff, 218 F.R.D. at 336. The class,

as defined by the court, covered:

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

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

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

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

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

Id.

In the second case, brought before Judge Hornby, a

substitute lead plaintiff–-Michael Goodrich--was arrested for

failing to report for probation and (he alleges) was strip searched

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with the same strip, squat and cough procedure as Tardiff. Nilsen

219 F.R.D. at 22. Like Tardiff, he alleged that this was done in

accordance with a policy or custom of the county that was applied

widely to arrestees including those charged with unthreatening

offenses. Judge Hornby, acting shortly after Judge Carter, entered

a comparable order certifying a class under Rule 23(b)(3). Id. at

19-20.2

In each case, the defendants sought interlocutory review

of the class certification. We have discretion as to whether to

entertain such an appeal. See Fed. R. Civ. P. 23(f) and 1998

advisory committee's note to subdivision (f). One reason for

review is a threat of liability so large as to place on the

defendant an “irresistible pressure to settle.” Waste Mgmt.

Holdings, Inc. v. Mowbray, 208 F.3d 288, 293 (1st Cir. 2000).

Although we thought it quite possible that the certification orders

would survive review, the financial and similar information

2
Judge Hornby's order, Nilsen, 219 F.R.D. at 25, defines the
class as:

All people strip-searched at the York County Jail after
October 14, 1996 under a policy or custom of conducting
strip-searches without evaluating for individualized
reasonable suspicion: (1) while waiting for bail to be
set or for a first court appearance after being arrested
on charges that did not involve a weapon or drugs or a
violent felony; or (2) while waiting for a first court
appearance after being arrested on a default or other
warrant.

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provided by the two counties in this case persuaded us to grant

interlocutory review, which we expedited.

Nominally, review of decisions granting or denying class

certification is for “abuse of discretion,” Smilow v. S.W. Bell

Mobile Sys., Inc., 323 F.3d 32, 37 (1st Cir. 2003), but this

chameleon phrase is misleading. Express standards for

certification are contained in Rule 23, so an appeal can pose pure

issues of law reviewed de novo or occasionally raw fact findings

that are rarely disturbed. See id. Here, we are concerned with

applying general standards to particular facts where the touchstone

is “reasonableness” and review is deferential.3

All class actions certified under Rule 23 must meet

certain prerequisites listed in subsection (a): there must be

numerosity of class members, common questions of law or fact, the

representative must be typical of the class, and his or her

representation of the class must be adequate. Fed. R. Civ. P.

23(a). Here, these preconditions are admittedly satisfied. The

defendants’ attack is instead on the further requirement, for a

(b)(3) class, that the court find that common questions

“predominate” over individual ones and that the class action be

3
Cf. Stanton v. Berkshire Reg'l Sch. Dist., 197 F.3d 574, 577
(1st Cir. 1999) (attorneys' fees under IDEA); Mass. Food Ass'n v.
Mass. Alcoholic Beverages Control Comm'n, 197 F.3d 560, 567 (1st
Cir. 1999) (adequacy of representation under Fed. R. Civ. P.
24(a)).

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“superior” to other methods of resolving the controversy. Fed. R.

Civ. P. 23(b)(3).

Subsection (b)(3), the cute tiger cub that has grown into

something unexpectedly fearsome in civil rights and mass tort

litigation, is a joinder device for consolidating separate but

similar claims–-as opposed, for example, to disputes about a common

fund, which is covered by subsection (b)(1)(B). The subsection

lists non-exclusive factors for making the determination–-the most

pertinent here is manageability–-but the "predominance" and

"superiority" labels turn largely on the particular facts and

issues presented. Some courts have allowed strip search class

actions and others not.4

What here are the issues? The principal ones–-and this

is our own very rough cut–-appear to be these: what rule, policy or

custom as to strip searches was in force in each county during the

periods in question; was it lawful as applied to groups or

individual class members; if unlawful as to some categories of

arrestees, were there still facts as to particular arrestees that

justified a strip search; and if liability exists, what are the

4
Compare Blihovde v. St. Croix County, 219 F.R.D. 607, 622
(W.D. Wis. 2003), Bynum v. District of Columbia, 217 F.R.D. 43, 50
(D.D.C. 2003), Maneely v. City of Newburgh, 208 F.R.D. 69, 76-79
(S.D.N.Y. 2002), Mack v. Suffolk County, 191 F.R.D. 16, 25 (D.
Mass. 2000), and Smith v. Montgomery County, 573 F. Supp. 604, 613
(D. Md. 1983)(all certifying strip search class actions), with
Klein v. DuPage County, 119 F.R.D. 29, 31-32 (N.D. Ill.
1988)(denying certification for strip search class action). There
are also several unpublished opinions coming out both ways.

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damages to each person injured? There are obviously other issues

(e.g., as to individual defendants); but these four are likely the

most important.

On the first issue–-what rules, policies or customs

prevailed–-there is already deep disagreement between plaintiffs

and defendants. So the question arises whose version is a court to

assume for purposes of deciding whether a class action is even

suitable? It is sometimes taken for granted that the complaint’s

allegations are necessarily controlling; but class action machinery

is expensive and in our view a court has the power to test disputed

premises early on if and when the class action would be proper on

one premise but not another.5

In this case, whether there was a rule, policy or custom

of automatically strip searching all or most categories of

arrestees is on its face a common disputed issue–-as both sides

concede. Nothing here obliged the district courts to do more than

view the issue as such and, so viewed, it weighs in favor of class

action status. The issue is like any other common predicate to

liability for multiple parallel claims–-say whether the train

5
Compare Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177
(1974)(discouraging any preliminary inquiry), with Gen. Tel. Co. of
S.W. v. Falcon, 457 U.S. 147, 160-161 (1982)(endorsing such an
inquiry). The circuits are also divided. Compare Caridad v.
Metro-North Commuter R.R., 191 F.3d 283, 291-93 (2d Cir. 1999), and
J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir.
1999), with Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 186-89
(3d Cir. 2001), and Szabo v. Bridgeport Machs., Inc., 249 F.3d 672,
675-76 (7th Cir.), cert. denied, 534 U.S. 951 (2001).

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engineer was negligent (or acting within the scope of his

employment) when the train went off the rails. See, e.g., Am.

Trading & Prod. Corp. v. Fischbach & Moore, Inc., 47 F.R.D. 155,

157 (N.D. Ill. 1969).

The second issue, whether the strip search policy is

unlawful, presents different complications. The first is that it

might be lawful as to some groups of arrestees (say, those arrested

on firearm felony charges) and not others (say, those seized for

non-payment of parking tickets). Both district courts sought to

narrow the potential multiplicity of categories–-which could in

several respects work against class status–-by narrowing the class.

In both orders, the class definition excluded those arrested for

drugs, weapons or violent felonies–-categories for which automatic

strip searches might seem easier to defend. Nilsen, 219 F.R.D. at

25; Tardiff, 218 F.R.D. at 336.

Of course, the defendants might still persuade the court

that some within the remaining group of arrestees (e.g., those

arrested for misdemeanors of certain types) could also be strip

searched as a matter of course. But the core notion that some

classes of arrestees should not be strip searched without

particularized suspicion is now embedded in the case law.6 Just

6
See Miller, 219 F.3d at 12; Swain, 117 F.3d at 12. If
anything, some of the rhetoric might lead the reader to believe,
quite wrongly, that every arrestee must be independently evaluated
based on his or her own circumstances. In reality, generalizations
lie behind most so-called individual decisions and to endorse the

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what groups within the class can or cannot be searched without such

suspicion appears, like the rule-policy-custom question, to present

a common set of issues proper for a class action.

Turning to the third of the issues we listed, defendants

say that individualized suspicion may have existed as to anyone

within the certified class, so that every class member necessarily

presents a different problem even as to liability. True, a class

member arrested for the most minor and non-violent of offenses

might arguably warrant a strip search by his individual behavior

(violently resisting arrest) or prior record (armed assaults). If

such an individual evaluation were necessary in every case, this

might doom an efficient class action.

Both district courts sought to finesse the issue by

defining the class to include only those who were searched without

evaluation for individualized suspicion. Nilsen, 219 F.R.D. at 25

("without evaluating for individualized reasonable suspicion");

Tardiff, 218 F.R.D. at 336 ("without evaluation for individualized

reasonable suspicion"). This is not a complete answer; for one

thing, at some point in the case it could still be necessary to

determine individually who among those who were searched were so

evaluated.

generalization is, in substance, to endorse some categorical rules.
See Roberts v. Rhode Island, 239 F.3d 107, 112 (1st Cir. 2001).

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 Further, even if all persons searched based on individual

evaluations were readily excluded from the class regardless of the

soundness of the evaluation, it might still be necessary–-at least

in some cases--to consider whether individualized suspicion could

have justified a search. Even if overbroad categories were used,

the defendants will likely argue that the result would have been

the same for some class members even if proper individualized

judgments had been made–-raising a legal issue as to liability on

which we offer no opinion. Compare 42 U.S.C. § 2000e-5(g)(2)(B)

(2000) (Title VII's same decision defense as to damages). If the

number of such instances was large, the feasibility of a class

action might be compromised.

Without prejudging disputable issues, we think that such

threats of undue complications as to liability are limited in this

case. If there was in fact a rule, custom or policy of strip

searching every arrestee or a substantially overlarge category,

then it is a fair guess that most arrestees so classed were strip

searched on this basis. There might yet be some number as to whom

defensible individual judgments to strip search were actually made

or could have been made–-two different situations with different

legal implications; but whoever has the burden of identifying such

persons, they may well not be numerous.7

7
A number of district courts say that the burden of
identification is on the defendant, e.g., Blihovde, 219 F.R.D. at
622; Mack, 191 F.R.D. at 24; see also Int'l Bhd. of Teamsters v.

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 Determinations to certify a class depend on initial

prediction and are always subject to revision. Gen. Tel. Co. of

the S.W. v. Falcon, 457 U.S. 147, 160 (1982); Smilow, 323 F.3d at

39-40; Mowbray, 208 F.3d at 297 n.6. If a large number of class

members turn out to present non-common issues as to liability, the

court may have to consider narrowing or de-certifying the class.

Mowbray, 208 F.3d at 297 n.2. But a court can proceed based on its

reasonable best guess as to what will happen and we share the

district judges’ apparent view that the individualized-suspicion

issue will arise only in a limited number of cases, assuming always

that plaintiffs can establish as a background fact the existence of

an improperly broad strip search rule, policy or custom.

By contrast, the presence of damage claims does weigh

against class status. In certain cases (e.g., some security

frauds), formula damages are generally used. See 3 Conte &

Newberg, Newberg on Class Actions § 10:8 (4th ed. 2002). Here each

class member wrongly strip searched could in principle testify

separately as to the circumstances, emotional damage, lost wages,

medical treatment, doctor bills, and so on. Indeed, the less

potent the available defense on liability, the more the class

United States, 431 U.S. 324, 360 (1977)(Title VII), but the various
burden issues have not been briefed in this case, and we do not
resolve them.

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action might look like a bundle of individualized damage claims

wholly unsuited for class resolution.

Yet the need for individualized damage decisions does

not ordinarily defeat predominance where there are still disputed

common issues as to liability. Smilow, 323 F.3d at 40. If the

class action resolved liability even as to some further narrowed

class, this would be a legitimate function. At that point, the

court would have further options, such as an agreement on modest

uniform damages for those not claiming special injury, with masters

to determine the (potentially few) serious claims to special

injury. E.g., In re Corrugated Container Antitrust Litig., 80

F.R.D. 244 (S.D. Tex. 1978).

Failing some practical solution allowing full resolution

of all class damage claims in a single case, the court could enter

a judgment of liability, leaving class members to pursue damage

claims in separate law suits. Smilow, 323 F.3d at 40-41; accord.

Blihovde v. St. Croix County, 219 F.R.D. 607, 621 (W.D. Wis. 2003);

Maneely v. City of Newburgh, 208 F.R.D. 69, 79 (S.D.N.Y. 2002)

(strip search cases). In addition, if and when liability is

established and the remaining dispute is only the amount of

damages, it is common experience that a great many claims settle.

It remains to discuss the superiority vel non of the

class action. The counties insist that individual law suits are

feasible. We think that only the limited number of cases where

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serious damage ensued would ever be brought without class status

and that the vast majority of claims would never be brought unless

aggregated because provable actual damages are too small. This is

a conventional argument for a class action, Amchem Prods., Inc., v.

Windsor, 521 U.S. 591, 617 (1997), and it applies here.

Whether the law should encourage the bringing of very

small claims that would otherwise not be brought is a different

matter; law suits serve purposes beyond compensation, and the

balance of cost and benefit doubtless varies from case to case. It

is enough for the superiority determination here that for most

strip search claimants, class status here is not only the superior

means, but probably the only feasible one (one-way collateral

estoppel aside), to establish liability and perhaps damages. E.g.,

Blihovde, 219 F.R.D. at 622; Mack v. Suffolk County, 191 F.R.D. 16,

25 (D. Mass. 2000).

It follows that the orders certifying the class actions

must be sustained at this initial stage without prejudice to their

further alteration. In further proceedings in the district court,

little weight should be given to our own glancing discussion of the

merits; although necessary background in reviewing the

certification orders, our assessment can only be preliminary,

lacking the benefit of a fuller record and analyses yet to come.

Affirmed.

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