Blihovde v. St. Croix County

219 F.R.D. 607, 2003 U.S. Dist. LEXIS 23964, 2003 WL 23139401
CourtDistrict Court, W.D. Wisconsin
DecidedFebruary 13, 2003
DocketNo. 02-C-450-C
StatusPublished
Cited by42 cases

This text of 219 F.R.D. 607 (Blihovde v. St. Croix County) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blihovde v. St. Croix County, 219 F.R.D. 607, 2003 U.S. Dist. LEXIS 23964, 2003 WL 23139401 (W.D. Wis. 2003).

Opinion

OPINION AND ORDER

CRABB, District Judge.

This is a civil action for monetary relief brought pursuant to 42 U.S.C. § 1983. Plaintiffs David Blihovde, Travis Brecher and Renee Houser and all others similarly situated allege that defendants Mark Volz, Kristen Anderson, Terry Larson, Lisa Opel, Shelby Lane and John and Jane Does 1-30 subjected plaintiffs to strip searches without reasonable suspicion in violation of the Fourth and Fourteenth Amendments. In addition, plaintiffs allege that the individual defendants acted pursuant to a custom or policy of defendants St. Croix County, Dennis Hillstead and Karen Humphrey to strip search all arrestees at the St. Croix County jail without individualized suspicion. Jurisdiction is present under 28 U.S.C. § 1331.

Presently before the court is defendants’ “Motion to Strike Request to Certify Class.” Plaintiffs argue initially that defendants’ motion is “premature” because plaintiffs have not yet moved to certify the class. It is true that in most cases involving a proposed class, it is the plaintiffs who move for class certification. 5 James Wm. Moore, Moore’s Federal Practice § 23.61[6][a] at 23-280.2 (3d ed.2002). However, under Fed.R.Civ.P. 23(c)(1), either party may ask the court to determine whether class certification is appropriate. Cook County College Teachers Union v. Byrd, 456 F.2d 882, 885 (7th Cir.1972); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1785 at 89 (2d ed.1986); see also Bieneman v. City of Chicago, 838 F.2d 962, 964 (7th Cir.1988) (if neither party moves, court must determine class certification on its own). Although there is nothing procedurally improper about defendants’ motion, I conclude that it is mislabeled. Generally, in a motion to strike under Fed.R.Civ.P. 12(f), a party argues that portions of the pleadings are facially improper. See Codest Engineering v. Hyatt International Corp., 954 F.Supp. 1224, 1228 (N.D.Ill.1996) (motion to strike granted only if it is impossible that opposing party could prove set of facts consistent with its allegation). However, both parties have cited a number of materials outside the pleadings to support their positions. Accordingly, I will construe defendants’ motion as one for denial of class certification under Rule 23(c)(1).

Defendants’ motion to deny class certification will be granted in part and denied in part. Because plaintiffs’ claims against the individual defendants in their personal capacities are not typical of the claims of other class members, class certification on those claims is not appropriate. With respect to plaintiffs’ claims against defendant St. Croix County and defendants Hillstead and Humphrey in their official capacities, I conclude that plaintiffs have satisfied the requirements for class certification under Rule 23(a) and (b)(3). However, if plaintiffs fail to ultimately prove that defendants had a policy or custom regarding strip searches that violated the Fourth Amendment, I will decertify the class and each plaintiff will have to prove liability individually. Furthermore, I will stay a decision whether to certify the issue of damages until liability has been determined.

For the sole purpose of deciding these motions, I find that plaintiffs’ complaint fairly alleges the following.

ALLEGATIONS OF FACT

Plaintiffs David Blihovde, Travis Brecher and Renee Houser are all residents of St. [613]*613Croix County, Wisconsin. Defendant Dennis Hillstead is the sheriff for St. Croix County. Defendant Karen Humphrey is the jail captain at the St. Croix County jail. Defendants Kristen Anderson, Terry Larson, Lisa Opel and Shelby Lane are deputy sheriffs at the St. Croix County jail. Defendant Mark Volz is a police officer for the Village of North Hudson, Wisconsin.

On May 5, 1996, the St. Croix County Sheriffs Department adopted a new policy regarding strip searches. It provided in part: “In order to ensure the highest level of security, the St. Croix County Jail staff will perform strip searches on all persons entering the jail.” Deputy sheriffs were trained under this policy to strip search all arrestees booked into the jail. This policy remained in effect until February 27, 2001. Defendant Humphrey wrote the policy.

In November 1996, plaintiff Renee Houser was arrested for issuing two worthless checks. She was placed in a holding cell at the St. Croix County jail for several hours. She was then handcuffed, shackled and booked. In the jail’s “strip search room,” plaintiff Houser was made to remove all of her clothing and to uncover her buttocks, genitals and breasts.

In December 1998, plaintiff David Blihovde was arrested by defendant Mark Volz for driving while intoxicated. Volz transported Blihovde to the St. Croix County jail and booked him. Plaintiff Blihovde was instructed to remove all of this clothes in the hallway in front of both male and female officers. Blihovde complied, but he asked why he was required to stand naked in the hallway. One of the jailers responded, “To show what we can do to you if you don’t cooperate.” Plaintiff received a jail uniform and waited in a holding cell until he could arrange to be picked up.

In April 1999, Travis Brecher was stopped for having a broken taillight and then arrested when he produced a revoked driver’s license. At the St. Croix County jail, Brecher was booked and escorted to a small room. He was required to remove all his clothes and bend over and touch his toes so that a visual rectal search could be performed.

OPINION

A. Legal Standard for Making Class Determination

Plaintiffs contend that because defendants moved to strike plaintiffs’ class allegations, defendants have the burden of proving that class certification is inappropriate as a matter of law. Generally, in a motion for class certification, the plaintiffs have the burden of demonstrating that they meet the requirements of Fed.R.Civ.P. 23. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993); Davis v. Cash for Payday, Inc., 193 F.R.D. 518, 521 (N.D.Ill.2000). However, citing Bessette v. Avco Financial Services, Inc., 279 B.R. 442, 450 (D.R.I.2002), and 2 Herbert Newburg & Alba Conte, Newberg on Class Actions § 7.22 at 7-75 (3d ed.1992), plaintiffs assert that the general rule does not apply when the defendant makes the motion rather than the plaintiff. In Bessette, the court applied the standard under Fed. Civ. P. 12(b)(6) when the defendant moved to strike the plaintiffs’ class allegations. Thus, the court concluded that the question was whether the plaintiffs had “properly allege[d] facts sufficient to make out a class.” Bessette, 279 B.R. at 450.

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219 F.R.D. 607, 2003 U.S. Dist. LEXIS 23964, 2003 WL 23139401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blihovde-v-st-croix-county-wiwd-2003.