1. Why Did I Receive the Notice Package?
2. What is this Class Action Lawsuit About?
3. Why Is There a Settlement?
4. How Do I Know If I Am Part of the Settlement?
5. I Am Still Not Sure If I Am Included.
6. What Does the Settlement Provide?
7. How Much Will My Payment Be?
8. How Can I Obtain A Payment?
9. When Will I Receive My Payment?
10. What Do I Release Under the Settlement?
11. Do I Have A Lawyer In This Case?
12. How Will The Lawyers Be Paid?
13. How Do I Tell the Court That I Do Not Like The Settlement?
14. When And Where Will the Court Decide Whether To Approve The Settlement?
15. Do I Have To Come to The Hearing?
16. What Happens If I Do Nothing At All?
17. How do I get more information about the Settlement?
You received the Class Notice because you have been identified as someone who visited Richard J. Donovan Correctional Facility (RJD) between May 5, 2018, and November 3, 2022, and may have been subjected to an unclothed body search as a condition to visit an inmate.
The Notice was sent because you have a right to know about a proposed settlement of a class action lawsuit, and about all of your options before the Court decides whether to approve the Settlement. If the Court approves the Settlement, after any objections or appeals are resolved, the Settlement Administrator, appointed by the Court, will make the payments to those persons who timely submit claims in the manner described below.
The Class Notice explains the lawsuit, the Settlement, and your legal rights. It is important that you read the Class Notice carefully as your rights may be affected by the Settlement.
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The Court in charge of the case is the United States District Court for the Southern District of California, United States District Judge Jeffrey T. Miller presiding, and the case is known as Fitzgerald v. Pollard, et al., Case no. 3:20-cv-00848-JM-(MSB) (S.D. Cal.) (the “Litigation”). Rhonda Fitzgerald is the Plaintiff or Class Representative, and the Defendants are Warden Marcus Pollard, Lieutenant C. Moore, Sergeant H. Cruz, Officer A. Jackson, and Officer C. Mann-Little (the “Defendants”). The Class Representative and the Defendants are referred to as the “Settling Parties.”
Plaintiff alleges that Defendants implemented an unconstitutional policy of conducting unclothed searches without reasonable suspicion as a condition for members of the public to visit inmates at the RJD. Specifically, Plaintiff alleges that these unclothed searches absent reasonable suspicion were violative of Plaintiff’s and other class members’ constitutional rights to be free from unreasonable searches and seizures, as protected by the Fourth Amendment to the United States Constitution.
Defendants deny all these allegations, deny that they violated any class member’s constitutional rights, and deny that they engaged in any wrongdoing.
The Court granted preliminary approval of the Settlement on July 1, 2024. At that time, the Court also preliminarily approved the Plaintiff to serve as the Class Representative, and the Law Firm of the Skapik Law Group, to serve as Class Counsel.
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The Court did not decide in favor of the Plaintiffs or Defendants. Instead, both sides agreed to a Settlement under the terms set forth in the Settlement Agreement. The Settlement will avoid the cost, delay, and uncertainty of a trial, and permits eligible Class Members who submit valid claims to receive some compensation sooner, rather than engaging in years of further litigation – including a trial, appeals, with the possibility of no recovery at all.
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To see if you will receive money from this Settlement, you first must determine if you are a possible Class Member.
To be a member of the Class, you must have been subject to an unclothed body search as a condition to visiting an inmate and were so searched at Richard J. Donovan Correctional Facility (RJD) between May 5, 2018, and November 3, 2022, both dates inclusive. An unclothed search does not mean you had to remove all your clothing. If you were required to remove all your clothing, or remove an article of clothing, or pull down your pants or pull up your top so that your body could be inspected, you will be considered a member of the Class.
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If you are still not sure whether you are included, fill out and return the Proof of Claim and Release Form identified in question 8, to see if you qualify.
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Defendants have agreed to pay Three Million, Five Hundred Thousand Dollars ($3,500,000.00) (the “Settlement Fund”) to fund the settlement of this Action. The Settlement is subject to the Court’s approval. The Settlement Fund includes all payments of Individual Settlement Payments to Class Members contemplated by the Settlement, the Settlement Administration Expenses, Payment of Class Counsel Attorney Fees and Litigation Expenses, and the Class Representative Service Payments.
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The general objective of the Plan of Allocation of Settlement Funds is to equitably distribute the Net Settlement Fund among Authorized Claimants based on their respective alleged damages as a result of the alleged misconduct. The Settlement Administrator shall determine each Authorized Claimant’s share of the Net Settlement Fund based upon each Claimant’s Proof of Claim Form and the Damages Computation described below. Damages will be calculated for each unclothed search without reasonable suspicion that a Claimant was subjected to at RJD as a condition to see an inmate during the Class Period.
The calculation of damages will depend upon several factors, including the number of searches conducted on a Claimant without reasonable suspicion and the level of intrusiveness of those searches. The damages awarded are not intended to estimate the amount a Class Member might have been able to recover after a trial, though Class Counsel’s determinations of litigation risk may inform the calculation of damages in order to achieve an equitable distribution of the Net Settlement Fund. The Settlement Administrator will use its best efforts to administer and distribute the Net Settlement Fund to the extent that it is equitably and economically feasible.
For each unclothed search as a condition precedent to seeing an inmate at RJD during the Class Period (i.e., between May 5, 2018, and November 3, 2022), the Claimant will receive damages based upon the intrusiveness of the search and the number of searches. The Proof of Claim and Release Form, which accompanies to this document, contains a section where the Claimant can submit the information necessary to calculate the Claimants damages. Please refer to Section “C” of the Proof of Claim and Release Form for instructions on how to calculate a Claimant’s damages.
Your share of the Net Settlement Common Fund will depend on (i) the number of valid claim forms submitted by Class Members, (ii) the number of unclothed searches you were subjected to between May 5, 2018, and November 3, 2022, and the intrusiveness of the unclothed search(es); (iii) the amount of administrative costs, including the cost of notice; (iv) the amount awarded by the Court to the Class Representative for her participation in this litigation; (v) and the amount awarded to Class Counsel for attorneys’ fees, costs, and expenses.
Amounts to be Paid from the Settlement Common Fund. The Settlement provides for certain payments to be made from the Settlement Fund as follows, which will be subject to final Court approval, and which will be deducted from the Settlement Fund before Individual Settlement Payments are made to Class Members who do not request exclusion (“Settlement Members”):
Settlement Administration Expenses. Payment to the Settlement Administrator, estimated not to exceed $30,000, for expenses, including, without limitation, expenses of notifying the Class Members of the Settlement, processing opt outs, and distributing Individual Settlement Payments, and handling inquiries and uncashed checks.
Class Counsel Fees Payment and Class Counsel Litigation Expenses Payment. Payment to Skapik Law Group of reasonable attorneys’ fees not to exceed $1,400,000.00 and the additional amount to reimburse actual litigation costs incurred not to exceed $55,000.00. Class Counsel has been prosecuting the Action on behalf of Plaintiff and the Class on a contingency fee basis (that is, without being paid any money) and has been paying all litigation costs and expenses.
Class Representative Service Payments. Class Representative Service Payments in an amount not to exceed $25,000.00 to the Plaintiff, or such lesser amount as may be approved by the Court, to compensate her for services on behalf of the Class in initiating and prosecuting the Action, and for the risks she undertook.
Calculation of Payments to Class Members. After all of the payments of the Court-Approved attorneys’ fees and costs, the Class Representative Service Payments, and the Settlement Administration Expenses are deducted from the Settlement Amount, the remaining portion, called the “Net Settlement Amount,” shall be distributed to Settlement Members as Individual Settlement Payments. The combined Net Settlement Amount is estimated to be at least $1,990,000.00, based upon the above proposed deductions.
The Settlement Administrator will pay an Individual Settlement Payment from the Net Settlement Amount to each Settlement Member. The Individual Settlement Payment will be based upon the intrusiveness of the search, as well as the number of searches a visitor was subjected to. The Damages Allocation will be calculated as follows:
A point system will be established for each search. There are three search categories.
Group 1 Class Members are identified as those who were escorted to a room by the visiting officers and asked to remove all their clothing where the class member was completely naked so that their body could be inspected by the visiting officers before being allowed to visit an inmate. Group 1 Class Members will be awarded 5 points for each search.
Group 2 Class Members are identified as those who were escorted to a room by the visiting officers and asked to completely remove either their pants, including their underwear, or their blouse or top, including their bra, exposing their breast or the lower part of their body, so that their body could be inspected by the visiting officers before being allowed to visit an inmate. Group 2 Class Members will be awarded 3 points for each search.
Group 3 Class Members are identified as those who were escorted to a room by the visiting officers and asked to move an article of clothing so that the visiting officer could inspect that area of their body. For example, where the class member was asked to pull down their pants or move their top so that a surgery scar or something else at that body location, could be viewed before being allowed to visit an inmate. Group 3 Class Members will be awarded 1 point for each search.
After all Class Members have sent in their Proof of Claim and Release Forms, the total number of points will be calculated, and a point value will be determined. It is estimated at this time that one point will equate to approximately $700.00. Therefore, the range for each search depending upon the group category can range between approximately $700.00 to approximately $3,500.00 per search. The point amount will vary depending on the number of valid claim forms received.
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To qualify for a payment, you must be an eligible Class Member, send in a valid Proof of Claim and Release Form by October 21, 2024 and properly document your claim as requested in the form. The Settlement Administrator will process your claim and determine whether you are an Authorized Claimant.
A Proof of Claim and Release Form was enclosed with the Notice. Read the instructions carefully, fill out the form, sign it in the location indicated, include all of the documentation requested in the form, and mail or submit it online so that it is postmarked or received no later October 21, 2024. The claim form may be submitted online here or mailed to: Fitzgerald v. Pollard, c/o Settlement Administrator, P.O. Box 25226, Santa Ana, CA 92799.
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The Court will hold a hearing on October 7, 2024 at 10:00 a.m. to decide whether to approve the Settlement. If the Court approves the Settlement, there might be an appeal afterwards. It is always uncertain whether there will be an appeal and when any appeal will be resolved, and resolving an appeal can take time, perhaps more than a year. It also takes at least 30 days for the Settlement Administrator to process all of the Proof of Claim and Release Forms and determine the ultimate distribution amounts. Please be patient.
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As a Class Member and will be giving up certain rights that you currently have if the Court approves the Settlement. That means that if the Settlement is approved, you and all Class Members will release (agreeing never to sue or be part of any other proceeding) all claims against each and all of the CDCR Defendants, and its respective predecessors, successors, assigns, parents, subsidiaries, divisions, affiliates, departments, related or affiliated entities and agencies, whether named or unnamed and whether served or unserved, and any and all of their past and present employees, executives, officers, directors, agents, representatives, and attorneys. The term “Released Parties” or “Released Persons” expressly includes, but is not limited to, the State of California and its departments, divisions and agencies and the named Defendants, C. Moore, M. Pollard, A. Jackson, C. Mann-Little, and H. Cruz.), (the “Released Parties” or Released Persons”) arising out of or based upon unclothed searches without reasonable suspicion conducted upon you during the Class Period; the allegations that were made or could have been made in the Litigation; and any of the facts, transactions, events, occurrences, disclosures, statements, acts, omissions or failures to act which were or that could have been asserted by Claimant or any Class Member in their individual or representative capacity in the Litigation, except that you do not release the Defendants or Released Persons from any claim or action to enforce the Settlement. “CDCR” means California Department of Corrections and Rehabilitation. “Defendants” means the individual Defendants C. Moore, M. Pollard, A. Jackson, C. Mann-Little, and H. Cruz.
It also means that as a class member all of the Court’s orders will apply to you and legally bind you. If you sign the claim form, you are agreeing to its “Release of Claims,” which will bar you from ever filing a lawsuit against any of the Released Persons to recover damages caused by any unclothed search(es) conducted on you at RJD without reasonable suspicion during the Class Period, except to enforce the settlement. That means you will accept your share in the Net Settlement Fund as sole compensation for any damages you may have suffered in connection with unclothed search(es) conducted on you during the Class Period.
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The Court has appointed the Law Firm of Skapik Law Group to represent you and other Class Members. These lawyers are called Lead Counsel or Class Counsel. You will not be charged for the services of these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
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Class Counsel has not been paid any attorneys’ fees to date. Class Counsel has expended considerable time litigating this Case on a contingent-fee basis and has paid for all of the expenses of the litigation themselves. Class Counsel has done so with the expectation that if they are successful in recovering money for the Class, they will receive attorneys’ fees and be reimbursed for their litigation expenses from the Settlement Fund, as is customary in this type of litigation. Class Counsel will not receive attorneys’ fees or be reimbursed for their litigation expenses except from the Settlement Fund.
Therefore, Class Counsel will file a motion asking the Court for an award of up to $1,400,000.00 in attorneys’ fees, up to $55,000.00 for reimbursement of reasonable litigation costs and expenses. That motion will argue that the requested fees and expenses are well within the range awarded to class counsel under similar circumstances in other cases of this type. The Court may award less than these amounts. Any amounts awarded by the Court will come out of the Settlement Fund. Class Members are not personally liable for any such fees or expenses.
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If you are a Class Member and do not agree with the proposed Settlement, any part of the Settlement, the proposed Plan of Allocation, and/or the request for attorneys’ fees and expenses or the service award for the Class Representatives, you can ask the Court to deny approval by filing an objection. You can’t ask the Court to order a larger settlement; the Court can only approve or deny the settlement. If the Court denies approval, no settlement payment will be sent out and the lawsuit will continue.
To object, you must send a letter saying you object to the Settlement in Fitzgerald v. Pollard, et al., Case No. 3:20-cv-00848-JM-MSB. Be sure to include (A) your name, address, telephone number, signature, and email address (if any); (B) the date of each unclothed search without reasonable suspicion as a condition to see an inmate at RJD that you were subjected to between May 5, 2018 and November 3, 2022; and (C) a description of the specific part of the Settlement to which you object and all grounds for your objection, including any evidence you wish to bring to the Court’s attention and any legal support known to you or your counsel.
If you object to the Settlement or the requested attorneys’ fees or the service award for the Class Representative, you subject yourself to the jurisdiction of the Court in this matter and Plaintiff may seek to take your deposition before the Settlement Hearing. If the Court allows the deposition and you refuse to have your deposition taken, your objection may be deemed invalid.
The motions in support of the Settlement and the request for attorneys’ fees will be filed no later than August 19, 2024, and they will be available from Lead Counsel, the Settlement Administrator, or the Court. Any objection must be mailed or delivered such that it is received by each of the following no later than October 21, 2024:
COURT | CLASS COUNSEL | DEFENDANTS’ COUNSEL |
Hon. Jeffrey T. Miller | Geralyn L. Skapik | Damon McClain |
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The Court will hold a hearing to decide whether to approve the Settlement. You may attend and you may ask to speak, but you do not have to.
The Court will hold a Final Approval Hearing at 10:00 a.m. on October 7, 2024 at the United States District Court for the Southern District of California in Courtroom 15B, 15th Floor, San Diego Courthouse, 333 West Broadway, San Diego, CA 92101.
At this hearing, the Court will consider whether the proposed Settlement is fair, reasonable, and adequate and should be approved. The purpose of this hearing is for the Court to determine whether to grant final approval to the Settlement. If there are objections, the Court will consider them, and the Court will listen to people who have asked to speak at the hearing. The Court may also decide how much should be awarded to Class Counsel for attorneys’ fees and expenses and to the Class Representative for her efforts in litigating this action. The Court may decide these issues at the hearing or take them under consideration for a later decision.
We do not know how long these decisions will take. You should be aware that the Court may change the date and time of the Settlement Hearing without another notice being sent to Class Members. If you want to attend the hearing, you may wish to visit the Court’s website at https://www.casd.uscourts.gov/Judges/Judge-Info.aspx or check with Class Counsel beforehand to be sure the date and time has not changed.
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No. Lead Counsel will answer questions the Court may have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it, though you are welcome to do so. However, if you object and wish to appear at the hearing, you must provide notification that you wish to appear at the hearing in your written objection. You may also pay your own lawyer to attend, but it is not necessary. settlement.
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If you do nothing, all of your claims against Defendants and the Released Persons will be released, and you will not receive any money from this Settlement, because it is necessary to submit a Proof of Claim and Release Form to share in the Settlement Proceeds.
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You may call the Settlement Administrator at (844) 804-1915 or write to Fitzgerald v. Pollard, c/o Settlement Administrator, P.O. Box 25226, Santa Ana, CA 92799.
You may also contact Class Counsel. The contact information for Class Counsel is as follows:
Geralyn L. Skapik
Mark J. Skapik
SKAPIK LAW GROUP
5861 Pine Ave., Suite A-1
Chino Hills, CA 91709
Telephone: (909) 398-4404
You can also access the Court docket in this case through the Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov.
INSTRUCTIONS APPLICABLE TO ALL CLAIMANTS
The payment you receive will reflect your share of the Net Settlement Fund. Such payment will depend on the number of eligible Claimants that participate in the Settlement. The number of Claimants who send in claims varies widely from case to case.
Payment according to the Plan of Allocation will be deemed conclusive against all Authorized Claimants. The Settlement Administrator shall allocate to each Authorized Claimant a share of the Net Settlement Fund based on his, her damages as set forth on the Proof of Claim Form.
Class Members who do not submit acceptable Proofs of Claim will not share in the Settlement Proceeds. The Settlement and the Final Judgment and Order of Dismissal with Prejudice dismissing this Litigation will nevertheless bind Class Members who do not submit an acceptable Proof of Claim Form.
Please contact the Settlement Administrator or Class Counsel if you disagree with any determinations made by the Settlement Administrator regarding your Proof of Claim.
Defendants, their respective counsel, and all other Released Persons will have no responsibility whatsoever for the distribution of the Net Settlement Fund, the Plan of Allocation, or the payment of any claim. The Class Representative and Lead Counsel, likewise, will have no liability for their reasonable efforts to execute, administer, and distribute the Settlement.
Distributions will be made to Authorized Claimants after all claims have been processed and after the Court has finally approved the Settlement. After the initial distribution of the Net Settlement Fund, the Settlement Administrator shall make reasonable and diligent efforts to have Authorized Claimants cash their distribution checks. To the extent any monies remain in the fund nine (9) months after the initial distribution, the monies will be reallocated to the Authorized Claimants in a pro rata fashion to be calculated by the Claims Administrator.
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