HILLMAN, District Judge.
This matter comes before the Court by way of Defendants Burlington County and Ronald Cox's appeal [Doc. No. 74] of the November 13, 2012 Memorandum Opinion and Order issued by the Honorable Joel Schneider, United States Magistrate Judge, granting Plaintiffs' motion for leave to file an amended complaint in this action. The Court has considered the parties' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendants appeal will be denied and Judge Schneider's Memorandum Opinion and Order granting Plaintiffs' leave to file the amended complaint will be affirmed in part and reversed in part.
In this proposed class action suit, Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 for violations of their constitutional rights. Accordingly, the Court has jurisdiction over Plaintiffs' federal claims under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.
As the Court writes primarily for the parties who are familiar with the facts and procedural history of this case, the Court sets forth herein only those facts necessary to put Defendants' current appeal in context. In this proposed class action, Plaintiffs allege their constitutional rights were violated when they were strip searched at the Burlington County Jail in approximately 2006 and 2008, respectively. A similar class action was filed in this District in July of 2005 by Albert Florence, who also alleged a violation of his constitutional rights based, in part, upon his post-arrest strip search at the Burlington County Jail. After the class was certified in Mr. Florence's July 2005 action by the Honorable Joseph H. Rodriguez, Plaintiffs opted out of the class and instituted their own
Judge Rodriguez granted summary judgment in favor of Mr. Florence in February of 2009, but this decision was reversed by a divided panel of the Third Circuit. The Third Circuit's decision was affirmed by the Supreme Court in 2012. See Florence v. Board of Chosen Freeholders of County of Burlington, ___ U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). Subsequently, Plaintiffs respective cases were restored to the Court's active docket and consolidated. Plaintiffs then moved before Judge Schneider for leave to amend to avoid dismissal under the Supreme Court's holding in Florence. Defendants opposed Plaintiffs' motion on the basis that amendment was futile in light of Florence. By Memorandum Opinion and Order of November 13, 2012, 2012 WL 5497941, Judge Schneider granted Plaintiffs' motion to amend after conducting several oral arguments on the motion. Defendants now appeal Judge Schneider's ruling.
A. Standard of Review for Magistrate Appeals
Pursuant to 28 U.S.C. § 636(b)(1)(A), a United States Magistrate Judge may "hear and determine any [non-dispositive] pretrial matter pending before the court[.]" 28 U.S.C. § 636(b)(1)(A). A district court judge will only reverse a magistrate judge's order on pretrial matters if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also FED. R. CIV. P. 72(a) (recognizing that a district judge can "modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law."); L. Civ. R. 72.1(c)(1)(A) (noting that the district judge "shall consider the appeal... and set aside any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law.").
Under this standard, "`[a] finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Wyeth v. Abbott Labs., 692 F.Supp.2d 453, 455 (D.N.J.2010) (citing Marks v. Struble, 347 F.Supp.2d 136, 149 (D.N.J.2004)). "A district judge's simple disagreement with the magistrate judge's findings is insufficient to meet the clearly erroneous standard of review." Andrews v. Goodyear Tire & Rubber Co., 191 F.R.D. 59, 68 (D.N.J.2000). Moreover, a ruling is "contrary to law if the magistrate judge has misinterpreted or misapplied applicable law." Gunter v. Ridgewood Energy Corp., 32 F.Supp.2d 162, 164 (D.N.J.1998). The "burden is on the moving party to demonstrate that the magistrate judge's finding is clearly erroneous or contrary to law." Exxon Corp. v. Halcon Shipping Co., 156 F.R.D. 589, 591 (D.N.J.1994).
Here, Judge Schneider's November 13, 2012 Memorandum Opinion and Order pertains to a motion to amend — a non-dispositive motion. Therefore, the Court will examines this appeal under the "clearly erroneous or contrary to law" standard. See Exxon Corp., 156 F.R.D. at 590 ("The adjudication by a magistrate of a non-dispositive motion will be set aside only if the order is found to be clearly erroneous of contrary to law.") (citing Cipollone v.
B. Amendment of Pleadings and Futility
In the November 13, 2012 Memorandum Opinion and Order granting Plaintiffs' motion for leave to file an amended complaint, Judge Schneider correctly identified and applied the relevant Rules of Civil Procedure — Rule 12(b)(6) and Rule 15. Rule 15 governs Plaintiffs' motion to amend, while Rule 12(b)(6) provides the standard to address Defendants' opposition argument that amendment is futile.
Generally, the Federal Rules of Civil Procedure encourage and provide for a liberal policy with regard to the amendment of pleadings. Pursuant to Federal Rule of Civil Procedure 15(a)(2), "a party may amend its pleading only with the opposing party's written consent or the court's leave." FED. R. CIV. P. 15(a)(2). Rule 15(a)(2) further "requires that leave to amend the pleadings be granted freely `when justice so requires.'" Long v. Wilson, 393 F.3d 390, 400 (3d Cir.2004) (citing FED. R. CIV. P. 15(a)) ("We have held that motions to amend pleadings should be liberally granted."). In Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court articulated the policy of "freely" granting leave to amend. See also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000).
"[A]bsent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless denial [can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment." Long v. Wilson, 393 F.3d 390, 400 (3d Cir.2004) (internal quotations, citations, and emphasis omitted); see also Haynes v. Moore, 405 Fed.Appx. 562, 564 (3d Cir.2011) (noting that even though leave to amend under Rule 15 should be freely given, "a district court may exercise its discretion and deny leave to amend on the basis of undue delay, bad faith, dilatory motive, prejudice, or futility.").
As noted supra, Defendants opposed Plaintiffs' motion for leave to amend before Judge Schneider on the basis that amendment would be futile in light of the Supreme Court's opinion in Florence v. Board of Chosen Freeholders of County of Burlington, ___ U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). "The standard for assessing futility [of amendment] is the `same standard of legal sufficiency as applies under [Federal] Rule [of Civil Procedure] 12(b)(6).'" Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir.2010) (citing Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000)); see also Alvin v. Suzuki 227 F.3d 107, 121 (3d Cir.2000) ("An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.").
In considering Defendants' futility argument pursuant to the Rule 12(b)(6) standard for a motion to dismiss, the court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to Plaintiffs. See Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2).
In weighing a motion to dismiss under Rule 12(b)(6), a court asks "`not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims[.]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955,
Second, the court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a `plausible claim for relief.'" Fowler, 578 F.3d at 211 (citing Iqbal, 129 S.Ct. at 1950). "[A] complaint must do more than allege the plaintiff's entitlement to relief." Fowler, 578 F.3d at 211; see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) ("The Supreme Court's Twombly formulation of the pleading standard can be summed up thus: `stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This `does not impose a probability requirement at the pleading stage,' but instead `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.") (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The defendant bears the burden of showing that no claim has been presented." Hedges v. U.S., 404 F.3d 744, 750 (3d Cir.2005).
A. Judge Schneider's Decision
In granting Plaintiffs' motion to amend, Judge Schneider reviewed the Florence decision and concluded that while the decision "left many questions unanswered, one thing [was] plain — that [was], that a minimum of five Justices (Alito and the four dissenters) did not endorse a blanket rule that all persons may be strip searched after they are arrested." (Mem. Op. and Order [Doc. No. 69] 6, Nov. 13, 2012) (emphasis in original). Judge Schneider further found that with the exception of Justice Thomas, "the Supreme Court appears to be receptive to an exception to a blanket strip search policy that applies to all arrestees." Id. Judge Schneider went on to observe that notwithstanding the fact that such an exception "ha[d] not been defined, at a minimum it appear[ed] to include a situation where a person was arrested for a `minor' offense, she/he was not admitted to the general population, and there was no reasonable suspicion she/he was carrying contraband." Id.
Judge Schneider then examined the allegations of Plaintiffs' proposed amended complaint in light of his interpretation of the Supreme Court's holding in Florence — noting quite correctly that the court "face[d] a difficult task." Id. at 9. Accepting the factual allegations of the proposed amended complaint as true and given the uncertainty created by Florence decision, Judge Schneider found that Plaintiffs pled "a plausible claim for relief" because they alleged facts that "plausibly place[d] them within the orbit of an exception to a blanket strip search policy that the majority of the Supreme Court appears ready to accept." Id. Judge Schneider took note of several pertinent facts Plaintiffs alleged including that: (1) "both [P]laintiffs were arrested for what appear[ed] to be a `minor' offense[;]" (2) "both were strip searched before they were seen by a judicial officer[;]" and (3) "it was feasible for them to be segregated from the general
In granting Plaintiffs' motion to amend, Judge Schneider considered and rejected several arguments made by Defendants. Id. at 10. With respect to Defendants.
B. Basis for Defendants' Appeal
Defendants now appeal Judge Schneider's November 13, 2012 "Memorandum Opinion and Order on the basis that [Plaintiffs'] proposed amended complaint is futile in light of Florence" (Mem. of Law in Supp. of Appeal of Magistrate's Order Granting Pls.' Mot. for Leave to File and Serve the Proposed Am. Compl. [Doc. No. 74-1] (hereinafter, "Defs.' Mem."), 2.) Defendants contend that Judge Schneider "misapplied and misinterpreted the Supreme Court's holding in Florence so as to grant" Plaintiffs' motion to amend. Id. at 3. In so arguing, the Court construes Defendants' appeal to challenge Judge Schneider's decision solely on the basis that it was contrary to law. See Gunter, 32 F.Supp.2d at 164 (observing that a ruling is "contrary to law if the magistrate judge has misinterpreted or misapplied applicable law.").
Defendants assert that in order to grant Plaintiffs' motion to amend, Judge Schneider's "analysis of the Florence decision had to include a finding that there is an exception to a visual search of inmates[.]" Id. at 5. Defendants argue, however, that in finding such an exception existed, Judge Schneider reviewed the Supreme Court's "`fractured'" ruling and based his conclusion on the concurring opinion of Justice Alito which was improper because "no concurring opinion is superior to the decision of the court or any other concurrence[.]" Id. at 5-6 (citing Rappa v. New Castle County, 18 F.3d 1043, 1058 (3d Cir.1994)).
Defendants specifically take issue with Judge Schneider's finding that a minimum of five justices did not endorse a blanket
C. Defendants' Failure to Meet their Burden on Appeal
While all parties here agree that the Supreme Court's opinion in Florence controls, they strongly disagree as to the breadth of the Supreme Court's holding. (See Defs.' Mem. 3.) Defendants specifically contend on appeal that Judge Schneider misapplied or misinterpreted the Florence decision in granting Plaintiffs' motion to amend. (Id.) Thus, the cornerstone of this appeal is Judge Schneider's finding that the Florence decision essentially left open the possibility of an exception for strips searches that are conducted on "minor offenders" who are not housed in the general population and whose detention has not yet been reviewed by a judge.
The success of Defendants' appeal essentially rises and falls on this issue because Defendants do not otherwise challenge Judge Schneider's conclusions that the facts alleged in Plaintiffs' amended complaint, when excepted as true, fall within the ambit of the exception Judge Schneider found exists.
Although Defendants broadly characterize the Florence decision as defining the group of person subject to a visual search as all "`arrested persons' and `every detainee[,]'" (see Defs.' Mem. 3), Defendants rely on a selective reading of the Supreme Court's opinion, and emphasize these terms out of context. From the outset, thought, the Supreme Court fashioned its
In two more instances in the Florence opinion, the Supreme Court again recognized the specific context of the strip search issue before it: (1) "The case proceeds on the understanding that the officers searched detainees prior to their admission to the general population[;]" see id. (emphasis added); and (2) corrections officials "offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted' to the general population in their facilities." Id. at 1522 (emphasis added). These reiterations provide context regarding the strip searches the Supreme Court examined and implicitly make clear that the Florence opinion did not resolve the broader issue of whether all arrestees may be strip searched. Rather, Florence limited its own reach by repeatedly framing the question with respect to arrestees who will be admitted to the general population. See id. at 1513, 1515, 1522. This alone demonstrate that the Florence holding is not as all encompassing as Defendants contend.
Defendants further argue that in circumstances where the Supreme Court issues a "fractured" ruling which does not enjoy the endorsement of a majority of Justices, such as in Florence, the Court must employ an analysis under Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) and Jackson v. Danberg, 594 F.3d 210 (3d Cir.2010) to determine the Supreme Court's holding. (Defs.' Mem. 6.) Defendants point out that under Marks, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds[.]" 430 U.S. at 193, 97 S.Ct. 990; (see Defs.' Mem. 6.). Defendants thus argue that Justice Alito's concurring opinion in Florence cannot be considered as superior to the decision of the Supreme Court as a whole or as to any other concurrence. (Defs.' Mem. 6.)
Despite Defendants' argument that Judge Schneider gave too much weight to Justice Alito's concurrence and that his concurrence does not constitute part of the majority opinion under Marks and Jackson, Defendants' argument is unavailing. As another court in this District recently concluded "the majority opinion became the majority opinion when Justice Alito joined it expressly because a potential exception was identified[.]" Allen v. Union County, et al., 2:08-cv-00711-KSH-CLW, Op. [Doc. No. 96] 8, Feb. 26, 2013. A close read of Justice Alito's concurrence appears to demonstrate that had such an exception or limitation not been identified, Justice Alito would not have joined in the opinion leading to a dramatically different result in Florence.
Additionally, Part IV of the Florence opinion, which was joined by four Justices,
Similarly, the four dissenting Justices
Several other federal courts have similarly interpreted Florence as embracing an exception — albeit one whose precise contours are undefined at this point in time. See, e.g., Allen, Op. [Doc. No. 96] at 8-10 (D.N.J. Feb. 26, 2013) (granting plaintiff's
Where this Court parts company with Judge Schneider is the potential scope of the exception articulated by Justice Alito. The plaintiff in Florence was arrested pursuant to a warrant. While the majority opinion doesn't expressly rely on that fact in reaching its decision it is an undisputed fact in the case. In Part IV of Justice Kennedy's decision, joined by Justices Alito and Scalia, and the Chief Justice, he leaves to another day whether an exception might exist for "an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer...". This phrase follows a citation to, and very brief discussion of, the Supreme Court's decision in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001).
Atwater was, of course, a case which expanded police powers to make warrantless arrests. This Court views Part IV of Justice Kennedy's opinion as an acknowledgment of the general concern, expressly noted by the dissent, that the broader the powers of warrantless arrests for minor offenses the greater the scrutiny that Court may apply in the future to pre-trial detention standards. See generally, Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. PENN. L. REV. 1009, 1052-53 (noting interplay between broad warrantless arrest powers and the standards of pretrial detention) (citing Julian Simcock, Note, Florence, Atwater, and the Erosion of Fourth Amendment Protections for Arrestees, 65 STAN. L.REV. 599, 621 (2013)). Arguably, such concerns do not exist when the arrest is made pursuant to a judicially authorized warrant. It could be fairly said that such a person is "an arrestee whose detention has  ... been reviewed by a magistrate or other judicial officer ..." Although ex parte and the determination made before and not after an arrest, an arrest warrant represents a judicial determination of probable cause to arrest. Moreover, it is the very nature of an arrest warrant to command that the named party be detained. That is precisely what an "arrest" is. This view comports with the concurrence of the Chief Justice who expressly noted "Florence was detained not for a minor traffic
The problem, of course, stems from Justice Alito's concurrence. Unlike the Chief Justice, Justice Alito does not expressly address the issue of a warrant. He simply and ambiguously (intentionally or not) refers to "an arrestee whose detention has not been reviewed by a judicial officer." Id. at 1524. If he intended to refer to a warrantless arrest, then the exception he describes in Florence would presumably be limited to such situations. If, on the other hand, he meant the post-arrest review by a judge in the context of an initial appearance or similar hearing even when the arrest was made pursuant to a valid warrant, then he, most certainly joined by the four dissenters, has carved out a broader exception to Florence that a simple reference to Atwater would suggest. Judge Schneider, in his well-reasoned and thorough analysis of Florence, clearly believed Justice Alito intended the latter. We are not so sure.
There are several reasons why we take this view. First, the contrary view reads the word "continuing" into Justice Alito's concurrence and we assume that if he had meant that he would have simply said it.
All this having been said, we need not address this issue with any finality as this stage of the proceedings. We recognize that reading the tea leaves of concurrences and plurality decisions is more art than science and one of the dangerous arts to boot. Whatever the contours and meaning of Justice Alito's concurrence may be, both of these Plaintiff's contend that they either were held, or could have been held, outside the general population.
Accordingly, the Court finds that Defendants have failed to demonstrate that Judge Schneider erred in granting Plaintiffs' motion for leave to amend. With the exception of this Court's reservation on the issue discussed above, Judge Schneider's decision is generally consistent with Florence and the subsequent opinions of other federal courts, and properly recognized that Plaintiffs' factual assertions, taken as true, state a plausible claim for relief within the ambit of the exception carved out by the Supreme Court in Florence. Therefore, to the extent Judge Schneider's November 13, 2012 Memorandum Opinion and Order allows the claims in this case to be amended it will be affirmed.
For the reasons expressed above, Defendants' appeal of Judge Schneider's November 13, 2012 Memorandum Opinion and Order is denied, and Judge Schneider's ruling granting Plaintiffs' motion to amend is affirmed in part and reversed in part. An Order consistent with this Opinion will be entered.
It is unnecessary for the Court address each of these argument in detail here, except reiterate, as Judge Schneider previously found, that resolution of these factual disputes is not proper under the Rule 12(b)(6) standard implicated by Defendants' futility argument and are more appropriately raised on summary judgment. See, e.g., United States v. Albinson, No. 09-1791, 2010 WL 3258266, at *17 (D.N.J. Aug. 16, 2010) (noting that if defendant "wishes to dispute the Amended Complaint's factual contentions a motion to dismiss is not the proper vehicle" and such challenges should be raised in the context of a motion for summary judgment); Strzakowlski v. General Motors Corp., 04-4740, 2005 WL 2001912, at *6 (D.N.J. Aug. 16, 2005) (noting that defendant's argument "speaks to a factual issue" and "[a]s such, it cannot be resolved on the pleadings during a motion to dismiss for failure to state a claim.")
His concurrence concludes by expressly stating that the "Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee's detention has been reviewed by a judicial officer. The lead opinion explicitly reserves judgment on that question. In light of that limitation, I join the opinion of the Court in full." Id. at 1525 (emphasis added).