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Bickel v. Sheriff of Whitley County

United States District Court, N.D. Indiana, Fort Wayne Division

March 26, 2015

LAWRENCE M. BICKEL, on behalf of himself and others similarly situated, Plaintiff,
SHERIFF OF WHITLEY COUNTY (in his official capacity), Defendant.



Having conducted a fairness hearing in this class action, the Court now provisionally approves the settlement agreement, subject to supplementation of the record as set forth herein. This Opinion and Order will give the parties an opportunity to supplement the record or correct any misstatements by the Court or parties when filing a motion for final approval.


The Plaintiff, Lawrence M. Bickel, on behalf of himself and others similarly situated, sued the Sheriff of Whitley County in his official capacity pursuant to 42 U.S.C. § 1983. The Plaintiff alleged that the Sheriff engaged in a practice, procedure, or custom related to confinement at the Whitley County Jail that deprived him and others of their Fourth Amendment right to a probable cause determination within forty-eight hours of being arrested and detained without a warrant, based on the holdings in Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (holding that the Fourth Amendment affords persons who are arrested without a warrant the right to a prompt judicial determination of probable cause "as a prerequisite to extended restraint of liberty following arrest") and County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (holding that a "jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest, will, as a general matter, comply with the promptness requirement of Gerstein ").

On March 26, 2010, the Court granted the partial summary judgment in favor of the Plaintiff, determining that the Defendant's policy violated the Fourth Amendment as a matter of law. Additionally, the Court certified a Rule 23(b)(3) class, defined as all persons who were arrested without a warrant from March 30, 2006, to present, and detained in the Whitley County Jail for more than forty-eight hours from the time of their arrest without a judicial determination that probable cause existed to continue to detain them. The Court determined that the class could seek damages for unconstitutional detentions in the Whitley County Jail that resulted from a confinement policy of the Sheriff, particularly, his policy of detaining (and not releasing or seeking and obtaining approval to release) persons arrested without a warrant when no judicial officer found probable cause to continue to detain them beyond the presumptively reasonable forty-eight-hour period announced by the Supreme Court in County of Riverside v. McLaughlin .

In October 2014, the Named Plaintiff, Lawrence Bickel, on behalf of himself and the Settlement Class, and the Defendant, Whitley County Sheriff, entered into a Class Action Release and Settlement Agreement. The Settlement requires the Defendant to pay $725, 000 into a settlement fund to cover administration and notice costs, attorneys' fees and costs, the Named Plaintiff's incentive award, and claims payments. The Defendant was credited $3, 335.85 for a previous payment of costs of publication of the class notice, leaving a total of $721, 664.15 to be paid by Defendant into the settlement fund. After a reduction of costs for sending the mailed notice and administering the fund, an incentive award not to exceed $10, 000, and for attorneys' fees of about $317, 000 plus costs, the settlement funds would be distributed to the Settlement Class Members, defined as

All individuals arrested without a warrant from March 30, 2006 through December 31, 2009, and who were booked and/or placed into the Whitley County Jail, and who were not brought before a judicial officer within forty-eight (48) hours after their arrest for a judicial probable cause hearing, and who were detained by the Whitley County Sheriff in excess of forty-eight (48) hours after their arrest.

(Settlement Agr. ¶ 9.a, ECF No. 191-2.) One person opted out of the class. The Settlement Class is divided into two groups: (I) Bickel and other class members for loss of liberty, and; (II) the seven individuals who submitted a claim form for emotional distress, mental anguish, loss of employment or wages, or other special damages. The anticipated recovery for the members of Settlement Class I is about $43.00 per hour of over detention. The members of Settlement Class II will have an opportunity to identify and substantiate injuries and damages to a special master.

The Court preliminarily approved the Settlement on November 3, 2014. The Court confirmed Christopher C. Myers and Ilene M. Smith as Class Counsel for the Class Representative and the Class. The Court approved Homefront Legal Services, LLC, 11805 North Pennsylvania Street, Carmel, Indiana, as the Claims Administrator.

The Court conducted a Fairness Hearing on Wednesday, March 18, 2015, to consider: (i) the fairness, reasonableness, and adequacy of the settlement; (ii) whether the Final Order of Approval of Settlement, attached as Exhibit E to the Settlement Agreement, shall be entered in its current or some modified form; and (iii) the application of Class Counsel for attorney's fees and costs (the Fee Petition).


A. Notice

Rule 23 requires that the Class Members receive "the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed.R.Civ.P. 23(c)(2)(B). Reasonable notice is required to all class members who would be bound by a proposed settlement. Fed.R.Civ.P. 23(e)(1).[1] The Federal Judicial Center's checklist on class notice instructs that class notice should strive to reach between 70% and 95% of the class. See Federal Judicial Center, Judges Class Action Notice and Claims Process Checklist & Plain Language Guide 3 (2010) ("It is reasonable to reach between 70-95%. A study of recent published decisions showed that the median reach calculation on approved notice plans was 87%.").

The Class contains 243 individuals. A Class and Settlement Notice was mailed to the last known address of each individual, as listed in the Whitley County arrest records. Prior to mailing, the Claims Administrator attempted to find updated addresses and to verify the accuracy of the addresses of all potential Settlement Class members. If, as a result of the mailing, the Postal Service provided a forwarding address, but the Mailed Notice was not forwarded by the Postal Service, the Claims Administrator re-mailed the Mailed Notice to the forwarding address. If the Mailed Notice was returned as undeliverable a second ...

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