                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
KAYLA DIONNE LEWIS, et al.,          )
                                     )
            Plaintiffs,              )
                                    )
      v.                            )    Civil Action No. 15-352 (RBW)
                                     )
GOVERNMENT OF THE                   )
DISTRICT OF COLUMBIA,               )
                                    )
            Defendant.              )
____________________________________)

                                       MEMORANDUM OPINION

        Kayla Dionne Lewis and Felton Hill, the named plaintiffs in this civil suit, bring this

putative class action against the defendant, the District of Columbia (“District” or “defendant”),

pursuant to 42 U.S.C. § 1983 (2012), alleging constitutional violations arising from their arrests

and subsequent detentions by the District in 2014. See generally Amended Complaint [] (“Am.

Compl.”). Currently before the Court is the defendant’s motion to dismiss all of the plaintiffs’

claims. Defendant District of Columbia’s Motion to Dismiss Amended Complaint (“Def.’s

Mot.”) at 1. After carefully considering the defendant’s motion to dismiss, and all relevant

memoranda of law and exhibits attached thereto, 1 the Court concludes for the reasons that follow

that it must grant in part and deny in part the defendant’s motion.




1
  In addition to the documents already referenced, the Court also considered the following submissions in reaching
its decision: (1) the defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion to
Dismiss Amended Complaint (“Def.’s Mem.”); (2) the Plaintiffs’ Opposition to [the] Defendant’s Motion to
Dismiss (Pls.’ Opp’n”); and (3) Defendant District of Columbia’s Reply to [the] Plaintiffs’ Opposition to [the]
Defendant’s Motion to Dismiss Amended Complaint (“Def.’s Reply”).

                                                         1
                                              I.    BACKGROUND

         The plaintiffs assert the following in their Amended Complaint. Plaintiff Hill was

detained on Tuesday, July 8, 2014, “at about 1:10 [A.M.,] when he was arrested by the

[Metropolitan Police Department] for suspicion of DUI (driving while impaired).” Am. Compl.

¶ 56. Plaintiff Hill was taken before the Superior Court of the District of Columbia (“Superior

Court”) for his presentment and a detention hearing later that same day, id. ¶ 57, supported by

the submission of a Gerstein affidavit 2 setting forth the factual basis for his arrest, id. ¶ 58.

During that hearing, the Magistrate Judge noted that the affidavit’s narrative at times identified

plaintiff Hill as “Mr. Ramsey.” Def.’s Mem., Exhibit (“Ex.”) H (Transcript of July 8, 2014

Superior Court of the District of Columbia Proceedings in the Matter of District of Columbia v.

Hill (“Hill Transcript”)) at 4. 3 Based on these inconsistencies, the Magistrate Judge continued

the hearing until the next day so that the District could perfect the affidavit. Id. at 5; Am. Compl.

¶ 61. The District then transported plaintiff Hill to the District of Columbia Jail, where he was

subjected to a strip search as part of the intake process. Am. Compl. ¶¶ 62–63. The next day,

Wednesday, July 9, 2014, the District returned plaintiff Hill to the Superior Court, id. ¶ 65, and

the Magistrate Judge concluded that the District “did not perfect the [G]erstein” affidavit and

“ordered [plaintiff] Hill released,” id. ¶¶ 66–67.

         On Saturday, November 1, 2014, the Metropolitan Police Department arrested plaintiff

Lewis “for suspicion of DUI (driving while impaired).” Id. ¶ 43. She was brought before the

Superior Court for her presentment and a detention hearing on Monday, November 3, 2014, id. ¶


2
 A Gerstein affidavit is “filed to provide a proper basis for the judicial finding of probable cause that Gerstein v.
Pugh, 420 U.S. 103 (1975), requires to justify restraint after an arrest.” In re Holloway, 995 F.2d 1080, 1083 (D.C.
Cir. 1993).
3
 “The court may take judicial notice of another court’s proceedings” when considering a Rule 12(b)(6) motion.
Donelson v. U.S. Bureau of Prisons, 82 F. Supp. 3d 367, 371 (D.D.C. 2015) (citations omitted), aff’d sub nom.
Donelson v. Fed. Bureau of Prisons, No. 15-5136, 2015 WL 9309944 (D.C. Cir. Dec. 7, 2015).

                                                          2
44, supported by the submission of a Gerstein affidavit setting forth the factual basis for her

arrest, id. ¶ 45. The Magistrate Judge who presided over the hearing noted that the Gerstein

affidavit referred to plaintiff Lewis in some places as “Ms. Jones,” and in other places as “Mr.

Jones.” Def.’s Mem., Ex. G (Nov. 3, 2014 Superior Court for the District of Columbia

Proceedings in the Matter of District of Columbia v. Lewis (“Lewis Transcript”)) at 3. As a

result of these defects, the Magistrate Judge continued the detention hearing until Tuesday,

November 4, 2014, to permit the District an opportunity to perfect the Gerstein affidavit. Id. at

4; Am. Compl. ¶ 48 (“[T]he judicial officer ordered [the plaintiff] held until the next day . . . for

a ‘24 Hour Gerstein perfection’ to give the District an opportunity to ‘perfect the Gerstein.’” (no

citations in original)). Plaintiff Lewis was then transported to the District of Columbia Jail,

where she was subjected to a strip search as part of the intake process. Am. Compl. ¶ 50. The

following day, the District returned plaintiff Lewis to the Superior Court, and the Magistrate

Judge concluded that the “government did not perfect the [G]erstein” affidavit and released

plaintiff Lewis from custody. Id. ¶¶ 51–54.

                                 II.   STANDARD OF REVIEW

       A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). So to survive a motion to dismiss for

“failure to state a claim upon which relief may be granted,” Fed. R. Civ. P. 12(b)(6), the

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). The “claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Kowal v.



                                                  3
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (plaintiff is entitled to “the benefit

of all inferences that can be derived from the facts alleged”). Although the Court must accept the

facts pleaded as true, legal allegations devoid of factual support are not entitled to this

assumption. See, e.g., Kowal, 16 F.3d at 1276. Along with the allegations made within the four

corners of the complaint, the court can also consider “any documents either attached to or

incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

                                                    III.      ANALYSIS

            A claim brought pursuant to 42 U.S.C. § 1983 “provides a remedy against ‘any person’

who, under color of state law, deprives another of rights protected by the Constitution.” Collins

v. City of Harker Heights, 503 U.S. 115, 120 (1992). 4 “Although a municipality[5] is a ‘person’

subject to suit under § 1983 for constitutional violations, it ‘cannot be held liable solely because

it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on

a respondeat superior theory.’” Singletary v. District of Columbia, 766 F.3d 66, 72 (D.C. Cir.

2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). As this Circuit has

explained,

            in considering whether a plaintiff has stated a claim for municipal liability, the
            district court must conduct a two-step inquiry. First, the court must determine
            whether the complaint states a claim for a predicate constitutional violation.


4
    The section states, in relevant part:

            Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
            . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any
            rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
            injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.
5
 “The District of Columbia is a municipality for the purpose of § 1983.” People for Ethical Treatment of Animals,
Inc. v. Gittens, 396 F.3d 416, 425 (D.C. Cir. 2005) (citation omitted).

                                                                4
       Second, if so, then the court must determine whether the complaint states a claim
       that a custom or policy of the municipality caused the violation.

Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted).

       In assessing whether the plaintiffs’ Amended Complaint satisfies this second prong,

“[t]he court must determine whether the plaintiff has alleged an ‘affirmative link,’ such that a

municipal policy was the ‘moving force’ behind the constitutional violation.” Id. (citations

omitted). There are “a number of ways a municipality can adopt a policy or custom that might

create liability,” Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008),

including:

       the explicit setting of a policy by the government that violates the Constitution; the
       action of a policy maker within the government; the adoption through a knowing
       failure to act by a policy maker of actions by his subordinates that are so consistent
       that they have become “custom”; or the failure of the government to respond to a
       need (for example, training of employees) in such a manner as to show “deliberate
       indifference” to the risk that not addressing the need will result in constitutional
       violations,

Baker, 326 F.3d at 1306 (citations omitted).

   A. Claims Pertaining to the Length of the Plaintiffs’ Detentions (Claims I, II, and III)

       The plaintiffs assert a number of claims against the District regarding the length of their

detentions. First, they allege that the District violated the Fourth Amendment by continuing to

detain them “even after a judicial finding of no probable cause.” Am. Compl. ¶ 69. Similarly,

plaintiff Lewis alleges that the District violated the Fourth Amendment “by holding [her for]

more than [forty-eight] hours after [her] arrest without a finding of probable cause by a judicial

officer.” Id. ¶ 73. Lastly, both plaintiffs claim that “[t]he District violated their Eighth

Amendment rights by holding them without probable cause after the administrative steps

incident to their arrest had been completed without holding a bail hearing.” Id. ¶ 78.




                                                  5
        While “a policeman’s on-the-scene assessment of probable cause provides legal

justification for arresting a person suspected of crime,” Gerstein v. Pugh, 420 U.S. 103, 113–14

(1975), “the Fourth Amendment requires a timely judicial determination of probable cause as a

prerequisite to detention,” id. at 126. “[A] jurisdiction that provides judicial determinations of

probable cause within [forty-eight] hours of arrest will, as a general matter, comply with the

promptness requirement of Gerstein.” City of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

And where the arrested individual is detained for more than forty-eight hours without a judicial

determination of probable cause, “the burden shifts to the government to demonstrate the

existence of a bona fide emergency or other extraordinary circumstance.” Id. at 57; see also

Cherrington v. Skeeter, 344 F.3d 631, 644 (6th Cir. 2003) (“[T]he undisputed record establishes

a violation of City of Riverside’s [forty-eight]–hour rule, and [the] [d]efendants have failed to

identify any emergency or other extraordinary circumstance that might take this case outside of

the general rule.”).

        “Under Gerstein, jurisdictions may choose to combine probable cause determinations

with other pretrial proceedings, . . . such as bail hearings and arraignments . . . .” Riverside, 500

U.S. at 58. The Eighth Amendment prohibits “excessive bail,” U.S. Const. amend. VIII, and

while the Amendment “says nothing about whether bail shall be available at all,” United States

v. Salerno, 481 U.S. 739, 752 (1987), “[a] prompt hearing is necessary” because “a vital liberty

interest is at stake,” United States v. Montalvo-Murillo, 495 U.S. 711, 716 (1990). Although the

Supreme Court has not imposed a specific time-limit by which the government must conduct a

bail hearing, lower courts have used Riverside’s forty-eight hour limitation as a useful guidepost.

See, e.g., Collins v. Ainsworth, 382 F.3d 529, 545 (5th Cir. 2004) (“There is no right to post bail

within [twenty-four] hours of arrest. Mississippi law indicates that this limitation is [forty-eight]



                                                  6
hours.”); Holder v. Town of Newton, No. 08-CV-197-JL, 2010 WL 432357, at *11 (D.N.H. Feb.

3, 2010) (“The clear import of McLaughlin, then, is that a bail hearing held within [forty-eight]

hours of a warrantless arrest is also presumptively constitutional—if indeed the Constitution

speaks to that issue.”). 6

              1. The Duration of Plaintiff Hill’s Detention

         Based on the foregoing state of the law, the first three claims as to plaintiff Hill do not

pass muster. The Amended Complaint explains that he was arrested on July 8, 2014, Am.

Compl. ¶ 56, and released the following day, id. ¶ 67. As Hill was released within forty-eight

hours of his arrest, the District is “immune from systemic challenges,” and Hill carries the

burden to “prove that [his] probable cause determination was delayed unreasonably,” such as

“for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill

will against the arrested individual, or delay for delay’s sake.” Riverside, 500 U.S. at 56. The

only reason proffered by plaintiff Hill for the Court to find an unreasonable delay is that the

judicial officer affirmatively concluded at his initial appearance that the government lacked

probable cause to effect the arrest. Am. Compl. ¶ 60 (“The judicial officer held that the Gerstein

[affidavit] did not establish probable cause.”). But plaintiff Hill’s assertion is belied by the

transcript of that proceeding. Specifically, the Magistrate Judge presiding over his initial



6
  As a preliminary matter, the defendant contends that all of claims of the two named plaintiffs should be dismissed
under the doctrine of judicial immunity. Def.’s Mem. at 22–23. The defendant reasons that “because District
officials did not make the probable cause and Gerstein hold decisions, the District also is not liable for decisions
made by judges in D.C. Superior Court.” Id. This argument is unpersuasive. Judicial immunity bars claims against
individual judges in their personal capacities. Smith v. Scalia, 44 F. Supp. 3d 28, 40 (D.D.C. 2014) (“[T]he claims
against the individual judge defendants in their personal capacities are barred under the doctrine of absolute judicial
immunity and thus must be dismissed.”), aff’d, No. 14-5180, slip op. at 1–2 (D.C. Cir. Jan. 14, 2015). But the
Amended Complaint asserts claims against the District of Columbia, not any state actor in a personal capacity, and
thus this defense is not available to the defendant. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“When it
comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to
assert personal immunity defenses,” but “[i]n an official-capacity action, these defenses are unavailable.” (citations
omitted)) (also noting that “an official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity.” (citation omitted)).

                                                             7
appearance received an oral request from the government to continue the hearing “for [twenty-

four] hours to perfect the Gerstein [affidavit],” and granted the request, simply stating “Okay,

back tomorrow for Gerstein perfection.” Def.’s Mem., Ex. H (Hill Transcript) at 5. It is

apparent from this transcript that the Magistrate Judge deferred her ruling on the issue of

probable cause until the subsequent hearing. See id. Where, as here, a complaint’s factual

allegations are contradicted by exhibits of which the Court may take judicial notice, the Court

need no longer accept as true plaintiff’s version of events. See, e.g., Kaempe v. Myers, 367 F.3d

958, 963 (D.C. Cir. 2004) (“Nor must we accept as true the complaint’s factual allegations

insofar as they contradict exhibits to the complaint or matters subject to judicial notice.”). As

plaintiff Hill fails to offer any other reason for this Court to find an unreasonable delay in his

release, the Court must conclude that he has not asserted a constitutional deprivation with respect

to his first three claims and thus must grant the defendant’s motion to dismiss these claims.

           2. The Duration of Plaintiff Lewis’s Detention

       With respect to plaintiff Lewis, the District concedes that it held her for more than forty-

eight hours without a judicial finding of probable cause, Def.’s Mem. at 8 (“Lewis’s final

probable cause determination, while greater than [forty-eight] hours, was reasonable under the

circumstances.”), and ultimately acknowledges that it was ordered to release Lewis after failing

to submit evidence substantiating probable cause, id. at 12 (“The government was unable to

submit a corrected affidavit by the time the hearing was held on November 4, which resulted in

Lewis’s prompt release that same day.”). As an initial matter, these concessions alone are

sufficient to survive a motion to dismiss with respect to plaintiff Lewis’s claims pertaining to the

length of her detention. E.g., Long v. Gaines, 167 F. Supp. 2d 75, 82 (D.D.C. 2001) (concluding

that plaintiffs “clearly state[d] a claim upon which relief may be granted” pursuant to 42 U.S.C.



                                                  8
§ 1983 where they “alleged that the [government] had failed to provide prompt determinations of

probable cause,” defining “promptly as a decision made within [forty-eight] hours”), vacated,

241 F. Supp. 2d 1, 1 (D.D.C. 2002) (vacating the Memorandum Opinion’s companion Order as

moot in light of the defendant’s adoption of a Consent Decree, but not disturbing the Court’s

prior findings of fact and law). Nevertheless, the defendant sets forth four arguments in support

of the dismissal of these claims with respect to plaintiff Lewis, all of which are unavailing.

       First, the District argues that Lewis was arrested on Saturday evening and “there are no

adult arraignments on Sundays in D.C. Superior Court.” Def.’s Mem. at 8. While it is true that

Riverside contemplated circumstances under which it would be permissible for a judicial

determination or bail hearing to take place outside of a forty-eight hour period, the justification

must rise to the level of a “bona fide emergency or other extraordinary circumstance.”

Riverside, 500 U.S. at 57. And Riverside made clear that intervening weekends and holidays do

not excuse a failure to observe Riverside’s requirements of promptness. Riverside, 500 U.S. at

57 (“intervening weekends” do “not qualify as an extraordinary circumstance”).

       Second, the District claims that Lewis’s detention was lawful pursuant to D.C. Code §

23-1322(a)(1)(A). Def.’s Mem. at 9–10. Specifically, the defendant reasons as follows: “the

government requested a hold under [s]ection 23-1322(a)(1)(A), given that Lewis’s latest offense

constituted a violation of her release in another matter for which she has not pled guilty,” that

portion of the D.C. Code “allows a detention of up to five days,” the Magistrate Judge scheduled

“a Gerstein perfection hearing” for the following day, and plaintiff Lewis was released at that

hearing. Id. The defendant therefore argues that “because the hold was lawful under [s]ection

23-1322(a)(1)(A), the claims fail.” Id. at 10. But a plain reading of section 23-1322

demonstrates the fallacies in that logic. That section requires a judicial officer to:



                                                  9
       order the detention of a person charged with an offense for a period of not more
       than [five] days . . . if the judicial officer determines that the person charged with
       an offense . . . [w]as at the time the offense was committed, on . . . [r]elease pending
       trial for a felony or misdemeanor under local, state, or federal law.

D.C. Code § 23-1322 (2013). It does not speak to the District’s obligation to obtain a prompt

judicial determination of probable cause. See id. And the District of Columbia Court of Appeals

has specifically explained that a “baseline probable cause determination” is required before a

judicial officer may consider pretrial detention according to the requirements set forth in section

23-1322. Tyler v. United States, 705 A.2d 270, 276–77 (D.C. 1997); see also United States v.

Edwards, 430 A.2d 1321, 1335–41 (D.C. 1981) (articulating the similarities and differences

between the procedural due process requirements of a Gerstein probable cause determination and

a pretrial detention hearing conducted pursuant to section 23-1322). Here, no finding of

probable cause was made as grounds for Lewis’s detention.

       Third, the District asserts that the probable cause hearings comported with Rule 5 of the

Superior Court Rules of Criminal Procedure, which “governs initial court proceedings following

an arrest in the District,” and therefore plaintiff Lewis’s detention was lawful. Def.’s Mem. at

11–13. Rule 5 does not specify how soon an arrestee must first appear before a judicial officer,

but does require the District to “take the arrested person without unnecessary delay before the

Court.” D.C. Super. Ct. R. Crim. P. 5(a) (2015). The Rule also notes that, where a judicial

officer “imposes any conditions of release which constitute a significant restraint on pretrial

liberty,” the prosecutor must file “by the end of the next working day a copy of a sworn

statement of fact offered to establish probable cause.” D.C. Super. Ct. R. Crim. P. 5(c)




                                                 10
(emphasis added). 7 The defendant suggests that this language permits it to continue detention

beyond the 48-hour window if it “submit[s] a Gerstein affidavit by the end of the next business

day.” Def.’s Mem. at 12. But contrary to the District’s assertions, the plain meaning of the

phrase, “conditions of release,” unmistakably indicates that the arrestee must in fact be released

for this provision to apply. See Release, Black’s Law Dictionary (10th ed. 2014) (defining

release, in part, as “[t]he action of freeing or the fact of being freed from restraint or

confinement”). Nowhere in this Rule is it suggested that a judicial officer may delay a finding of

probable cause for an individual who remains detained beyond what is considered “prompt”

under Riverside. Cf. In re S.J., 686 A.2d 1024, 1026 (D.C. 1996) (finding invalid the trial

court’s order of continued detention that it issued at the defendant’s initial appearance because

the trial court did not make any probable cause determination and continued the matter to permit

the government five additional days to obtain a witness for a probable cause hearing). And even

if the Court could accept the District’s interpretation of the Rule, compliance with local

procedural rules does not trump an arrestee’s constitutionally protected right to a prompt

probable cause determination. Riverside, 500 U.S. at 58 (“The record indicates . . . that the




7
 The Superior Court amended its Rules of Criminal Procedure, effective April 1, 2016. See Court Order 1405 at 1
(D.C. Super. Ct. Apr. 1, 2016). Rule 5 was redrafted “to conform to the general restyling of the federal rules in
2002.” Id. at 11. As noted in the Comment to the amendments to this local Rule, Paragraph (e) of the new Rule,
“which contains the provisions of former paragraph (c), . . . sets forth the procedures for a probable cause
determination that must be made whenever the court imposes significant restraints on the pretrial liberty of a person
arrested without a warrant.” Id. at 12. In pertinent part, that Rule now reads:

         If a defendant is arrested without a warrant, and the court imposes upon the defendant any conditions
         of release which constitute a significant restraint on pretrial liberty, the court must, unless the
         defendant waives an initial probable cause determination, require the prosecutor to file with the
         clerk by the end of the next working day a copy of a sworn statement of fact offered to establish
         probable cause.

Id. at 11 (Rule 5(e)(1)). Thus, no substantive changes to the Rule have occurred, and the Court’s analysis would be
the same under either version of the Rule.

                                                         11
County’s current policy and practice do not comport fully with the principles” of the Fourth

Amendment.).

        Finally, the District contends that even if plaintiff Lewis’s detention amounted to a

constitutional deprivation, her first three claims must be dismissed because she has failed to

allege a custom, policy, or practice on the part of the District that caused the purported

violations. Def.’s Mem. at 21–22. But the Magistrate Judge presiding over Lewis’s initial

hearing indicated to the contrary. In denying the request of defense counsel that Lewis be

released while the government sought to “perfect” its Gerstein affidavit, the Magistrate Judge

responded: “If [the District] ask[s] for the [twenty-four] hours, they get it . . . . I’ve read the

statute, been here five years, been trained and . . . [t]he bottom line is they get the [twenty-four]

hours.” Def.’s Mem., Ex. G (Lewis Transcript) at 3–4. “[E]ven a single decision by [municipal

policymakers] unquestionably constitutes an act of official government policy.” Pembaur v. City

of Cincinnati, 475 U.S. 469, 480 (1986). While it is unclear what particular statute or training

the Magistrate Judge was referencing during the hearing, the Court must afford the plaintiff “the

benefit of all inferences that can be derived from the facts alleged,” Kowal, 16 F.3d at 1276, and

thus, finds plaintiff Lewis’s allegations sufficient to survive the defendant’s motion to dismiss,

cf. Barnes v. District of Columbia, 793 F. Supp. 2d 260, 282 (D.D.C. 2011) (“Overdetentions

caused by the District’s ordinance are clearly constitutional violations executed in accordance

with District policy officially adopted and promulgated by the Council.”). The defendant having

failed to present any persuasive arguments to find otherwise, the Court must deny the

defendant’s motion with respect to plaintiff Lewis’s first three claims.




                                                   12
   B. The Plaintiffs’ Fifth Amendment Claim (Claim IV)

       The Amended Complaint asserts that the District violated the Fifth Amendment “by

denying a bail hearing to arrestees like [the plaintiffs] who contest probable cause after a judicial

officer has made a finding of no probable cause[,] but granting a bail hearing to arrestees who

concede probable cause after a judicial officer has made a finding of no probable [cause].” Am.

Compl. ¶ 82. The District has moved to dismiss this claim, contending that it fails to establish a

violation of the Due Process Clause of the Fifth Amendment because the circumstances of the

plaintiffs’ detentions do not amount to punishment, Def.’s Mem. at 17–18 (citing Bell v.

Wolfish, 441 U.S. 520, 538–39 (1979)), and fails to state a violation of the Equal Protection

Clause because they have not alleged that “the decision-makers in their particular cases were

motivated by a discriminatory purpose,” id. at 19 (citing McCleskey v. Kemp, 481 U.S. 279, 292

(1987)).

       The plaintiffs’ opposition fails to address any of the District’s arguments with respect to

their Fifth Amendment claim. Accordingly, the Court will treat the District’s arguments as

conceded and dismiss this claim. See Lewis v. District of Columbia, No. 10–5275, 2011 WL

321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam) (“It is well understood in this Circuit that

when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments

raised by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.” (citation omitted)).

   C. The Plaintiffs’ Claims Pertaining to Blanket Strip Searches (Claim V)

       The plaintiffs’ final claim alleges that the defendant violated their Fourth and Fifth

Amendment rights “by subjecting them to blanket strip[ ]searches at the [District of Columbia]

Jail after presentment.” Am. Compl. ¶ 84. Historically, the Supreme Court has recognized



                                                 13
“[t]he difficulties of operating a detention center” and explained that “a regulation impinging on

an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate

penological interests.’” Florence v. Bd. of Chosen Freeholders, __ U.S. __, __, 132 S. Ct. 1510,

1515 (2012) (quoting Turner v. Safley, 482 U.S. 78, 84–85 (1987)). In its seminal case on

Fourth Amendment challenges to strip search detention policies, the Court acknowledged that:

       A detention facility is a unique place fraught with serious security dangers.
       Smuggling of money, drugs, weapons, and other contraband is all too common an
       occurrence. And inmate attempts to secrete these items into the facility by
       concealing them in body cavities are documented in this record . . . and in other
       cases.

Bell, 441 U.S. at 559. The Court went on to articulate the framework for analyzing such

challenges as follows:

       The test of reasonableness under the Fourth Amendment is not capable of precise
       definition or mechanical application. In each case it requires a balancing of the
       need for the particular search against the invasion of personal rights that the search
       entails. Courts must consider the scope of the particular intrusion, the manner in
       which it is conducted, the justification for initiating it, and the place in which it is
       conducted.

Id. Subsequently, in Florence, the Supreme Court ruled that “security imperatives involved in

jail supervision override the assertion that some detainees must be exempt from the more

invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other

contraband.” __ U.S. at __, 132 S. Ct. at 1518. Thus, “every detainee who will be admitted to

the general population [of a jail] may be required to undergo a close visual inspection while

undressed.” Id. at __, 132 S. Ct. at 1513.

       The Justices who composed the majority in Florence did not agree with all aspects of the

majority opinion: Justice Kennedy delivered the opinion of the Court with Justices Roberts,

Scalia, and Alito joining in full, and Justice Thomas joining the opinion except with respect to

Part IV. Id. at __, 132 S. Ct. at 1510. Part IV limited Florence’s holding, explaining that there


                                                 14
may be circumstances in which such search policies could be unreasonable. Id. at __, 132 S. Ct.

at 1522–23. Part IV noted that the facts of Florence did not require the Court to consider

situations where, for example: “a detainee will be held without assignment to the general jail

population and without substantial contact with other detainees”; “an arrestee[’s] detention has

not yet been reviewed by a magistrate or other judicial officer, and [the arrestee] can be held in

available facilities removed from the general population”; “officers engag[e] in intentional

humiliation and other abusive practices”; and “searches . . . involve the touching of detainees.”

Id. Justices Roberts and Alito each issued concurrences indicating that their decisions were

predicated on the inclusion of Part IV, id. at __, 132 S. Ct. at 1523 (Roberts, J., concurring) (“[I]t

is important for me that the Court does not foreclose the possibility of an exception to the rule it

announces. Justice KENNEDY explains that the circumstances before it do not afford an

opportunity to consider that possibility.” (citing id. at __, 132 S. Ct. at 1522–1523 (Part IV))); id.

at __, 132 S. Ct. at 1525 (Alito, J., concurring) (“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.” (citing id. at __, 132 S. Ct. at 1522–23 (Part IV))). Particularly pertinent to the

present case, Justice Alito elaborated on Part IV, explaining that

       the Court does not hold that it is always reasonable to conduct a full strip search of
       an arrestee whose detention has not been reviewed by a judicial officer and who
       could be held in available facilities apart from the general population. Most of
       those arrested for minor offenses are not dangerous, and most are released from
       custody prior to or at the time of their initial appearance before a magistrate. In
       some cases, the charges are dropped. In others, arrestees are released either on their
       own recognizance or on minimal bail. In the end, few are sentenced to
       incarceration. For these persons, admission to the general jail population, with the
       concomitant humiliation of a strip search, may not be reasonable, particularly if an
       alternative procedure is feasible.

                                                 15
Id. at __, 132 S. Ct. at 1524 (Alito, J., concurring). Justice Breyer issued a dissent in Florence,

joined by Justices Ginsburg, Sotomayor, and Kagan, wherein he reasoned that:

         a search of an individual arrested for a minor offense that does not involve drugs or
         violence—say a traffic offense, a regulatory offense, an essentially civil matter, or
         any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the
         Fourth Amendment, unless prison authorities have reasonable suspicion to believe
         that the individual possesses drugs or other contraband.

Id. at __, 132 S. Ct. at 1525 (Breyer, J., dissenting).

         One member of this Circuit has afforded particular weight to the exceptions articulated in

Florence, remarking that “six Justices of the Supreme Court have expressed unease with the type

of indiscriminate strip searching . . . that is challenged here.” Johnson v. District of Columbia,

734 F.3d 1194, 1206 (D.C. Cir. 2013) (Rogers, J., concurring in part and concurring in the

judgment) (challenge to District of Columbia Superior Court cellblock’s policy of subjecting “all

incoming detainees” to strip search, including “pre-presentment arrestees charged with

nonviolent, non-drug offenses”). In the present case, the plaintiffs allege that “the judicial

officer had made a finding of no probable cause,[8] and there were other readily available

facilities removed from the general population of the DC Jail in which [the plaintiffs] could have

been held.” Pls.’ Opp’n at 21. Accordingly, the plaintiffs’ allegations fall squarely within

circumstances not resolved by the Supreme Court in Florence. Florence, __ U.S. at __, 132 S.

Ct. at 1523; see also id. at __, 132 S. Ct. at 1523 (Roberts, C.J., concurring); id. at __, 132 S. Ct.

at 1524 (Alito, J., concurring).




8
  As explained, supra, the Court questions this characterization of the judicial officer’s rulings, as the transcripts of
the plaintiffs’ detention hearings indicate that the Magistrate Judges merely deferred any ruling on the existence of
probable cause. Regardless, it is apparent from the transcripts that no affirmative findings of probable cause were
made during the plaintiffs’ initial appearances. See Def.’s Mem., Ex. H (Hill Transcript); Def.’s Mem., Ex. G
(Lewis Transcript).

                                                            16
       The Third Circuit has also relied on Part IV of Florence to distinguish circumstances

where the challenged strip search involves physical contact with the detainee. See Chavarriaga

v. New Jersey Dep’t of Corr., 806 F.3d 210, 231 (3d Cir. 2015). As that Circuit explained,

       the strip searches in Florence involved only the visual inspection of detainees’ body
       cavities, and there “[we]re no allegations that the detainees . . . were touched in any
       way as part of the searches.” Indeed, in response to an amici’s “concerns about
       instances of officers engaging in intentional humiliation and other abusive
       practices,” the Court recognized that there may “be legitimate concerns about the
       invasiveness of searches that involve the touching of detainees.” Thus, Florence
       does not govern here.

Id. (quoting Florence, __ U.S. at __, 132 S. Ct. at 1515, 1523 (Part IV)); see also Florence, __

U.S. at __, 132 S. Ct. at 1514 (“Apparently without touching the detainees, an officer looked at

their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.”); id.

at __, 132 S. Ct. at 1515 (“There are no allegations that the detainees here were touched in any

way as part of the searches.”). And here, the plaintiffs allege that after a detainee “takes all his

clothes off” during the strip search, “[t]he guards rifle the hair, pull the ears back, and then open

the mouth wide and lift the corners with their hands so that the guard can see left or right in the

mouth.” Am. Compl. ¶¶ 37–38.

       For these reasons, the Court disagrees with the District’s contentions that Florence

requires dismissal of the plaintiff’s allegations. Indeed, Bell instructs the Court to avoid

“mechanical application” of Fourth Amendment challenges to detainee strip searches, and

requires a “balancing” of the parties’ respective interests “[i]n each case.” 441 U.S. at 559.

Thus, the plaintiffs should at least be afforded an opportunity to engage in factual discovery in

order to demonstrate that the District’s specific “response to the situation is exaggerated.” See

Florence, __ U.S. at __, 132 S. Ct. at 1518. This comports with the jurisprudence of this Court;

as Judge Royce Lamberth has observed, “courts have declined to dismiss claims based on

blanket strip search policies, whether or not the detention is justified.” Barnes v. District of
                                                  17
Columbia, 242 F.R.D. 113, 119 (D.D.C. 2007) (citations omitted) (denying motion filed pursuant

to Rule 12(b)(6)).

                                               IV.      CONCLUSION

           For the foregoing reasons, the Court concludes that it must grant in part and deny in part

the defendant’s motion to dismiss. Accordingly, claims I, II, and III of the Complaint are

dismissed with respect to plaintiff Hill, but not with respect to plaintiff Lewis. Claim IV is

dismissed with respect to both plaintiffs, and claim V survives the defendant’s motion with

respect to both plaintiffs. 9

           SO ORDERED this 27th day of June, 2016. 10


                                                                             REGGIE B. WALTON
                                                                             United States District Judge




9
  The Amended Complaint also asserts a number of class allegations based upon the claims of plaintiffs Hill and
Lewis. See Am. Compl. ¶¶ 87–103. On June 10, 2015, the Court issued a Minute Order granting the plaintiffs’
consent motion to stay the deadline for filing a motion for class certification, as required by the Court’s Local Rules
of Civil Procedure. See LCvR 23.1(b) (“Within [ninety] days after the filing of a complaint in a case sought to be
maintained as a class action, . . . the plaintiff shall move for a certification under Rule 23(c)(1) . . . .”). Specifically,
the deadline for the plaintiff to seek class action treatment has been “STAYED until the date of the Rule 16
scheduling conference, or the date on which a Rule 16 scheduling order is due, whichever is first.” Minute Order
(June 10, 2015). Accordingly, the Court will defer a ruling on these class allegations until such time as the parties
have an opportunity to brief a motion to certify or to strike these class allegations.
10
     An Order consistent with this Memorandum Opinion shall be issued contemporaneously.

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