Smith-Journigan et al v. Franklin County, Ohio

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Trey Smith-Journigan,
individually and on
behalf of a class of
others similarly situated, et al.,
Plaintiffs,
V.
Franklin County, Ohio,
Defendant.
Case No. 2:18-cv-328
Judge Michael H. Watson
Magistrate Judge Vascura
OPINIONAND ORDER
Trey Smith-Journigan1 ("Plaintiff") renews his motion for class certification
with respect to his 42 U. S. C. § 1983 claims against Franklin County, Ohio
("Defendant"). Mot. 2, ECF No. 99. For the following reasons, the motion is
DENIED WITH PREJUDICE.
I. BACKGROUND
The Court's August 29, 2022, Opinion and Order denying without prejudice
Plaintiff's motion for class certification, ECF No. 63, set forth a complete
background of the facts, the parties, and the claims in the Complaint, which the
Court will not repeat here.
Relevant here, Plaintiff alleges that he and others similarly situated were
1 Plaintiff Paul E. Williams, Jr. does not join the motion for class certification. Mot. 2,
ECF No. 99.
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placed in the Franklin County Sheriff's Department's custody and had their civil
rights violated. Mot. 2, ECF No. 99-1 at PAGEID # 1620. Specifically, Plaintiff
contends that he was "convicted of nothing, charged with minor crimes, denied
the opportunity to immediately post bail when [he had] a right to do so, and [was]
universally strip searched. " Id.
According to Plaintiff, Defendant first requires misdemeanor detainees2 to
be "slated" (a process by which detainees provide their personal information,
surrender property, and are strip searched while receiving a jail uniform) before
giving them a chance to post bail. Id. Only upon completion of the slating
process and after the misdemeanor detainees are assigned to a housing unit
within the general population does Defendant communicate with Franklin County
Municipal Court to set and accept the detainees' bail. Id. In other words, all bail-
eligible misdemeanor detainees are re uired to be processed into general
population (which process includes a strip search) before they are given an
opportunity to post bail.
In fact, Plaintiff alleges that, upon his arrest, he possessed the financial
means (through the credit cards carried on his person) to post bail immediately
upon his entrance into the detention facility. Mot. 2, ECF No. 99-1 at PAGEID #
2 The Court notes that Plaintiffs class definition and briefing identify putative class
members as "detainees" or "misdemeanor detainees. " See generally Mot. 2, ECF No.
99. Defendant refers to putative class members as "arrestees. " See Resp. 2, ECF No.
113. Though Plaintiff seems to propose a class of individuals for whom pretrial
detention has not been ordered by a court, the Court will adopt Plaintiffs verbiage and
refer to putative class members as misdemeanor detainees.
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1627. Yet, he contends, he was detained for several hours while the slating
process was completed and he was placed into general population. Id. Only
then did Defendant give him the opportunity to post bail which he did immediately
by having his mother3 make the payment. Id.
In April 2018, Plaintiff filed this action against Defendant, asserting claims
under 42 U. S. C. § 1983 for violations of the Fourth Amendment (unlawful search)
and Fourteenth Amendment (deprivation of procedural due process). Compl.,
ECF No. 1. That is, Plaintiff contends primarily that the failure to provide him an
opportunity to avoid a strip search by posting bail immediately upon his entrance
to the detention facility violated his Fourth Amendment right against
unreasonable searches and seizures. He also contends that the failure to
provide such an opportunity violated his right to procedural due process.
Four years later, in August 2022, the Court denied Plaintiff's initial motion
for class certification because Plaintiff had not established numerosity. Op. and
Order, ECF No. 63 at PAGEID #1215. To support numerosity, Plaintiff had used
Defendant's annual report from 2012 (the "2012 Report"), which showed that
3 Plaintiff notes that any misdemeanor detainee who enters a detention facility with the
financial means to immediately post bail (for example, via the cash or credit cards on
their body) loses that ability during the slating process, because Defendant removes the
misdemeanor detainee's personal belongings during the slating process. Mot. 2 at
PAGEID # 1620. Thus, by the time Defendant gives a misdemeanor detainee an
opportunity to post bail-once in general population-they can no longer do so with the
possessions with which they were arrested. Id.
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Defendant processed upwards of 30, 000 inmates each year at Franklin County
Correctional Facilities ("FCCF") in 2010, 2011, and 2012. Id.
But the 2012 Report raised more questions than it answered. The 2012
Report did not cover the proposed class period (beginning April 11, 2016, until
such time as the Court would enjoin Defendant), so it likewise did not provide the
number of bail-eligible misdemeanor detainees during the relevant period. Id. at
PAGEID #1216. Nor did Plaintiff provide an estimate of how many of such bail-
eligible misdemeanor detainees were, like Plaintiff, immediately able to post bail
but denied an opportunity to do so. Id. At bottom, Plaintiff's evidence was
overbroad and speculative. Id. Thus, the Court denied Plaintiff's motion without
prejudice to renewal if identifying proper class members became administratively
feasible. Id. at PAGEID # 1219.
Three years later, Plaintiff now brings this renewed motion for class
certification. Mot. 2, ECF No. 99. Defendant opposes the motion, and Plaintiff
filed a reply. Resp. 2, ECF No. 113; Reply 2, ECF No. 118.
II. STANDARD OF REVIEW
The "class action is an exception to the usual rule that litigation is
conducted by and on behalf of the individual named parties only. " Wal-Mart
Stores, Inc. v. Dukes, 564 U. S. 338, 348 (2011) (internal quotation marks and
citations omitted). To obtain class certification, a plaintiff must show that:
(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;
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(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.
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."
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F. 3d 838, 850
(6th Cir. 2013) (citing Wal-Mart, 564 U. S. at 349).
In addition to fulfilling the prerequisites of Rule 23(a), "the proposed class
must also meet at least one of the three requirements listed in Rule 23(b). " In re
Whirlpool, 722 F. 3d at 850. Here, Plaintiff moves for class certification pursuant
to Rule 23(b)(3). This section allows for class certification if "questions of law or
fact common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy. " Fed. R. Civ. P.
23(b)(3).
Finally, when a party seeks class certification under Rule 23(b)(3), the
class must be "ascertainable"-that is, "the class definition must be sufficiently
definite so that it is administratively feasible for the court to determine whether a
particular individual is a member of the proposed class. " Young v. Nationwide
Mut. Ins. Co., 693 F. 3d 532, 537-38 (6th Cir. 2012).
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"A district court has broad discretion to decide whether to certify a class,"
and "[c]lass certification is appropriate if the court finds, after conducting a
rigorous analysis, that the requirements of Rule 23 have been met. " In re
Whirlpool, 722 F. 3d at 850-51 (internal quotation marks and citations omitted).
Ordinarily, this means that the class determination should be
predicated on evidence presented by the parties concerning the
maintainability of the class action. On occasion it may be necessary
for the court to probe behind the pleadings before coming to rest on
the certification question and rigorous analysis may involve some
overlap between the proof necessary for class certification and the
proof required to establish the merits of the plaintiffs' underlying
claims.
Id. at 851 (cleaned up). Therefore, "[m]erits questions may be considered to the
extent-but only to the extent-that they are relevant to determining whether the
Rule 23 prerequisites for class certification are satisfied. " Amgen Inc. v. Conn.
Ret. Plans & Tr. Funds, 568 U. S. 455, 466 (2013). "The party seeking the class
certification bears the burden of proof that the prerequisites to certification are
met. In re Am. Med. Sys., Inc., 75 F. 3d 1069, 1079 (6th Cir. 1996) (citing cases).
III. ANALYSIS
A. Plaintiff's Claims and Proposed Class Definitions
To recap, Plaintiff claims that misdemeanor detainees had the right, under
Ohio law, to "immediately" post bail and that such right rendered strip searches
unreasonable under the Fourth Amendment if the misdemeanor detainees had
the financial means, and desire, to post bail "immediately" upon their entrance to
the detention facility. Compl.. ECF No. 1 at PAGEID # 2. Plaintiff argues that he
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was denied the opportunity to immediately post bail even though he had the right
and the means to do so and that, as a result, he was unconstitutionally subjected
to a strip search as part of the slating process and admission to general
population. Id. Importantly, Plaintiff does not challenge as illegal the placement
into general population (and the concomitant strip search) of those misdemeanor
detainees who were financially unable to "immediately" post bail (or, presumably,
of any misdemeanor detainees who had the financial means to immediately post
bail but would have chosen not to).
In his renewed motion to certify the class, Plaintiff seeks to certify one
class:
All detainees who, at the time affinal judgment, have been placed into
the custody of the Franklin County Correctional Center and/or Franklin
County Workhouse, after being charged with misdemeanors,
summary violations, traffic infractions, civil commitments or other
minor crimes, including on arrest warrants, and who were immediately
eligible for bail under Ohio law and the bail schedule and regulations
mandated by the Franklin County Municipal Court that in fact posted
bail within twenty-four hours of being taken into custody by Franklin
County. The class period commences on April 11, 2016 and continues
until November 18, 2025. [4] Specifically excluded from the Class are
Defendant and any and all of its respective affiliates, legal
representatives, heirs, successors, employees, or assignees.
Mot. 2, ECF No. 99 at PAGEID ## 1613-14. Plaintiff also seeks certification of a
sub-class:
4 The Court assumes that Plaintiff intended the defined class period to be April 1 1,
2016, through November 18, 2024. See Mot. 2, ECF No. 99 at PAGEID # 1624
("Plaintiff seeks the certification of a class period from April 11, 2016, until November
18, 2024. ")
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All members of the foregoing class who, on Franklin County's
"Miscellaneous Update Document, " indicated that they had the
financial means to post bond, or where information about the financial
ability to post bond is absent from the form.
Id.
B. The Court cannot approve Plaintiff's proposed class definition.
As an initial matter, Plaintiff and Defendant brief the issue as if the
proposed class definition was intended to cover those bail-eligible misdemeanor
detainees who were financially able to (and desired to) immediately post bail
upon their entrance into an FCCF but were denied the opportunity to do so.
They argue only whether the group of misdemeanor detainees who actually
posted bail within 24 hours of their arrest is an adequate proxy for such a class.
But Plaintiff's proposed class definition plainly is not limited to those who
had the financial means (and desire) to immediately post bail upon entrance to
an FCCF facility. Instead, the proposed class definition explicitly encompasses
any bail-eligible misdemeanor detainee who posted bail within 24 hours of their
arrest. Mot. 2, ECF No. 99 at PAGEID ## 1613-14. That definition would
encompass numerous misdemeanor detainees who obtained the financial means
to post bail at some point within the 24-hour window after they entered an FCCF
and is plainly not limited to the group of misdemeanor detainees that Plaintiff
purports to seek to represent. Nor does it contain any language limiting putative
class members to those who wished to avoid a strip search by posting bail, as
opposed to those who may have had the financial means to post bail but
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nonetheless desired to be placed in general population and await an initial
appearance instead of posting bail.
Thus, either the class definition does not reflect Plaintiff's intent to limit the
class to those who entered an FCCF with the means (and desire) to
"immediately" post bail (presumably meaning with either cash or credit cards on
their person sufficient to post bail) or the parties' briefing is not adequately
directed at the proposed class definition. Each alternative is problematic.
1. The proposed class definition is not ascertainable.
Assuming Plaintiff's proposed definition was meant to limit the class to bail-
eligible misdemeanor detainees who had the financial means and desire to
"immediately" post bail, there are several problems.
One, as mentioned above, the definition explicitly is not limited to such a
group and would, therefore, require revision.
Two, to the extent Plaintiff proposes the group of bail-eligible misdemeanor
detainees who posted bail within 24 hours to serve as a manner of ascertaining
who belongs in any such redefined class, the proposal is unworkable.
Plaintiff offers no manner of determining which misdemeanor detainees
(who were otherwise eligible to post bail) came into the detention facilities with
the financial means to post bail "immediately" (such as with cash or credit cards
with a sufficient available limit). Surely, just because someone posted bail within
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24 (or 12 or 8) hours does not inherently mean that they had the means to do so
upon entrance.
Plaintiff tries to overcome this deficiency by relying on misdemeanor
detainees' responses to the Miscellaneous Update Form-a form that inquired
whether the misdemeanor detainee had the financial means to post bond. Mot.
2, ECF No. 99-1 at PAGEID # 1624. Plaintiff contends that he can ascertain
which misdemeanor detainees who posted bail within 24 hours had the financial
means to "immediately" post bail based on those booking records where the
misdemeanor detainee (1) left the Miscellaneous Update Form blank on that
question; or (2) checked "yes" to indicate that they had financial means to post
bond. /c/. at PAGE! D #1625.
But the Miscellaneous Update Form does not help Plaintiff because the
form is not an indicator for those who actually had the means to immediately post
bail. As for those who did not check"yes" or "no" on the Miscellaneous Update
Form, Plaintiff assumes that they might have been able to post bond immediately.
Id. But the Court cannot take this leap with Plaintiff. Because that portion of the
Miscellaneous Update Form is blank, it is unclear how many misdemeanor
detainees, like Plaintiff, had the ability to immediately post bond (thus avoiding
the strip search and housing unit assignment) versus obtained the means
sometime within 24 hours of entrance to an FCCF.
As to the misdemeanor detainees that checked "yes" on the Miscellaneous
Update Form, the form is still unreliable. For example, Plaintiff submitted nine
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individuals in his sample group from November 2019 who checked "yes" on the
Miscellaneous Update Form. Id. Two of the nine individuals, K. K. and W. J.,
checked "yes" on the Financial Means Form, but the intake Officer noted on their
booking entry forms that they did not, in fact, have the financial means to post
bond. K. K. Booking Records, ECF No. 103-11 at PAGEID ## 2464, 2473; JW
Booking Records, ECF No. 104-19 at PAGEID ## 2995, 3004. This undermines
the reliability of even those who checked "yes" on the Miscellaneous Update
Form because some may have checked "yes" only to later find out that they did
not have the financial means to post bond immediately.
Thus, the Miscellaneous Update Form does not adequately capture
misdemeanor detainees, like Plaintiff, who were denied the opportunity to
"immediately" post bond though they had the financial means (and desire) to do
so.
At bottom, a revised class definition is workable only if everyone in the
class's claims rise or fall together. Neither the "24-hour" definition nor the
"Miscellaneous Update Form" definition would support a class for Fourth
Amendment purposes, for the reasons discussed above. Instead, any
acceptable definition would need to encompass the legal theory behind Plaintiff's
claim: that it was unreasonable to subject misdemeanor detainees to a strip
search where they were eligible to (both because of the nature of their crime and
because no extenuating circumstances required keeping the person detained),
wanted to, and had the financial ability to post bail "immediately" upon entrance
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to an FCCF in lieu of being processed into general population. But it has proven
to be impossible to ascertain who would fall into such a class.
Moreover, because the Court cannot ascertain who would fit that definition,
the Court likewise cannot ascertain whether numerosity would be met.
And even setting ascertainability and numerosity concerns aside, such a
revised definition would not necessarily be adequate. For example, it may have
been unreasonable to strip search someone who met the revised class definition
on a day when there was enough space to hold that person apart from general
population to grant them the "immediate" opportunity to post bail. But it might not
have been unreasonable to require someone meeting the same definition to be
strip searched and put in general population, despite their ability and desire to
post bail, if there was nowhere safe to permit them to wait to do so. The point is
that the potential factual variations for each misdemeanor detainee render it
virtually impossible to define a class whose legal rights vis-a-vis the
reasonableness of a strip search upon admission to the detention facilities can
be resolved "in a single stroke. " McDonald v. Franklin County, 306 F. R. D. 548,
562 (S. D. Ohio 2015) (denying in part the plaintiff's motion for class certification
because "the proposed Strip Search Class encompasses members whose claims
invoke different questions of law and fact, and different claims and defenses,
from [the plaintiff's] claim").
In conclusion, the Court simply sees no administratively feasible method of
defining an ascertainable class (let alone one of sufficient numerosity) that
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Plaintiff could adequately represent and that would entail only a single, unified
"reasonability" analysis for Fourth Amendment purposes. The fact that Plaintiff
could ascertain, through booking records, a group of misdemeanor detainees
who were similarly situated in that they were all denied the opportunity to
immediately post bail does not mean that the group is similarly situated as to
whether that denial actually resulted in an unreasonable strip search.
2. Plaintiff is not similarly situated to other members in the
proposed class as defined.
To the extent that Plaintiff intended the class to match the explicit class
definition-that is, to include not just those bail-eligible misdemeanor detainees
who could (and wanted to) "immediately" post bail but rather all bail-eligible
misdemeanor detainees who became eligible to post bail within 24 hours of their
arrest, the proposed definition is still problematic.
Plaintiff's legal contention is that it was unlawful to strip search
misdemeanor detainees who could have posted bail and been released instead
of admitted to general population. He contends that Defendant should have held
those misdemeanor detainees who were eligible for and able to post bail in a
separate holding cell while giving them "the opportunity to post bail. " E. g., Mot.
16, ECF No. 99-1. But Plaintiff's legal position begs the question when it comes
to class certification: how long of an "opportunity to post bail" did Defendant have
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to grant before Defendant could "lawfully" begin the slating process (and
concomitant strip search) of admitting them into general population?
With this proposed class definition, Plaintiff would apparently answer, "24
hours. " Yet, Plaintiff provides no actual justification or support for why it would be
legally unreasonable to strip search and place someone in general population at
any point before 24 hours of admittance to the facility. In other words, Plaintiff
fails to demonstrate that the 24-hour period is based on anything legally or
factually relevant to the case-indeed, he alleges that he was released after
eight hours. Mot. 2, ECF No. 99-1 at PAGEID # 1623. The lack of connection is
all the more apparent given Plaintiff's readiness to arbitrarily shorten the 24-hour
definition to 12 hours or 8 hours. See Reply 2-4, ECF No. 118.
The Court finds no such justification for defining the class as those bail-
eligible misdemeanor detainees who paid bail within 24 hours of admittance to an
FCCF. For example, it could very well be the case that it was unreasonable to
slate, strip search, and house misdemeanor detainees who: (1) were immediately
able to post bail with the possessions on their person at the time they entered the
detention facility, (2) wanted to do so, and (3) would not otherwise have been
subject to the slating process/admittance into general population were they given
the chance to immediately bail out. Conversely, it is not necessarily
unreasonable to slate, strip search, and house a bail-eligible misdemeanor
detainee who did not have the means to post bail immediately upon entrance but
obtained the means 23 hours after arrival to the detention facility. In other words,
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"bail-eligible misdemeanor detainees who posted bail within 24 hours of arrest" is
simply not necessarily a group of individuals who are similarly situated vis-a-vis
the reasonableness of a strip search.
Moreover, the Court doubts that Plaintiff would be an adequate
representative for such a class. Although the Court is encouraged by Plaintiff's
knowledge of the litigation and "principled stand for all [misdemeanor detainees],"
ECF No. 99-1 at PAGEID # 1637, Plaintiff's claims may not be typical of the
proposed class because of the factual differences in his situation. For instance,
Plaintiff could not recall the order in which he completed the intake process.
See, e. g., Smith-Journigan Dep. 13:16-14:22, ECF No. 31 (admitting that his
memory regarding the intake process "might be off" and that he could not
remember "the sequence"). Defendant also placed him in the "drunk tank" for a
short time before he began the intake process. Id. To that end, Plaintiff's mother
posted his bail eight hours after he entered an FCCF. Mot. 2, ECF No. 99-1 at
PAGEID # 1623. These facts make Plaintiff dissimilarly situated to at least some
of those whom Plaintiff's proposed class definition encompasses. See, e. g.,
Jenkins v. Macatawa Bank Corp., No. 1:03-CV-321, 2006 WL 3253305, at *7
(W. D. Mich. Nov. 9, 2006) ("In consideration of Priest's lack of recollection of the
relevant events and inability to minimally describe his claim, the Court finds that
he could not fairly and adequately represent the proposed class. ").
In any event, the point is that the reasonableness of a search changes as
the factual circumstances change, and Plaintiff has not shown that anyone who
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posted bail within 24 hours of their arrest would be similarly situated vis-a-vis the
lawfulness of their strip search and placement into general population. So, his
proposed class definition does not warrant certification.5
Given the nearly eight years of litigation, extensive discovery done in this
case, time and resources spent by both parties, and this being Plaintiff's second
failed attempt to certify a class, the Court finds that the class claims against
Defendant should be dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's motion, EOF No. 99, is DENIED.
Plaintiff's class claims are DISMISSED WITH PREJUDICE. This case will
proceed with named Plaintiffs' individual claims only
The Clerk shall terminate ECF No. 99.
IT IS SO ORDERED.
MCHAELH. WAT ON, JUDGE
UNITED STATES DISTRICT COURT
5 Further, though the parties focus on the class definition for purposes of the Fourth
Amendment claim, the Court is not convinced that classes for the Fourth and
Fourteenth Amendment claims would necessarily share the same definition. No party
has briefed on this issue, and the Court will not delay litigation further.
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