The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
Before the Court are Plaintiffs' Motion  for Summary Judgment and Defendant's Motion  for Summary Judgment. Also before the Court are two motions to strike: Plaintiffs' Non-Consent Motion  to Strike "Defendant's Notice Regarding Correction in Defendant's Response to Plaintiffs' Statement of Material Facts Not in Dispute, Document Number 228-7,"*fn1 and Plaintiffs' Non-Consent Motion  to Strike "Defendant's Notice Regarding Filing Analysis of Late Releases, Document Number 244." Finally, plaintiffs recently filed a document titled "Notice [sic] Plaintiffs' Response to Discrepancy Reports Submitted by the District (docket # 301)."*fn2 Pls.' Notice , Jun. 21, 2011. Having carefully considered the Motions, the Oppositions, the Replies, oral argument of counsel, the entire record in this case, and the applicable law, the Court will grant in part and deny in part Plaintiffs' Motion for Summary Judgment, and grant in part and deny in part Defendant's Motion for Summary Judgment. The Court will also deny both of plaintiffs' motions to strike. A review of the background of the case, the governing law, the parties' arguments, and the Court's reasoning in resolving those arguments follows.
This case involves overdetentions and strip searches at the District of Columbia's jails. The District's Department of Corrections has custody over thousands of prisoners serving time for various offenses, with jail sentences of varying lengths. To maintain security within its jails, the DOC strip searches inmates upon admission or commitment to its jail facilities. D.'s SMF [211-1] ¶ 3. Each day the DOC shuttles some of its inmates to courts in the District so they can be present at court appearances. At some of those court appearances inmates receive court orders from judges for their release from the DOC's custody. At that point the DOC begins an administrative release process that results in the prisoner's actual release from the DOC's custody. The same release process is begun upon the expiration of an inmate's prison sentence.
While there is no set definition for an "overdetention," it generally means that once a prisoner was entitled to release -- because of a court order, the expiration of a sentence, or otherwise -- the authority having custody over that person held them too long. This case involves a group of plaintiffs representing a class of prisoners who allege, in essence, that the DOC held them too long after they were ordered released by a court or their sentences expired. In addition, since inmates with release orders from courts in the District were often returned to the DOC's jails while the administrative processing of their releases was undertaken by DOC staff, those inmates were strip searched again pursuant to the DOC's policy. Therefore the overdetention problem and the strip search problem are interrelated, the one leading to the other.
Since this case involves the DOC's release process and whether it leads to overdetentions or is administered so poorly as to achieve the same result, the Court will first summarize that process. A 2008 report commissioned by the District's Criminal Justice Coordinating Council supplies a helpful breakdown of the flow of paperwork between the various entities involved in the release of DOC inmates and a description of the steps taken by the DOC's Records Office to process releases. Pls.' Ex. 408 ("Schneider Report").
The Schneider Report notes that when a release order issues in a courtroom, "it travels through seven hands . . . before reaching the DC Jail Records office where it is processed." Id. at 1. Judges sign two original copies of release orders. Id. at 4. One copy is retained by the courtroom clerk and scanned sometime that day into a docket management program used by the Superior Court called "Court View." Id. at 4--5. The other signed copy of the release order is given to the staff of the "Jail Board" at the courthouse, which holds onto all the inmates' paperwork and coordinates with the DOC transportation staff to arrange the van or bus transport of inmates and their paperwork to the appropriate places. Id. at 5.
Once an inmate's paperwork has arrived at the DC Jail, it is brought to the Receiving and Discharge office, where jail records staff enter each order into a logbook, post each order in the DOC's inmate-management program JACCS, and then send the orders via dumbwaiter to the DC Jail's Records Office for release processing. Id. at 6.
Records Office staff -- unfortunately named "Legal Instrument Examiners" ("LIEs") -- then perform the final round of administrative steps that the DOC requires before releasing inmates. Id. A LIE first reviews the inmate's actual file or "jacket" and confirms that the release orders match the inmate's cases. Id. The DOC will not release an inmate unless it has an actual, signed copy of the release order. The LIE also looks for other pending cases or detainers in the file. Id. Next, the LIE checks the DOC's own databases program, JACCS, to make sure that the JACCS data records coincide with the information in the physical file. Id. The LIE then checks other computer databases to see if there are any warrants out for the inmate's arrest, and checks the Superior Court's database, Court View, to check for any other cases requiring that the inmate be held in custody. Id. Once this first LIE determines that the inmate is eligible for release, a second, "senior" LIE performs all of the same steps -- again reviewing the inmate's physical file -- and then signs off on the inmate's release. Id. The process takes from 2 to 2.5 hours to complete. Simmons Dep. [228-2] 164:15--22.
That the DOC's release procedures, its implementation of them, or both, might be generating unacceptable numbers of overdetentions is something that the District has been aware of for years. This case is nearly identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action No. 02-956 (RCL). Bynum, filed in 2002, involved a class of about 4,000 former DOC prisoners who claimed they'd been detained by the DOC past the point when their releases had been ordered, "for periods ranging from an extra day to many days or even months on end." Barnes v. District of Columbia, 242 F.R.D. 113, 115 (D.D.C. 2007). In addition to this "overdetention" class, this Court in Bynum certified an overlapping "strip search" class. The District moved for summary judgment, the Court denied that motion, and shortly thereafter the parties settled the case.
The class members in Bynum were unable to get through the DOC's release process on the day that their releases were ordered, were held by the DOC past midnight, and overdetained. In addition, because -- as stated above -- the DOC's policy is to strip search anyone who is returned to the general jail population, Def.'s SMF [211-1] ¶ 3, many of the Bynum class members were strip searched, in some cases multiple times.
The Bynum litigation ended on January 25, 2006 pursuant to a settlement agreement that contained a number of components that were designed to remedy the overdetention and related strip search problems at the District's jails.*fn3 Bynum, 412 F. Supp. 2d 73 (D.D.C. 2006). Of the $12 million settlement amount agreed to by the parties in Bynum, $3 million was set aside "to build a state of the art Inmate Processing Center (IPC) within the foot print of the DC Jail site, which will be a project totaling $5 Million." Id. at 83. The remaining $2 million was to be provided by the District government. Id. The purpose of the IPC was to create adequate processing facilities for both intake and release of inmates and for the processing of associated records. Id. Among the reforms associated with the IPC was the requirement that "[c]court ordered releases [would] be separated from inmates to be held in custody." Id. This Court recognized that the settlement promised "significant policy changes in the operation of the Department of Corrections," and noted that the DOC's "policy of strip searching court returnees subject to release has been stopped as a direct result of this litigation." Id. at 85.
However, in the aftermath of Bynum, instead of a swift change to the status quo at the DOC, there were years where little if any substantive change was instituted. In fact, there isn't much in the record indicating any significant reforms for well over a year after the close of the Bynum class period. With the exception of a DOC staff "tour" of "mega jail" facilities in October and November 2006, whose relationship to improving the DOC's release process is entirely unclear from the record, the DOC appears to have done nothing concrete in response to the overdetention problems at its jails until 2007.*fn4
The Inmate Processing Center, mandated by the Bynum settlement, remains to this very day unbuilt. According to the Interim Director of the DOC, the IPC has been "in the planning stages for several years." Def.'s Mem. Opp'n Pls.' Mot. Summ. J.  Ex. 1 at ¶ 17. As of March 2010, the District had spent only $788,222 on the project, which now has an estimated cost of $15 million, rather than the $5 million specified in the Bynum settlement agreement. The District hasn't provided an explanation for the extended delay in the IPC project or its currently trebled price tag, although it appears that these may in part be due to the DOC's decision to fold the IPC project into a number of others. Pls.' Second Mot. Compel , July 28, 2010, Attachment 1 at 57--58. The District's most recent hope is to begin construction of the IPC in January 2012, with a completion date of July 2013. Def.'s Mem. Opp'n Pls.' Mot. Summ. J.  Ex. 1 at ¶ 18. However, since the District has pushed back the completion date repeatedly, there's reason to doubt whether this facility will be up and running at that time.
As to the DOC's practice of strip-searching court returns entitled to release absent individualized suspicion, the DOC agreed in 2005, as part of the Bynum settlement negotiations, to send court returns who had received release orders not to the DC Jail -- where they would be returned to the general jail population and subjected to blanket strip searches -- but to a holding facility at the DC General Hospital called the Medical Holding Unit. Pls.' Ex. 759 [214-12] 9:9--18. The administrative processing of those inmates' releases could take place while they were housed at the MHU, and they could be released from that facility, without a strip search. Id. However, since that facility has nowhere for inmates to sleep in the event that their releases are delayed, Def.'s Ex. 1 at ¶ 39, such inmates have been returned to the Jail or Correctional Treatment Facility and subjected to blanket strip searches. Def.'s Resp. Pls.' SMF [228-7] ¶ 509. So the persistence of the overdetention problems has led, it seems, to the continuing subjection of court releases entitled to release to blanket strip searches, despite the promises of the Bynum settlement.
The DOC's lack of action in the wake of Bynum combined with singularly
unhelpful action by the DC Council to exacerbate the overdetention
problem. In 2003, with the Bynum litigation pending in this Court, the
Council passed an ordinance prohibiting the release of inmates between
the hours of 10 p.m. and 7 a.m. under any circumstances, also known as
the "10 p.m. cut-off" rule. D.C. Code § 24-211.2(b)(6).*fn5
This ordinance was allegedly adopted in the best interests of
inmates, to prevent "[r]eleasing inmates at midnight out the back door
of the jail, into a neighborhood where there is no transportation and
no other facilities to assist inmates . . . ." Pls.' Ex. 207. However,
whatever its intended purpose, the ordinance's effect was to turn
delayed releases into automatic, overnight overdetentions in cases
where the Records Office was unable to complete the release process by
10 p.m. The District's own Attorney General notified the DC Council's
Chairman in February 2009 that inmates were being overdetained "solely
by operation of the cutoff provision" and that the provision was
"unconstitutional as applied." Pls.' Ex. 206 [214-3].
However, the Record does indicate that beginning in 2007 -- more than a year after the instant case was filed -- the DOC and the District began to take some steps to address the overdetention problem. In July 2007, the DOC instituted a "new training regime" for LIEs that spans "several months," including 44 hours of "Records Office Overview Training" that "focuse[s] on the release process." Def.'s Mem.  16; Def.'s Ex. 1 at ¶ 9, 10. Also in 2007, the DOC began -- for the first time -- to track overdetentions at its jails using "discrepancy reports," providing the DOC with the means to both monitor and remedy overdetention problems.
Perhaps the single most significant reform occurred on July 7, 2008, when the DOC instituted a "courthouse release" program, which permits inmates charged with misdemeanors to be released directly from the Superior Court, instead of transporting them back to the DC Jail or Correctional Treatment Facility for release processing. Pls.' Ex. 211 at 77; Def.'s Ex. 1 at ¶ 32. Plaintiffs have "concede[d]" that the District's courthouse release program "solved a lot of the problems causing over-detentions and post release strip searches." Pls.' Opp'n Def.'s Mot. Summ. J.  30. Plaintiffs' counsel repeated at the June 2011 hearing on the parties' motions for summary judgment that this change was significant, and that the number of overdetentions -- even according to plaintiffs' own numbers -- have trickled off since then.
A number of less significant, but noteworthy, reforms occurred between 2008 and 2010, including the centralization of the release process for the District's inmates in the Records Office, the improvement of particular forms used by the DOC in the release process, and the institution of weekly audits of inmate-management data by the Records Office's administrator.
It is not surprising, given this absence of activity for well over a year followed by a gradual introduction of reforms in subsequent years of the class period, that the evidence shows a high number of overdetentions in the early part of the class period followed by a decline in the overdetention numbers in subsequent years.
Plaintiffs' numbers indicate thousands of overdetentions, particularly in the early years of the class period. Pls.' Mem. [217-1] 3. Plaintiffs estimate that during the first year of the class period there were 3,092 overdetentions, and that another 1,902 occurred from September 2006 to February 2008. Pls.' Ex. 192 [213-15] ¶ 17. These estimates are based upon an analysis performed by plaintiffs' statistical expert. See Pls.' Exs. 190, 192. His analysis took as its starting point a collection of data records from the DOC's inmate-management program called the Jail and Community Corrections System, or "JACCS." Pls.' Ex. 190 ¶ 34. Using this JACCS data, plaintiffs' expert generated an over-inclusive list of persons who were potentially overdetained during certain periods. Id. at ¶ 53. Then, a statistical method called "stratified random sampling" was used to estimate the number of overdetentions and overdetention hours during these periods. Id. at ¶ 58. In short, instead of physically inspecting every one of the many thousands of inmate files on the potential overdetentions list to confirm whether or not they were actual overdetentions, plaintiffs divided the list into groups, physically examined a random sample of files in each group, and then used those results to project an estimate of overdetentions across the whole population. Id. Plaintiffs do not have overdetention numbers more current than February 25, 2008.*fn6
The District has no numbers at all that this Court can credit for the
first 16 months of the class period. To account for the first year of
the class period, the District provided a DOC report*fn7
titled "Analysis of Releases between September 1, 2005 and
August 31, 2006" which indicates that 444 "late releases" occurred.
Def.'s Notice , Mar. 23, 2011, Attachment 1. While 444 is a lot
of overdetentions in a year, it is significantly less than the 3,092
indicated by plaintiffs' evidence for that same period. However, the
District's number is inscrutable because it cannot locate an
attachment to that DOC report which contained the definition of "late
release" used by the DOC to arrive at the report's findings. Without
that definition, it is impossible to
determine whether what the DOC is calling a "late release" is
consistent with the overdetention class definition or with plaintiffs'
As already noted, the DOC didn't begin tracking overdetentions in a systematic way until January 2007 -- about 16 months into the class period. Def.'s Mem.  25. DOC "discrepancy reports" provided to the Court by the District following the June 2011 hearing on the parties' motions for summary judgment, which list individual overdetentions by month and note the reasons, show 302 overdetentions in 2007, 143 in 2008, 56 in 2009, 85 in 2010, and 22 in 2011 through the end of May. Def.'s Notice , Jun. 9, 2011. In contrast to the DOC's "Analysis of Releases" report discussed above, the District did provide the definition of "overdetention" used to create these DOC discrepancy reports. The DOC listed as an overdetention "anyone released after 11:59 p.m. on the day they are ordered released, or alternatively, situations where the end of sentence calculation was computed incorrectly." SouverainDecl. [301-2] ¶ 3. Clearly the District's numbers for the period January 2007 forward show a significant drop in the number of overdetentions in recent years.
Overdetentions appear to be occurring for a variety of reasons. The District suggests that human errors, the cause of many overdetentions, are inevitable in any complex system such as the DOC. The District emphasizes that four separate entities can authorize the release of an inmate from DOC custody, including the Superior Court, the U.S. District Court for the District of Columbia, the U.S. Parole Commission, and the Federal Bureau of Prisons. Def.'s SMF [211-1] ¶ 4. The DOC processes between 15,000 and 17,000 releases each year -- an average of between 41 and 47 each day. Id. at ¶ 2.
As to specific reasons for particular overdetentions, some are caused by mistakes by the DOC calculating inmates' jail sentences. Plaintiffs, summarizing a series of DOC reports, note that at least 79 overdetentions occurred during the class period because of sentence miscalculations. Pls.' Ex. 902 ¶ 4. In ten of those cases misfiled or lost paperwork played a role. Id. At least 75 overdetentions resulted from a failure to calculate inmates' sentences in a timely fashion, such that the release process could not be completed before the District's 10 p.m. cutoff, resulting in overdetentions. Id. at ¶ 5. The District claims that some overdetentions were caused by factors "outside the control of the District," including the failure of a federal authority, such as the Bureau of Prisons, to calculate an inmate's sentence correctly. Def.'s Mem.  27--28.
The "10 p.m. cut-off" rule appears to have resulted in a large number of overdetentions, at least according to plaintiffs. Analyzing and summarizing an "Audit Analysis"*fn8 of thousands of potential overdetentions performed by the DOC during the first year of the class period, plaintiffs identified 1,244 overdetentions that the DOC itself said occurred because of the "10 p.m. cut-off" rule. Pls.' Ex. 99B [221-9] ¶ 17. This indicates that between 3 and 4 persons were overdetained each day during the first year of the class period because of the District's ordinance. The District disputes plaintiffs' "10 p.m. cutoff" number, citing its "Analysis of Releases" report as contrary evidence. Def.'s Resp. Pls.' SMF [228-7] ¶ 200. But, as stated above, that DOC report doesn't contain the definition of "late release" used by the DOC, making the District's contrary numbers useless in terms of raising a genuine fact dispute.
At least 124 persons were overdetained due to a lack of staff or a large volume of releases to be processed on a particular day. Pls.' Ex. 99B [221-9] ¶ 30. At least 151 persons were overdetained due to "late paperwork." Id. at ¶ 38. Problems transferring inmates, along with their paperwork, from the Correctional Treatment Facility to the DC Jail for release processing resulted in at least 68 overdetentions in the first year of the class period. Id. at ¶ 56.
The named plaintiffs in this case -- Carl Barnes, Dernard Hawkins, Toney Malloy, David Peterson, and Maurice Williams -- are all former DOC inmates who claim that the DOC's overdetention and strip-search problems remain widespread post-Bynum.*fn9 Carl Barnes claims he was ordered released, strip searched, and then overdetained for at least 7 days. Pls.' Ex. 5, Barnes Aff. 2. Dernard Hawkins claims that he was entitled to release by a court order, but nevertheless was strip searched and overdetained for 7 days. Pls.' Ex. 18, Hawkins Aff. 2. David Peterson claims that he was held for 4 days after the expiration of his sentence. Pls.' Ex. 3, Peterson Aff. 1. Maurice Williams claims he was ordered released, strip searched, and then held for 21 days. Pls.' Ex. 4, Williams Aff. 2.
Plaintiffs brought suit under 42 U.S.C. § 1983, alleging that their overdetentions violated the Fourth, Fifth, and Eighth Amendments, while the strip searches violated the Fourth and Fifth Amendments. Pls.' Second Am. Compl.  ¶ 43, 44. Early on in the litigation, the District filed a Motion  to Dismiss, or, in the alternative, for Summary Judgment. Def.'s Mot. Dismiss , July 7, 2006. The Court denied the District's motion.*fn10 Barnes, 242 F.R.D. at 114.
At that same time, the Court granted plaintiffs' motion to certify two classes. The first is an "overdetention" class, defined as:
Each person who has been, is, or in the future will be incarcerated in any District of Columbia Department of Corrections facility from September 1, 2005 forward; and who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired.
Id. at 120. The second is a more complicated "strip search" class, defined as:
Each person who was, or in the future will be, from September 1, 2005 forward: (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 cases 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 from court to the DC Jail or CTF or other District facility, to be processed out of the Department of Corrections custody; and
(vii) was subject to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that was concealing contraband or weapons; before being released, regardless of whether he was overdetained.
The Court later ordered that the case be bifurcated into liability and damages phases, with damages discovery to be conducted at a later time upon a further order of the Court. Order , Aug. 31, 2009. All liability phase discovery closed in January 2011. Soon after the parties filed motions for summary judgment.
The Federal Rules of Civil Procedure state that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The standard requires more than the existence of some factual dispute: "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247--48 (1986) (emphasis in original). A fact is a material fact if, under the applicable law, it could affect the outcome of the case. Id. A dispute is a genuine dispute for summary judgment purposes if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Also, because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
A nonmoving party, however, must establish more than "the existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). The nonmoving party must present specific facts that enable a reasonable jury to find in its favor. Id. If the evidence presented is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249--50.
A.The Parties' Motions for Summary Judgment
Before the Court are plaintiffs' Motion  for Summary Judgment and defendant's Motion  for Summary Judgment. Plaintiffs, relying on expert analysis showing that the number of overdetentions have remained high throughout the class period, argue that the DOC and the District have continued to violate prisoners' constitutional rights post-Bynum, and maintain that on a record of broken promises and stubborn inaction by the District, a reasonable jury could only find that the District has been deliberately indifferent to these issues, and is thus liable as a matter of law. In response and in support of its own motion, the District points to the falling number of overdetentions, the lack of any official policies that could cause overdetentions, and a number of reforms that have been enacted to argue that no reasonable jury could find that they have been indifferent to these issues, and thus the case must be dismissed.
The Court will discuss these and other arguments in the context of each of the four remaining claims, which the Court shall address in turn.
1.Fourth Amendment violations for overdetentions
Before examining whether the District is liable for any constitutional violations, plaintiffs must first demonstrate the existence of such violations in the first place. Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
Plaintiffs bring a Fourth Amendment challenge to their overdetentions. The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Although neither party raised this argument in its papers, as is clear from the plain text of the Fourth Amendment, plaintiffs must show that their overdetentions constituted seizures of ...