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Filed Date: May 3, 2013
Case Ongoing
Clearinghouse coding complete
This is a case challenging Franklin County’s policy of strip-searching individuals charged with low-level misdemeanor offenses and photographing their tattoos. The plaintiff, a resident of Franklin County, was arrested for disorderly conduct in 2012 and transported to the Franklin County Correction Center II (“Jackson Pike” facility). She was required to strip in the presence of other detained people and a male correctional officer who then photographed tattoos near her genitals. She was released the next day on bail and the charges against her were later dismissed.
She filed this class-action lawsuit on May 23, 2013, in the U.S. District Court for the Southern District of Ohio, suing Franklin County under 42 U.S.C. § 1983. Represented by private counsel, the plaintiff sought class certification, declaratory relief, an injunction ordering the county to delete the photos of her tattoos from their database, an injunction preventing the county from strip searching and photographing women charged with minor crimes, and costs and attorneys’ fees. She claimed that (1) the county’s policy of strip-searching individuals before their arraignments and before an opportunity to post bail violated the due process clause of the Fourteenth Amendment and (2) the county’s policy of photographing all tattoos and retaining the photos in an electronic database even after dismissal of the charges was an unreasonable search and seizure in violation of the Fourth Amendment. The case was assigned to Judge Gregory L. Frost and Magistrate Judge Mark R. Abel.
On July 24, 2013, the plaintiff filed a motion to proceed under a pseudonym, because her tattoos revealed her sexual orientation and she feared public ridicule would result from her exposure. Magistrate Judge Abel granted the motion, but the defendants then moved for reconsideration. On September 20, 2013, Judge Frost ordered the plaintiff to file an amended complaint under her real name, holding that she failed to show evidence she would suffer harassment and ridicule if her identity were revealed. 2013 WL 5311466. The plaintiff filed an amended complaint under her real name 10 days later.
In April 2014, the county changed its policy of photographing all tattoos of all detained people to photographing tattoos on the “buttocks, genitals and female breasts” only when the individual was charged with a felony.
The plaintiff moved for class certification on August 7, 2014. She requested the court certify three classes: a strip search class, a photography subclass, and a cross-gender photography subclass. She defined the strip search class as:
“All female detainees who have been placed into the custody of the Franklin County Correctional Center Two (“Jackson Pike”), after being charged with misdemeanors, minor misdemeanors, violations of probation, traffic infractions, civil commitments, city code violations or other minor crimes, including failure to pay fines, and were strip searched upon their entry into the Jackson Pike facility prior to being arraigned before a judicial officer, pursuant to the policy, custom and practice of the County of Franklin. The class period commences on May 23, 2011, and extends to the date on which Franklin County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of conducting blanket strip searches on all detainees admitted to the Jackson Pike facility.”
Second, she defined the photography subclass as:
“All female detainees who have been placed into the custody of the Franklin County Correctional Center Two (“Jackson Pike”), after being charged with misdemeanors, minor misdemeanors, violations of probation, traffic infractions, civil commitments, city code violations or other minor crimes, including failure to pay fines, and had photographs taken of their breasts, hypogastric region, genitals, and/or buttocks upon their entry into the Jackson Pike facility prior to being arraigned before a judicial officer, pursuant to the policy, custom and practice of the County of Franklin. Detainees who are members of the class had photographs taken of their genitals, their hypogastric region, the lobes of their buttocks and/or the lobes of their breasts at the Jackson Pike facility. The class period commences on May 23, 2011, and extends until April 30, 2014.”
And third, she defined the cross-gender photography subclass be as:
“All members of the Photography Class who had photographs taken of their tattoos by a Franklin County Identification Technician of the opposite sex. Detainees who are members of the subclass are limited to individuals whose records in the Identiview system reflect that photographs of their tattoos were taken by an Identification Technician, designated the “operator” in the Identiview system, who was of the male gender. The subclass is also comprised of members of the photography class whose tattoos were photographed when only an Identification Technician of the male gender was working in their facility.”
On September 30, 2014, the plaintiff moved to file a second amended complaint to include facts learned in depositions and to revise the proposed class definitions in light of those facts. Magistrate Judge Abel denied the motion on November 14, 2014, holding that the plaintiff’s motion was not timely because she waited three months after taking the depositions to file the motion.
The defendants moved for summary judgment on November 14, 2014. On December 9, 2014, Judge Frost denied both the defendant’s motion for summary judgment and the plaintiff’s motion to certify the class. He denied the motion for class certification because the plaintiff’s motion used the class definitions proposed in the second amended complaint that the court had rejected. The court ordered the plaintiff to file a new motion using the class definitions proposed in the first amended complaint and dismissed the defendant’s motion for summary judgment without prejudice.
The plaintiff filed a new motion for class certification on December 23, 2014. Judge Frost granted the motion in part and denied the motion in part on April 7, 2015. 306 F.R.D. 548. He certified the photography subclass, but he declined to certify the cross-gender photography subclass because the plaintiff had added it for the first time in her motion for class certification and failed to give the defendant fair notice. Judge Frost also declined to certify the strip-search class in light of the Supreme Court’s 2012 holding in Florence v. Board of Chosen Freeholders of the County of Burlington that held it was constitutional for a correctional institution to strip-search individuals upon admitting them into the general jail population. 132 S. Ct. 1510. However, the Florence Court indicated it might be unconstitutional to admit someone into the general jail population if there was a reasonable alternative to doing so, such as holding them temporarily in a waiting area until they could post bail. Judge Frost therefore held that the strip-search class did not meet the commonality and typicality requirements for a class action, because an inquiry into the reasonableness of admitting a person into the general population would be fact-specific and vary as to each class member. He thus held that the plaintiff’s strip-search claim could proceed individually.
After class certification, the plaintiff moved to unseal the records of about 74 potential class members. Judge Frost denied the motion on November 30, 2015, holding that publication in the Columbus Dispatch constituted reasonable notice of the lawsuit and that potential class members were free to unseal their records and join the litigation if they so desired. 2015 WL 7721187.
Judge Frost retired in May 2016 and the case was reassigned to Judge Michael H. Watson and Magistrate Judge Terence P. Kemp.
On December 14, 2016, the parties filed cross-motions for summary judgment and the plaintiff moved for a preliminary injunction. While these motions were pending, over the next few years, the parties engaged in discovery and settlement negotiations. Then, on March 20, 2018, Judge Watson denied both parties’ motions for summary judgment regarding the Fourth Amendment photography claim. 2018 WL 11357093. He granted the defendant’s motion for summary judgment regarding the plaintiff’s individual strip-search claim, holding that the plaintiff did not introduce substantial evidence that the defendant’s policy of admitting all detainees to the general population was an exaggerated response to the problem of housing detainees. Finally, Judge Watson ordered supplemental discovery on the photography claim to determine whether the county analyzed the photographs of the tattoos for potential gang meanings.
The defendant filed a renewed motion for summary judgment on August 30, 2018. The parties engaged in further discovery over the next year, and Judge Watson denied the defendant’s motion on September 30, 2019. 2019 WL 13044813. He held that the plaintiff presented sufficient evidence to create a genuine issue of material fact about whether the defendant exaggerated its response to the problem posed by gang-related tattoos, especially because the supplemental discovery revealed that the photographs of tattoos were not systematically reviewed for gang affiliations and that other facilities handled the same security threat in a much less intrusive fashion.
The parties prepared for trial until February 24, 2021, when the issue was referred for mediation. On January 7, 2022, the plaintiff filed an unopposed motion for preliminary approval of a class-action settlement. The agreement defined the class as:
“All female detainees who have been placed into the custody of the Franklin County Correctional Center Two (“Jackson Pike”), after being charged with misdemeanors, minor misdemeanors, violations of probation, traffic infractions, civil commitments, city code violations or other minor crimes, including failure to pay fines, and had photographs taken of their breasts, hypogastric region, genitals, and/or buttocks upon their entry into the Jackson Pike facility prior to being arraigned before a judicial officer, pursuant to the policy, custom and practice of the County of Franklin. Detainees who are members of the class had photographs taken of their genitals, their hypogastric region, the lobes of their buttocks and/or the lobes of their breasts at the Jackson Pike facility. The class period commence[d] on May 23, 2011, and extend[ed] until April 30, 2014.”
The agreement provided for a settlement fund of $2.5 million, with costs and attorneys’ fees to be distributed to class members within 21 days of the agreement’s effective date. An independent third party would administer the fund, and any residual funds would not revert to the defendant but would be redistributed on a pro rata basis to the class members. The administrator would re-mail notices of the lawsuit and also take extra steps to locate class members, such as utilizing social media and calling telephone numbers associated with members’ booking records. Finally, the agreement provided for injunctive relief. First, the county would enact a policy forbidding the photography of tattoos in non-felony cases absent extraordinary circumstances and would train its employees to adhere to the new policy. Second, all photographs of the tattoos of class members would be sealed by court order. Finally, the county would destroy the photographs within five years of the settlement agreement’s effective date.
Judge Watson granted the order on February 8, 2022, and the court scheduled a fairness hearing scheduled for May 12, 2022. The case is ongoing.
Summary Authors
Erika Farmer (2/10/2022)
Laura Irei (5/2/2022)
For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/4363388/parties/mcdonald-v-franklin-county-ohio/
Frost, Gregory L. (Ohio)
Vascura, Chelsey M. (Ohio)
Watson, Michael H. (Ohio)
Baker, Andrew S (Ohio)
Keach, Elmer Robert III (New York)
Mason, Gary E. (District of Columbia)
Migliaccio, Nicholas A. (District of Columbia)
Rihn, D. Aaron (Pennsylvania)
Watkins, Sara J (Pennsylvania)
Armstrong, Jesse William (Ohio)
Frost, Gregory L. (Ohio)
Vascura, Chelsey M. (Ohio)
Watson, Michael H. (Ohio)
Baker, Andrew S (Ohio)
Keach, Elmer Robert III (New York)
Mason, Gary E. (District of Columbia)
Migliaccio, Nicholas A. (District of Columbia)
Rihn, D. Aaron (Pennsylvania)
Watkins, Sara J (Pennsylvania)
Armstrong, Jesse William (Ohio)
Hiers, Amy L (Ohio)
Martin, Mary Jane (Ohio)
Marziale, Arthur James Jr. (Ohio)
McCullough, Sean T (Ohio)
Sheets, Scott Oliver (Ohio)
Soulas, Nick A. Jr. (Ohio)
Wagner, Jason S (Ohio)
Zervas, John Anastasios (Ohio)
Ray, Frank Allen (Ohio)
See docket on RECAP: https://www.courtlistener.com/docket/4363388/mcdonald-v-franklin-county-ohio/
Last updated Dec. 8, 2022, 3:16 a.m.
State / Territory: Ohio
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: May 3, 2013
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Plaintiff and all similarly situated misdemeanor defendants who had their breasts, genitals, and/or buttocks photographed at the Franklin County Correctional Center Two before being arraigned before a judicial officer
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Franklin County (Franklin), County
Defendant Type(s):
Case Details
Causes of Action:
Declaratory Judgment Act, 28 U.S.C. § 2201
Availably Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Issues
General:
Placement in detention facilities
Affected Gender:
Type of Facility: