The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING DEFENDANTS' JOINT MOTION TO AMEND ORDER, FOR CERTIFICATION OF ISSUES AND FOR STAY PENDING APPEAL (Document 100)
On May 22, 2009, Defendants filed the instant joint motion to amend order, for certification of issues and for a stay pending appeal. The matter was heard on June 26, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Barrett Litt and Paul Estuar appeared telephonically on behalf of Plaintiffs. Jennifer Thurston and Terence Cassidy appeared on behalf of Defendants Kern County, Kern County Sheriff's Office, Sheriff Donny Youngblood and Former Sheriff Mack Wimbish ("Defendants").
On June 21, 2007, Plaintiffs Marsial Lopez, Sandra Chavez, and Theodore Medina, individually and as class representatives, filed a First Amended Complaint ("FAC") against Kern County, the Kern County Sheriff's Department ("KCSO" or "KCSD"), Kern County Sheriff Donny Youngblood (officially and individually) and former Kern County Sheriff Mack Wimbish (individually). Plaintiffs seek injunctive relief and damages resulting from the strip and/or visual body cavity searches of prisoners by the Kern County Sheriff's Department.
On March 31, 2009, the Court issued an order on the parties' cross-motions for summary judgment. The Court: (1) granted Plaintiffs summary judgment/adjudication as to KCSO's policy of group strip searching prisoners in violation of the Fourth Amendment; (2) granted Plaintiffs summary judgment/summary adjudication as to KCSO's policy of strip searching persons ordered released from custody in violation of the Fourth Amendment; (3) granted Plaintiffs' motion for partial summary judgment/summary adjudication regarding violation of California Constitution, Article I, Section 1; (4) denied without prejudice Defendants' motion for summary adjudication regarding Plaintiffs' state law claims pursuant to California Civil Code section 52.1; (5) granted Defendants' motion for summary adjudication that Defendants Youngblood and Wimbish are entitled to qualified immunity regarding Plaintiffs' Fourth Amendment claims specific to group strip searches; (6) denied Defendants' motion for summary adjudication that Defendants Youngblood and Wimbish are entitled to qualified immunity regarding the searches of detainees upon return from court appearances after they were ordered released; (7) denied Defendants' motion for summary adjudication that the Sheriffs are state actors and are entitled to Eleventh Amendment immunity as to Plaintiffs' causes of action for § 1983 claims; and (8) denied Defendants' motion for summary adjudication as to § 1983 claims asserted against the County.
On April 1, 2009, the Court also granted Plaintiffs' motion for class certification. The Court certified the following classes:
Post-Release Class: Persons who, from March 27, 2005, up to October 1, 2007, or the time of judgment or settlement of the case: (a) were in KCSD custody; (b) were taken from jail to court; (c) became entitled to release after going to court; and (d) were strip and/or vbc searched before release pursuant to KCSD's blanket policy, practice and/or custom to strip/vbc search all court returns, including those entitled to release.
Group Strip Search Class: Persons who, from March 27, 2005, up to October 1, 2007, or the time of judgment or settlement of the case: (a) were in KCSD custody; (b) were subjected to a strip and/or vbc search in a group with other inmates also being strip/vbc searched, which search did not afford privacy from others; and (c) whose strip searches were conducted pursuant to KCSD's blanket policy, practice and/or custom to regularly conduct strip/vbc searches in a group setting.
On April 28, 2009, Defendants Sheriff Donny Youngblood and former Sheriff Mack Wimbish appealed the denial of Eleventh Amendment immunity. The appeal was processed to the Ninth Circuit on May 13, 2009, and has been assigned USCA Case Number 09-16006.
On April 28, 2009, Defendants also filed a motion for entry of judgment pursuant to Federal Rule of Civil Procedure 54(b). By that motion, Defendants requested that the Court certify the following issues for appeal: (1) the County's liability under 42 U.S.C. § 1983 for policies of the Sheriff as they relate to operation of the jail; (2) strip searching inmates in groups violated the Fourth Amendment to the United States Constitution; (3) strip searching inmates in groups violated Section 1 of the California Constitution; and (4) strip searching inmates in groups forms an underlying basis for liability under California Civil Code section 52.1. By separate order, the Court denied the motion for entry of judgment pursuant to Fed. R. Civ. P. 54(b).
On May 22, 2009, Defendants filed the instant motion to amend the Court's March 31, 2009 order, for certification of issues pursuant to 28 U.S.C. § 1292(b) and for a stay pending appeal. Defendants also filed the Declaration of Terence Cassidy. On June 12, 2009, Plaintiffs filed their opposition, along with the Declaration of Barrett Litt. Defendants filed a reply on June 19, 2009.
Pursuant to 28 U.S.C. § 1292(b), Defendants move the Court to amend its March 2009 order and to certify the following issues for immediate interlocutory review: (1) Fourth Amendment (and related state law) liability for post-arraignment group strip searches; (2) Fourth Amendment (and related state law) liability for strip searches of court releasees; and (3) Eleventh Amendment immunity of the sheriff defendants.*fn1
Title 28 of the United States Code, section 1292(b) provides: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
The Ninth Circuit has identified the certification requirements of section 1292 as: (1) a controlling question of law; (2) substantial grounds for difference of opinion; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). Congressional legislative history "indicates that [section 1292] was to be used only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation. It was not ...