United States District Court, D. Oregon, Portland Division
JOSEPH CUNNINGHAM, individually, on behalf of a class of others similarly situated, Plaintiff,
MULTNOMAH COUNTY, and DAN STANTON, both individually and in his official capacity as Sheriff, Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
On September 11, 2014, Magistrate Judge Stewart issued her Findings and Recommendation ("F&R")  in the above-captioned case recommending that Plaintiff Joseph Cunningham's Motion for Class Certification  should be granted as to Subclasses 1 and 2, and should be conditionally granted as to Subclass 3. She also recommended that Tonna K. Farrar and the law firm of Bonnett, Fairbourn, Friedman & Baling, P.C., and Leonard Berman should be appointed as co-lead counsel for the class.
On October 20, 2014, Defendants filed objections to Judge Stewart's F&R . Defendants argued Judge Stewart erred in: (1) certifying subclasses searched after the installation of privacy panels; and (2) her analysis of several of the requirements of FRCP 23.
I adopt in part, and modify in part Judge Stewart's F&R. Mr. Cunningham's motion should be granted as to Subclasses 1 and 2, and should be conditionally granted as to Subclass 3. I adopt Judge Stewart's recommendation that Tonna K. Farrar and the law firm of Bonnett, Fairbourn, Friedman & Baling, P.C., and Leonard Berman should be appointed as co-lead counsel for the class.
Mr. Cunningham was booked into Multnomah County custody in mid-August 2010 and transferred to the Multnomah County Inverness Jail ("MCIJ") on August 14, 2010. For the duration of his stay at MCIJ between August and October 2010, Mr. Cunningham was classified as an "unsentenced" inmate. The "unsentenced" classification is given to those inmates who are arraigned but pending trial or entering a plea on charges. "Unsentenced" inmates also include those who have been sentenced to confinement in the custody of the Oregon State Department of Correction ("ODOC") but have not yet been transferred to ODOC. "Sentenced" inmates are those who are convicted of a charge and sentenced to incarceration in a county corrections facility. Those inmates who have both sentences of incarceration and pending charges are treated as "sentenced" inmates. "Unsentenced" inmates have the option to participate in prison work programs, but "sentenced" inmates are compelled to participate in prison work programs.
Mr. Cunningham worked as a dorm worker between September 1 and September 10, 2010. His status then changed to a utility worker, and he began working in the MCIJ kitchen on September 12, 2010. Defendants emphasized in their objections that Mr. Cunningham was moved to kitchen duty at his own request, and therefore was not compelled by jail personnel to do so. He worked there until October 3, 2010.
On October 15, 2001, nearly nine years before Mr. Cunningham's arrival at MCIJ, the Eastside Facilities Commander issued MCIJ Special Order 01-21 stating that "Kitchen Work Crews, garbage/linen Work Crews, and any other crew assigned to work outside of the Facility, shall be strip searched before returning to their Housing Unit." Mr. Cunningham alleges that during his incarceration at MCIJ, starting no later than September 23, 2010, and continuing until October 3, 2010, he worked five days a week from 4:30 a.m. until 12:00 p.m. in the MCIJ kitchen. During that time, deputies strip searched him and others in a group and public setting at the close of each shift. These searches took place in the MCIJ "boot room" in view of other inmates and monitored by an operational closed circuit camera with numerous deputies in attendance. The search included removal of all clothing, including underwear. Deputies visually inspected each naked inmate, then instructed each inmate to bend over and spread his buttocks, and lift and separate the penis and testicles for visual inspection; female inmates were instructed to raise their breasts. Three shifts of ten workers each worked daily, including ten women who did clean up in the afternoons, for a total of thirty strip searches daily.
Mr. Cunningham worked in the MCIJ kitchen about twenty times, and was strip searched in a group each time he finished his shift. Inmates were not touched during these searches and the entirety of the search took fewer than five minutes. Mr. Cunningham acknowledges that he suffered no physical injury as a result of these strip searches.
On November 16, 2010, while in custody, Mr. Cunningham served a Notice of Tort Claim on Multnomah County, listing a "Date of Loss" of September 11 through October 3, 2010, and describing the circumstances as follows:
While working as a kitchen worker at [MCIJ], I... was subjected to group strip searches in plain view of other inmates. As I was an unsentenced inmate, the Multnomah County Sheriffs Department clearly violated my 8th Amendment rights because they failed to comply with the American Bar Associations standards for Criminal Justice, Specifically Standard 23-6.10(f).
Sometime in 2011, MCIJ command staff ordered installation of privacy panels in the MCIJ boot room for use during strip searches. The panels created a series of booths which allowed deputies outside of the booths to see the inmates standing in each booth, but did not allow an inmate in a booth to see any other inmates being strip searched. The panels were in place by September 16, 2011. About two months later, on November 8, 2011, just over a year after Mr. Cunningham was released from MCIJ and filed his tort claim notice, MCIJ Facility Commander Captain Linda Yankee issued Special Order 11-44 concerning Routine Strip Searches at MCIJ which stated that:
This Special Order complies with Corrections Division Special Order 03-25, CD07.109.000 and is in conjunction with MCIJ Special Orders 01-21, 07-09 and 11-01.
I. For the purpose of strip searches, privacy stalls have been put in place in Processing and in the kitchen dress-in room.
II. Whenever conducting a strip search, Corrections Staff shall use the stalls to ensure privacy for the inmate.
III. Corrections Staff shall ensure that when an inmate is unclothed they are not in a position to be viewed by other inmates.
IV. Corrections Staff shall ensure that hand sanitizer is available to inmates before they undress.
Although this order was not issued until November, Defendants argue the privacy panels had been in use since their installation date of September 16, 2011. They argue this order was merely the formal adoption of an informal process that was already in place.
The Complaint alleges Defendants' blanket strip search policy pertaining to inmates who are coming off kitchen duty violates inmates' Fourth and Eighth Amendment rights, and seeks: (1) compensatory damages for each class member; (2) punitive damages of $1 million against Sheriff Staton; (3) a declaratory judgment that the strip search policy and practice is unconstitutional and improper; and (4) an injunction enjoining defendants from continuing to strip and visual cavity search kitchen workers absent particularized, reasonable suspicion that the inmate subject to the search is concealing weapons or other contraband.
Mr. Cunningham seeks class certification under Rule 23. The following are the three subclasses that ...