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Salem v. Michigan Department of Corrections

United States District Court, E.D. Michigan, Southern Division

September 16, 2019

AMIRA SALEM and, KESHUNA ABCUMBY, on behalf of themselves and a class of others similarly situated, Plaintiffs,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS and MILLICENT WARREN, Defendants.

          R. Steven Whalen United States Magistrate Judge

          OPINION AND ORDER (1) DENYING PLAINTIFFS' MOTION TO CERTIFY CLASS (ECF NO. 66), (2) DENYING PLAINTIFFS' MOTION FOR LEAVE OF COURT TO FILE ADDITIONAL AFFIDAVITS (ECF NO. 95), AND (3) SETTING A BENCH TRIAL ON EXHAUSTION OF THE TWO NAMED PLAINTIFFS' CLAIMS FOR NOVEMBER 6, 2019

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE.

         This is a putative class action involving the Plaintiffs' claims that certain strip search procedures employed at the Women's Huron Valley Correctional Facility (“WHV”) violated their Fourth Amendment rights. The background of this litigation is set forth in detail in several previous opinions of this Court. See Salem v. Mich. Dept. of Corr., No. 13-14567, 2018 U.S. Dist. LEXIS 14457 (E.D. Mich. Aug. 24, 2018); Salem v. Dept. of Corr., No. 13-14567, 2016 WL 7409953 (E.D. Mich. Dec. 22, 2016); Salem v. Mich. Dept. of Corr., No. 13-14567, 2015 WL 1966727 (E.D. Mich. May 1, 2015). The Sixth Circuit has also issued an opinion following the parties' interlocutory cross-appeal of this Court's May 1, 2015 Opinion and Order. Salem v. Mich. Dept. of Corr., 643 Fed.Appx. 526 (6th Cir. 2016). In summary, and as narrowed by these decisions, the Plaintiffs are a putative class of inmates and former inmates of the Michigan Department of Corrections (“MDOC”) female-only WHV, alleging that the WHV and then Warden Millicent Warren, in both her official and individual capacities, violated their Fourth and Fourteenth Amendment rights by subjecting them to mandatory routine strip searches, allegedly in full view of other inmates and individuals not necessary to the search, following off-site visits (including hospital visits or leaving the prison on a writ) and following all contact visits (i.e. visits at the WHV in which a prisoner was allowed physical contact with her visitors).

         Presently before the Court is Plaintiffs' Motion for Class Certification. (ECF No. 66.) Defendants filed a Response to the Motion (ECF No. 71), Plaintiffs filed a Reply (ECF No. 73) and Defendants filed a Sur-Reply (ECF No. 84). The Court has determined, pursuant to E.D. Mich. L.R. 7.1(f), that a hearing is not necessary and decides the matter on the parties' written submissions.

         I. PROCEDURAL BACKGROUND

         A. The Saga of Plaintiffs' Multiple Last-Minute “Document Dumps”

         This motion for class certification was filed on December 15, 2017, but has yet to be heard due to the prolonged inability of Plaintiffs' counsel to properly submit competent evidence in support of their motion for class certification, as detailed below. Before addressing the merits of the Plaintiffs' long-pending motion for class certification, the Court provides a brief but necessary explanation of the reason for the delay: the ongoing saga of the Plaintiffs' multiple affidavit “document dumps” and one of Plaintiffs' counsels' sheer inability to comply with the Court's numerous Orders regarding the insufficiency of their proposed “affidavit evidence.” To begin with, attached to their Reply brief in support of their Motion for Class Certification, Plaintiffs attached approximately 840 pages of never-before-seen-or-referenced putative affidavits of current and former WHV inmates who claimed to have been subject to non-private strip searches while incarcerated at the WHV. (ECF No. 73-1.) Then, on the evening before the April 4, 2018 scheduled hearing on Plaintiffs' Motion for Class Certification, Plaintiffs filed a “Supplement” to their Reply that attached an additional seventy (70) pages of affidavits from additional putative class members claiming to have been strip searched in front of others. (ECF No. 75, Supplement to Plaintiffs' Reply.) Both sets of affidavits were sloppily presented with no tabbing or indexing and suffered from numerous significant procedural failings, including failure of signatures and proper notarization. In addition, many of the affidavits were not filled out at all and/or were duplicates. On April 4, 2018, the morning of the hearing on the motion for class certification, the Court issued an Order striking the Plaintiffs' supplemental filing, more appropriately characterized as a last-minute completely disorganized document dump, as inappropriate supplementation under E.D. Mich. L.R. 7.1(d). (ECF No. 76, 04/04/18 Order Striking Supplements to Plaintiffs' Replies.) Following discussion of the improperly filed affidavits at the April 4, 2018 hearing, the Court canceled the hearing on the motion for class certification and issued another Order striking the 840 pages of affidavits attached to Plaintiffs' Reply brief and imposing sanctions against the Plaintiffs under 28 U.S.C. § 1927 for unreasonably and vexatiously multiplying these proceedings. (ECF No. 77, April 5, 2018 Order Striking Exhibits and Imposing Sanctions.)[1]

         In an effort to provide the Plaintiffs with every opportunity to present their claim, the Court issued a second Order on April 5, 2018, allowing Plaintiffs two-weeks time to submit to the Court any putative affidavits they sought to have the Court consider including “numbered pages, an index listing the name and page number for each individual affiant, tabbed pages separating each entry with the name of the individual affiant printed on the tab, and no duplicate entries.” (ECF No. 78, April 5, 2018 Order Requiring Additional Filings.) The Court also Ordered a counsel for the Plaintiffs (Kenneth Hardin) to file an Affidavit or Sworn Declaration explaining how the affidavits were created, describing how, where, and by whom the affidavits were signed and notarized, and otherwise detailing the process by which the affidavits were obtained and compiled. (Id.) The Court permitted the Defendants to file a Sur-Reply up to seven (7) pages addressing the impact if any of the re-filed affidavits on their Response to the Plaintiffs' motion. (Id.)

         On April 17 and 18, 2018, Plaintiffs filed the Hardin Affidavit along with the revised affidavits of the putative class members. (ECF Nos. 79, 80.) Once again, incredibly, the Plaintiffs failed to submit the required information in an appropriate or organized format. On August 1, 2018, the Court held a hearing to address the continued deficiencies in the Plaintiffs' filings. Following that hearing, the Court determined that Mr. Hardin's Affidavit was improperly notarized in Pennsylvania and that many of the re-submitted affidavits of the putative Michigan class members were incomplete and non-conforming, and that further sanctions were warranted. That same day, the Court issued another Order Striking Filings and Imposing Sanctions, striking the Hardin Affidavit (ECF No. 79) and the “improper document dump of proposed affidavit exhibits” (ECF No. 80). (ECF No. 86, 08/01/18 Order Striking Filings and Imposing Sanctions.) In the 08/01/18 Order, the Court permitted Plaintiffs yet another final opportunity to re-file the putative class member affidavits, requiring submission on or before August 16, 2018. (Id.) On August 8, 2018, the Plaintiffs filed an Emergency Motion seeking additional time to submit the affidavits, explaining the difficulties Plaintiffs faced in attempting to obtain affidavits from putative class members who were still incarcerated, and seeking an additional thirty (30) days to re-file the affidavits. (ECF No. 88, Plaintiffs' Uncontested Motion for Order Amending the Court's August 1, 2018 Order Striking Filings.) The Defendants did not oppose this motion, and the Court issued an Order on August 15, 2019, granting the motion and permitting Plaintiffs to “properly file affidavit exhibits no later than September 15, 2018.” (ECF No. 89, 08/15/18 Order.)

         On September 14 and 15, 2018, as the Court had Ordered in its 08/15/18 Order, the Plaintiffs refiled the Hardin Affidavit and the affidavits of 188 putative class members. (ECF Nos. 91-94.) On December 18, 2018, continuing to submit untimely new and additional evidence (discovery closed in this case on September 28, 2017 after several extensions and the dispositive motion deadline was December 15, 2017, also after several extensions had been granted), the Plaintiffs filed a Motion for Leave of Court to File Additional Affidavits from 23 additional putative class members. (ECF No. 95.) The Defendants filed a Response to the Plaintiffs' motion on July 17, 2019 (ECF No. 98), and the Plaintiffs filed a Reply on July 24, 2019 (ECF No. 99). These 23 additional Affidavits are strikingly untimely and the motion to file them is DENIED.

         B. The Court's Previous Order Denying Plaintiffs' Original Motion to Certify Class Without Prejudice

         On December 22, 2016, the Court issued an Order denying Plaintiffs' original motion for class certification without prejudice, finding inconsistencies between Plaintiffs' evolving class definition and the Sixth Circuit's ruling specifically defining the touchstone of unconstitutionality in this action as the allegedly non-private nature of the searches. (ECF No. 56, December 22, 2016 Opinion and Order Denying Plaintiffs' Motion for Class Certification Without Prejudice 9-10, PgID 514-15.) At oral argument on the motion for class certification, Plaintiffs' counsel acknowledged that the Sixth Circuit's March 9, 2016 Opinion limited this action to claims of non-private searches, specifically stating that if in “going through the grievances, if it was not specifically alleged to have been conducted in front of others, we would have no choice but to voluntarily dismiss those potential claimants.” (ECF No. 100, Transcript of November 16, 2016 Hearing 9:17-20) (hereinafter “11/16/16 Hr'g Tr.”) Based on the Sixth Circuit's directive and counsel's representations that inmate grievances would be forthcoming, the Court ultimately concluded that Plaintiffs' third proposed class of “women who suffered compensable injuries related to the chair portion of the search in full view of others during a discrete time frame” could potentially be ascertained “based on objective criteria such as exhausted grievances.” (ECF No. 56, 12/22/16 Order Denying Class Certification 10-11, PgID 515-16.) Despite finding that the Plaintiffs had preliminarily demonstrated ascertainability based on their anticipated review of grievances, the Court concluded that Plaintiffs failed to “affirmatively demonstrate” the remaining Rule 23 factors as required under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”). This Court was particularly troubled by the fact that named Plaintiff Salem had not even alleged in her Affidavit that her chair search was done in view of others and thus her claims were not typical of the class, and also by the “non-frivolous concerns regarding exhaustion of grievances” that the Defendants had raised regarding whether the named Plaintiffs, not to mention the hundreds of proposed putative class members, had fully exhausted their claims as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”). (12/22/16 Order at 13-14, PgID 518-19.)

         The Court recognizes that Plaintiffs have no duty to plead exhaustion, and that Defendants bear the burden of establishing that Plaintiffs have not exhausted their remedies through the grievance procedure. However, given the fact that the Defendants both pleaded exhaustion as an affirmative defense and have strenuously argued failure to exhaust in their opposition to the motion for class certification, and given the Court's obligation under Wal-Mart to conduct “a rigorous analysis” of the Rule 23 factors, and to “probe behind pleadings, ” which often “entail[s] some overlap with the merits of plaintiff's underlying claim, ” the exhaustion issue is front and center in the class certification analysis in this case. In fact, at the November 16, 2016 hearing on the motion for class certification, counsel for the Plaintiffs expressly stated on the record that “if [the named Plaintiffs] failed to exhaust, they would not be eligible to participate.” (11/16/16 Hr'g Tr. 11:11-12.) As the Court observed in its Order declining to certify a class, Plaintiffs' request for class certification presented the Court “with the unappealing prospect of certifying the class only to have both named Plaintiffs later dismissed from the suit based on a failure to exhaust their claims.” (12/22/16 Opinion and Order 14, PgID 519) (citing Johannes v. Washington, No. 14-cv-11691, 2015 WL 5634446, at *9-10 (E.D. Mich. Sept. 25, 2015) (Michelson, J.)).

         Three years on, it appears that the Court is still faced with this prospect because there is no evidence in this record that either of the named Plaintiffs, or even any one of the 188 affiants, exhausted a grievance specifically complaining that they had been subjected to the chair search procedure in the full view of others. While the Affidavits finally filed by the Plaintiffs attempt to backfill the Plaintiffs' claims with assertions that they were searched utilizing the chair in view of numerous other people, the record in this case clearly demonstrates that the non-private nature of these searches was never an issue that the Plaintiffs expressly grieved, complained of, or otherwise brought to the attention of anyone at the MDOC.

         II. CERTIFICATION UNDER RULE 23

         “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). “To come within the exception, a party seeking to maintain a class action ‘must affirmatively demonstrate his compliance' with Rule 23.” Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). “[T]hat is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350. “[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Id. at 350-51 (internal quotation marks and citation omitted). The Court may not “presume” compliance with Rule 23's requirements but must satisfy itself through “rigorous analysis, ” that necessarily “entails some overlap with the merits of plaintiff's underlying claim, ” that there has been “actual” compliance. Id. at 351.

         To merit class certification, the Plaintiffs must show that, as required 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.” In re Whirlpool Corp. Front Loading-Washer Pdcts. Liability Litig., 722 F.3d 838, 850 (6th Cir. 2013) (citing Fed.R.Civ.P. 23(a)). “These four requirements-numerosity, commonality, typicality, and adequate representation-serve to limit class claims to those that are fairly encompassed within the claims of the named plaintiffs because class representatives must share the same interests and injury as the class members.” Id. at 850 (citing Dukes, 131 S.Ct. at 2550). “In addition to fulfilling the four prerequisites of Rule 23(a), the proposed class must also meet at least one of the three requirements listed in Rule 23(b).” Id. Where, as here, the Plaintiffs seek to certify a class under Rule 23(b)(3), the Plaintiffs must demonstrate ‘that the questions of law or fact common to class members predominate over any questions affecting only individual members' and that the class action is ‘superior to other available methods' to adjudicate the controversy fairly and efficiently.” Id. at 850-51. “The plaintiffs carry the burden to prove that the class certification prerequisites are met, and the plaintiffs, as class representatives, [are] required to establish that they possess the same interest and suffered the same injury as the class members they seek to represent.” Id. at 851 (internal citation omitted).

         A. Plaintiffs' Proposed Class Definition and Plaintiffs' Underlying Claim

         In the December 22, 2016 Opinion and Order denying without prejudice Plaintiffs' initial class certification motion, the Court addressed the following proposed plaintiff class:

Any women who are currently, or have formerly been, incarcerated at the Women's Huron Valley Correctional Facility who were subject to the “chair portion” of the strip search in view of others between November 1, 2010 and November 1, 2013, and who allege they have suffered a compensable injury as a result of the search.

(Salem II at 9-10, Pg ID 514-15.) In the instant Motion for Class Certification, Plaintiffs propose a class definition identical to this definition, except that the relevant time span is “from November 1, 2010 to the present.” (Pls.' Mot. Class Cert. at 8, Pg ID 722.) Plaintiffs also seek to add the following six subclasses to the putative class definition:

Any women subject to search during 2009-2010 time period before Warden's investigation of feasibility of chair-based strip search; any women subject to search and complaining that they were not given disposable seat covers before the April, 2011 memorandum from the Warden; any women subject to search and complaining that they were not given hand sanitizer before the April, 2011 memorandum from the Warden; any women subject to search and complaining that they were not given disposable seat covers after the April, 2011 memo from the Warden; any women subject to search and complaining that they were not given hand sanitizer after the April, 2011 memo from the Warden; and any women subject to search after December 14, 2011 to present time period after chair-based strip search policy "ended" in writing.

(Pls.' Mot. Class Cert. at 8, Pg ID 722.) Notably, however, none of these proposed subclasses are limited to individuals who were subject to strip searches in view of other inmates or persons without a legitimate penological need to be present. For that reason, these proposed sub-classes are outside the scope of this action, which (as emphasized above) has been limited by the Sixth Circuit to non-private strip searches. (See Salem, 643 Fed.Appx. at 531) (“[V]iewing the facts in the light most favorable to Plaintiffs, we uphold the judgment of the district court denying qualified immunity to Warren regarding the non-private searches.”).) For that reason, this Court addresses certification of the following class only:

Any women who are currently, or have formerly been, incarcerated at the Women's Huron Valley Correctional Facility who were subject to the “chair portion” of the strip search in view of others from November 1, 2010 to the present, and who allege they have suffered a compensable injury as a result of the search.

         The Rule 23 inquiry, necessarily entwined as it is with the merits, must begin with an understanding of the Plaintiffs' underlying claim. It is not possible to conduct a “rigorous” examination of the requirements of adequacy, typicality, commonality, and predominance without reference to the elements of the underlying claims. While the Complaint is a logical starting point in many instances, here six years of litigation and one round of appeal to the Sixth Circuit precedes this Court's Rule 23 analysis, and so the Court addresses the claim as shaped by the course of these proceedings. In any event, the Complaint provides no insight into the Plaintiffs' only remaining claim, captioned “Count II - § 1983 - 4th and 14th Amendment Due Process and Privacy Violations, ” which is pled in an entirely conclusory fashion, does not even distinguish among the various named Defendants or specifically attribute any alleged conduct to any particular Defendant, and certainly does not separately allege a Monell[2]claim.

         Understanding Plaintiffs' interpretation of the underlying claim in this action is no easy task as Plaintiffs have failed to explain their theories of liability and have never articulated the theory behind their Monell claims against the MDOC and the Warden in her official capacity in anything other than broad conclusory terms. Against the weight of the undisputed evidence that the WHV chair search Policy does not authorize non-private searches, Plaintiffs rely directly on the chair search Policy and argue this as a blanket policy case, analogizing to several “strip search” cases in which courts have certified classes of prisoners (or former prisoners) who challenged blanket established institutional strip search policies applied in an across-the-board manner to defined categories of inmates. See, e.g., In re Nassau Cty. Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) (certifying a class of all newly-admitted misdemeanor detainees strip searched without reasonable suspicion pursuant to a blanket policy); Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002) (certifying a class where the defendants “implemented a uniform, indiscriminate policy of strip searching all detainees, in the absence of reasonable suspicion”); Johnson v. District of Columbia, 248 F.R.D. 46 (D.D.C. 2008) (certifying a class of arrestees who were subject to a blanket “drop, squat, and cough” search without individualized reasonable suspicion); Calvin v. Sheriff of Will Cty., No. 03-C-3086, 2004 WL 1125922 (N.D. Ill. May 17, 2004) (finding commonality and certifying a strip search class as to a blanket “no reasonable suspicion” strip search policy, that was applied routinely to a defined class of arrestees, where “the ultimate legal question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual, ” but rather whether the blanket policy, which did not require reasonable suspicion, unconstitutionally “avoided all such inquiry”); Eddelman v. Jefferson Cty. Ky., 96 F.3d 1448 (6th Cir. 1996) (unpublished) (finding that the fact that some searches were more or less intrusive did not defeat commonality because the differences were not relevant where the plaintiffs claimed that all searches without reasonable suspicion of those arrested for minor offenses was unconstitutional, regardless of whether the arrestee was forced to disrobe or whether the search occurred in the presence of others).

         But the chair search Policy does not authorize non-private searches, and yet Plaintiffs preface their motion for class certification with the statement that “[t]he strip search procedure was a policy implemented by the Michigan Department of Corrections. As implemented policy, the strip search was not a matter to be addressed through the filing of grievances.” (Pls.' Mot. 8, PgID 722.) Plaintiffs assert that several inmates were told that the chair search procedure was “policy” and could not be grieved. (Id.) It is undisputed that the chair search procedure was Policy and the content of MDOC policies, as discussed infra, are not generally grievable except as specifically applied to the prisoner. However, there is no dispute that the chair search Policy did not authorize non-private searches, and in fact demanded the opposite. The Policy Directives and WHV Operating Procedures governing “Search and Arrest in Correctional Facilities” that were in effect before, during and after the time period relevant to this case all required that strip searches be conducted only by employees of the “same sex” (with limited exceptions) and be “conducted in a place which prevents the search from being observed by those not assisting in that search” (again, with limited exceptions). (See ECF No. 11-2, PD 04.04.110 (eff. 02/01/09), PgID 119; WHV OP 04.04.110 (eff. 05/01/2009), PgID 130; ECF No. 17-4, PD 04.04.110 (eff. 04/09/2012), PgID 199.) Plaintiffs have cited no provision of PD 04.04.110, WHV-OP-04.04.110, or any other formal policy or directive that would have authorized officers to conduct strip-searches on inmates in the presence of other inmates or other individuals not necessary to the penological purposes of the search.

         The touchstone of unconstitutionality that survived the Defendants' appeal to the Sixth Circuit is the claim that the chair strip searches were conducted in full view of other inmates or persons without a legitimate penological need to be present. The Plaintiffs have expressly acknowledged that this is the scope of the claim going forward in this case:

Ms. Miller: Your Honor, I believe that because the unconstitutional - the standard that we were given from the Sixth Circuit is that it was done in view of others. So in my view, no other claims would survive. We're still in discovery. If we confined it to that definition while we're going through the grievances, if it was not specifically alleged to have been conducted in front of others, we would have no choice but to voluntarily dismiss those potential claimants.

(11/16/16 Hr'g Tr. 9:13-20.) (emphasis added).

         It is undisputed that the scope of this action is now limited to claims that Plaintiffs were subject to non-private chair strip searches, and there is no colorable argument that the chair search Policy authorized the chair strip searches to be conducted in view of others. In fact the Policy directed a one-on-one, same-sex search. Yet Plaintiffs repeatedly tether their Fourth Amendment claim to the Policy itself, insisting that they are relieved of any exhaustion requirement because the chair search was “Policy” and they were unable to grieve “Policy.” Plaintiffs insist in their motion for class certification that “the filing of grievances cannot be a prerequisite to class membership because the strip search procedure was policy and under MDOC's own instruction, ‘not able to be grieved.'” (Pls.' Mot. 10, PgID 724.) Plaintiffs argue, without citation to any authority, that therefore the Court should rely on the 188 after-the-fact affidavits that they created for inmates to sign and simply excuse the fact that it appears that none of them, including the named Plaintiffs, grieved, much less fully exhausted, the issue of non-private chair searches at the time those searches occurred. But non-private searches were never Policy and such intrusions were always grievable. Yet Plaintiffs have not produced one fully exhausted grievance from any inmate, let alone from the named Plaintiffs, grieving this aspect of the search (or for that matter any fully exhausted grievances period).

         Plaintiffs appear to recognize the weakness of their theory, arguing in their motion for class certification that “exclud[ing] women from the class action solely because they did not expressly state that they were strip searched in front of others in their grievance is an undue burden to place upon these women who had just endured a trauma and report limited reading and writing skills.” (Pls.' Mot. 10, PgID 724.) Yet counsel for Plaintiffs previously stated in a hearing before this Court that if a proposed Plaintiff had not alleged in a grievance that she had been searched in front of others, Plaintiffs would have “no choice but to dismiss them from this action.” (11/16/16 Hr'g Tr. 9:19-20.) But that was before counsel apparently discovered that none of the proposed class members was sufficiently aggrieved by the presence of others at the time of their searches to mention that affront in any grievance, or in any forum meeting with the Warden, or in any other manner contemporaneously with the searches. (See discussion infra.) Only now, having been presented with check-box affidavits that present this specific query, do the proposed class members recall and report that “others” were present.

         This non-private aspect of the search is the essence of the constitutional claim that has survived in this case - as Plaintiffs' counsel conceded at the previous class certification hearing, there is no Fourth Amendment claim without such an allegation. Regardless of how Plaintiffs attempt to characterize their claims, the Fourth Amendment violation they complain of was in fact always grievable. Plaintiffs' attempt at revisionist history, trying to give extreme importance now to an issue that appears not to have merited mention by the inmates at the time of the actual events under scrutiny, cannot change the nature of the Fourth Amendment claim that Plaintiffs must demonstrate.

         Plaintiffs' motion for class certification offers no clarity at all on the nature of their claim. The brief speaks in vague generalities proclaiming that “the nature and extent of defendants' unconstitutional practices are common to the named Plaintiffs and all proposed and potential class members, ” with no amplification whatsoever describing those vague but common “practices.” Plaintiffs acknowledge that “the circumstances surrounding each class member's chair portion of Defendants' strip search procedure were not identical, ” but ...


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