The opinion of the court was delivered by: Royce C. Lamberth United States District Judge
This matter comes before this Court on plaintiffs' second motion for class certification , which was filed on May 5, 2003; plaintiffs' motion for leave to amend second amended complaint and to file a third amended complaint , which was filed on April 17, 2003; plaintiff's motion to compel , which was filed on May 20, 2003; plaintiff's consent motion to amend second motion for certification of the strip search class by adding resumes of Barrett Litt and Paul Estuar, which was filed on July 31, 2003; defendant's motion for reconsideration  of this Court's prior order  certifying the "overdetention" class, which was filed on April 10, 2003; defendant's motion for a protective order , which was filed on April 22, 2003; and defendant's motion to extend time , which was filed on May 28, 2003.
Upon consideration of the parties' motions, the opposition and reply briefs filed thereto, and the applicable law in this case, the Court finds that plaintiffs' second motion for class certification , motion for leave to file third amended complaint  and consent motion to amend second motion for certification of the strip search class , as well as defendant's motion to extend time  should be GRANTED, and all other pending motions should be DENIED.
This action arises under section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiffs are persons who have been, are, or will be strip searched by the District of Columbia Department of Corrections upon their return from a court appearance which entitled them to release. They seek monetary damages and injunctive relief for defendant's alleged violation of the Fourth and Fifth Amendments to the U.S. Constitution.
This Court has already certified a class of overdetained persons and previously denied plaintiffs' motion to certify a class of strip-searched persons due to lack of demonstrated numerosity of persons who had been both overdetained and strip searched. According to their third amended complaint, plaintiffs have dropped the overdetained element from their class and now seek to certify a class defined as court returns entitled to release who were strip-searched without regard to whether they were also overdetained. The alleged injury inflicted by defendant against the putative class consists of subjecting the members to strip searches after the members were returned to a Department of Corrections facility following a judicial determination that there was no longer any basis for the members' detention, apart from processing for release from custody.
Plaintiffs filed their second motion for class certification on May 5, 2003. Defendant filed a memorandum in opposition thereto on May 28, 2003.
II. PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION
In its prior opinion granting class certification for overdetained persons, this Court delineated the requirements for class certification under Fed. R. Civ. P. 23. Bynum v. District of Columbia, 214 F.R.D. 27 (D.D.C., 2003). Specifically, it noted that "the party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all the prerequisites of Rule 23(a) are satisfied and the class falls within one of the categories of Rule 23(b)." Id. at 30-31 (citations omitted).
First, plaintiff must show the existence of a class. Bynum, 214 F.R.D. at 31. Second, plaintiff must satisfy the requirements of Rule 23(a), which limits the certification of classes to cases in which
(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 represent the interests of the class.
Id. Third, plaintiff must demonstrate that one of the relevant provisions of Rule 23(b) have been satisfied. Id.
In the instant case, plaintiffs contend that the proposed class satisfies subsections (b)(2) and (b)(3) of Rule 23. Rule 23(b)(2) requires a showing that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Id. Rule 23(b)(3) requires the Court to find that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Id.
This Court shall consider each requirement in turn.
As this Court has previously noted, "[i]t is axiomatic that for a class action to be certified a 'class' must exist." Bynum, 214 F.R.D. at 31 (citations omitted). Under this requirement, the class must be defined so that it is "administratively feasible for the court to determine whether a particular individual is a member." Id. (citations omitted). Plaintiffs' proposed class definition for the strip search class is as follows:
Each person who, in the three years preceding the filing of this action, up until the date this case is terminated, has been, is or will be: (i) in the custody of the Department of Corrections; (ii) taken to court from a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending case or cases which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned to the DC Jail or CTF from court, to be processed out of Department of Corrections custody; and (vii) was subjected to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons; before being released, regardless of whether he was overdetained. Pls'. Second Mot. for Certif. at 15-16. In short, plaintiffs have defined the class as consisting of persons who were strip searched as part of their out-processing from Department of Corrections custody. As with the overdetention class, this Court is satisfied that "an individual would be able to determine, simply by reading the definition, whether he or she is a member of the proposed class." Bynum, 214 F.R.D. at 32.
B. Prerequisites of a Class Action under Rule 23(a)
1. Impracticability of Joinder
As this Court noted in its prior opinion in this case, Rule 23(a)(1) provides that a class action may be maintained only if "the class is so numerous that joinder of all members is impracticable." Bynum, 214 F.R.D. at 32 (citations omitted). A court must evaluate the facts of the case to make common sense assumptions about whether the class as proposed is likely to be large enough to make joinder of all parties impracticable. Id. This element does not require plaintiffs to provide the exact number of potential class members; rather, they need only provide a reasonable basis for their estimate of the putative class size. Id.
Plaintiffs rely upon affidavits from 35 individual court returns stating that they were strip searched after they became entitled to release. They also provide affidavits from several persons who have knowledge of the number of court returns on given occasions. One such affidavit, that of a former employee of the District of Columbia Department of Corrections Records Office, estimates that there were approximately 100 court returns per weekday except Friday, which typically had about 200 court returns. Of these total numbers of court returns, at least one to five per day had become entitled to release by virtue of their appearance, sometimes reaching as many as fifteen on one day. At minimum, these estimates create a class of at least one putative class member per weekday during the three years preceding this action, for a total of approximately 260 per year, or 780 for three years. The more realistic estimate of five per day would bring the putative class to 1,300 per year, or 3,900 for three years.
Defendant does not dispute that plaintiffs have satisfied the numerosity requirement. Upon consideration of plaintiffs' affidavits, this Court finds it plausible that at least one inmate per day was a court return entitled to release. On that basis, plaintiffs have satisfied numerosity, for a minimum of 780 putative class members would be impracticable to join individually.
The commonality requirement of Rule 23(a)(2) states that there must be "questions of law or fact common to the class." As acknowledged in this Court's previous opinion, however, it is not necessary that every issue of law or fact be the same for each class member. Rather, factual variations among the class members will not defeat the commonality requirement, so long as a single ...