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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMIRA SALEM and KESHUNA ABCUMBY, on behalf of themselves and a class of all others similarly situated,

CLASS ACTION

Plaintiffs,

Case No.

vs.

Hon.

MICHIGAN DEPARTMENT OF CORRECTIONS, DANIEL H. HEYNS, Director, Michigan Department of Corrections, THOMAS FINCO, Deputy Director of MDOC Correctional Facilities Administration, DENNIS STRAUB, former Deputy Director of MDOC Correctional Facilities Administration; RANDY TREACHER, Chief Deputy Director of MDOC Correctional Facilities Administration; MILLICENT WARREN, Warden, Huron Valley Correctional Facility, Jointly and severally,

Defendants. _____________________________________________________________________________/
Kenneth J. Hardin II (P44681) Hardin Thompson, P.C. Attorneys for Plaintiff 30555 Southfield Road, Suite 400 Southfield, MI 48076 (248) 593-1400 kenhardin@hardinlawpc.net
Teresa J. Gorman (P61001) Teresa J. Gorman, PLLC Attorney for Plaintiff 30555 Southfield Road, Suite 400 Southfield, MI 48076 (248) 223-9922 terigorman@aol.com
____________________________________________________________________________/

COMPLAINT AND JURY DEMAND

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INTRODUCTION 1. This proposed class action lawsuit seeks injunctive and declaratory relief and damages on behalf of women confined in the all-women Huron Valley Correctional Facility (“Huron Valley”) operated by the Michigan Department of Corrections (“MDOC”). During the last three years, over 1,900 women have been incarcerated in Huron Valley, MDOCs only female prison. 2. During their imprisonment, these women have been routinely and regularly subjected to Defendants’ conducting body cavity searches whereby female prisoners, in addition to standard strip search, were and are required to sit on an unsanitized chair and use their unsanitized hands to spread their genitals, allowing a guard to visually search their vagina for any hidden contraband (“spread-labia searches”). 3. Despite representations by MDOC and its officials that the practice would be discontinued in December 2011, the spread-labia searches have continued to date.
JURISDICTION AND VENUE 4. This is a civil action brought pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief together with monetary damages against Defendants for violations of Eighth and Fourteenth Amendments of the United States Constitution. 5. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 which authorizes Federal courts to decide cases concerning federal questions, and 28 U.S.C. § 1343(a)(3) and (4) which authorizes Federal courts to hear civil rights cases. This Court has personal jurisdiction over the Defendants named herein as public officials of the State of Michigan sued in their official and individual capacities for violations of Plaintiffs’ statutory and constitutional rights. The amount in controversy exceeds Seventy-Five Thousand ($75,000.00) Dollars. 6. Venue is proper in this court as Defendants conduct their business in the County
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of Washtenaw in the Eastern District of Michigan and the named Plaintiffs are or were incarcerated in the Eastern District of Michigan during the relevant time periods.
PARTIES A. PLAINTIFFS 7. Plaintiff representatives are citizens of the United States and at all relevant times were imprisoned in Huron Valley under the jurisdiction of the MDOC. Plaintiffs bring this action on behalf of themselves and a class of prisoners who are, were or will be confined in Huron Valley and who have been or will be subjected to sexual and physical assaults and abuse, sexual harassment, and degrading, sexually humiliating and unhygienic treatment from Huron Valley correctional officers and staff. B. DEFENDANTS 8. Defendant MDOC is a Department of the State of Michigan responsible for the care and custody of prisoners incarcerated in the State of Michigan. Defendant MDOC have the responsibility, authority and ability to remedy current and future conditions at Huron Valley that have given rise to the sexual harassment, degrading, sexually humiliating and unhygienic treatment, and deprivation of rights as set forth in this Complaint. 9. Defendant Daniel H. Heyns (“Heyns”) is the Director of the Michigan Department of Corrections. His duties and responsibilities include a responsibility for developing and implementing policies and procedures for the operation and management of the Michigan Department of Civil Rights and its employees. He is responsible for the care, custody and protection of prisoners under the jurisdiction of the Michigan Department of Corrections.
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10. Defendant Thomas Finco (“Finco”) is the Deputy Director of the MDOC’s Correctional Facilities Administration (“CFA”) and has served in that capacity since October 1, 2011. Defendant Finco’s duties and responsibilities include the operation of all correctional institutions in the MDOC system, including promulgating and administering MDOC’s policies.
11. Defendant Dennis Straub (“Straub”) was the Deputy Director of the CFA before October 1, 2011. His duties and responsibilities included the promulgation and administration of MDOC policies.
12. Defendant Randy Treacher (“Treacher”) is the Chief Deputy Director of the CFA. His duties and responsibilities include the supervision of Defendants Straub and Finco during their respective terms.
13. Defendant Millicent Warren was and is the Warden of Huron Valley. Her responsibilities and duties include the training, assignment, supervision, discipline and investigation of correctional officers and MDOC employees at Huron Valley. She is responsible for the unlawful treatment to which the Plaintiffs were subjected.
14. Defendant Warden Warren is also responsible for the custody, safety, protection, fair treatment and rehabilitation of the prisoners in Huron Valley and for ensuing that Huron Valley is operated according to proper correctional standards, statutes and/or laws to ensure the safety and protection of vulnerable populations, including Plaintiffs.
15. Defendant Warden Warren is also responsible for developing procedures and implementing policies to prevent the sexual abuse and degrading treatment of Huron Valley’s female prisoners and for ensuing an adequate and effective mechanism for the safe and effective reporting of sexual harassment and degrading, sexually humiliating and unhygienic treatment experienced by female prisoners housed at Huron Valley.
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CLASS ACTION ALLEGATIONS 16. This action is brought by the named Plaintiffs on behalf of female prisoners who, since October 2010, have been, are now, or will be hereafter incarcerated at Huron Valley under the jurisdiction of the Michigan Department of Corrections and who have been subjected to sexual harassment and degrading and unhygienic treatment by MDOC custodial staff. 17. The number of women who have been subjected to these violations of their rights while under the jurisdiction of the MDOC since 2010 exceeds 100 women. The number of class members is sufficiently numerous to make class action status the most practical method for Plaintiffs to challenge the policies, procedures and practices of Defendants that are a proximate cause of their ongoing abuse. 18. There are questions of law and fact raised by the named Plaintiffs’ claims common to, and typical of, those raised by the Class they seek to represent. 19. Questions of law or fact common to the Class, without limitation, include:
a. Defendants’ conducting body cavity searches on female prisoners whereby female prisoners, in addition to standard strip search, were required to sit on an unsanitized chair and use their unsanitized hands to spread their genitals, allowing a guard to visually search their vaginal and anal cavities for any hidden contraband.
b. Defendants’ conducting spread-labia vaginal searches on numerous female prisoners in full view of one another.
c. Defendants’ failure to properly supervise, train, monitor, discipline and/or regulate prison staff and failure to properly protect this vulnerable population resulting in sexual harassment and degrading and unhygienic treatment.
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d. Defendants’ ongoing failure to promulgate and implement proper policies and procedures to protect female prisoners and properly supervise, train, and discipline prison staff in violation of Plaintiffs’ constitutional, common law, and statutory rights.
20. The violations of law and resulting harms alleged by the named Plaintiffs are typical of the legal violations and harms suffered by all Class members.
21. Plaintiff Class members will fairly and adequately protect the interests of the Plaintiff class members. Plaintiffs’ counsel knows of no conflicts of interest between the class representatives and absent class members with respect to the matters at issue in this litigation; the class representatives will vigorously prosecute the suit on behalf of the Class; and the class representatives are represented by experienced counsel. Plaintiffs are represented by attorneys with substantial experience and expertise in complex and class action litigation involving the issues in this litigation. Plaintiffs’ attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class.
21. The maintenance of the action as a class action will be superior to other available methods of adjudication and will promote the convenient administration of justice. Moreover, the prosecution of separate actions by individual members of the Class could result in inconsistent or varying adjudications with respect to individual members of the Class and/or one or more of the Defendants.
22. Defendants have acted or failed to act on grounds generally applicable to all Plaintiffs, necessitating declaratory and injunctive relief for the Class.
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STATEMENT OF GENERAL FACTS 23. Since 2009, all female prisoners under the jurisdiction of the MDOC have been incarcerated at Huron Valley. 24. Pursuant to a MDOC strip search training video from 1998, standard strip searches included the removal of all clothing and requiring the female prisoner to go through a series of movements intended to reveal if anything is being concealed, including bending and coughing, as well as spreading the buttocks cheeks for visual inspection. 25. In addition to the standard strip search, additional spread-labia search was and is regularly performed whereby the female prisoner is required to sit naked on an unwashed and unsanitized chair wet with bodily fluids from other prisoners, with her legs spread, and use her own unwashed hands to spread her labia for guard inspection. 26. Female prisoners carrying communicable diseases such as HIV, AIDS, tuberculosis, hepatitis C, sexually transmitted diseases, and other vaginal infections have been forced to submit to spread-labia searches while on their menstrual cycles, leaving blood on the chair. 27. The spread-labia search was and is performed on female prisoners after they have contact visits, finish shifts in prison jobs, receive medical care, and at other arbitrary times dictated by MDOC officials. 28. On December 13, 2011, responding to complaints and grievances about the procedure from 2009 to 2011, Warden Warren issued a Notice to Staff directing that the “procedure of requiring the prisoner to sit in a chair lined with sanitary paper and manually spreading the labia as to inspect the entrance of the vagina is no longer authorized as of 0600 hours on Friday, December 16, 2011.” 29. On April 12, 2012, the Americans Civil Liberties Union transmitted a letter to
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MDOC demanding for a “decisive end” to the spread-labia search practice. The letter was also signed by 34 human rights, health, legal and religious organizations and individuals.
30. At the time of the filing of this Complaint, the spread-labia search practice continues at Huron Valley and prisoners continue to file grievances regarding the procedure.
31. In contravention of MDOC’s policies and/or standard correctional practices, Defendants have conducted and continue to conduct sexually humiliating, degrading, unhygienic and unconstitutional spread-labia searches of female prisoners.
32. Defendants, without adequate procedures, training or supervision, have subjected female prisoners to spread-labia searches without taking adequate steps to protect their health, safety, privacy and rights.
33. Defendants have failed to implement and effectuate policies, procedures and mechanisms to deter the sexually humiliating, degrading, unhygienic and unconstitutional spread-labia searches of female prisoners.
34. As a result of Defendants’ acts and omission in failing to safeguard female employees, the plaintiffs in this case have all experienced sexual harassment, sexual humiliation, embarrassment, psychological trauma, and fear.
35. Defendants’ mechanisms for addressing grievances through an administrative process are ineffective and futile for Plaintiffs’ complaints as Defendants do not provide an adequate or available system to exhaust their claims administratively.
36. Plaintiffs are regularly not allowed to file grievances challenging policies or procedures and Defendants do not provide an alternative administrative mechanism to exhaust the claims set forth in this Complaint.
37. A grievance cannot be instituted except through a written form and Defendants and their agents consistently fail to ensure that Plaintiffs are provided with the grievance forms,
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routinely refuse to process grievances, and regularly fail to ensure responses to grievances, rendering administrative process for Plaintiffs unavailable or futile.
38. Defendants, by policy and practice, have created barriers to the grievance system rendering the administrative process effectively unavailable to Plaintiffs.
STATEMENT OF FACTS RELATIVE TO NAMED PLAINTIFFS AND CLASS REPRESENTATIVES A. Plaintiff Amira Salem 39. Plaintiff Amira Salem is currently a prisoner at Huron Valley. 40. Commencing in 2009 and continuing until late 2010 and early 2011, Plaintiff was subjected to spread-labia searches where she was ordered to get completely naked, sit in an unsanitized chair, open her legs wide, and manually open her labia to allow correctional officers to peer into her vagina. 41. Plaintiff Salem is Muslim and her religion prohibits women from exposing their genitalia in the manner required by the spread-labia search. 42 As a direct result of the unlawful search, Plaintiff Salem has suffered from anxiety attacks, flashbacks of sexual abuse, psychological and mental distress. She has avoided and thus been deprived of family and religious visitations due to the humiliation, degradation, shame, disgust and physical and mental abuse the spread-labia procedure causes after each visit. B. Plaintiff Keshuna Abcumby 43. Plaintiff Keshuna Abcumby is currently a prisoner at Huron Valley. 44. Commencing in 2009 and continuing until 2011, Plaintiff Abcumby was subjected to spread-labia searches where she was ordered to get completely naked, sit in an unsanitized chair, open her legs wide, and manually open her labia to allow correctional officers to peer into her vagina. 45. On some occasions, Plaintiff Abcumby was required to sit in the chair naked, and
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hold her knees up and cough, as if pushing to deliver a baby. 46. On some occasions, a pink disinfectant spray was made available to spray on the
chair, but was not allowed the sufficient time required by the product label to work effectively before Plaintiff was required to sit on the chair.
47. As a direct result of the unlawful searches, Plaintiff Abcumby suffered several vaginal bacteria infections, anxiety attacks, flashbacks of sexual abuse, nightmare, night sweats, nausea, vomiting, abnormal menstrual cycles, headaches, high blood pressure, and psychological and mental distress.
CLAIMS FOR RELIEF COUNT I
§1983 – 8th Amendment 48. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 49. Defendants knew or should have known that Plaintiffs were and are at substantial risk of sexual and physical abuse, privacy violations, and degrading and sexually humiliating treatment in Huron Valley, and failed to protect them. 50. Defendants’ implementation of the spread-labia searches violates the prohibition against cruel and unusual punishment as guaranteed by the Eighth Amendment of the United States Constitution. Defendants’ actions deprived Plaintiffs and all similarly-situated prisoners of the equal protection of laws under the Fourteenth Amendment of the United States Constitution. 51. The deprivation of Constitutional rights alleged in this Complaint are the direct result of official policy, custom and practices of Defendants and each of them. 52. Defendants failed to adequately train, supervise and/or institute and implement adequate policies and procedures to conduct searches constitutes deliberate indifference to
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Plaintiffs’ health, safety, privacy and bodily integrity in violation of their rights under the Eighth Amendment.
53. Defendants are individually liable for the unconstitutional conditions at Huron Valley because they and/or their agents (1) participated in creating and carrying out the unconstitutional policies that caused the harm to each Plaintiff; (2) failed to take necessary steps to ensure the safety and wellbeing of each Plaintiff; and (3) implicitly authorized, approved or knowing acquiesced in the unconstitutional conduct of offending MDOC staff.
54. Defendants also had sufficient knowledge, including through statutes and regulations and MDOC ‘s internal policies and correctional knowledge, to know that Plaintiffs were and are at substantial risk by the implementation of the unhygienic spread-labia search procedure, and failed to adequately protect them.
55. Defendants’ practice and policy of forcing female prisoners at Huron Valley to submit to spread-labia searches constitutes cruel and unusual punishment.
56. Defendants’ practice and policy of forcing female prisoners at Huron Valley to submit to spread-labia searches constitutes deliberate indifference to and the unnecessary and wanton infliction of pain and suffering, degradation and psychological injury to Plaintiffs, without penological justification.
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COUNT II § 1983- 4th and 14th Amendment Due Process And Privacy Violations 57. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 58. Defendants, by their unconstitutional policies, have violated and continue to violate Plaintiffs’ rights under the 4th and 14th Amendments by forcing female prisoners to submit to spread-labia searches in the manner previously described. 59. The deprivation of Constitutional rights alleged in this Complaint are the direct result of official policy, custom and practices of Defendants and each of them. 60. Defendants failed to adequately train, supervise and/or institute and implement adequate policies and procedures to conduct searches constitutes deliberate indifference to Plaintiffs’ health, safety, privacy and bodily integrity and violates Plaintiffs’ rights to equal protection under the law under the 14th Amendment of the United States Constitution and 42. U.S.C. § 1983. 61. Defendants are individually liable for the unconstitutional conditions at Huron Valley because they and/or their agents (1) participated in creating and carrying out the unconstitutional policies that caused the harm to each Plaintiff; (2) failed to take necessary steps to ensure the safety and wellbeing of each Plaintiff; and (3) implicitly authorized, approved or knowing acquiesced in the unconstitutional conduct of offending MDOC staff. 62. Defendants also had sufficient knowledge, including through statutes and regulations and MDOC ‘s internal policies and correctional knowledge, to know that Plaintiffs were and are at substantial risk by the implementation of the unhygienic spread-labia search procedure, and failed to adequately protect them.
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63. Defendants’ practice and policy of forcing female prisoners at Huron Valley to submit to spread-labia searches has deprived and continues to deprive Plaintiffs of their constitutional right to bodily integrity and right to privacy without due process of law in violation of the 4th and 14th Amendments to the United States Constitution and 42 U.S.C. § 1983.
64. Defendants’ practice and policy of forcing female prisoners at Huron Valley to submit to spread-labia searches constitutes deliberate indifference to and the unnecessary and wanton infliction of pain and suffering, degradation and psychological injury to Plaintiffs, without penological justification.
DAMAGES 65. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 66. The acts, omissions and policies of Defendants constituting violations of Plaintiffs’ and Plaintiffs’ class members’ constitutional, statutory and common law rights were and are a proximate cause of Plaintiffs’ damages. 67. As a result of Defendants’ acts, omissions and policies, the Plaintiff class representatives and the Plaintiff class members, individually and as a class, have suffered severe emotional and psychological injuries, and physical injuries and damages. 68. The physical and emotional injuries inflicted upon Plaintiffs and the class were willful, wanton, cruel and the result of intentional or deliberately indifferent conduct entitling Plaintiffs and the Class to punitive damages.
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RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court:
a. Assert jurisdiction over this action; b. Certify this case as a class action pursuant to Rule 23 of the Federal Rules
of Civil Procedure on behalf of the proposed Plaintiffs and designate the harmed Plaintiffs are representatives of the class and their counsel of record as Class Counsel. c. Issue a Permanent Injunction prohibiting Defendants from subjecting Plaintiffs to policies and procedures that violate their constitutional, statutory rights, and common law rights; d. Order appropriate relief to remediate prison conditions such that the spread-labia searches described above are stopped; e. Declare unconstitutional the spread-labia searches described above; f. Provide adequate medical and mental health treatment to remediate the ongoing harm to the Plaintiffs and the Plaintiff class; g. Award damages to Plaintiffs and Class Members for harm caused by Defendants’ unconstitutional policies, unconstitutional acts and violations of law, including punitive damages where appropriate; h. Award reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees and costs; and i. Grant such other and further declaratory and equitable relief as the Court deems appropriate, just and proper to protect Plaintiffs from further harm.
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Respectfully submitted,
/s/_Kenneth J. Hardin II Kenneth J. Hardin II (P44681) Hardin Thompson, P.C. Attorneys for Plaintiff 30555 Southfield Road, Suite 400 Southfield, MI 48076 (248) 593-1400 kenhardin@hardinlaw.net
Teresa J. Gorman (P61001) Teresa J. Gorman, PLLC Attorneys for Plaintiff 30555 Southfield Road, Suite 400 Southfield, MI 48076 (248) 223-9922 terigorman@aol.com
DEMAND FOR JURY TRIAL
Plaintiffs, by and through their counsel, hereby demand a trial by jury.
Respectfully submitted,
/s/_Kenneth J. Hardin II Kenneth J. Hardin II (P44681) Hardin Thompson, P.C. Attorneys for Plaintiff 30555 Southfield Road, Suite 400 Southfield, MI 48076 (248) 593-1400 kenhardin@hardinlaw.net
Teresa J. Gorman (P61001) Teresa J. Gorman, PLLC Attorneys for Plaintiff 30555 Southfield Road, Suite 400 Southfield, MI 48076 (248) 223-9922
terigorman@aol.com
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMIRA SALEM AND KESHUNA ABCUMBY,

Plaintiffs,

Case no: 13-14567

v.
MICHIGAN DEPARTMENT OF CORRECTIONS, DANIEL H. HEYNS, et al.,

Paul D. Borman United States District Judge

Defendants. ______________________________/ OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS AND FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY (ECF NO. 11)
Plaintiffs filed this class action complaint on November 1, 2013. (ECF No. 1). On January 21, 2014, Defendants Michigan Department of Corrections (“MDOC”), Daniel H. Heyns, Thomas Finco, Dennis Straub, Randy Treacher, and Millicent Warren filed the instant Motion to Dismiss and for Summary Judgment based upon Qualified Immunity. (ECF No. 11). Plaintiffs then filed their response. (ECF No. 17). Defendants thereafter filed a reply. (ECF No. 18).
A hearing on this matter was held on June 20, 2014. For the following reasons the Court will GRANT IN PART AND DENY IN PART Defendants’ motion to dismiss and for summary judgment.
I. BACKGROUND Plaintiffs Amira Salem and Keshuna Abcumby (collectively “Plaintiffs”) brought this class action suit on behalf of all female prisoners who “since October 2010, have been, are now,

or will be hereafter incarcerated by [the Women’s] Huron Valley Correctional Facility and who have been subject to sexual harassment and degrading and unhygienic treatment by MDOC custodial staff.” (Compl. ¶ 16). The Court notes that a class has not been certified in this action.
Plaintiffs have named six defendants in this action. Defendant Michigan Department of Corrections (“MDOC”) is described by Plaintiffs as the department of the State of Michigan responsible for the care and custody of prisoners incarcerated in the State of Michigan. Plaintiffs allege that the MDOC has the responsibility, authority and ability to remedy current and future conditions at the Women’s Huron Valley Correctional Facility (“WHV”) that gave rise to the Plaintiffs’ allegations.
Plaintiffs allege that Defendant Daniel H. Heyns is the director of the MDOC and his duties and responsibilities include developing and implementing polices and procedures for the operation and management of the MDOC and its employees. (Compl. ¶ 9). Plaintiffs contend that he is responsible for the care, custody and protection of prisoners under the jurisdiction of the MDOC. (Id.).
Plaintiffs allege that Defendant Thomas Finco is Deputy Director of the MDOC’s Correctional Facilities Administration (“CFA”) and has served in that capacity since October 1, 2011. (Id. at ¶ 10). Plaintiffs assert that Defendant Finco is responsible for the operation of all correctional institutions in the MDOC system including “promulgating and administering MDOC’s policies.” (Id.). Plaintiff allege that Defendant Dennis Straub was the Deputy Director of the MDOC’s CFA prior to October 1, 2011 and he had the same responsibilities of Defendant Finco. (Id. at ¶ 11).
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Plaintiffs next allege that Defendant Randy Treacher is the Chief Deputy Director of the CFA and his duties and responsibilities include the supervision of Defendants Straub and Finco. (Id. ¶ 12).
Finally, Plaintiffs allege that Defendant Millicent Warren is the Warden of WHV. (Id. ¶ 13). Warren describes her duties and responsibilities as overseeing the overall operation of WHV which “includes reviewing policy and practices at WHV and providing input to my supervisor, the Assistant Deputy Director, as well as MDOC central office on existing polices, proposed or instituted policy changes as well as operational activities to carry out MDOC policy.” (Def.’s Br. Ex. A, Warren Aff. ¶ 3). Warren also attests that she is “the facility appointing authority, accountable for hiring, discipline and termination recommendations of staff, budget compliance and physical plan operations.” (Id.). A. Strip Search and Chair Portion of the Strip Search
Prior to 2009, a standard strip search at a correctional facility that housed female prisoners in Michigan was conducted by female correction officers who would require the prisoner to “remove her clothing, bend forward, [to] allow[] for a visual inspection of the entrance to the vagina and rectal cavity; in such cases, the person [would] be required to bend and spread her buttocks, and cough. The female [officer] then performed a visual check of the inmate’s mouth, nose, ears, hair and asked the prisoner to allow the officer clear view of areas behind ears and under breasts.” (Warren Aff. at ¶ 6).
In 2009, the MDOC consolidated all of its female prisoners into one facility, the WHV. (Warren Aff. at ¶ 7). At that time the MDOC instituted what the Court shall refer to as “the chair portion of the strip search” in which a female prisoner must sit on a chair, open her knees, and
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spread her labia to expose her vaginal cavity for a visual inspection by correction officers. (Compl. ¶ 25). These types of searches were performed after a prisoner returned from an off-site visit (including hospital visits or leaving the prison on writ) and after each “contact visit” (i.e. a visit in which a prisoner was allowed physical contact with her visitors). (Warren Aff., Ex. C-1, Policy Directive, 04.04.110, at 4). Plaintiffs contend that the communal chairs on which they were required to sit were “unwashed and unsanitized”, were not lined with sanitary paper, and were “wet with bodily fluids from other prisoners”. (Id.). Plaintiffs allege that female prisoners who suffered from communicable diseases such as “HIV, AIDS, tuberculosis, hepatitis C, sexually transmitted diseases, and other vaginal infections” were all subject to the chair portion of the strip search while on their menstrual cycles which resulted in blood being left on the communal chairs used during the strip searches. (Id. ¶ 26).
Defendants further clarified that the chair portion of the strip search was also used on the East Side of WHV prior to Defendant Millicent Warren’s appointment as warden in 2009. (Def.’s Reply, Ex. A, Supp. Warren Supp. Aff. at ¶ 4). In 2009, with the consolidation of all the women’s correctional facilities into one facility, the WHV, the MDOC determined that the chair portion of the strip searches would also be implemented at the West Side of WHV. (Id.). Defendants contend that the decision to use the chair portion of the strip search was an attempt “to better comply with the search depicted in the 1998 training video which showed how a proper strip search of female offenders was to be done. The additional step of using a chair was added because of the awareness that females could hide contraband in their vagina.” (Warren Aff. at ¶ 8; Ex. B, 1998 Training Video). Further the “MDOC, at the time, believed that incorporating a chair into the routine strip search procedure would aid staff in performing a more
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thorough search for contraband and to better comply with MDOC policy on strip searches.” (Id.).
The 1998 training video, supplied under seal by Defendants, depicts how to conduct a strip search pursuant to PD 04-04-110, and instructs that during a routine strip search the female inmate is “required to sit and spread the lips of her vagina”. The training video further advises that any tampon or sanitary napkin must be removed to allow the officer to visually search the vaginal opening. The training video is silent as to maintaining sanitary conditions or preventing the spread of communicable diseases. (See Ex. B, Training Video).
Plaintiffs claim that the chair portion of the strip search was actually promulgated to retaliate against the female prisoners at WHV following the 2009 settlement of an unrelated court case, Neal, et al. v. MDOC, et al., case no. 96-6986-CZ, in which many female residents of WHV were plaintiffs. (Pls.’ Resp. Ex. 4, Salem Aff. at ¶ 10, “I believe the institution of these searches was in direct retaliation for the Neal v MDOC case and its settlement agreement in 2009.”). In support of this theory, both Plaintiffs attest that they were not subjected to the chair portion of the strip search until 2009. (Salem Aff. at ¶ 5; Abcumby Aff. at ¶¶ 2-3). Plaintiff Salem attested that she has been housed at WHV since 2005. (ECF No. 19, Supp. Salem Aff. at ¶¶ 3-4). Plaintiff Salem attests that she is not aware of any other female prisoner at WHV that was subject to the chair portion of the strip search prior to 2009. (ECF No. 19, Supp. Salem Aff. at ¶¶ 4, 6-7). B. Factual Allegations as to the Named Plaintiffs
Plaintiff Salem alleges that in 2009 through early 2012 she was subject to the chair portion of the strip searches and she was “ordered to get completely naked, sit on an unsanitized
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chair, open her legs wide, and manually open her labia to allow correctional officers to peer into her vagina.” (Compl. ¶ 40; see also ECF No. 19, Supp. Salem Aff. at ¶ 5). Plaintiff Salem is Muslim and asserts that her religion prohibits women from exposing themselves in that manner required by the chair portion of the strip search. (Compl. ¶ 41). Plaintiff Salem also alleges that she has been exposed to communicable diseases because of the chair portion of the strip search and has suffered from anxiety attacks, flashbacks of sexual abuse, psychological and mental distress and also avoided family and religious visitations due to the effects of the chair portion of the strip search. (Id. at ¶ 42; Pls.’ Resp. Ex. 4, Salem Aff. at ¶¶ 13, 15).
Plaintiff Keshuna Abcumby alleges that between 2009 and 2012 she was subject to the chair portion of the strip search ten times, and on some occasions she was made to “hold her knees up and cough, as if pushing to deliver a baby.” (Compl. ¶ 45; Pls.’ Resp. Ex. 4, Abcumby Aff. at ¶ 3). Plaintiff Abcumby also claims that on occasion, disinfectant spray was made available to clean the chair used in the strip search but that the spray was not allowed sufficient time to remain on the chair to work effectively per the label instructions. (Compl. at ¶ 46). Plaintiff Abcumby alleges that because of these searches she has suffered multiple vaginal bacteria infections, anxiety attacks, flashbacks of sexual abuse, nightmare, night sweats, nausea, vomiting, abnormal menstrual cycles, headaches, high blood pressure, and psychological and mental distress.” (Id. ¶ 47; Abcumby Aff. ¶¶ 10, 14). C. MDOC Memoranda regarding the Chair Portion of The Strip Search
Defendants acknowledge that during 2010 and 2011 they became aware of complaints from the inmates at WHV regarding the chair portion of the strip search. (Warren Aff. ¶ 9). Defendants assert that they received 67 grievances regarding some aspect of the chair portion of
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the strip search and they also received 30 complaints to WHV psychological services regarding the same with possible overlap between the inmates that filed the grievances and the inmates that complained to psychological services. (Id. at 11; Ex. A, 12/14/11 Memo at 5). Plaintiffs dispute Defendants’ accounting of grievances and claim that as of December 14, 2011 there were more than 70 grievances filed and also claim that the total number of grievances filed regarding the chair portion of the strip search exceeds 500. (Pls.’ Resp. at 8; Pls.’ Resp., Ex. 4, Appendix of inmates who have filed grievances concerning the chair portion of the strip search both before and after December 14, 2011).1 Further, Plaintiffs allege that many grievances filed on this issue were rejected because MDOC does not allow inmates to challenge policies and procedures and there is no alternative mechanism to exhaust the claims in the Complaint. (Compl. ¶ 36).
Defendants state that in response to the 67 grievances and 30 complaints to psychological services, Warren began an administrative fact finding and review process regarding the “necessity of continuing the chair portion of the strip search.” (Warren Aff. ¶¶ 4, 12). Additionally, on June 3, 2011, Warren issued a Memorandum regarding the 04-04-110 Policy Directive. (Defs.’ Br., Ex. B, 6/3/11 Memo), which stated that effective immediately the language in the 04-04-110 Policy Directive regarding “Search and Arrest at Women’s Huron Valley Correctional Facility” under the heading “Searches” would read as follows:
1 Plaintiffs state in their response that there are more than 500 grievances and refer to their exhibit 4, which is a numbered list of inmate names and corresponding inmate numbers. Plaintiffs represent that this is a list of all of the names of inmates that have filed grievances concerning the chair portion of the strip search both before and after December 14, 2011. Plaintiffs argue that the number of grievances filed before December 14, 2011 is more than 70, however it is unclear from the record what number of grievances were filed prior to December 14, 2011.
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3. Strip Search: Visual inspection of all body surfaces of a person who has been required to remove all or most of his/her clothing and jewelry for purposes of the search. This includes visual inspection of the mouth, ears, and nasal cavities. Unless determined by the Warden to be unnecessary for an assignment within the security perimeter which requires a strip search (e.g., Michigan State Industries), it also includes visual inspection of the entrance to the vagina and rectal cavity; in such cases, the person will be required to bend and spread her buttocks and sit on a sanitary paper lined chair and spread her knees so as to spread the lips of her vagina to allow inspection. All clothing and articles which are removed also shall be inspected for contraband.
NOTE: If necessary, the prisoner may be required to manually spread the lips of her vagina with her hands. If this procedure is necessary, the prisoner will be allowed to sanitize their hands before and after this procedure with an approve[d] sanitizer.
(6/3/11 Memo).2 Warren went on to state in the June 3, 2011 memorandum that an approved
sanitizer would be located in each strip search room and “shall be available whenever a strip
search needs to be performed”. (Id.).
Then on December 14, 2011, in response to the 67 grievances and 30 complaints to
psychological services and as a result of her fact-finding investigation, Warren issued a fifteen
page memorandum on the issue of whether the “‘chair portion of the regular post contact visit
2 Although unclear, it appears that the language in Policy Directive 04-04-110, effective on April 24, 2009 (and through June 3, 2011) defined “Strip Search” under the heading “Searches”, in relevant part, a “[Strip Search] also includes visual inspection of the entrance to the vagina and rectal cavity; in such cases, the person will be required to bend and spread his/her buttocks, and spread the lips of her vagina, to allow inspection. All clothing and articles which are removed also shall be inspected for contraband.” (Warren Aff., Ex. C-1, PD 04-04-100, Eff. 4/24/09). There is no mention of a chair being used in this procedure. However, in Operating Procedure 04-04-110, effective May 1, 2009, a “Strip Search” is defined, in relevant part, as “[Strip Search] also includes visual inspection of the entrance to the vagina and rectal cavity; in such cases, the person will be required to bend and spread her buttocks and sit on a sanitary paper lined chair and spread her knees so as to spread the lips of her vagina to allow inspection. All clothing and articles which are removed also shall be inspected for contraband.” (Warren Aff, Ex. C-2, OP 04-04-110, Eff. 5/01/09).
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strip search be continued as a matter of routine?” (Warren Aff., Ex. A, 12/14/11 Memo at 1). In the memo, Warren recounted the history of the chair portion of the strip search stating that the chair portion of the strip search was “instituted in an effort to operate the facility in complete accord with MDOC policy” specifically a 1998 training video which provided that female inmates should sit and spread the lips of their vagina for visual inspection during a routine strip search. (Id.; see also Ex. B, 1998 Training Video). Warren also explained that “MDOC Central Office, after discussion with the WHV warden, decided the use of the chair and visual inspection of the vaginal opening was an important part of the strip search of female prisoners after contact visits ...” (12/14/11 Memo at 2). The December 14, 2011 Memo then addressed six factors that Warren considered regarding whether to continue the chair portion of the routine strip search. (Id. at 3).
The first factor considered was random drug/urine test results of the WHV inmates from 12/31/09 through 8/23/11. These results offered no evidence regarding the efficacy of the search method, however, because the chair portion of the strip search had been in use since the facility’s consolidation, so there were no results for comparison. The second factor Warren investigated was the “comments from mental health services” regarding prisoner complaints or suggestions of harm due to participating in the chair portion of the strip search. (Id. at 4-5). Warren noted that interviews with members of the mental health services revealed that mental health services had received approximately 25-30 complaints regarding the chair portion of the strip search. (Id. at 5). One health services member noted that he received “a number” of complaints in early 2009 when the practice was first introduced but had received “few recent complaints”. (Id.). Warren stated that the complaints only constituted 1.7% of the prisoner population, and further noted that
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the fact that the members interviewed could not identify any prisoner who they believed suffered psychological harm or was injured as a result of the policy meant any complaints made were not “persistent.” (Id. 5-6). Another health services member interviewed noted that two or three prisoners “claimed that the strip search exacerbated trauma from pre-prison sexual abuse that they had experienced.” (Id. at 6). That doctor “found these complaints plausible. He noted, that the experience of the chair portion of the strip search could theoretically ‘refresh’ or ‘reawaken’ the experience of past sexual abuse in some prisoner patients.” (12/14/11 Memo at 6). Warren concluded that the mental health professionals would describe the chair portion of the strip search as a “stressor” that was more than a minor irritation but “less than an event that actually caused psychological harm o[r] damage in and of itself.” (Id. at 6-7).
The third factor Warren considered were the grievances filed by prisoners that mentioned the chair portion of the strip search “as objectionable.” (Id. at 7). Warren stated that the (approximate) 673 grievances represented 4% of the total population that were allowed contact visits, and also noted that 96% of the grievances related specifically to the chair portion of the strip search and the requirement that inmates spread their labia for the female officers to inspect. In those grievances, the prisoners stated they felt “degraded”, “humiliated”, “sexualized” and uncomfortable with having to touch themselves. (Id.). Warren then noted that WHV “attempted” to make sure the strip search rooms had gloves, sanitary chair covers, paper towels, disinfectant, trash cans and hand sanitizer, but noted that 42% of the grievances claimed that the chair portion of the strip search was unsanitary. (Id.).
3 The briefing also represents that the number of grievances filed was 69. 10

Warren next examined the log of voluntary non-contact visits and found that prisoners did not utilize a non-contact visit option that would allow them to avoid the chair portion of the strip search altogether. (Id. at 8). Therefore, Warren concluded that the strip search was not a significant inhibitor to participating in contact visits because inmates overwhelming chose to have a contact visit even when the visitor was a friend, clergy or unfamiliar volunteer rather than avoiding the strip search by opting to have a non-contact visit. (Id. at 8-9).
Warren also surveyed officers who conducted the strip searches on inmates after contact visits. (12/14/11 Memo at 9-10). Of the officers surveyed, 75% believed that the chair portion of the strip search was not necessary for the security of the facility. (Id. at 10). Additionally, 100% of the officers surveyed believed they could conduct a strip search effectively without requiring the prisoner sit on a chair. (Id.). Finally, 63% of the officers surveyed answered that yes, they believed the chair portion of the strip search could be “conducted in a way that maintains your and the prisoner’s dignity and self-respect.” (Id. at 10-11).
The last factor considered by Warren was the fact that since the policy began there had been only one instance of contraband being found in an inmate’s vagina. (Id. at 11). However, the contraband (a pair of earrings) was not found during the chair portion of the strip search but rather during the portion of the strip search when an inmate is required to bend over, spread her buttocks and cough. (Id.). Also, that inmate had just arrived from a different jail and she was likely unaware of WHV’s routine strip search policy. (Id. at 11-12).
Warren summarized her findings in the memorandum, concluding: [o]n balance the increased security benefit provided by the use of the chair portion of the strip search, on the present data may not be sufficiently great to require, even though it allows, the modest stressor of continued use of the chair portion of the routine post contact visit strip search. ... the chair portion of the
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strip search appears viewed by both prisoners and the staff conducting the strip searches as an unnecessary irritation. Therefore, I have decided to suspend the routine use of the chair portion of the strip search following contact visits effective Friday, December 16, 2011. (12/14/11 Memo at 14-15; see also Pls.’ Resp. Ex. 2, 12/13/11 Notice to Staff stating the chair portion of the strip search is “no longer authorized” as of 12/16/2011). D. MDOC’s Current Policy Warren attests that after December 16, 2011 the chair portion of the strip search has not “been regularly employed by WHV staff, pursuant to the current policy.” (Warren Aff. ¶ 15). Warren further asserts that she has no intention of re-instituting the policy “on a routine basis, absent some exigent circumstance”. (Id. at ¶ 16). Plaintiffs dispute that the chair portion of the strip search no longer occurs and claim that the chair portion of the strip search was utilized against them at some point in 2012 at WHV. (See Abcumby Aff. at ¶ 15, “I have been subjected to similar searches throughout the years of 2011 and 2012.”; Salem Aff. at ¶ 5, “I have been subjected to the spread-labia vaginal inspection search at least 5 times between 2009 and 2012.”). Plaintiffs also point to an attached appendix of inmate names who have allegedly filed 500 grievances regarding the chair portion of the strip search both before and after the date it was allegedly abrogated to illustrate that the search procedure is still being used. (See Pls.’ Resp., Ex. 4, Appendix). However, it is unclear from the index the date of when those grievances were filed as only the names of the inmates are provided.
II. STANDARD OF REVIEW Defendants style their present motion as a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) and also as a motion for summary judgment pursuant to FED. R. CIV. P. 56(a).
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Rule 12(b)(6) allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). But the court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). “[L]egal conclusions masquerading as factual allegations will not suffice.” Eidson v. State of Term. Dep’t of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007). The Supreme Court explained that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Dismissal is only appropriate if the plaintiff has failed to offer sufficient factual allegations that make the asserted claim plausible on its face. Id. at 570.
Pursuant to Rule 56(a), a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the initial burden of showing that there is no genuine issue of material fact, but once this burden is met, the opposing party must produce some facts showing there is a genuine issue for trial. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 547, 587 (1986). The Court must view the facts and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “[T]he mere existence of some alleged factual dispute between the parties
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will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).
Pursuant to FED. R. CIV. P. 12(d), on a motion under Rule 12(b)(6) or 12(c), when “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” In the present motion, Defendants attach and rely upon affidavits, a training video, as well as pertinent MDOC memoranda, and policy and operating directives. Plaintiffs’ response to the motion further relies upon affidavit testimony of the Plaintiffs, memoranda, policy directives, and an appendix of inmate names that allegedly correspond to grievances filed regarding the chair portion of the strip search procedure. Therefore, to the extent that this Court relies upon Defendants’ and Plaintiffs’ proffered evidence, the Court construes Defendants’ motion as one for summary judgment under FED. R. CIV. P. 56(a).
III. ANALYSIS A. Eleventh Amendment
Plaintiffs’ complaint, in establishing proper jurisdiction, notes specifically that “Defendants named herein as public officials of the State of Michigan [are] sued in their official and individual capacities for violations of Plaintiffs’ statutory and constitutional rights.” (Compl. ¶ 5). Plaintiffs’ complaint also provides that in addition to costs, expenses, and damages (including punitive damages), Plaintiffs seek a permanent injunction against Defendants prohibiting them from “subjecting Plaintiffs to polices and procedures that violate their constitutional statutory rights, and common law rights”, and remediation of certain prison conditions (namely the prohibition of the chair portion of the strip search). (Compl. at *14).
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Defendants contend that to the extent that Plaintiffs’ claims are brought against the individual defendants in their official capacities for money damages, those claims are barred pursuant to the Eleventh Amendment. Plaintiffs concede this point, noting that “[t]he MDOC is a state agency and is therefore entitled to sovereign immunity from Plaintiff’s [sic] suit for monetary damages” and that “Eleventh Amendment immunity extends to state officials or employees sued in their official capacities.” (Pls.’ Resp. at 11). Indeed, it is well settled that when a plaintiff seeks monetary damages from individual defendants in their official capacities, those claims are barred by the Eleventh Amendment. Thiokol Corp. v. Dep’t of Treas., 987 F.2d 376, 381 (6th Cir. 1993); Evans v. Vinson, 427 F. App’x 437, 441 (6th Cir. 2011) (recognizing the same). Therefore, Plaintiffs’ claims insofar as they seek money damages against the MDOC or against the individual defendants sued in their official capacity are barred by the Eleventh Amendment.4
However, the Eleventh Amendment does not bar suits against government officials sued in their official capacities for prospective injunctive relief. Therefore, as Plaintiffs also appear to be seeking prospective injunctive relief against the Defendant officials in their official capacity and these claims are not barred. See Will v. Mich Dep’t of State Police, 491 U.S. 58, 71 n. 10 (1989) (citation omitted); see also Ex Parte Young, 209 U.S. 123, 159-60 (1908); Pucci v. 19th District Court, 628 F.3d 752, 765 (6th Cir. 2010) Sutton v. Evans, 918 F.2d 654, 657 (6th Cir. 1990).
4 Plaintiffs request the chance to amend their complaint if it is unclear whether they are suing the individual Defendants in their official and individual capacities. However, Plaintiffs explicitly set forth in their complaint that they are suing the individual officers in both their individual and official capacities so there is no need for Plaintiffs to amend their complaint.
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B. Section 1983 To establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff must assert that a right
secured by the Constitution or a federal law has been violated, and that the violation was caused by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). “Persons sued in their individual capacities under 1983 can be held liable based only on their own unconstitutional behavior.” Heyerman v. County of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (citations omitted). “This court has held that § 1983 liability must be based on more than respondeat superior, or the right to control employees.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 2005). In the present action there appears to be no dispute that the Defendants acted under the color of state law with regards to any action they took with regards to the strip search policy. Therefore, the only issues that remain are whether the Defendants deprived the Plaintiffs of any rights protected by the Constitution or federal law.
1. Possible Fourteenth Amendment Claims Defendants argue that to the extent Plaintiffs claim a violation of their substantive due process rights in connection with the chair portion of the strip search it is the Eighth Amendment, and not the Fourteenth Amendment, that is the proper source of that protection because it is the “primary source of protection against the wanton infliction of pain”. (Defs.’ Br. at 19). Defendants cite Whitley v. Albers, 475 U.S. 312 (1986) for this proposition. In Whitley, the Supreme Court found that the Eighth Amendment is the primary source of substantive protection for convicted prisoners against the wanton infliction of pain “in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified [under the Fourth Amendment].” Id. at 327. Here, however, it appears that any Fourteenth Amendment claim
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Plaintiffs assert in their complaint is asserted in conjunction with her Fourth Amendment claim based on a violation of Plaintiffs’ right to privacy, not an excessive force claim. (See Compl. at ¶¶ 57–64). Therefore, Defendants’ argument that Eighth Amendment is controlling is off the mark.
The Defendants are correct, however, that where an explicit textual source of constitutional protection exists, that source rather than the more generalized notion of substantive due process is the guide for analyzing the claim. Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990); see also Albright v. Oliver, 510 U.S. 266, 273 (1994). The Sixth Circuit has explicitly recognized a prisoner’s “‘privacy’ right against the forced exposure of one's body to strangers of the opposite sex [as being] located in the Fourth Amendment.” Everson v. MDOC, 391 F.3d 737, 757 n. 26 (6th Cir. 2004) (citing Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992)); see also Stoudemire v. MDOC, 705 F.3d 560, 572 (6th Cir. 2013) (providing that “we have noted, ‘a convicted prisoner maintains some reasonable expectations of privacy while in prison ... even though those privacy rights may be less than those enjoyed by non-prisoners.” (quoting Cornwell, 963 F.2d at 916)). In this action, Plaintiffs’ constitutional claims are based on alleged violations of their right to privacy and those rights are explicitly located in the Fourth Amendment (and made applicable to the states through the Fourteenth Amendment). Therefore, the Court will analyze Plaintiffs’ claims through the framework of the Fourth Amendment rather than the more generalized notion of substantive due process pursuant to the Fourteenth Amendment.
Moreover, Plaintiffs fail to address Defendants’ argument regarding a possible Fourteenth Amendment due process claim whatsoever. Indeed, Plaintiffs failed to differentiate
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any possible Fourteenth Amendment due process claim from their Fourth or Eighth Amendment claim in their response or during oral argument. Therefore, the Court finds that Plaintiffs have abandoned any due process claim pursuant to the Fourteenth Amendment arising under the facts alleged in this action. See Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (holding “[t]his Court’s jurisprudence on abandonment of claims is clear: a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment.”) (collecting cases)).
2. Eighth Amendment Claim and Qualified Immunity Plaintiffs’ assert that the individual Defendants violated their Eighth Amendment rights. The individual Defendants claim that they are entitled to qualified immunity on Plaintiffs’ Eighth Amendment claim. The doctrine of qualified immunity generally protects “government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of qualified immunity is to “shield the official from suit altogether, saving him or her from the burdens of discovery and costs of trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Humphrey v. Mabry, 482 F.3d. 840, 847 (6th Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A government official is entitled to qualified immunity “unless a plaintiff pleads facts showing: “(1) that the official violated a statutory or constitutional right and (2) that the right
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was ‘clearly established’ at the time of the challenged conduct.”5 Ashcroft v. al-Kidd, --- U.S. --, 131 S. Ct. 2074, 2080 (2011) (citation omitted). The order of the inquiry is no longer mandatory and Courts are allowed to use their discretion in deciding which of the two steps of the qualified immunity analysis should be addressed first. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Once a government official has raised the defense of qualified immunity, the plaintiff must bear the burden to demonstrate that the defense is unwarranted. Roth v. Guzman, 650 F.3d 603, 609 (6th Cir. 2007). A constitutional right is clearly established when “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “But under either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, --- U.S. ---, 134 S. Ct. 1861, 1866 (2014).
As to whether the individual Defendants violated the Plaintiffs’ constitutional rights, Plaintiffs allege that the Defendants’ “implementation” of the chair portion of the strip search violates the prohibition against cruel and unusual punishment and that the Defendants “failed to adequately train, supervise and/or institute and implement adequate policies and procedure to conduct searches constitutes deliberate indifference to Plaintiffs’ health, safety, privacy and bodily integrity in violation” of the Eighth Amendment. (Compl. ¶¶ 50, 52). Plaintiffs allege that Defendants are “individually liable” for these Eighth Amendment violations because “they and/or their agents (1) participated in creating and carrying out the unconstitutional policies that caused the harm to each Plaintiff; (2) failed to take necessary steps to ensure the safety and
5 Some Sixth Circuit panels have also used a “third step requiring the court to determine whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established right.” Grawey v. Drury, 567 F.3d 302, 309 (6th Cir. 2009) (citations omitted).
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well[-]being of each Plaintiff; and (3) implicitly authorized, approved or knowing[ly] acquiesced in the unconstitutional conduct of offending MDOC staff.” (Compl. ¶ 53).
Plaintiffs’ claims regarding violations of the Eighth Amendment relate to the conditions of confinement at WHV as they claim the conditions relating to the chair portion of the strip search were unsanitary. The Supreme Court has recognized that prison conditions can constitute a cruel and unusual punishment in violation of the Eighth Amendment if those conditions lead to “deprivations of essential food, medical care, or sanitation.” Rhodes v. Chapman, 452 U.S. 337, 348 (1981). Moreover, prison “[c]onditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Id. at 347.
“[A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious,” such that “a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities’” or that an inmate is “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834 (internal citation omitted); see also Barker v. Goodrich, 649 F.3d 428, 434 (6th Cir. 2011) (holding same). The second, subjective, requirement is that the prison official must have a “culpable state of mind”; “[i]n prison-conditions cases[,] that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (citations omitted). “Satisfying the objective component ensures that the alleged deprivation is sufficiently severe, while satisfying the subjective component ‘ensures that the defendant prison official acted with a sufficiently culpable state of mind.’” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013) (quoting Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003)).
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a. Objective Component The Court need not reach the question of whether the possibility of exposure to communicable diseases as alleged in this action constitutes a “sufficiently serious” risk of serious harm because the Court finds that Plaintiffs cannot establish the subjective component of the Eighth Amendment inquiry as to the individual liability of the Defendants as examined, infra. b. Subjective Component The Court notes that “it is well-settled that qualified immunity must be assessed in the context of each individual’s specific conduct.” Stoudemire v. MDOC, 705 F.3d 560, 570 (6th Cir. 2013) (quotation omitted). Therefore, “the question of whether an official possessed the requisite knowledge and culpable mental state to sustain a deliberate indifference claim ‘must be addressed for each officer individually.’” Id. (quoting Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)). In regard to the subjective element, an officer must have “both be[en] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], he must also [have] draw[n] the inference.” Farmer, 511 U.S. at 837. “An officer’s knowledge of the risk may be demonstrated through circumstantial evidence and inference, and ‘a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.’” Barker, 649 F.3d at 434 (quoting Farmer, 511 U.S. at 842). Here, Plaintiffs allege that the individual Defendants “failed to adequately train, supervise and/or institute and implement adequate policies and procedures” such that their Eighth Amendment rights were violated. (Compl. ¶ 52). Supervisory officials, however, “are
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not liable in their individual capacities unless they ‘either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.’” Heyerman v. County of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (quoting Hayes v. Jefferson Cnty., 668 F.2d 869, 872 (6th Cir. 1982)). Indeed, § 1983 liability “must be based on more than respondeat superior, or the right to control employees.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
1. Defendants Heyns, Finco, Straub, and Treacher In the present action, Plaintiffs have failed to evidence or allege any particularized facts against Defendants Daniel H. Heyns, Thomas Finco, Dennis Straub, or Randy Treacher beyond their general job descriptions. Indeed, Plaintiffs have not made any arguments or set forth any facts on the part of Defendants Heyns, Finco, Straub, or Treacher in the Complaint, their response, or during oral argument regarding these Defendants’ individual state of minds such that they were both aware of facts from which an inference could be drawn that a substantial risk of harm existed to the Plaintiffs or that they actually drew that inference.6 Stoudemire, 705 F.3d at 570 (“it is well-settled that qualified immunity must be assessed in the context of each individual’s specific conduct.” (citation omitted)); Heyerman, 680 F.3d at 647 (“[p]ersons sued in their individual capacities under § 1983 can be held liable based only on their own unconstitutional behavior.”). Indeed, Plaintiffs do not address or differentiate the conduct of
6 Indeed, Plaintiffs’ argument in their Response brief states only that the “MDOC was on actual notice that the inmates were being subjected to unnecessary psychological and physical harm” and that the MDOC ignored and “condoned them and perpetuated their continuance”. (Pls.’ Resp. at 19). Further, Plaintiffs only separately address Defendant Warren, arguing that she was deliberately indifferent in her actions. (Id.).
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these individual officers whatsoever. Where Plaintiffs have failed to address or make any arguments regarding Defendants Heyns, Finco, Straub, and Treacher, those Defendants are entitled to qualified immunity.
Moreover, the failure to separately address these individual Defendants or make any arguments regarding their personal involvement indicates that Plaintiffs’ attempt to sue them in their individual capacities is merely a fiction. Indeed, Plaintiffs’ claims against Defendants Heyns, Finco, Straub, or Treacher appear to be lodged against these defendants in their official capacity and/or “improperly conflate[] a § 1983 claim of individual supervisory liability with one of municipal liability.” Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 543 (6th Cir. 2008) (reasoning that allegations regarding officers were not properly trained were “more appropriately submitted as evidence to support a failure-to-train theory against the municipality itself, and not the supervisors in their individual capacities.”); see also Heyerman, 680 F.3d at 647 (holding that a plaintiff’s attempt to hold a prosecuting attorney liable in her individual capacity for the continuation of a policy or following of a policy improperly conflated a § 1983 claim “of individual supervisory liability with one of municipal liability”); Miller v. Calhoun Cnty., 408 F.3d 803, 817 n. 3 (6th Cir. 2005) (noting that where a plaintiff failed to allege or present any evidence that the individual defendants had any personal involvement in the alleged underlying misconduct, a “failure-to-train” claim lodged against those individual defendants was properly construed as a claim against the individuals in their official capacities, which in turn is treated as a claims against the county.); see also Broyles v. Corr. Med. Services, Inc., 478 F. App’x 971, 977 n. 1 (6th Cir. 2012) (noting that allegations regarding a prison supervisor’s implementation of a policy or practice would be relevant to the prison official’s liability in his official capacity.).
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2. Defendant Warren Plaintiffs more specifically allege that Defendant Warren was personally involved in the creation and implementation of the chair portion of the strip search policy. (Compl. ¶¶ 13-15). It is undisputed that Defendant Warren was personally aware of 67 grievances filed by prisoners regarding the practice and some 30 complaints to WHV psychological services and decided to investigate the issue in 2011. (Warren Aff. ¶¶ 9-11). To that end, Defendant Warren issued two memoranda regarding the chair portion of the strip search, the first in June 2011 specifying that certain procedures must be followed to ensure sanitary conditions, and in December 2011 providing the results of her investigation and concluding that the chair portion of the strip search would no longer be routinely practiced as of December 16, 2011. (Ex. B, 6/3/2011 Memo; 12/14/2011 Memo). In the instant case, Plaintiffs argue that “[d]espite warnings from psychologists on her staff that the searches could cause severe psychological stress in some female inmates, and despite complaints and grievances concerning the transmission of infection and serious adverse psychological impact, the warden still implemented and continued the policy.” (Pls.’ Resp. at 19). However, the record is clear that Defendant Warren became aware of complaints regarding the chair portion of the search in 2010 and 2011 which spurred “an administrative fact finding and review” regarding the procedure which included seeking opinions of the psychologists on her staff. (Warren Aff. ¶¶ 11-14). As a result of that inquiry, and after receiving the opinions of her staff psychologists on her staff, Defendant Warren formally abandoned the policy. (12/14/11 Memo). Additionally, ostensibly because of these same complaints, by April 2011 Defendant Warren required that a disposable seat cover be used and hand sanitizer be available during the
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chair portion of the strip search. (Warren Aff. ¶ 10). On June 3, 2011, the language of the Operating Procedure 04.04.110 was changed to reflect these changes. (Ex. B, 6/3/2011 Memo). Finally, during the fact finding review, Defendant Warren directed the staff to “allow prisoners who did not want to be subject to a strip search following a contact visit, to be allowed to choose a non-contact visit.” (Id. ¶ 13; Ex. D, 4/5/2011 Memo).
The Supreme Court has provided that “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause”. Farmer, 511 U.S. at 845. Indeed, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844; see also Street v. Corr. Corp. of Am., 102 F.3d 810, 817 (6th Cir. 1996) (quoting same). Even when viewed in a light most favorable to Plaintiffs, the present facts cannot establish that Defendant Warren was deliberately indifferent to Plaintiffs’ Eighth Amendment rights in regards to the chair portion of the strip search. Indeed, Plaintiffs cannot dispute that Defendant Warren’s response to complaints regarding the chair portion of the strip search was reasonable given that she officially changed the policy and instituted sanitary practices. Accordingly, Defendant Warren, in her individual capacity, is entitled to qualified immunity from Plaintiffs’ Eighth Amendment claim where Plaintiffs cannot establish a constitutional violation on her part where the record reflects her knowledge of prisoner’s complaints, her inquiry in to the matter, her actions to make the search sanitary, and her direction that prisoners could choose to avoid the chair portion of the search by foregoing contact visits, and her formal abandonment of the policy.
25

3. Fourth Amendment Claims and Qualified Immunity The Court notes that is it unclear from Defendants’ initial briefing whether they were seeking qualified immunity for Plaintiffs’ § 1983 claims based on violations of the Fourth Amendment. However, Plaintiffs assumed as much in their Response and Defendants noted in both their Reply brief (at 4) and stated during their oral argument that the individual Defendants are seeking qualified immunity on the Fourth Amendment claim. As stated previously, a government official is entitled to qualified immunity and is shielded from money damages “unless a plaintiff pleads facts showing: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S. Ct. at 2080 (citation omitted). The order of this inquiry is no longer mandatory. See Pearson, 555 U.S. at 236. Again, this Court stresses that qualified immunity must be assessed on an individual basis. Stoudemire, 705 F.3d at 570 (“it is well-settled that qualified immunity must be assessed in the context of each individual’s specific conduct.” (citation omitted)); Heyerman, 680 F.3d at 647 (“[p]ersons sued in their individual capacities under § 1983 can be held liable based only on their own unconstitutional behavior.”). A. Defendants Heyns, Finco, Straub, and Treacher In the context of their Fourth Amendment claims, Plaintiffs claim that the Defendants are individually liable for the “unconstitutional conditions” at WHV because they “(1) participated in creating and carrying out the unconstitutional policies that caused harm to each Plaintiff; (2) failed to take necessary steps to ensure the safety and wellbeing of each Plaintiff; and (3) implicitly authorized, approved or knowing[ly] acquiesced in the unconstitutional conduct of
26

offending MDOC staff.” (Compl. at ¶ 61). However, Plaintiffs fail to carry their burden in showing the individual Defendants, Heyns, Finco, Straub and Treacher, are not entitled to qualified immunity on the Fourth Amendment claims, where they have failed to differentiate the individual conduct of these Defendants. See Roth, 650 F.3d at 609 (holding that it is plaintiff’s burden to show that the defense of qualified immunity is unwarranted). As examined supra in the context of Plaintiffs’ Eighth Amendment claims, qualified immunity must be assessed on an individual basis and specific to each defendant’s conduct. Here, Plaintiffs have again failed to plead any particular facts beyond their general job descriptions connecting Defendants Heyns, Finco, Straub and Treacher to their Fourth Amendment allegations. Therefore, for the same reasons Plaintiffs failed to state Eighth Amendment claims against Defendants Heyns, Finco, Struab, and Treacher, the Court finds that Plaintiffs have failed to state Fourth Amendment claims against Defendants Heyns, Finco, Straub, and Treacher and those Defendants are entitled to qualified immunity.
B. Defendant Warren Plaintiffs have set forth particular facts and allegations regarding Defendant Warren in connection to their Fourth Amendment claim.
1. Constitutional Violation It well settled that the Sixth Circuit recognizes that “a convicted prisoner maintains some reasonable expectations of privacy while in prison ... even though those privacy rights may be less than those enjoyed by non-prisoners.” Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (citing Bell v. Wolfish, 441 U.S. 520, 558 (1979) and Kent v. Johnson, 821 F.2d 1220, 1226-27 (6th Cir. 1987)) (acknowledging that a prisoner “particularly” maintains a limited right
27

to privacy against “forced exposure to strangers of the opposite sex”.); Everson v. MDOC, 391 F.3d 737, 757 n. 26 (6th Cir. 2004) (recognizing same). Further, as the Sixth Circuit recently noted, there is a “dignitary interest ‘inherent in the privacy component of the Fourth Amendment’s proscription against unreasonable searches.’” Stoudemire v. MDOC, 705 F.3d 560, 573 (6th Cir. 2013).
When a court evaluates whether a prison regulation infringes upon a prisoner’s constitutional rights, “the regulation is valid if it is reasonably related to legitimate penological interests.” Cornwell, 963 F.2d at 916-17 (emphasis in original) (quoting Turner v. Safely, 482 U.S. 78, 89 (1987)); see also Florence v. Board of Chosen Freeholders of the County of Burlington, --- U.S. ---, 132 S. Ct. 1510, 1515 (2012) (citing the same in regards to pretrial detainees and explaining that this test “confirm[s] the importance of deference to correctional officials” ). In Bell v. Wolfish, the touchstone case regarding the constitutionality of strip searches, the Supreme Court explained:
[t]he test for 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. 441 U.S. 520, 559 (1979) (upholding policy of suspicionless strip searches of pretrial detainees and convicted prisoners). The job of evaluating whether a prison policy is reasonably related to legitimate security interests “is ‘peculiarly within the province and professional expertise of corrections officials.’ ... [and] ‘in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters.’” Florence, 132 S. Ct. at 1517 (internal citations
28

omitted).7
Therefore, as required by Bell and Florence, and reflected in the recent Sixth Circuit
decision of Stoudemire, this Court must balance the need for the particular search against the
invasion of prisoners’ personal rights and to this end, “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.” Bell, 441 U.S. at 559; Florence, 132 S. Ct. at 1516 (relying on same);
see also Williams v. City of Cleveland, 771 F.3d 945, 950 (6th Cir. 2014) (applying the same
factors in evaluating strip searches of pretrial detainees). The Court views the facts in a light
most favorable to Plaintiffs.
7 Both parties cite to the factors set forth in Cornwell, ostensibly from Turner, where the Supreme Court set forth certain enumerated factors to aid in determining whether the prison policy is reasonably related to a legitimate penological interest:
(1) whether there is a valid, rational connection between the prison policy and the legitimate governmental interest asserted to justify it; (2) the existence of alternative means for inmates to exercise their constitutional rights; (3) the impact that accommodation of these constitutional rights may have on other guards and inmates, and on the allocation of prison resources; and (4) the absence of ready alternatives as evidence of the reasonableness of the regulation.
Cornwell, 963 F.2.d at 917 (citing Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir. 1988) and Bell, 441 U.S. at 559). However, the Supreme Court did not refer to these factors in Florence, its most recent case addressing prison policies affecting Fourth Amendment privacy rights in the context of pretrial detainees, nor did the Sixth Circuit reference these factors in Williams v. City of Cleveland that addressed the same. Significantly, the Sixth Circuit did not reference these factors in its recent decision regarding a convicted prisoner’s Fourth Amendment constitutional claims regarding strip searches in Stoudemire v. MDOC. See Stoudemire, 705 F.3d at 572 (quoting and applying the Bell “test of reasonableness” that a court “must consider the scope of the particular intrusion, the manner in which it is conducted, the jurisdiction for initiating it, and the place in which it is conducted.”). Therefore, the Court does not rely upon the Cornwell framework in its analysis but uses the more recent balancing of factors as first espoused by the Supreme Court in Bell v. Wolfish, and explained in Florence, Stoudemire, and Williams.
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a. Scope, Manner and Location Plaintiffs argue that the scope and manner of the chair portion of the strip search was overly invasive because such a search was a “body cavity search” that was performed in view of other inmates, by officers of the opposite gender and while they sat on a dirty chair. Defendants, on the other hand, argue that similar visual body cavity searches of prisoners in which there is no physical touching by an inspecting official have been upheld as constitutional by the Supreme Court. See Bell, 441 U.S. at 558 n. 39 (noting the search at issue involved the visual inspection of body cavities but there was no touching by any official); see also Florence, 132 S. Ct. at 1515-17 (holding a policy that a visual body cavity search (and compelled delousing) of persons charged with non-indictable offenses before their admission to the general population of the facility did not offend the Fourth Amendment and describing the term “strip search” as “imprecise” and noting that in that particular case the term “does not include any touching of unclothed areas by the inspecting officer. There are no allegations that the detainees here were touched in any way as part of the searches.”); see also Goff v. Nix, 803 F.2d 358, 364-65 (8th Cir. 1986) (holding visual body cavity searches performed every time an inmate entered or left the maximum security prison was reasonable). As an initial matter, the Court notes that Plaintiffs’ arguments improperly conflate the meaning of a “body cavity search” and a visual “strip search”. While the definition of a strip search or body cavity search can be imprecise, the MDOC policies define the terms with specificity. MDOC policy 04-04-110 provides that a “body cavity” search is one in which requires reasonable suspicion that the prisoner is harboring contraband, “involves physical intrusion into a body cavity by the person conducting the search”, and requires the search to be
30

conducted by a licensed physician. (Ex. C-1, PD 04-04-110 (eff. 4/24/09), at ¶¶ G(4), X). While a “strip search” is defined in the same policy as including a “visual inspection of the entrance to the vagina and rectal cavity ...”. (Id. at ¶ G(3)). In the instant case, there are no allegations that the officers physically touched the Plaintiffs, rather, the chair portion of the strip search was a visual search of the Plaintiffs’ body cavities, consistent with the MDOC policy. Therefore, Plaintiffs’ attempt to cast the chair portion of the strip search policy as a “body cavity search” is not supported by the record or the MDOC policy itself.
However, this does not end the Court’s inquiry. Here, Defendants’ arguments that the chair portion of the strip search was reasonable because other courts have found that nonphysical strip searches are constitutional disregard the real thrust of Plaintiffs’ claims - that the manner of the strip searches as performed were unreasonable.
In the present case, Plaintiffs’ allegations are factually distinct from those set forth in Bell or Florence. Here, the visual body cavity search at issue required that the prisoners sit on a dirty chair and manipulate their own vaginas at the direction of the officers and in full view of other prisoners.8 (Compl. ¶ 19(b)). While true that there may be a valid penological reason to justify a visual body cavity search, the “manner in which the searches were conducted must itself pass constitutional muster.” Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009) (holding a plaintiff’s claim regarding strip searches that were allegedly conducted daily, at times in front of other prisoners, the guards did not change their latex gloves between searches should have gone to the jury); see also Hutchin v. McDaniel, 512 F.3d 193, 196 (5th Cir. 2007) (“[T]he Fourth
8 Plaintiffs argue in their Response brief that the searches were also done in fully view of “officers of the opposite sex.” (Pls.’ Resp. at 4, 5, 10, 16, 17). Additionally, Plaintiffs argue that they were subject to derogatory remarks during the chair portion of the strip search. (Pls.’ Resp. at 1). However, Plaintiffs do not allege any of these particular facts in their Complaint.
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Amendment protects prisoners from searches and seizures that go beyond legitimate penological interests. Searches of prisoners must be conducted in a manner that is reasonable under the facts and circumstances in which they are performed.”) (internal citation omitted)). Indeed, the Sixth Circuit has explained that “if the search is conducted in a particularly invasive manner, despite the lack of exigent circumstances that necessitate the degree of invasion to which the detainee is subjected, then the search may be unreasonable by virtue of the way in which it is conducted.” Williams, 771 F.3d at 952 (citing Stoudemire, 705 F.3d at 574).
Additionally, Plaintiffs have alleged in their complaint that these strip searches took place in the presence of other prisoners. (Comp. at ¶ 19). The Sixth Circuit has held that a visual strip search is “an offense to the dignity of the individual” and is “undoubtedly humiliating and deeply offensive to many”. Stoudemire, 705 F.3d at 572-73 (citations omitted). The Sixth Circuit has also recognized that where a strip search is preformed in the presence of others, such a strip search is considered “more invasive” than one conducted in private. Id. at 953 (quoting Stoudemire, 705 F.3d at 573 and collecting other cases).
Therefore, given the facts in this limited record, the Court finds that the chair portion of the strip search, if conducted in the presence of others, as alleged by Plaintiffs represents a significant incursion into the Plaintiffs’ privacy.
b. Justification The Court now turns to the justification for the chair portion of the strip search. Plaintiffs appear to concede that Defendants had a general legitimate penological interest for conducting a visual strip search of prisoners after contact visits (see Pls.’ Resp. at 17, “[t]he assumption that prisoner searchers are initiated to detect and deter contraband cannot be ignored; indeed, MDOC
32

may have a legitimate penological interest in searching, even strip searching, inmates after contact visits.”). Defendant Warren provides that routine strip searches on inmates after contact visits is a “necessary tool” in the management of a prison and the goal of these strip searches is to prevent contraband items (i.e. weapons, drugs, money, jewelry, and cell phones) from being smuggled into the prison. (Warren Aff. at ¶ 5). Further, Defendant Warren explained that the chair portion of the strip search was instituted because the MDOC was aware that female prisoners could hide contraband in their vaginas and because the MDOC, “at the time, believed that incorporating a chair into the routine strip search procedure would aid staff in performing a more thorough search for contraband and to better comply with MDOC policy on strip searches.” (Warren Aff. ¶ 8). Moreover, Plaintiffs also do not argue in their brief that the chair portion of the strip search was unconstitutional merely because the policy did not require particularized or individualized suspicion. (See Pls.’ Resp. at 16). Plaintiffs’ tacit concession of these issues is supported by the fact that “[u]nquestionably, ‘detect[ing] and deter[ing] the possession of contraband’ is a legitimate penological objective.” Stoudemire, 705 F.3d at 573 (quoting Florence, 134 S. Ct. at 1517).
As the Sixth Circuit has recently instructed, however, “the pertinent question” is whether the Defendants’ “selection of the particular procedures to which it subjected plaintiffs is reasonably related to that legitimate end”. Williams, 771 F.3d at 954 (citation omitted). In the present action, Plaintiffs claim that the chair portion of the strip search was overly invasive and an exaggerated response to “considerations of institutional security”. (Pls.’ Resp. at 17).
In Williams the Sixth Circuit found that “a correctional institution will have little need to conduct the search or seizure in a particular manner if there are “obvious, easy alternatives ...
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that fully accommodate[] the prisoner’s rights at de minimis cost’ to the institution’s valid penological interest underlying the search in the first place.” Williams, 771 F.3d at 954 (quoting Turner, 482 U.S. at 90-91). In the present action, Plaintiffs argue that the chair portion of the strip search an exaggerated response to any security issue because the prisoners were already made to bend over, spread their buttocks and cough during a routine strip search. Morever, Plaintiffs note that the cough and bend portion of the strip search is an example of an alternative, less invasive means by which the goals of the strip search could be accomplished. It is undisputed that the cough and bend procedure was used prior to 2009 when the inmates were not subject to the chair portion of the search, is used currently, and was also used in addition to the challenged chair portion of the strip search during 2009 and 2011.
The Court further notes that the December 2011 Memo provides that during the time period the chair portion of the strip search was officially authorized only one piece of contraband was discovered, and that contraband was found pursuant to the bend procedure - not the chair portion of the search. (See 12/14/11 Memo, at 10). Finally, Defendants’ December 2011 Memorandum notes that pursuant to its own survey of guards who performed the search, 75% of the guards surveyed did not believe it was necessary, and 100% of the guards surveyed believed they could conduct the strip search effectively without the chair portion of the search. (Id. at 10).
c. Weighing the Factors A regulation that infringes upon a prisoner’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Florence, 132 S. Ct. at 1515 (citation omitted). Here, Plaintiffs have asserted that the chair portion of the strip search was carried out in an unreasonable manner because prisoners were made or are still made to sit on dirty chairs, in
34

full view of other prisoners, directed to manipulate their own vaginas and such a search was needless and gratuitous because the strip search already involved a bend and cough procedure that accomplished the same goals and was just as effective. Defendants argue simply that they have a strong interest in ensuring dangerous contraband is kept out of their prisons and rely upon the well settled precept that a court should generally defer to the needs of prison administration. See Bell, 441 U.S. at 547. However, the Sixth Circuit has recently reaffirmed that “we must not confuse deference with abdication.” Williams, 771 F.3d at 951 (quoting Stoudemire, 705 F.3d at 572)).
Given these facts and weighing the Bell factors, the Court finds that Plaintiffs have raised a genuine issue of material fact at this stage regarding whether the chair portion of the strip search was conducted in a reasonable manner. Indeed, Plaintiffs’ allegations raise a genuine issue of material fact regarding whether the chair portion of the strip search as conducted on these particular persons was reasonably related to a legitimate penological interest and where it may have been gratuitous or duplicative of measures already in use.
C. Clearly Established Law “Once a court finds a constitutional violation, it must next consider whether ‘the right was clearly established at the time of the alleged violation.’” Goodwin v. City of Painesville, 781 F.3d 314, 324 (6th Cir. 2015) (quoting Campbell v. City of Springboro, 700 F.3d 779, 786 (6th Cir. 2012)). A constitutional right is clearly established if “[t]he contours of that right [are] sufficiently clear that a reasonable official would understand that what he is doing violated that right.” Wheeler v. City of Lansing, 660 F.3d 931, 938 (6th Cir. 2011) (citation omitted).
35

Defendants briefly argue that they are entitled to qualified immunity because the Plaintiffs cannot cite to case in which a court established that a strip search performed by an officer of the same sex “employing the use of a chair for a portion of the strip search” was unconstitutional. (Defs.’ Br. at 16). The Court rejects Defendants’ argument as construing the constitutional right at issue too narrowly. Indeed, in determining whether a clearly established right exists, “there need not be a case with the exact same fact pattern or even ‘fundamentally similar’ or ‘materially similar’ facts; rather, the question is whether the defendants had ‘fair warning’ that their actions were unconstitutional.’” Goodwin, 781 F.3d at 324 (quoting Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005)).
Tellingly, in Stoudemire, the Sixth Circuit rejected a similar attempt to narrowly construe the contours of a ‘clearly established right’ where the defendant official argued that a prisoner had no right to be free from a same-sex strip search under the Fourth Amendment. Stoudemire, 705 F.3d at 574-75. In Stoudemire, the Sixth Circuit noted that “it was clearly established that suspicionless strip searches were permissible as a matter of constitutional law, only so long as they were reasonable under the circumstances and performed pursuant to a legitimate penological justification.” Id. at 575. The Sixth Circuit concluded that the right implicated was the “well established right, the right not to be subjected to a humiliating strip search in full view of several (or perhaps many) others unless the procedure is reasonably related to a legitimate penological interest.” Id.
In the instant case, Plaintiffs have identified a similar well established right to be free from a strip search that was performed in full view of other prisoners. See Id. Viewing the facts in a light most favorable to Plaintiffs, the Court finds that such a right was well-established in
36

2009, where earlier case law clearly instructs that a strip search must be reasonably related to a legitimate penological purpose and that the manner of that search also be reasonable. See Bell, 441 U.S. at 559-60. Here, the Court finds that a reasonable officer would have known that a strip search performed in front of other prisoners was not related to a legitimate penological interest. The Sixth Circuit held in Williams that it has been a “long-standing rule” that a strip search “even if it does not need to be based upon individualized suspicion, still ‘must be conducted in a reasonable manner.’” Williams, 771 F.3d at 951 (quoting Bell, 441 U.S. at 560)); see also Cornwell, 963 F.2d at 917.
As the Court has already found that a genuine issue of material fact exists as to whether the chair portion of the strip search was conducted in a reasonable manner or reasonably related to a legitimate penological purpose, the Court must deny Defendant Warren qualified immunity. C. Possible Prospective Relief regarding the Chair Portion of the Strip Search
Plaintiffs assert in their Response that they seek prospective injunctive relief against the MDOC (and the individual Defendants in their official capacity), and request that the MDOC cease the practice of the chair portion of the strip search. (Pls.’ Resp. at 12).
Defendants respond that the routine practice of the chair portion of the strip search was explicitly abandoned as of December 2011 and therefore argue that any request for prospective injunctive relief regarding the policy is moot. However, Plaintiffs argue that they have been subjected to the chair portion of the strip search after the policy change and that the practice is still currently being used at WHV. (Compl. ¶ 30). Plaintiffs also supply the Court with affidavits from the Plaintiffs which state that each Plaintiff suffered the search at issue after the date Warren abolished the “routine” practice. Plaintiffs further claim that 500 grievances have
37

been filed objecting to the search practice and some (it is unclear how many) were filed after the

chair portion of the strip search was allegedly abolished as a “routine” practice. (Pls.’ Br. Ex. 4,

Appendix). Viewing the facts in the light most favorable to Plaintiffs, as the Court must at this

stage in the litigation, Plaintiffs’ allegations of on-going strip searches which involve the use of a

chair allow the Court to conclude that these searches are on-going and that the possibility of

prospective relief remains viable.

Therefore, the Court rejects Defendants’ argument that Plaintiffs’ request for prospective

injunctive relief is moot and denies summary judgment in this regard.

IV. CONCLUSION

For these reasons, the Court grants in part and denies in part Defendants’ Motion to

Dismiss and for Summary Judgment based on Qualified Immunity (ECF No. 11). Therefore, the

Court:

(1) GRANTS Defendants’ Motion and DISMISSES the Eighth Amendment claims against Defendants Warren, Heyns, Finco, Straub, and Treacher in their individual capacity based on qualified immunity;

(2) GRANTS Defendants’ Motion and DISMISSES Plaintiffs’ Fourteenth Amendment Due Process claims against ALL Defendants;

(3) GRANTS Defendants’ Motion and DISMISSES the Fourth Amendment claims against Defendants Heyns, Finco, Straub, and Treacher in their individual capacities based on qualified immunity;

(4) DENIES qualified immunity to Defendant Warren in her individual capacity on these individual Plaintiffs’ Fourth Amendment claims; and

(4) DENIES Defendants’ Motion to the extent they argue these individual Plaintiffs’ claims for prospective relief are moot.

Dated: May 1, 2015

s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

38

CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on May 1, 2015.
s/Deborah Tofil Case Manager
39

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMIRA SALEM AND KESHUNA ABCUMBY,

Plaintiffs,

Case no: 13-14567

v.
MICHIGAN DEPARTMENT OF CORRECTIONS, ET AL.,

Paul D. Borman United States District Judge

Defendants.
-------------------------I
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION WITHOUT PREJUDICE
CECFNO. 44)
Now before the Court is Plaintiffs Amira Salem and Keshuna Abcumby's Motion for
Class Certification that was filed on August 11, 2016. (ECF No. 44.) Defendants Michigan
Department of Corrections ("MDOC") and Millicent Warren filed a response and Plaintiffs
thereafter filed a reply. (ECF Nos. 50 & 51.)1
1 After this Court's previous Opinion and Order granting in part and denying in part Defendants' motion to dismiss and for summary judgment and the Sixth Circuit's remand in this case, the only claims remaining against Defendants Daniel Heyns, Thomas Finco, Randy Treacher, Dennis Straub are official capacity claims for prospective relief. See Salem v. MDOC, No. 13-14567,2015 WL 1966727, at *8 (E.D. Mich. May 1, 2015) (available on the docket at ECF No. 21); Salem v. Michigan Dep't ofCorr., 643 F. App'x 526 (6th Cir. 2016). The Court notes that both Plaintiffs' and Defendants' current briefing assumes, with no discussion, that all the individual Defendants, save Defendant Millicent Warren, are no longer parties to this case. The Court, however, recognizes that "a suit against an individual in his official capacity is the equivalent of a suit against the government entity." Goodwin v. Cnty. ofSummit, Ohio, 45 F. Supp.3d 692, 699-700 (N.D. Ohio, 2014) (citing Will v. Mich. Dep 't ofState Police, 491 U.S. 58, 71 (1985)); see also Kraemer v. Luttrell, 189 F. App'x 361, 366 (6th Cir. 2006) (finding that "suing a municipal officer in his official capacity for a constitutional violation pursuant to 42 U.S.C. § 1983 is the same as suing the municipality itself.") Accordingly, the Court agrees that

A hearing on this matter was originally scheduled for Thursday, October 27, 2016. On October 24, 2016, the Court issued an order directing Defendants to file a sur-reply addressing the new proposed class definition that Plaintiffs raised for the first time in their reply brief. (ECF No. 52.) Defendants filed their sur-reply on November 1, 2016. (ECF No. 53.) A hearing on this matter was held on November 16, 2016. For the following reasons, the Court will DENY Plaintiffs' motion for class certification at this time.
I. BACKGROUND AND PROCEDURAL POSTURE On November 1, 2013, Plaintiffs filed the instant putative class action pursuant to 42 U.S.C. § 1983 on behalf of all female prisoners who "since October 2010, have been, are now, or will be hereafter incarcerated by [the Women's] Huron Valley Correctional Facility and who have been subject to sexual harassment and degrading and unhygienic treatment by MDOC custodial staff." (Compl. ~ 16). Plaintiffs alleged violations of their Fourth, Fourteenth and Eighth Amendment rights and named six defendants in their action: Michigan Department of Corrections, Daniel Heyns, Thomas Finco, Randy Treacher, Dennis Straub, and Millicent Warren (collectively "Defendants"). Prior to 2009, a standard strip search at a correctional facility that housed female prisoners in Michigan was conducted by female correction officers who would require the prisoner to remove all her clothing, bend forward and spread her buttocks to allow for a visual inspection of the vagina and rectal cavity. Then, in 2009, Defendant MDOC consolidated all of
the official capacity claims remaining against Defendants Heyns, Finco, Straub, and Treacher are merely duplicative of Plaintiffs' claim for injunctive relief against the MDOC and will therefore formally dismiss those claims. Goodwin, 45 F. Supp.3d at 700 (holding that "when a civil rights complaint asserts a claim against a municipal entity and a municipal official in his or her official capacity, federal courts will dismiss the official-capacity claim.")
2

its female prisoners into one facility, the Women's Huron Valley Correctional Facility ("WHV"). At that time, Defendant Warren became the warden for the entire facility and the "chair portion" of the strip search was added to the above described standard strip search procedure. Plaintiffs allege that the "chair portion" of the strip search procedure required that a female prisoner was forced to sit on a chair, open her knees, and spread her labia to expose her vaginal cavity for inspection by correction officers. (Compl., at~ 25.) Plaintiffs contend that the communal chairs on which they were required to sit were "unwashed and unsantizied," were not lined with sanitary paper, and were "wet with bodily fluids from other prisoners." (/d.) Plaintiffs further claim that female prisoners who suffered from communicable diseases such as "HIV, AIDS, tuberculosis, hepatitis C, sexually transmitted diseases, and other vaginal infections" were all subject to the chair portion of the strip searches while on their menstrual cycles which resulted in blood being left on the communal chairs used during the strip searches. (/d., at ~ 26.) Plaintiffs also allege that the chair portion of the search were conducted on "numerous female prisoners in full view of' other female prisoners. (/d., at~ 19.) This type of strip search was required after every visit in which a prisoner was allowed physical contact with a visitor or was taken to any off site location. (/d., at ~ 27.)
On January 21, 2014, Defendants filed a "Motion to Dismiss and for Summary Judgment based upon Qualified Immunity." (ECF No. 11.) After briefing and a hearing, the Court issued an Opinion and Order granting in part and denying in part Defendants' motion to dismiss and for summary judgment based on qualified immunity.2 See Salem v. MDOC, No. 13-14567,2015 WL
2 This Court evaluated the motion under the standard for summary judgment as both sides relied upon affidavits and materials outside the pleadings.
3

1966727 (E.D. Mich. May 1, 2015) (available on the docket at ECF No. 21.) Defendants
appealed the Court's Opinion and Order. The United States Court of Appeals for the Sixth
Circuit succinctly summarized this Court's Opinion and Order:
The district court agreed that the Eleventh Amendment barred Plaintiffs' monetary claims against the MDOC and the named defendants in their official capacities. It also found Plaintiffs' Fourteenth Amendment claim abandoned and their Eighth Amendment claim insufficiently established. The court then dismissed the Fourth Amendment, unreasonable-search claim against all the defendants except Warren because Plaintiffs "failed to differentiate [their] individual conduct." Finding adequate the individual-conduct allegations against Warren, the court then denied Warren qualified immunity, holding that "Plaintiffs have identified a ... well established right to be free from a strip search that was performed in full view of other prisoners." Finally, the court denied summary judgment on the claim for prospective injunctive relief, finding that the allegedly ongoing nature of the searches overcame Defendants' mootness argument.
Salem v. Michigan Dep't ofCorr., 643 F. App'x 526, 529 (6th Cir. 2016) (available on the docket
at 31).
On March 9, 2016, the Sixth Circuit affirmed this Court's denial of qualified immunity as
to Defendant Warren. ld., at 529-531. The Sixth Circuit rejected Defendant Warren's argument
on appeal that she was not personally involved in any of the alleged constitutionally offensive
searches, because she failed to raise the argument in her motion for summary judgment. ld., at
530. The Sixth Circuit then went on to "confine" its inquiry as to "whether the searches,
performed in the manner alleged by Plaintiffs, violated their clearly established Fourth
Amendment rights." Jd. The Sixth Circuit concluded "that viewing the facts in a the light most
favorable to Plaintiffs, we uphold the judgment of the district court denying qualified immunity
to Warren regarding the non-private searches." ld., at 531.
The Sixth Circuit also held that it lacked jurisdiction to address Defendants' appeal from
4

this Court's finding that the claim for injunctive relief could proceed against the Defendants. The Sixth Circuit explained that while Defendants argued in their appeal that sovereign immunity barred Plaintiffs' claim for injunctive relief against Defendants based upon Papasan v. Allain, 478 U.S. 265 (1986), "the Defendants never invoked sovereign immunity as to this claim. Instead they relied on the Prison Litigation Reform Act in pressing for summary judgment on mootness grounds." !d. at 531.
The mandate issued on March 31,2016. (ECF No. 33.) Thereafter, Defendants filed an Answer to the Complaint and the parties submitted a discovery plan. (See ECF No. 37, 39.)
II. STANDARD OF REVIEW "A district court has broad discretion to decide whether to certify a class." In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838, 850 (6th Cir. 2013) (citation omitted); see also In reAm. Med. Sys., 75 F.3d 1069, 1079 (6th Cir. 1996). A district court has such substantial discretion because "it possesses the inherent power to manage and control its own pending litigation." Rikos v. Proctor & Gamble Co., 799 F.3d 497 (6th Cir. 20.15) (quoting Beattie v. CenturyTel, Inc., 511 F.3d 554, 559 (6th Cir. 2007). "The class action is 'an exception to the usual rule that litigation is conducted by an on behalf of the individual named parties only."' Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012) (quoting Wal-Mart Stores, Inc. v. Dukes,--- U.S.---, 131 S.Ct. 2541,2550 (2011)). Critically, "Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule- that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart, 131 S.Ct. at 2551 (emphasis in original); Comcast Corp. v. Behrend, ---
5

U.S.---, 133 S.Ct. 1426, 1432 (2013). The party seeking certification bears the burden in showing all prerequisites under Rule 23 are satisfied. In reAm. Med Sys., 75 F.3d at 1079.
When reviewing a plaintiffs motion for class certification, the district court must conduct a "rigorous analysis" of the Rule 23 requirements. Corneas!, 133 S.Ct. at 1432 (citation omitted). The Supreme Court has recognized that this "rigorous analysis" will frequently involve some "overlap with the merits of the plaintiffs underlying claim." /d. To obtain class certification pursuant to Rule 23 "the plaintiffs must show that ' (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." In re Whirlpool, 722 F.3d at 850 (quoting FED. R. CIV. P. 23(a)). "These four requirementsnumerosity, commonality, typicality, and adequate representation- serve to limit class claims to those that are fairly encompassed within the claims of the named plaintiffs because class representatives must share the same interests and injury as the class members. /d. at 850-51 (citing Wal-mart, 131 S.Ct. at 2550).
In addition to meeting the four prerequisites of Rule 23(a), the proposed class must meet at least one of the three requirements set forth in Rule 23(b). Wal-mart, 131 S.Ct. at 2548 (20 11 ). In the present action, Plaintiffs seek class certification under Rule 23(b)(3), which requires that the "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." FED. R. CIV. P. 23(b)(3). Plaintiffs bear the burden to show that all of the class certification prerequisites have been met.
6

In re Whirlpool, 722 F.3d at 851 (citation omitted). III. ANALYSIS
A. Class Definitions "[B]efore a court may certify a class pursuant to Rule 23, 'the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class."' Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012) (citation omitted); Newberg on Class Actions§ 3:3 (5th ed.) ("Courts generally treat the requirement [of definiteness] as a precursor to Rule 23 and therefore examine the implicit requirements before proceeding the Rule's explicit requirements.") In evaluating the "ascertainability" of a class, the Sixth Circuit has indicated that class definitions which are "amorphous" or "imprecise" do not meet this standard. !d. at 537-38 (citation omitted). Further, [fJor a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused by particular wrongful actions taken by the defendants will be sufficiently objective for proper inclusion in a class definition. Jd, at 538-39 (citation omitted); Newberg on Class Action§ 3.1 (5th ed.) ("Despite the specificity of Rule 23, courts have grafted on to it two additional criteria, often referred to as the 'implicit requirements' of class certification: that the class be 'definite' or 'ascertainable' and that the class representative be a member of the class."). In their motion for class certification, Plaintiffs initially sought certification for the following class of individuals: "Current and future female prisoners who, since October 2010, have been incarcerated at the Women's Valley Correctional Facility, and subject to sexual and
7

physical assault and abuse, sexual harassment, and degrading sexually humiliating and unhygienic treatment at the hands of Huron Valley correctional officers and staff." (Pis.' Mot., at
~ 1, see also Compl.) Then, apparently conceding Defendants' arguments regarding the proposed
class's lack of ascertainablity, Plaintiffs proposed a new and more narrow class definition in their reply brief: "current and former women incarcerated at WHVCF since 2010 who were eligible for offsite trips and contact visits and were thus, pursuant to the practice ofWHVCF, subject to the 'chair portion' of Defendants' strip searches." (Pis.' Reply, at 2.) Plaintiffs went on to define the "chair portion" of the strip search as "forcing inmates to sit on un-sanitized chairs without wiping off the previous women's bodily fluids, forcing the inmates to use their unwashed hands to spread their genitals for visual inspection, forcing the inmates to then use their unwashed hands to touch their mouths, having the women 'spread labia' while menstruating, and having the women 'spread labia' in view of other prisoners after every visit in which a prisoner was allowed physical contact with her visors or went on any off-site trip." (!d. at 2-3.) Plaintiffs argued in their reply that the more narrow class definition neutralized Defendants' arguments regarding ascertainability and noted that the class could be ascertained from objective criteria - grievances filed by female inmates regarding the strip search practices at WHV.3
In light of Plaintiffs' new proposed class definition, this Court ordered supplemental
briefing from the Defendants. (See ECF Nos. 52 & 53.) Yet, the Court now declines to address the first two proposed class definitions because during oral argument Plaintiffs proposed a third
3 The Court notes that Plaintiffs' second proposed class includes potential members who were "eligible" for offsite trips and contact visits but who may not have actually had any contact visits or gone on an offsite trip. Accordingly, as defined, Plaintiffs' second proposed class definition includes women who never were subject to the search at issue and making the class too broad.
8

class definition that consisted of two subclasses: The first subclass would consist of any women who are currently, or have formerly been, incarcerated at the Women's Huron Valley Correctional Facility who were subject to the "chair portion" of the strip search in view of others between November 1, 2010 and November 1, 2013, and who have alleged to have suffered a compensable injury as a result of the search. Plaintiffs then proposed a second subclass defined as any women who are currently or have formerly been incarcerated at the Women's Huron Valley Correctional Facility who were subject to the chair portion of the strip search between November 1, 2010 and December 16, 2011, who alleged that the search was performed in unsanitary or unhygienic conditions and who also suffered a compensable injury arising from that search.
As an initial matter, as discussed during the hearing and conceded by Plaintiffs' attorney, the Sixth Circuit's decision affirmed this Court's holding that Defendant Warren was not protected by qualified immunity to the extent that the subject searches were performed in full view of other female prisoners. See Salem v. Michigan Dep't ofCorr., 643 F. App'x 526, 531(6th Cir. 2016) {"Thus, viewing the facts in a light most favorable to Plaintiffs, we uphold the judgment of the district court denying qualified immunity to Warren regarding the non-private searches."). Plaintiffs' proposed second subclass defines a strip search that does not include any allegation regarding "non private" strip searches and in fact appears to be a subclass designed to capture those potential class members who were not searched in full view of other female prisoners. Accordingly, the Court finds this subclass definition is outside the scope of this action after the Sixth Circuit's remand affirming the denial of qualified immunity as to Defendant Warren in this regard. Thus, the only relevant portion of the third proposed class definition is the
9

first subclass as defined by Plaintiffs: Any women who are currently, or have formerly been, incarcerated at the Women's Huron Valley Correctional Facility who were subject to the "chair portion" of the strip search in view of others between November 1, 2010 and November 1, 2013, and who allege they have suffered a compensable injury as a result of the search.
Plaintiffs' new third proposed class definition negates Defendants' earlier arguments in its response and sur-reply regarding potential over-breadth because the new definition narrows the proposed class to women who suffered compensable injuries related to the "chair portion" of the strip search in full view of others during a discrete time frame. The Court also rejects Defendants earlier argument that Plaintiffs' proposed class definition constitutes an improper fail-safe class. As explained by the Sixth Circuit, "a 'fail-safe' class is one that includes only those who are entitled to relief. Such a class is prohibited because it would allow putative class members to seek a remedy but not be bound by an adverse judgment- either those 'class members win or, by virtue of losing, they are not in the class' and are not bound." !d. (citation
omitted); see also Schilling v. Kenton Cnty., Ky., No. 10-142-DLB, 2011 WL 293759, at *5 (E.D.
Ky. Jan. 27, 2011) ("The class definition should avoid subjective standards such as the plaintiffs state of mind or terms that depend on a merits adjudication. A class definition is therefore too general where it requires the Court to determine whether an individual's constitutional rights have been violated in order to ascertain membership in the class itself.") Defendants reasoned in their sur-reply that "liability must be determined before the class member can be part of the class because it is not simply that the class member was subjected to the chair-based strip search which creates liability, it is whether that prisoner was subjected to a search without a properly-sanitized chair, or not provided with a disposable seat cover, or the search was conducted in view of other
10

prisoners." (Defs.' Sur-reply, at 8-9.) Here, Plaintiffs have proposed a third class definition that includes all the women who were subject to the pattern or practice of the "chair portion" of the strip search during pertinent time period. Unlike a fail safe class, this definition does not depend upon a merits adjudication or include any subjective standards. Defendants' argument appears to be that the Court would have to make individual inquiries regarding the manner of the search to determine the constitutional validity of each strip search claim, however, this argument an argument that the Plaintiffs' claims lack commonality, not that the definition constitutes an impermissible fail safe class or is unascertainable.
In summary, the Court concludes that Plaintiffs' third proposed class definition is ascertainable and can be determined based on objective criteria such as exhausted grievances. Despite having an ascertainable class, the Court concludes that Plaintiffs' motion for class certification must be denied at this time for the reasons examined below.
B. Numerosity Pursuant to Rule 23(a)(1), the numerosity requirement is satisfied when "the class is so numerous that joinder of all members [of the class] is impracticable." FED. R. CIV. P. 23(a)(1). In its initial motion for class certification Plaintiffs represented that there were 700 or more potential class members. In their reply brief, which proposed a second, more narrow definition, Plaintiffs represented that there were "11 0 potential class members who have exhausted the internal grievance policy of the MDOC regarding the 'chair portion' of Defendants' strip search." (Pis.' Reply, at 5). It was unclear at the hearing if the third proposed class definition affected the potential class members - especially in light of a proposed second subclass that applied to searches that are outside the scope of this action. The Court finds the lack of clarity and
11

consistency on this issue telling. While a plaintiff need not know an exact figure to meet the numerosity requirement, Plaintiffs must "demonstrate that the number of potential class members
is large." In re Consumers Power Co. Sec. Litig., I05 F.R.D. 583, 60I (E.D. Mich. I985). Here,
Plaintiffs' initially represented a number of 700 potential members and then in their response briefing Plaintiffs represented a potential call of II 0. Plaintiffs did not provide any particular basis, rationale, or evidence in support of their representation that there are II 0 potential class members, and during oral argument Plaintiffs' counsel noted that they have not yet received the pertinent grievances in discovery. Indeed, it is completely unclear how many of the potential members will fall within the new third proposed class definition addressed above and how many
were part of the second inapplicable subclass addressed supra.
Given the complete lack of clarity on this issue, the Court finds that Plaintiffs have not met the numerosity requirement of Rule 23(a) at this time.
C. Adequacy and Typicality The Court also finds that Plaintiffs may not be adequate class representatives and their claims may not be typical of those of the proposed class as required by Rule 23(a). Pursuant to Rule 23(a)(4), the court must find that the "representative parties will fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). The Sixth Circuit has held that there are two criteria for determining the adequacy of representation: "I) the representative must have common interests with unnamed members of the class; 2) it must appear that the representatives
will vigorously prosecute the interests of the class through qualified counsel." In re Am. Med. Sys. Inc., 75 F.3d at I083 (quoting Senter v. Gen. Motors Corp., 532 F.2d 51 I, 525 (6th Cir.
I976)). The typicality test in Rule 23(a)(3) "'limit[s] the class claims to those fairly
I2

encompassed by the named plaintiffs claims."' Sprague v. General Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (alteration in Sprague, citation omitted). "A necessary consequence of the typicality requirement is that the representative's interests will be aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members." Young, 693 F.3d at 542 (citation omitted).
Here, the named Plaintiffs allege that they were subject to the same "chair portion" of the strip search by Defendants as the rest of the proposed class and thus share a common and typical injury and interest with those proposed class members. However, as noted above, "Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart, 131 S.Ct. at 2551 (emphasis in original).
In the present case, Plaintiff Abcumby provided in her affidavit that she was subject to the "chair portion of the strip search" in full view of others. Yet, Plaintiff Salem has not alleged in the complaint or in her affidavit that she was subject to the "chair portion of the strip search" in view of other people. (See ECF No. 17, Ex. 4, Salem Aff.; ECF No. 19, Salem Am. Aff.) Thus, Plaintiff Salem does not fall within Plaintiffs' third proposed class definition and her claim is not typical of the class.
Additionally, Defendants have raised substantive and non-frivolous concerns regarding exhaustion of grievances. It is unclear from the complaint, affidavits, and briefing whether the named representative Plaintiffs have exhausted their claims as required by the Prison Litigation Reform Act. See Jones v. Bock, 549 U.S. 199, 211 (2007) (holding that "[t]here is no question
13

that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."). The Court recognizes that Plaintiffs have no duty to plead exhaustion. See Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012) ("A PLRA defendant bears the burden of proving that a PLRA plaintiff has not exhausted his administrative remedies."). Yet, in the present case there are real concerns over whether either named Plaintiff exhausted their grievances. (See Compl., ~~ 35-38, alleging that Plaintiffs "are regularly not allowed to file grievances challenging policies or procedures and Defendants do not provide an alternative administrative mechanism to exhaust the claims set forth in this Complaint.").
Thus, the Court is faced with the unappealing prospect of certifying a class only to have both named Plaintiffs later dismissed from the suit based on a failure to exhaust their claims. See Johannes v. Washington, No. 14-cv-11691, 2015 WL 5634446, at* 9-10 (E.D. Mich. Sept. 25, 2015) (Michelson, J.) (declining to certify a class before addressing threshold issue of exhaustion because defendants raised "non-trivial concerns about exhaustion" and "[o]therwise the Court risks certifying a class only to later find that the claims of all six of the class representatives must be dismissed, and, therefore, their claims are atypical and they are inadequate class representatives."). These legitimate concerns lead the Court to conclude that Plaintiffs have not satisfied the requirements of Rule 23(a)(3) and (4) and have not shown that the named Plaintiffs are adequate representatives of the potential class or that their claims are typical of the class. Accordingly, the Court concludes that it would be imprudent to certify a class at this time.
In summary, the Court finds, after a "rigorous analysis," that Plaintiffs have not carried their burden and shown that they satisfied the requirements of Rule 23(a). Specifically, the Court finds that Plaintiffs have not shown that the potential class is sufficiently numerous to meet the
14

standard of Rule 23(a)( l ). F urther, c lass certification at thi s time would be impro per based on the fact that the named Plaintiffs do not appear to be adequate representatives and either fa ll outside the proposed c lass definiti on or may not have cla im s typical to the class based on a fa ilure to ex haust their administrati ve remedi es. Because Pla intiffs have fa il ed to satisfy the requirements of Rule 23 (a)(J ), (3) and (4), the Co urt need not reach the issue of commonality or whether Plaintiffs ' claims meet the standards of Rul e 23(b).
IV. CONCLUS ION For all these reasons, the Co urt DENIES Plaintiffs ' Motion for C lass Certification without prej udice (ECF No. 44). T he Court also DI SM ISSES the offi cial capacity cla ims against Defendants Daniel Heyns, Thomas Finco, Randy T reacher, Denni s Straub as duplicative. lT IS SO ORDERED.

Dated:

DEC 2 2 2016

PAU L D. BORMAN UN ITED STATES DISTRICT JUDGE

15

 
 Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3432 Page 1 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMIRA SALEM and KESHUNA ABCUMBY,

Case No. 13-14567

Plaintiffs,
v.

Paul D. Borman United States District Judge

MICIDGAN DEPARTMENT OF CORRECTIONS, eta/.,

R. Steven Whalen United States Magistrate Judge

Defendants.
---------------------------I
OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND QUALIFIED IMMUNITY, AND DENYING
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
This is a putative class action concerning certain strip search practices that

were employed at the Women's Huron Valley Correctional Facility, operated by the

Michigan Department of Corrections ("MDOC"). Named Plaintiffs Amira Salem

and Keshuna Abcumby, both former inmates there, filed suit against the Michigan

Department of Corrections, Warden Millicent Warren, and four other state officials,

alleging that the inmate strip search procedures used by officers at the facility

violated their rights under the Fourth, Eighth, and Fourteenth Amendments.

In May 20 15, this Court dismissed Plaintiffs' Eighth and Fourteenth

Amendment claims against all Defendants, and Plaintiffs' Fourth Amendment

claims against all Defendants except Defendant Warren, concluding that Defendant

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3433 Page 2 of 45
Warren was not entitled to qualified immunity on that claim. The 1ssue of prospective injunctive relief against MDOC was not raised in this count.
Defendants appealed this Court's ruling denying qualified immunity to Defendant Warren to the United States Court ofAppeals for the Sixth Circuit, which affirmed that ruling. See generally Salem v. Michigan Dep't ofCorr., 643 F. App'x 526 (6th Cir. 2016) (available on the docket at ECF No. 32). The Sixth Circuit noted that Defendant Warren had not raised at the District Court the issue that there were no facts supporting her personal involvement in any searches done in public view and that MDOC policy forbade guards from searching in such a manner. See id. at 530. In December 2016, this Court denied Plaintiffs' class certification motion without prejudice.
The remaining issues are whether Defendant Warren is entitled to summary judgment on the claim that strip searches were performed in view of others, and whether Plaintiffs are entitled to future injunctive relief against MDOC.
Presently before the Court are Defendants' Motion for Summary Judgment and Qualified Immunity, as well as Plaintiffs' Motion for Partial Summary Judgment.
2

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3434 Page 3 of 45

I.
A. Factual Background

BACKGROUND

1. Chair-based Strip Searches at the Women's Huron Valley Correctional Facility

Prior to 2009, a standard strip search at a correctional facility that housed

female prisoners in Michigan was conducted by female corrections officers, who

would require the prisoner to "remove her clothing [and] bend forward, [to allow]

for a visual inspection of the entrance to the vagina and rectal cavity; in such cases,

the [prisoner would] be required to bend and spread her buttocks, and cough." (ECF

No. 21, May 20 15 Opinion and Order1 at 3, Pg ID 241 (internal quotation marks

omitted) (citing ECF No. 11 Ex. A, January 2014 Affidavit of Millicent Warren~

6).) "The female [corrections officer] then performed a visual check of the inmate's

mouth, nose, ears, hair and asked the prisoner to allow the officer clear view of areas

behind ears and under breasts." (/d. (alteration in original) (internal quotation marks

and citation omitted).)

Defendant Millicent Warren became warden of MDOC's Huron Valley

complex in October 2008. (ECF No. 65, Defs.' Mot. Summ. J. Ex. A, Deposition of

1 The factual summary in this section is drawn in part from this Court's May 1, 2015 Opinion and Order Granting in Part and Denying in Part Defendants' Motion to Dismiss and for Summary Judgment Based on Qualified Immunity. See generally Salem v. Michigan Dep't ofCorr., No. 13-14567, 2015 WL 1966727 (E.D. Mich. May 1, 2015) (available on the docket at ECF No. 21). There is no apparent dispute as to the facts set forth herein that are drawn from the May 2015 Opinion and Order.
3

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3435 Page 4 of 45
Millicent Warren at 39:25-40:2.) At some time prior to that, MDOC had instituted
the use of a chair to aid corrections officers in performing strip searches on female
inmates, in certain circumstances, in the East Side ofthe facility. (May 20 15 Opinion
and Order at 3-4, Pg ID 241-42.) After MDOC consolidated all of its female
prisoners into the Huron Valley facility-now known as the Women's Huron Valley
Correctional Facility ("WHV")-in 2009, id., MDOC also implemented the chair-
based strip searches on the West Side of the facility. (ECF No. 18 Ex. A, March
2014 Supplemental Affidavit of Millicent Warren~ 4.)
As to the specifics of the chair-based strip searches, a WHV Operating
Procedure dated May 1, 2009 (and hereinafter referred to as "WHV-OP-
04.04.110"2) defined the general term "strip search" as follows:
2 WHV-OP-04.04.110, an Operating Procedure specific to WHV, implemented the more general MDOC Policy Directive 04.04.110 (hereinafter "PD 04.04.110"), entitled "Search and Arrest in Correctional Facilities." Warren clarified the difference between Policy Directives and Operating Procedures in her September 21, 2017 deposition, explaining that Policy Directives represent MDOC's "position on ... any particular topic," while an Operating Procedure "tells you how to do that, how do you accomplish that goal." (Warren Dep. 11 :8-15.) The record suggests that different versions ofPD 04.04.110 have been in effect at different times, but there is no apparent dispute that PD 04.04.110 and WHV-OP-04.04.11 0 represent the relevant formal policy documents in this case. Warren further testified in her deposition that within the grievance procedures available to WHV inmates at the relevant time, inmates could file grievances concerning formal MDOC or WHV policies like those discussed above, but that such grievances were necessarily denied because inmates "cannot grieve policy." (Warren Dep. 8:5-22.) On the other hand, inmates could grieve implementation of policyi.e., not following it-as Warren testified:
4

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3436 Page 5 of 45
Strip Search: Visual inspection ofall body surfaces ofa person who has been required to remove all or most of his/her clothing and jewelry for purposes of the search. This includes visual inspection of the mouth, ears, and nasal cavities. Unless determined by the Warden to be unnecessary for an assignment within the security perimeter which requires a strip search (e.g., Michigan State Industries), it also includes visual inspection ofthe entrance to the vagina and rectal cavity; in such cases, the person will be required to bend and spread her buttocks and sit on a sanitary paper lined chair and spread her knees so as to spread the lips of her vagina to allow inspection. All clothing and articles which are removed also shall be inspected for contraband.
(ECF No. 11 Ex. A, Jan. 2014 Warren Aff. Ex. C-2, WHV-OP-04.04.110 at 3, Pg
ID 129 (emphasis in original).) Importantly, WHV-OP-04.04.110 also provides that
Q.... I think you testified earlier that prisoners can't grieve a policy itself,
meaning they can't file a grievance to say, "Hey, I don't like strip searches. I think they violate my rights. I'm filing this grievance." That would be rejected under that MDOC policy? A. That's correct. Q. Okay. But if a prisoner had a problem with the way a policy was implemented and believed it went outside the scope of it, that's grievable, isn't it? A. Yes, it is. Q. Okay. So if an officer stepped outside the bounds of what they're supposed to do, they could grieve it; correct? A. That's correct. Q. So if an officer were performing a strip search and left the door open and could see a bunch of people out in the hallway, even though he did everything right with the chair strip . . . search in every other fashion except that, the prisoner would have a right to grieve that, wouldn't they? A. That's correct. (Warren Dep. 50:14-51 :9.)
5

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3437 Page 6 of 45
"[a] strip search ofa prisoner at WHV must be conducted by and only in the presence of female employees." (!d. at 4, Pg ID 130.)
These types of searches were performed after a prisoner returned from an offsite visit (including hospital visits or leaving the prison on writ), and after each "contact visit" (i.e., visits in which a prisoner was allowed physical contact with her visitors). (May 2015 Opinion and Order at 4, Pg ID 242.) Warren averred in a sworn affidavit that the decision to use the chair portion of the strip search was an attempt "to better comply with the search depicted in the 1998 training video which showed how a proper strip search of female offenders was to be done. The additional step of using a chair was added because ofthe awareness that females could hide contraband in their vagina." (!d. (internal quotation marks omitted) (quoting Jan. 2014 Warren Aff. ~ 8).) Warren further averred that "MDOC, at the time, believed that incorporating a chair into the routine strip search procedure would aid staff in performing a more thorough search for contraband and to better comply with MDOC policy on strip searches." (!d. at 4-5, Pg ID 242-43) (internal quotation marks and citation omitted).)
The 1998 training video includes a visual depiction of how to conduct a strip search pursuant to PD 04.04.110, and instructs that during a routine strip search the female inmate is "required to sit and spread the lips of her vagina." (!d. at 5, Pg ID 243 (citing Jan. 2014 Warren Aff. Ex. B, Video).) The training video further advises
6

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3438 Page 7 of 45
that any tampon or sanitary napkin must be removed to allow the corrections officer to visually search the vaginal opening, but is silent as to the maintenance of sanitary conditions and as to the prevention of the spread of communicable disease. (!d. (citing Jan. 2014 Warren Aff. Ex. B, Video).)
Warren testified that the initial decision to institute the chair portion of the strip search in the Huron Valley complex was not hers, as it was being used on the East Side of the facility before she became warden. (Warren Dep. 40:18-41:6.) Warren also testified as to how searches like this were to be carried out: specifically, she testified that they were required to be conducted in a windowless room by female officers, and that only the officer performing the search was allowed to be present in the room with the inmate unless another officer was also present for training purposes. (Warren Dep. 49: 12-25.) Like all strip search procedures, strip searches involving a chair were to be conducted one at a time, out of view of other prisoners. (Warren Dep. 50:1-13.)
Warren provided further testimony regarding the administration of chairbased strip searches in a sworn affidavit dated December 14, 2017. (Defs.' Mot. Summ. J. Ex. B, December 2017 Affidavit of Millicent Warren, Pg ID 706-10.) In that affidavit, she averred, consistently with the language of WHY-OP-04.04.11 0 quoted above, that the policy required any strip search to be conducted "by and only in the presence of female employees." (Dec. 2017 Warren Aff. ~ 3 (quoting WHY-
7

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3439 Page 8 of 45
OP-04.04.110 at 4, Pg ID 130).) She then averred as follows: At no time did I give instruction to staff to violate these policies in any way. I did not encourage staff to conduct strip searches of prisoners in view of other prisoners or to conduct strip searches in an unsanitary manner. I did not participate directly in conducting strip searches of prisoners in view of other prisoners or to conduct strip searches in an unsanitary manner. I did not implicitly authorize, approve or knowingly acquiesce in staffconducting strip searches ofprisoners in view ofother prisoners or to conduct strip searches in an unsanitary manner.
(!d.) 2. Inmate Complaints and Subsequent Policy Changes During 2010 and 2011, MDOC personnel (including Warren) became aware
of complaints from inmates at WHV regarding the chair strip search. (May 2015 Opinion and Order at 6, Pg ID 244.) The parties differ over the precise number of such complaints, but there is no dispute that MDOC received at least 67 grievances regarding some aspect of the chair strip search between 2009 and 2011, and that WHV's psychological services staff received at least 30 complaints regarding the same (with possible overlap between the two groups). (See id. at 6-7, Pg ID 244-45.)
Complaints about WHV's strip search procedures were also raised by WHV inmates at Warden's Forum Committee ("WFC") meetings, which Warren conducted periodically in order to share news with the inmate population and to allow inmates to discuss issues of concern to them. (Warren Dep. 12:20-13:6.) Minute records from four WFC meetings (three in 2009 and one in early 2011)
8

Case 2:13-cv-14567-PDB-RSW ECF No. 90 filed 08/24/18 PageID.3440 Page 9 of 45
reflect that WHV inmates raised vanous complaints about the strip search procedures at those meetings, including, inter alia, complaints that the procedures were unhygienic, required some inmates to violate their own religious practices, and could be traumatic to prisoners with histories of sexual abuse. (Warren Dep. Exs. 811, Pg ID 882-900.)
In response to these gnevances and complaints, Warren began an administrative fact finding and review process to evaluate the necessity of the chair strip search. (ld.) Ultimately, on June 3, 2011, Warren issued a memorandum amending the relevant language in WHV-OP-04.04.11 0. The newly amended WHVOP-04.04.11 0 contained the same definition of "Strip Search" as quoted above, but added the following language directly after that definition:
NOTE: If necessary, the prisoner may be required to manually spread the lips of her vagina with her hands. Ifthis procedure is necessary, the prisoner will be allowed to sanitize their hands before and after this procedure with an approve[d] sanitizer. (May 2015 Opinion and Order at 7-8, Pg ID 245-56 (quoting ECF No. 11 Ex. B, June 2011 Memorandum at Pg ID 154).) Warren stated in the June 3, 2011 memorandum that "[t]here is now an approved sanitizer located in each strip search room and [it] shall be available whenever a strip search needs to be performed and the prisoner is required to 'manually spread the lips of her vagina with her hands'." (!d. (quoting June 2011 Memorandum at Pg ID 154).)
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On December 14, 2011, Warren issued a second memorandum regarding WHV search procedures, specifically addressing the issue of whether the "chair portion ofthe regular post contact visit strip search [should] be continued as a matter of routine." (/d. at 8-9, Pg ID 246-47 (quoting Jan. 2014 Warren Af£ Ex. A, December 2011 Memorandum at 1, Pg ID 99).) In the December 14, 2011 memorandum, Warren recounted the history of the chair portion of the strip search, stating that the chair portion ofthe strip search was "instituted in an effort to operate the facility in complete accord with MDOC policy" and referring to the 1998 training video. (/d. at 9, Pg ID 247 (internal quotation marks omitted) (quoting December 2011 Memorandum at 1-2, Pg ID 99-100).) Warren also explained in the memorandum that the "MDOC Central Office, after discussion with the WHV warden, decided the use of the chair and visual inspection of the vaginal opening was an important part ofthe strip search of female prisoners after contact visits." (/d. (internal quotation marks omitted) (quoting December 2011 Memorandum at 2, Pg ID 100).) The memorandum then addressed six factors that Warren considered in determining whether to continue the chair portion ofthe routine strip search: (1) the results of random drug tests administered in 2010 and 2011; (2) comments from the facility's mental health staff; (3) prisoner grievances concerning the chair portion of the strip search; (4) the extent to which prisoners had availed themselves of a "noncontact visit" option to avoid having to undergo the chair portion of the strip search;
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(5) the results of a survey administered to corrections officers who had performed the chair portion of the strip search; and (6) the number of instances in which a strip search had revealed contraband hidden on an inmate's person since the chair portion of the strip search was implemented. (See id at 9-11, Pg ID 247-49.) Warren summarized her conclusion as follows:
[o]n balance the increased security benefit provided by the use of the chair portion of the strip search, on the present data may not be sufficiently great to require, even though it allows, the modest stressor of continued use of the chair portion of the routine post contact visit strip search .... the chair portion of the strip search appears viewed by both prisoners and the staff conducting the strip searches as an unnecessary irritation. Therefore, I have decided to suspend the routine use of the chair portion of the strip search following contact visits effective Friday, December 16, 20 11. (!d. at 11-12, Pg ID 249-50 (alteration 1n original) (quoting December 2011 Memorandum at 14-15, Pg ID 112-13).)
B. Procedural History Plaintiffs filed this putative class action on November 1, 2013, seeking relief
for conduct at WHV "during the last three years." (ECF No. 1, Compl. ~ 1.) Plaintiffs asserted two substantive claims in their Complaint: violation of the Eighth Amendment's prohibition on cruel and unusual punishment (Count 1), and violation of Plaintiffs' privacy and due process rights under the Fourth and Fourteenth Amendments (Count II). Plaintiffs brought the action against Warren, MDOC, and four other MDOC employees (sued, like Warren, in both their official and individual
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capacities) whom Plaintiffs alleged were in some way responsible for the implementation of the chair portion of the strip search. In the Complaint, Plaintiffs requested certification of the lawsuit as a class action pursuant to Federal Rule of Civil Procedure 23, as well as various forms of injunctive, declaratory, and other legal relief. (See Compl. at 14, Pg ID 14.)
1. Defendants' Motion to Dismiss and for Summary Judgment On January 21,2014, Defendants filed a Motion to Dismiss and for Summary Judgment Based upon Qualified Immunity. (ECF No. 11.) Plaintiffs filed a Response on March 11, 2014 (ECF No. 17), and Defendants filed a Reply on March 25, 2014 (ECF No. 18). The Court conducted a hearing on Defendants' Motion on June 26, 2014. On May 1, 2015, the Court entered an Opinion and Order Granting in Part and Denying in Part Defendants' Motion to Dismiss and for Summary Judgment Based upon Qualified Immunity. See generally Salem v. Michigan Dep't ofCorr., No. 1314567,2015 WL 1966727 (E.D. Mich. May 1, 2015) (available on the docket at ECF No. 21 ). This Court first noted that both parties relied on evidence outside of the pleadings in their briefs, and thus made clear that "to the extent that this Court relies upon Defendants' and Plaintiffs' proffered evidence, the Court construes Defendants' motion as one for summary judgment under FED. R. CIV. P. 56(a)." (May 2015 Opinion and Order at 14, Pg ID 252.)
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Turning to the merits, the Court first held that "Plaintiffs' claims insofar as they seek money damages against the :MDOC or against the individual defendants sued in their official capacity are barred by the Eleventh Amendment." (Id. at 15, Pg ID 253.) The Court then addressed the merits of the constitutional claims that Plaintiffs had asserted under 42 U.S.C. § 1983. First, the Court found that Plaintiffs had "failed to differentiate any possible Fourteenth Amendment due process claim from their Fourth or Eighth Amendment claim" either in their Response to Defendants' Motion or at oral argument, and had therefore "abandoned any due process claim pursuant to the Fourteenth Amendment arising under the facts alleged in this action." (May 2015 Opinion and Order at 18, Pg ID 256 (citing Brown v. VHS of Mich., Inc., 545 F. App'x 368, 372 (6th Cir. 2013)).) As to Plaintiffs' Eighth Amendment claim, the Court held that the four individual Defendants besides Warren were entitled to qualified immunity because Plaintiffs had failed to plead or argue any specific personal involvement by those Defendants in the search procedures at issue. The Court then found that Warren herself was entitled to qualified immunity because Plaintiffs could not show that she had violated the Eighth Amendment in light of Warren's "knowledge of prisoner's complaints, her inquiry [into] the matter, her actions to make the search sanitary, and her direction that prisoners could choose to avoid the chair portion of the search by foregoing contact visits, and her formal abandonment of the policy." (Id. at 25, Pg ID 263.)
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As to Plaintiffs' Fourth Amendment claims, the Court held that the four individual Defendants besides Warren were entitled to qualified immunity as to those claims for the same reason that they had qualified immunity as to Plaintiffs' Eighth Amendment claims: Plaintiffs' "fail[ure] to differentiate the individual conduct of [those] Defendants." (/d. at 27, Pg ID 265 (citing Roth v. Guzman, 650 F.3d 603, 609 (6th Cir. 2007)).)
By contrast, Defendant Warren was denied qualified immunity on Plaintiffs' Fourth Amendment claims. This Court first explained that the appropriate inquiry was to "balance the need for the particular search against the invasion of prisoners' personal rights and to this end, '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."' (/d. at 29, Pg ID 267 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).) As to the invasiveness of the search, the Court cited Sixth Circuit case law holding that strip searches conducted in the presence of others are "more invasive" than those conducted in private (see id. at 32, Pg ID 270 (quoting Williams v. City ofCleveland, 771 F.3d 945, 953 (6th Cir. 2014)), and therefore found "that the chair portion ofthe strip search, if conducted in the presence ofothers, as alleged by Plaintiffs represents a significant incursion into the Plaintiffs' privacy." (/d. (emphasis added).) Then, the Court determined that notwithstanding Defendants' "general legitimate penological interest for conducting a visual strip search of
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prisoners after contact visits," there was little evidence that the chair portion of the strip search procedure specifically furthered that interest in ways that standard strip searches did not. (Id at 32-34, Pg ID 270-72.) Accordingly, the Court held that Plaintiffs' allegations raised "a genuine issue of material fact regarding whether the chair portion of the strip search as conducted on these particular persons was reasonably related to a legitimate penological interest and where it may have been gratuitous or duplicative of measures already in use." (!d. at 35, Pg ID 273.)
The Court then rounded out the qualified immunity inquiry by addressing the issue of whether the constitutional right that was allegedly violated "was 'clearly established' at the time of the challenged conduct."' (!d. at 26, Pg ID 264 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).) In that regard, the Court found that because pre-2009 case law "clearly instructs that a strip search must be reasonably related to a legitimate penological purpose and that the manner of that search also be reasonable[,] ... a reasonable officer would have known that a strip search performed in front of other prisoners was not related to a legitimate penological interest." (!d. at 37, Pg ID 275 (internal citations omitted) (collecting authorities).) The Court therefore denied qualified immunity to Defendant Warren.
Finally, the Court took up Defendants' argument that the injunctive relief Plaintiffs sought-specifically, their "request that the MDOC cease the practice of the chair portion of the strip search"-was moot because the chair portion of the
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strip search was formally discontinued as a "routine practice" in December 20 11. (!d. at 37-38, Pg ID 275-76.) The Court rejected this argument, since Plaintiffs had alleged (and averred in sworn affidavits) that they and other inmates at WHV had "suffered the search at issue after the date Warren abolished the 'routine' practice." (!d.) The Court thus concluded that "Plaintiffs' allegations ofon-going strip searches which involve the use of a chair allow the Court to conclude that these searches are on-going and that the possibility of prospective relief remains viable." (!d.)
2. Defendants' Appeal to the Sixth Circuit Both parties collaterally appealed the Court's May 1, 2015 Opinion and Order. (ECF Nos. 23, 26.) The Sixth Circuit dismissed Plaintiffs' appeal for lack of jurisdiction on September 8, 2015. (ECF No. 31.) Approximately six months later, on March 9, 2016, the Sixth Circuit issued an opinion regarding Defendants' appeal, affirming this Court's denial of qualified immunity to Defendant Warren, and dismissing for lack ofjurisdiction Defendants' appeal of this Court's determination that Plaintiffs' injunctive-relief claim was not moot. See generally Salem v. Michigan Dep't ofCorr., 643 F. App'x 526 (6th Cir. 2016) (available on the docket at ECF No. 32). On the qualified immunity issue, the court rejected Plaintiffs' argument that the lack of individualized suspicion rendered the challenged searches unconstitutional, holding that such an argument was foreclosed by both Supreme Court and Sixth Circuit precedent. (See id. at 4 (citing
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Florence v. Bd. ofChosen Freeholders ofCty. ofBurlington, 566 U.S. 318, 330-34 (2012) and Stoudemire v. Mich. Dep't ofCorr., 705 F.3d 560, 575 (6th Cir. 2013)).)
The Sixth Circuit then turned to Warren's argument that the manner in which the challenged searches were conducted was constitutionally permissible. In addition, Warren argued that Plaintiffs had failed to show her personal involvement in any searches performed in public view, and that MDOC policy in fact forbade guards from conducting searches in this way, but the Sixth Circuit declined to address this argument because it had not been raised before this Court in the first
instance. The Sixth Circuit thus confined its inquiry "to whether the searches,
performed in the manner alleged by Plaintiffs, violated their clearly established Fourth Amendment rights." (!d. at 5.) To that issue, the Sixth Circuit applied the same balancing test that this Court had employed in the May 2015 Opinion and
Order: Whether a prison search is constitutionally reasonable depends on "whether the jail's 'need for the particular search' outweighs 'the invasion ofpersonal rights that the search entails.'" Williams, 771 F.3d at 950 (quoting Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Stoudemire, 705 F.3d at 572). In making this determination, we "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. (quoting Bell, 441 U.S. at 559, 99 S.Ct. 1861 ), while also examining "obvious, easy alternatives" that accommodate the inmate's privacy interests at little cost to valid
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penological objectives, id. (quoting Turner v. Safley, 482 U.S. 78, 9091, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). Salem, 643 F. App'x at 530. The Sixth Circuit rejected Warren's contention that Williams and Stoudemire were distinguishable on their facts, finding that the factual differences between those two decisions and this case ultimately fail to undercut this court's stance that searches conducted in view of other inmates-who "do not share the searching officers' institutional need to view [another prisoner] unclothed"-are exceedingly intrusive. Williams, 771 F.3d at 953. Moreover, Plaintiffs pair their publicviewing allegations with claims that guards forced the inmates to "sit naked on an unwashed and unsanitized chair wet with bodily fluids
fI.rnovmasi.voethneerssp. risoners." These aspects of the searches amplify their
!d. As to the justification for the challenged search procedures, the Sixth Circuit
acknowledged the importance of MDOC's need to detect and deter the possession ofcontraband among its inmates, but concluded that those goals "can be met through constitutionally competent searches outside the view of other inmates." (!d. at 6 (citing Stoudemire, 705 F.3d at 574).) Indeed, the court noted, "the obvious, less invasive alternative is to 'conduct the searches and seizures in private rather than in the presence of other [prisoners]."' (!d. (quoting Williams, 771 F.3d at 955).) As Warren had made no argument "that this alternative would undermine penological objectives," the Sixth Circuit upheld this Court's judgment "denying qualified immunity to Warren regarding the non-private searches." (!d.) Further, the court held
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that under its own precedents, '"the right not to be subjected to a humiliating strip search in full view of several (or perhaps many) others' was clearly established by February 2007-two years before Warren implemented the chair searches at issue." (!d. at 7 (quoting Stoudemire, 705 F.3d at 575).)
Finally, the Sixth Circuit held that it had no jurisdiction over Defendants' appeal of this Court's decision to allow Plaintiffs' claim for injunctive relief to proceed. In that regard, the court explained that while the collateral-order doctrine permits interlocutory appeals of district-court denials of Eleventh Amendment immunity, Defendants never raised that issue before this Court in the first instance, and so "no 'district court order denying a claim of Eleventh Amendment immunity' exist[ed] for Defendants to collaterally appeal." (/d. at 7 (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf& Eddy, Inc., 506 U.S. 139, 147 (1993).)
3. Plaintiffs' Motion to Certify Class After the matter was remanded and the parties had conducted discovery for several months, Plaintiffs filed a Motion for Class Certification on August 11, 2016. (ECF No. 44.) The parties briefed the Motion in full (ECF Nos. 50-51), and this Court held a hearing on the Motion on November 16, 2016. On December 22, 2016, the Court denied Plaintiffs' class certification motion without prejudice. (ECF No. 56, December 2016 Opinion and Order.) The issue of class certification is not dealt with in this Opinion.
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4. Instant Motions In Defendants' Motion for Summary Judgment and Qualified Immunity (ECF No. 65, Defs.' Mot. Summ. J.), remaining Defendants Warren and MDOC seek summary judgment in two respects: for Warren in her individual capacity based on qualified immunity, and for MDOC itself (as well as for Warren in her official capacity, which amounts to the same thing) with regard to Plaintiffs' request for prospective injunctive relief. Plaintiffs filed a timely Response to Defendants' Motion. (ECF No. 67, Pls.' Resp. Opp'n Summ. J.) Defendants did not file a Reply. Plaintiffs filed a Motion for Partial Summary Judgment (ECF No. 64, Pls.' Mot. Summ. J.), in which they request that this Court "grant judgment in favor of all Plaintiffs that were strip searched in front of others." (!d. at 2, Pg ID 579.) In that Motion, Plaintiffs first summarize the Sixth Circuit's March 2016 decision affirming this Court's denial of qualified immunity to Defendant Warren as well as the precedents on which that decision relied. (See id. at 5-10, Pg ID 589-94.) Plaintiffs then represent that "[w]e currently have one hundred and thirty five (135) women who have alleged that they were strip while incarcerated at [WHV] in view of others," and argue that summary judgment should be granted as to those individuals. (/d. at 11-14.) Defendants filed a timely Response to Plaintiffs' Motion (ECF No. 70, Defs.' Resp. Opp'n Summ. J.), and Plaintiffs filed a timely Reply (ECF No. 72, Pis.' Reply Supp. Summ. J.).
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Each of the Reply briefs that Plaintiffs filed in support of their class certification and summary judgment motions respectively attached the same proposed exhibit: 840 pages of putative affidavits signed by current or former inmates of WIN, asserting that the affiant was subjected to strip search procedures during her term of incarceration under different sets of circumstances. (Pls.' Reply Supp. Summ. J. Ex. A; Pls.' Reply Supp. Class Cert. Ex. A.)
Then, on April 3, 20 18-one day before the scheduled hearing on the three pending Motions-Plaintiffs filed, yet again, two identical supplements to those two Reply briefs, each of which contained an attached exhibit of 70 additional pages of putative affidavits. (ECF Nos. 74, 75.)
The Court struck from the record these tardy filings at the hearing on April4, 2018, the following day, finding that the "document dump" the previous evening was unreasonable and vexatious under 28 U.S.C. § 1927. (ECF No. 76.) Further, the Court noted that the April 3, 2018 document dump came after the 840-page dump on the Court and the Defendant in the February reply brief.
On April 5, 2018, the Court issued an Order Striking Exhibits and Imposing Sanctions stating:
On February 9, 2018, Plaintiffs filed two reply briefs (ECF Nos. 72, 73): one in support of their previously-filed Motion for Partial Summary Judgment (ECF No. 64), and one in support of their previously-filed Motion for Class Certification (ECF No. 66). Attached as a single exhibit to each of the two reply briefs were 840 pages of
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putative affidavits by current or former inmates of Michigan Department of Corrections' Women's Huron Valley facility ("WHV"), which Plaintiffs argued evidenced that a substantial number of inmates had been subjected to non-private strip searches while incarcerated at WHV. These putative affidavits were filed in no discernible order and without an index or tabbed pages, and a noticeable proportion of the putative affidavits were either unsigned, duplicative of other putative affidavits in the same exhibit, or not indicative of whether the author had in fact been subjected to non-private strip searches at WHV.
Then, on the evening of April 3, 2018-the day before a scheduled hearing on Plaintiffs' Motion for Class Certification, Plaintiffs' Motion for Partial Summary Judgment, and Defendants' Motion for Summary Judgment (ECF No. 65)- Plaintiffs supplemented each of these exhibits to their reply briefs with an additional 69 pages of putative affidavits that followed the same template. These tardy and unauthorized submissions were presented without justification, were not organized in any apparent fashion, and included putative affidavits duplicative of those contained in the first set. The Court struck these supplemental filings in an Order issued on April4, 2018. (ECF No. 76.) The Court finds that these late filings violated 28 U.S.C. § 1927 by unreasonably and vexatiously impacting the proceedings.
The Court also finds that the initial set of putative affidavits that were attached as exhibits to Plaintiffs' reply briefs were improper. "[I]t is well-settled that a party may not raise new issues for the first time in a reply brief; he can only respond to arguments raised for the first time in the respondent's response brief." Resolution Tr. Corp. v. Townsend Assocs. Ltd. P'ship, 840 F. Supp. 1127, 1142 (E.D. Mich. 1993) (citing United States v. Jerkins, 871 F.2d 598 (6th Cir. 1989)).
In light ofthe sheer volume ofPlaintiffs' putative affidavits, the lack of any apparent attempt to organize them or to screen out duplicates, and the fact that Plaintiffs effectively denied Defendants any meaningful opportunity to respond to them by attaching them to their reply briefs, the Court finds that Plaintiffs' conduct as to the putative affidavits needlessly increased the cost of litigation under Federal Rule of Civil
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Procedure 11 (b)( 1) and (c)(3), and unreasonably and vexatiously multiplied the proceedings under 28 U.S.C. § 1927. Accordingly, as discussed on the record at the April 4, 2018 hearing, the Court orders the exhibits to ECF Nos. 72 and 73 STRICKEN from the record in this case and the images removed from the CMIECF system. The Court orders Plaintiffs' counsel to reimburse Defendants' counsel for two hours of labor at a rate of $195 per hour, for a total monetary sanction of $390. (ECF No. 77.) On April 18, 2018, Plaintiffs filed a new set of affidavits: 561 pages of affidavits by current and former WHV inmates. After a hearing on August 1, 2018, the Court struck Plaintiffs' affidavits because Plaintiffs' attorney Kenneth Hardin's submission affidavit was improperly sworn (by a Pennsylvania notary). (ECF No. 86.) The Court also noted on the record that a random check of some affidavits contained inadequate or contradictory statements, contained no statements at all, or fell outside the statute of limitations. This filing too violated 28 U.S.C. § 1927. At the conclusion ofthe hearing, the Court gave Mr. Hardin two weeks to properly file relevant affidavits. Thereafter, the Court, at Mr. Hardin's request, provided him an additional month for filing.3 (ECF No. 89.)
3 At this point, the proposed affidavits are not part of the record, and not necessary to the Court's resolution of the instant Motions for Summary Judgment. If they become part of the record subsequently, they will be, of course, relevant to the issue of class certification.
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II.

LEGAL STANDARDS

Summary judgment is appropriate where the moving party demonstrates that

there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Fed. R. Civ. P. 56(a). "A fact is 'material' for purposes of a motion

for summary judgment where proof of that fact 'would have [the] effect of

establishing or refuting one of the essential elements of a cause of action or defense

asserted by the parties."' Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68,77 (E.D. Mich.

2013) (Borman, J.) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.

1984)). A dispute is genuine "if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986).

"In deciding a motion for summary judgment, the court must draw all

reasonable inferences in favor of the nonmoving party." Perry v. Jaguar of Troy,

353 F.3d 510, 513 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must

produce enough evidence to allow a reasonable jury to find in his or her favor by a

preponderance of the evidence, Anderson, 477 U.S. at 252, and "[t]he 'mere

possibility' of a factual dispute does not suffice to create a triable case." Combs v.

Int'l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen-Bradley

Co., 801 F.2d 859, 863 (6th Cir. 1986)). Instead, "the non-moving party must be able

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to show sufficient probative evidence [that] would permit a finding in [his] favor on
more than mere speculation, conjecture, or fantasy." Arendale v. City ofMemphis,
519 F.3d 587,601 (6th Cir. 2008) (alterations in original) (quoting Lewis v. Philip
Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)).
When presented with cross-motions for summary judgment, the Court "must
evaluate each motion on its own merits and view all facts and inferences in the light
most favorable to the nonmoving party." Westfield Ins. Co. v. Tech Dry, Inc., 336
F.3d 503, 506 (6th Cir. 2003). "The fact that the parties have filed cross motions for
summary judgment does not automatically justify the conclusion that there are no
facts in dispute." Ely v. Dearborn Heights School Dist. No. 7, 150 F. Supp. 3d 842,
849-50 (E.D. Mich. 2015) (citing Parks v. LaFace Records, 329 F.3d 437, 444 (6th
Cir. 2003). In this context, a plaintiff and a defendant have different burdens:
In a defensive motion for summary judgment, the party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991). When the moving party also bears the ultimate burden of persuasion, the movant's affidavits and other evidence not only must show the absence ofa material fact issue, they also must carry that burden. Vance v. Latimer, 648 F.Supp.2d 914, 919 (E.D. Mich. 2009); see also Resolution Trust Corp. v. Gill, 960 F.2d 336, 340 (3d Cir. 1992); Stat-Tech Liquidating Trust v. Fenster, 981 F.Supp. 1325, 1335 (D. Colo. 1997) (stating that where "the crucial issue is one on which
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the movant will bear the ultimate burden of proof at trial, summary judgment can be entered only if the movant submits evidentiary materials to establish all of the elements of the claim or defense"). The plaintifftherefore "must sustain that burden as well as demonstrate the absence of a genuine dispute. Thus, it must satisfy both the initial burden of production on the summary judgment motion-by showing that no genuine dispute exists as to any material fact-and the ultimate burden of persuasion on the claim-by showing that it would entitled to a directed verdict at trial." William W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 477-78 (1992) (footnotes omitted).
Ely, 150 F. Supp. 3d at 849-50.
Finally, all evidence in opposition to a motion for summary judgment must be
capable of presentation in a form that would be admissible at trial. See Alexander v.
CareSource, 576 F.3d 551,558-59 (6th Cir. 2009) ("[T]he party opposing summary
judgment must show that she can make good on the promise of the pleadings by
laying out enough evidence that will be admissible at trial to demonstrate that a

genuine issue on a material fact exists, and that a trial is necessary.").

III.

DISCUSSION

The Sixth Circuit's March 2016 opinion significantly narrowed the issues in

this case. In affirming this Court's denial of qualified immunity to Defendant

Warren, the Sixth Circuit explained that its precedent has "held that strip searches

performed in view of other inmates without a legitimate penological justification

violates inmates' clearly established Fourth Amendment rights." Salem, 643 F. 26

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App'x at 530 (citing Williams, 771 F.3d at 952-56 and Stoudemire, 705 F.3d at 57275). And while the Sixth Circuit observed that "Plaintiffs pair their public-viewing allegations with claims that guards forced the inmates to sit naked on an unwashed and unsanitized chair wet with bodily fluids from other prisoners" and that such claims also serve to "amplify [the searches'] invasiveness," the court went on to "uphold the judgment of the district court denying qualified immunity to Warren regarding the non-private searches." (!d. at 6 (emphasis added).) Thus, "the Sixth Circuit's decision affirmed this Court's holding that Defendant Warren was not protected by qualified immunity to the extent that the subject searches were performed in full view of other female prisoners." (December 2016 Opinion and Order at 9, Pg ID 514.) These decisions have made clear that the scope of Plaintiffs' action is now limited to strip searches performed in the presence of individuals other than the officer and the inmate, for whose presence there was no legitimate penological justification. A. Defendants' Motion for Summary Judgment and Qualified Immunity
Defendants make two arguments for summary judgment. First, they argue that Plaintiffs have failed to show that Defendant Warren directly participated in or even tacitly authorized the sort of "non-private searches" that the Sixth Circuit found to be unconstitutional in the March 2016 opinion, and then argue that this precludes liability for Warren under Section 1983 both on the merits and under the doctrine of
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qualified immunity. Second, they contend that prospective injunctive relief for continuing violations of law is not available to Plaintiffs in this case. As discussed in detail below, the Court, taking the facts in the light most favorable to the nonmoving party, finds that fact issues preclude summary judgment on both of these grounds, and will therefore deny Defendants' Motion for Summary Judgment and Qualified Immunity.
1. Defendant Warren's Individual Liability "[T]he § 1983 liability of supervisory personnel must be based on more than the right to control employees. Section 1983 liability will not be imposed solely upon the basis of respondeat superior." Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (citing Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982)). "Supervisory liability under § 1983 does not attach when it is premised on a mere failure to act; it 'must be based on active unconstitutional behavior."' Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). It follows from this that "[a] supervisory official's failure to supervise, control or train the offending individual is not actionable unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it." Peatross v. City ofMemphis, 818 F.3d 233, 242 (6th Cir. 2016) (internal quotation marks omitted) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). The Sixth Circuit has "interpreted this standard to mean that 'at a
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minimum,' the plaintiff must show that the defendant 'at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers."' !d. (quoting Shehee, 199 F.3d at 300).
In short, "[t]he acts of one's subordinates or the mere failure to act standing alone are not enough to hold a supervisor liable." Thames v. City of Westland, 310 F. Supp. 3d 783 (B.D. Mich. 2018) (quoting Summers v. Leis, 368 F.3d 881,888 (6th Cir. 2004)). The distinction between implicit authorization or knowing acquiescence, on the one hand, and "mere failure to act," on the other, is not always clear. Still, recent case law provides some guidance as to what may constitute the requisite affirmative conduct on the part of a supervisory official. For example, actively assisting subordinates in covering up constitutional violations after the fact is sufficient. See Coley v. Lucas Cty., Ohio, 799 F.3d 530, 542 (6th Cir. 2015) (finding that a plaintiff had sufficient alleged that a defendant sheriff "at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct ofthe offending subordinate when he helped [subordinate officers] to cover up their unconstitutional actions" by making false statements to federal officials) (internal quotation marks omitted). The Sixth Circuit has also found that a supervisor's failure to properly train subordinates, failure to investigate their constitutional violations, and adoption of a custom of exonerating such violations in a way that effectively gives "the green light" to those who would commit them in
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the future can justify liability under Section 1983. Peatross v. City ofMemphis, 818 F.3d 233, 241-45 (6th Cir. 2016). In addition, "a supervisor may be liable under§ 1983 if he abandon[s] the specific duties of his position ... in the face of actual knowledge ofa breakdown in the proper workings ofthe department," provided that "some execution of the supervisors' job function result[s] in [the p]laintiffs injury." Winkler v. Madison Cty., 893 F.3d 877, 898-99 (6th Cir. 2018) (alterations in original) (internal quotation marks and citations omitted). Lastly, supervisory liability may exist where "a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and [she] fails to do so," in a way that demonstrates "a causal connection between actions of the supervising official and the alleged constitutional deprivation.... The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences." Curran v. City ofDearborn, 957 F. Supp. 2d 877, 888 (E.D. Mich. 2013) (alteration in original) (internal quotation marks omitted) (quoting Doe v. City of Roseville, 296 F.3d 431, 440 (6th Cir. 2002)). See also Campbell v. City of Springboro, Ohio, 700 F.3d 779, 790 (6th Cir. 2012) (holding that supervisory liability could be based on a causal connection between a police chiefs acts or omissions and constitutional injuries caused by a police dog, where the chiefallowed the dog into the field after his training had lapsed, "never required appropriate
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supervision of the canine unit and essentially allowed it to run itself," "failed to establish and publish an official K-9 unit policy," was "seemingly oblivious to the increasing frequency of dog-bite incidents," and ignored "many complaints" regarding the need to further train the dog, such that the chiefs "apparent indifference to maintaining a properly functioning K-9 unit could be reasonably expected to give rise to just the sort of injuries that occurred").
In the instant case, Defendants argue that Plaintiffs have failed to show that Warren was sufficiently involved in the unconstitutional search practices at issue. Defendants note that at all relevant times, WHV policy "required sanitary napkins to be used on the chair during searches, and that the searches could only be conducted by and in front of female employees." (Defs.' Mot. Summ. J. at 2, Pg ID 613.) As Warren "did not authorize these policies to be violated, did not encourage staff to violate these policies, and did not personally conduct searches in violation of these policies," Defendants maintain, she was not personally involved enough in any improper searches to justify individual liability against her. (!d.)
Plaintiffs counter that their evidence does adequately connect Warren to unconstitutional strip searches, in that it demonstrates her knowledge of the constitutional violations and her failure to provide adequate training.4 In particular,
4 There is some ambiguity based on Plaintiffs' briefs as to whether their argument is that Warren is liable as a policymaker, or that her unlawful conduct was acquiescence to violations by her employees-at times, Plaintiffs appear to argue
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they cite Warren's testimony that she was made aware of inmates' complaints
regarding strip search procedures through formal grievances, and through
discussions at "Warden's Forum Committee" ("WFC") meetings, which Warren
conducted periodically in order to share news with the inmate population and to
allow inmates to discuss issues of concern to them. (Warren Dep. 12:20-13:6.) As
exhibits to their Response, Plaintiffs have attached meeting minutes from four WFC
meetings-three in 2009 and one in 20 11-at which attendees raised issues
regarding strip search procedures. (Pis.' Resp. Opp'n Summ. J. Exs. 8-11.) Plaintiffs
have also submitted records of four grievances filed by four different inmates
regarding the strip search procedures, including one filed by Keshuna Abcumby, one
ofthe two individual Plaintiffs in the case. (Pis.' Resp. Opp'n Summ. J. Exs. 12-15.)
Citing all of this, Plaintiffs argue that "the need for training may not have been
obvious from the outset, but the pattern of constitutional violations put Defendant
both. (See, e.g., Pis.' Resp. Opp'n Summ. J. at 17, Pg ID 788 ("Here, it has been shown that the policymaker was aware of, and acquiesced in, a pattern of constitutional violations involving the exercise ofpolicy implementation.").) To the extent that Plaintiffs' argument is based on formal policies, in any case, it lacks merit. Assuming that Warren exercised sufficient control over those policies to qualify her as a "policymaker," Plaintiffs have cited no provision of PD 04.04.11 0, WHV-OP-04.04.11 0, or any other policy that authorized officers to conduct stripsearches on inmates in the presence of other inmates. Indeed, WHV-OP-04.04.11 0 expressly provided-at least as of May 2009, the date of the earliest version in the record-that any "strip search of a prisoner at WHV must be conducted by and only in the presence of female employees" (WHV-OP-04.04.110 at 3, Pg ID 129), and there is no indication that this rule was later altered, by Warren or anyone else.
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Warden on notice that the officers confront the particular situation on a regular basis, and that they often reacted in a manner contrary to constitutional requirements." (Pis.' Resp. Opp'n Summ. J. at 17, Pg ID 788.)
Defendants are correct when they point out that Plaintiffs have offered no direct evidence of Warren's participation in, or even her knowledge of any nonprivate strip searches conducted in the presence of other inmates at WHY. The four sets ofWFC meeting minutes reflect complaints by inmates that the procedures were invasive, that they were unhygienic, that they required some inmates to violate their own religious practices, and that they could be traumatic to prisoners with histories of sexual abuse, but they make no mention of strip searches that were conducted in the presence of other inmates, male corrections officers, or persons not part of the corrections staff. The same is true of the four sets of grievance records submitted by Plaintiffs: they variously relate the individual grievants' mental distress, posttraumatic reactions, feelings of degradation, health and hygiene concerns, and fears of grievance-related retaliation, but they contain no reference to strip searches conducted in the presence of any persons who were not female corrections officers.
Nevertheless, even given this absence of direct proof, the record at this stage contains sufficient evidence on which a reasonable jury could find that Warren implicitly authorized or knowingly acquiesced in a custom of non-private strip searches. This conclusion rests primarily on Plaintiffs' allegation in the Complaint
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that Defendants "conduct[ed] spread-labia vaginal searches on numerous female prisoners in full view of one another" (Compl. ~ 19(b)), and on a February 2014 affidavit signed by named Plaintiff Keshuna Abcumby, which Plaintiffs attached to their response to Defendants' initial Motion to Dismiss and for Summary Judgment Based upon Qualified Immunity, filed in early 2014. (ECF No. 17 Ex. 5, Pg ID 20709.) In that affidavit, Plaintiff Abcumby attested that she was subjected to strip searches involving the "use of an unsanitized chair at least 10 times" in 2011 and 2012, and that "[t]hese searches were done in view of other people." (!d.~~ 3, 6, 15.) Based on the foregoing, this Court finds that a reasonable jury could determine that Warren implicitly authorized or knowingly acquiesced in a pattern or custom of constitutionally violative strip searches.
The Court recognizes that Warren testified in her deposition that WHV policy required strip searches to be conducted in private, only in the presence of female corrections officers, and on a one-on-one basis (except in some situations involving trainee corrections officers), and that strip searches were generally conducted in a private room with no window on the door. (Warren Dep. 49:12-50:13.) Warren also averred in her own sworn affidavit that she did not instruct or encourage corrections officers to violate that policy, nor did she "implicitly authorize, approve or knowingly acquiesce in staff conducting strip searches of prisoners in view of other prisoners or to conduct strip searches in an unsanitary manner." (Dec. 2017 Warren
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Aff. ~ 3.) At the same time, in light ofthe Warden's Forum Committee meeting notes evidencing improper searches, and Abcumby' s affidavit, and drawing all reasonable factual inferences in favor of Plaintiffs at this stage, the Court finds that a jury could reasonably find in favor of Plaintiffs.
The parties do not dispute that MDOC received at least 67 gnevances regarding some aspect ofthe chair portion ofthe strip search between 2009 and 20 11. Thus, even though the four sets of grievance documents and the four sets of WFC meeting minutes that Plaintiffs have offered do not directly evidence any specific grievance or complaint regarding non-private strip searches, a reasonable jury could still find on this record that Warren's "apparent indifference to" a pattern of constitutional violations "could be reasonably expected to give rise to just the sort of injuries that occurred." Campbell, 100 F.3d at 790.
Defendants also raise a separate argument that Warren is entitled to qualified immunity with respect to Plaintiffs' Fourth Amendment claim as asserted against her in her individual capacity. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights ofwhich a reasonable person would have known."' Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 451 U.S. 800, 818 (1982)). The qualified immunity doctrine requires the court to determine: (1) "whether the facts
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that a plaintiff has alleged ... make out a violation of a constitutional right" and (2) "whether the right at issue was 'clearly established' at the time of [the] defendant's alleged misconduct." /d. at 232 (citations omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The crux of Defendants' argument in this regard is that because Plaintiffs have failed to make any showing that Warren was personally involved in (and thus responsible for) any constitutional violations at all, she is necessarily entitled to assert qualified immunity.
As discussed above, however, Plaintiffs have raised a genuine Issue of material fact over whether an ongoing pattern of constitutionally violative strip searches can be attributed to Warren's implicit authorization of or knowing acquiescence to such searches, even if they were conducted in violation of a formal policy promulgated by MDOC, WHV, or both. Defendants' argument must fail for this reason. Additionally, although Defendants have not made any specific argument based on the "clearly established" prong of the qualified immunity test, the Sixth Circuit expressly held in its March 2016 opinion in this matter that "'the right not to be subjected to a humiliating strip search in full view of several (or perhaps many) others' was clearly established by February 2007-two years before Warren implemented the chair searches at issue." Salem, 643 F. App'x at 531 (quoting Stoudemire v. Mich. Dep't ofCorr., 705 F.3d 560, 575 (6th Cir. 2013)).
The principle that supervisory liability for constitutional violations by
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subordinates may attach under Section 1983 based on implicit authorization or knowing acquiescence was clearly established by the time Warren assumed supervisory responsibility for WHV' s search procedures as well. See Phillips v. Roane Cty., Tenn., 534 F.3d 531, 543 (6th Cir. 2008) ("A supervisor is not liable pursuant to § 1983 for failing to train unless the supervisor 'either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers."') (emphasis added) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). See also Doe ex ref. Doe v. City ofRoseville, 296 F.3d 431,440 (6th Cir. 2002) ("[S]upervisor liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he [she] fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.") (quoting Braddy v. Florida Dep't ofLabor & Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998)).
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Finally, the Court notes that even though "the right not to be subjected to a humiliating strip search in full view of several (or perhaps many) others was clearly established by February 2007," Salem, 643 F. App'x at 531 (internal quotation marks omitted), the Sixth Circuit has spoken again on this topic in the time since it issued its opinion in this case in March 2016. In Sumpter v. Wayne Cty., 868 F.3d 473 (6th Cir. 2017), the Sixth Circuit recognized that even strip searches performed in the presence of other inmates, while undeniably intrusive, may nonetheless be constitutionally permissible where they are justified by a legitimate penological interest such as the maintenance of the health and safety of other inmates, which might otherwise be compromised by long delays caused by private strip searches. See id. at 485 ("[W]e accord considerable deference to defendants' assertion that they conducted group strip searches when the high volume of inmates and concomitant effect of delays on inmate health and safety demanded it. ... [O]n one hand, the group strip searches plaintiff endured in the Registry were especially intrusive; on the other hand, defendants have asserted a legitimate penological justification for periodically conducting the searches."). In this case, however, Defendants have not asserted that non-private strip searches were conducted at WHV in order to protect the inmates' health, safety, or some other legitimate penological interest; Defendants' position is simply that to any extent such strip searches did occur, they cannot be attributed to any act or omission by Warren.
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Because Plaintiffs have demonstrated the existence of a genuine issue of material fact regarding Warren's implicit authorization of, or knowing acquiescence to, a pattern or custom of non-private strip searches that violated the Fourth Amendment rights of the inmates that were subjected to them, the Court will deny Defendants' Motion for Summary Judgment or Qualified Immunity as to Plaintiffs' individual-capacity claim against Warren.
2. Prospective Injunctive Relief as to MDOC Plaintiffs also seek prospective injunctive relief in this matter: specifically, a "Permanent Injunction prohibiting Defendants from subjecting Plaintiffs to policies and procedures that violate their constitutional, statutory rights, and common law rights." (Compl. at 14, Pg ID 14.) In its May 2015 Opinion and Order Granting in Part and Denying in Part Defendants' Motion to Dismiss and for Summary Judgment Based on Qualified Immunity, this Court rejected Defendants' argument that Plaintiffs' request for injunctive relief was moot because the chair-based strip searches had been formally abolished as a routine practice in 2011, and concluded based on "Plaintiffs' allegations of on-going strip searches which involve the use of a chair ... that these searches are on-going and that the possibility of prospective relief remains viable." (May 2015 Opinion and Order at 37-38, Pg ID 275-76.) On appeal, the Sixth Circuit held that it lacked jurisdiction over Plaintiffs' request for injunctive relief. See Salem, 643 F. App'x at 531 Defendants now argue that the
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request is moot both on Eleventh Amendment grounds and under the Prison Litigation Reform Act, 18 U.S.C. § 3626.
The Eleventh Amendment "protects states, as well as state officials sued in their official capacity for money damages, from suit in federal court. It also applies to state agencies or departments ...." Boler v. Earley, 865 F.3d 391, 409-10 (6th Cir. 20 17) (internal citations omitted). One well-recognized exception to this form ofimmunity is relevant to this case, however: "a federal court may, without violating the Eleventh Amendment, issue a prospective injunction against a state officer to end a continuing violation of federal law." Price v. Medicaid Dir., 838 F.3d 739, 746-47 (6th Cir. 2016) (citing Ex parte Young, 209 U.S. 123, 159 (1908)). The Ex parte Young doctrine "does not ... extend to any retroactive relief." Puckett v. Lexington-Fayette Urban Cty. Gov't, 833 F.3d 590, 598 (6th Cir. 2016) (internal quotation marks omitted) (quoting S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008)). '"[A] court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective' to determine whether the Ex parte Young doctrine avoids an Eleventh Amendment bar to suit." Diaz v. Michigan Dep't of Corr., 703 F.3d 956, 965 (6th Cir. 2013) (quoting Verizon Maryland Inc. v. Public Service Commission ofMaryland, 535 U.S. 635, 645 (2002)).
Additionally, the Prison Litigation Reform Act ("PLRA") provides:
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Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1). Defendants' arguments based on the Ex parte Young doctrine and the PLRA are both premised on the assertion that Warren "ended the routine use of the chair portion of the strip search policy on December 16, 20 11, ... well before Plaintiffs brought the instant suit." (ECF No. 65, Defs.' Mot. Summ. J. (citing May 2015 Opinion and Order at 11-12, Pg ID 249-50).) Consequently, Defendants argue, there is no ongoing violation of federal law that would warrant injunctive relief. Defendants are correct that Warren issued an order in late 20 11 formally ending "the routine use of the chair portion of the strip search policy" at WHV in late 2011, pursuant to a memorandum that she issued on December 14, 2011. (ECF No. 11 Ex. A, Jan. 2014 Warren Aff. Ex. A, December 2011 Memorandum.) But in light of the Sixth Circuit's March 2016 opinion in this case, this action is no longer strictly concerned with the use, routine or otherwise, of the chair portion of the strip search policy. What is at issue now in this case is the use of non-private strip search procedures-a practice that has in fact been prohibited under the relevant policies
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for the entirety of the time period in question. Moreover, as discussed above, there is a genuine issue of material fact as to the existence of a custom or pattern of employing that practice irrespective of its status under MDOC and WHV policies. Warren's formal termination ofthe routine use ofthe chair portion ofthe strip search policy in December 20 11 is therefore immaterial to Plaintiffs' claim for prospective injunctive relief; what matters at present is whether there is an ongoing custom or pattern of non-private strip searches.
Defendants also rely on the Supreme Court's decision in City ofLos Angeles v. Lyons, 461 U.S. 95 (1983), but that case does not support Defendants' argument. Lyons had to do with the doctrine of standing rather than Eleventh Amendment immunity, and it involved a request for injunctive relief by a plaintiff who had been injured when he was placed in a chokehold by a police officer. The issue before the Court in Lyons was whether the plaintiffhad standing to enjoin the police department from using chokeholds like that which had been used on him in the future, and the Court explained that this issue depended in tum on "whether he was likely to suffer future injury from the use of the chokeholds by police officers." !d. at 105. The Court's conclusion that the plaintiff lacked standing was grounded in the principle that for purposes of standing, "[a]bstract injury is not enough. The plaintiff must show that he 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of
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injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical."' Id. at 101-02. In this case, the risk of the asserted harm occurring in the future is more concrete than it was in Lyons. See id. at 108 ("We cannot agree that the 'odds' that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief. We note that five months elapsed between [the incident] and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.").
Plaintiffs' claim for injunctive relief comes before the Court on Defendants' summary judgment motion; the question presented is whether, drawing all reasonable factual inferences in Plaintiffs' favor, there remains any genuine factual issue over the existence of a real and immediate threat of injury based on constitutionally violative non-private strip search procedures. And given the evidence before the Court, the Court will reserve judgment on this issue pending trial.
Accordingly, the Court will at this time deny Defendants' Motion for Summary Judgment or Qualified Immunity as to Plaintiffs' claim for injunctive relief. B. Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs have filed a Motion for Partial Summary Judgment, seeking
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"judgment in favor of all Plaintiffs that were strip searched in front of others." (Pis.'
Mot. Summ. J. at 2, Pg ID 579.) In that Motion, Plaintiffs note that they have
assembled a large number of inmates and former inmates "who have alleged that
they were strip [searched] while incarcerated at WHVCF in view of others." (!d. at
11, Pg ID 595.) Then, after summarizing the holdings in the Sixth Circuit's March
2016 opinion, as well as several cases that the Sixth Circuit relied upon in reaching
those holdings, Plaintiffs argue that
[b]ased upon the Court of Appeal's prior decision on this exact matter and the foregoing case law unequivocally finding that body cavity strip searches performed in view of others without justification are unconstitutional, this Court must find that this type [ofJ egregious strip search forcing these women to use their hands to touch their vaginas while sitting fully exposed on a chair, in view of others, is a violation of their Fourth Amendment Rights. As such, summary judgment must be granted as to the women who were strip searched in front of other inmates and third parties, not necessary to the strip search, while incarcerated at WHVCF. As such, summary judgment must be granted as to the women who were strip searched in front of other inmates and third parties, not necessary to the strip search, while incarcerated at WHVCF. (!d. at 14, Pg ID 598.)
As Defendants correctly point out, Plaintiffs' Motion for Partial Summary
Judgment does little more than summarize the law of the case. While the Sixth
Circuit did conclude that the type of search described by Plaintiffs violates the
Fourth Amendment-and that this principle was clearly established prior to
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Warren's assumption of supervisory responsibility over inmate search procedures at WHV- this does not resolve any issues in Plaintiffs ' favor that were not already resolved by the Sixth Circuit. Questions of fact remain as to whether Defendant Warren implicitly authorized or knowingly acquiesced in Fourth Amendment violations at WHV- an issue which the Sixth Circuit expressly did not reach on procedural grounds, see Salem, 643 F. App'x at 530- and also as to whether such violations are ongoing. Accordingly, the CoUli will deny Plaintiffs' Motion for Pa1iial Summary Judgment.

IV.

CONCLUSION

For all of the reasons stated above, the Court hereby DENIES Defendants'

Motion for Sununary Judgment and Qualified Immunity, and DENIES Plaintiffs'

Motion for Partial Summary Judgment.

IT IS SO ORDERED.

Paul D. Borman United States District Judge

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 Case 2:13-cv-14567-PDB-RSW ECF No. 101 filed 09/16/19 PageID.3955 Page 1 of 54

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMIRA SALEM and, KESHUNA ABCUMBY, on behalf of themselves and a class of others similarly situated,
Plaintiffs, v.
MICHIGAN DEPARTMENT OF CORRECTIONS and MILLICENT WARREN,

Case No. 13-cv-14567
Paul D. Borman United States District Judge
R. Steven Whalen United States Magistrate Judge

Defendants. __________________________________/

OPINION AND ORDER (1) DENYING PLAINTIFFS’ MOTION TO CERTIFY CLASS (ECF NO. 66), (2) DENYING PLAINTIFFS’ MOTION FOR LEAVE OF
COURT TO FILE ADDITIONAL AFFIDAVITS (ECF NO. 95), AND (3) SETTING A BENCH TRIAL ON EXHAUSTION OF THE TWO NAMED
PLAINTIFFS’ CLAIMS FOR NOVEMBER 6, 2019

This is a putative class action involving the Plaintiffs’ claims that certain strip

search procedures employed at the Women’s Huron Valley Correctional Facility

(“WHV”) violated their Fourth Amendment rights. The background of this litigation

is set forth in detail in several previous opinions of this Court. See Salem v. Mich.

Dept. of Corr., No. 13-14567, 2018 U.S. Dist. LEXIS 14457 (E.D. Mich. Aug. 24,

2018); Salem v. Dept. of Corr., No. 13-14567, 2016 WL 7409953 (E.D. Mich. Dec.

22, 2016); Salem v. Mich. Dept. of Corr., No. 13-14567, 2015 WL 1966727 (E.D.
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Mich. May 1, 2015). The Sixth Circuit has also issued an opinion following the parties’ interlocutory cross-appeal of this Court’s May 1, 2015 Opinion and Order. Salem v. Mich. Dept. of Corr., 643 F. App’x 526 (6th Cir. 2016). In summary, and as narrowed by these decisions, the Plaintiffs are a putative class of inmates and former inmates of the Michigan Department of Corrections (“MDOC”) female-only WHV, alleging that the WHV and then Warden Millicent Warren, in both her official and individual capacities, violated their Fourth and Fourteenth Amendment rights by subjecting them to mandatory routine strip searches, allegedly in full view of other inmates and individuals not necessary to the search, following off-site visits (including hospital visits or leaving the prison on a writ) and following all contact visits (i.e. visits at the WHV in which a prisoner was allowed physical contact with her visitors).
Presently before the Court is Plaintiffs’ Motion for Class Certification. (ECF No. 66.) Defendants filed a Response to the Motion (ECF No. 71), Plaintiffs filed a Reply (ECF No. 73) and Defendants filed a Sur-Reply (ECF No. 84). The Court has determined, pursuant to E.D. Mich. L.R. 7.1(f), that a hearing is not necessary and decides the matter on the parties’ written submissions.
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I. PROCEDURAL BACKGROUND A. The Saga of Plaintiffs’ Multiple Last-Minute “Document Dumps” This motion for class certification was filed on December 15, 2017, but has yet
to be heard due to the prolonged inability of Plaintiffs’ counsel to properly submit competent evidence in support of their motion for class certification, as detailed below. Before addressing the merits of the Plaintiffs’ long-pending motion for class certification, the Court provides a brief but necessary explanation of the reason for the delay: the ongoing saga of the Plaintiffs’ multiple affidavit “document dumps” and one of Plaintiffs’ counsels’ sheer inability to comply with the Court’s numerous Orders regarding the insufficiency of their proposed “affidavit evidence.” To begin with, attached to their Reply brief in support of their Motion for Class Certification, Plaintiffs attached approximately 840 pages of never-before-seen-or-referenced putative affidavits of current and former WHV inmates who claimed to have been subject to non-private strip searches while incarcerated at the WHV. (ECF No. 73-1.) Then, on the evening before the April 4, 2018 scheduled hearing on Plaintiffs’ Motion for Class Certification, Plaintiffs filed a “Supplement” to their Reply that attached an additional seventy (70) pages of affidavits from additional putative class members claiming to have been strip searched in front of others. (ECF No. 75, Supplement to Plaintiffs’ Reply.) Both sets of affidavits were sloppily presented with no tabbing or
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indexing and suffered from numerous significant procedural failings, including failure
of signatures and proper notarization. In addition, many of the affidavits were not
filled out at all and/or were duplicates. On April 4, 2018, the morning of the hearing
on the motion for class certification, the Court issued an Order striking the Plaintiffs’
supplemental filing, more appropriately characterized as a last-minute completely
disorganized document dump, as inappropriate supplementation under E.D. Mich.
L.R. 7.1(d). (ECF No. 76, 04/04/18 Order Striking Supplements to Plaintiffs’
Replies.) Following discussion of the improperly filed affidavits at the April 4, 2018
hearing, the Court canceled the hearing on the motion for class certification and issued
another Order striking the 840 pages of affidavits attached to Plaintiffs’ Reply brief
and imposing sanctions against the Plaintiffs under 28 U.S.C. § 1927 for unreasonably
and vexatiously multiplying these proceedings. (ECF No. 77, April 5, 2018 Order Striking Exhibits and Imposing Sanctions.)1
1 The Court did proceed on April 4, 2018, to hear argument on the parties’ motions for summary judgment, which were scheduled to be heard simultaneously with the Plaintiffs’ motion for class certification. The Court issued its Opinion and Order on the parties’ summary judgment motions on August 24, 2018. The Court ultimately determined that it was not necessary to consider the Plaintiffs’ “affidavit evidence” for purposes of resolving the parties’ motions for summary judgment. (ECF No. 90, Opinion and Order Denying Defendants’ Motion for Summary Judgment and Qualified Immunity and Denying Plaintiffs’ Motion for Partial Summary Judgment.) No interlocutory appeal was taken from the Court’s August 24, 2018 Opinion and Order.
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In an effort to provide the Plaintiffs with every opportunity to present their claim, the Court issued a second Order on April 5, 2018, allowing Plaintiffs twoweeks time to submit to the Court any putative affidavits they sought to have the Court consider including “numbered pages, an index listing the name and page number for each individual affiant, tabbed pages separating each entry with the name of the individual affiant printed on the tab, and no duplicate entries.” (ECF No. 78, April 5, 2018 Order Requiring Additional Filings.) The Court also Ordered a counsel for the Plaintiffs (Kenneth Hardin) to file an Affidavit or Sworn Declaration explaining how the affidavits were created, describing how, where, and by whom the affidavits were signed and notarized, and otherwise detailing the process by which the affidavits were obtained and compiled. (Id.) The Court permitted the Defendants to file a Sur-Reply up to seven (7) pages addressing the impact if any of the re-filed affidavits on their Response to the Plaintiffs’ motion. (Id.)
On April 17 and 18, 2018, Plaintiffs filed the Hardin Affidavit along with the revised affidavits of the putative class members. (ECF Nos. 79, 80.) Once again, incredibly, the Plaintiffs failed to submit the required information in an appropriate or organized format. On August 1, 2018, the Court held a hearing to address the continued deficiencies in the Plaintiffs’ filings. Following that hearing, the Court determined that Mr. Hardin’s Affidavit was improperly notarized in Pennsylvania and
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that many of the re-submitted affidavits of the putative Michigan class members were incomplete and non-conforming, and that further sanctions were warranted. That same day, the Court issued another Order Striking Filings and Imposing Sanctions, striking the Hardin Affidavit (ECF No. 79) and the “improper document dump of proposed affidavit exhibits” (ECF No. 80). (ECF No. 86, 08/01/18 Order Striking Filings and Imposing Sanctions.) In the 08/01/18 Order, the Court permitted Plaintiffs yet another final opportunity to re-file the putative class member affidavits, requiring submission on or before August 16, 2018. (Id.) On August 8, 2018, the Plaintiffs filed an Emergency Motion seeking additional time to submit the affidavits, explaining the difficulties Plaintiffs faced in attempting to obtain affidavits from putative class members who were still incarcerated, and seeking an additional thirty (30) days to re-file the affidavits. (ECF No. 88, Plaintiffs’ Uncontested Motion for Order Amending the Court’s August 1, 2018 Order Striking Filings.) The Defendants did not oppose this motion, and the Court issued an Order on August 15, 2019, granting the motion and permitting Plaintiffs to “properly file affidavit exhibits no later than September 15, 2018.” (ECF No. 89, 08/15/18 Order.)
On September 14 and 15, 2018, as the Court had Ordered in its 08/15/18 Order, the Plaintiffs refiled the Hardin Affidavit and the affidavits of 188 putative class members. (ECF Nos. 91-94.) On December 18, 2018, continuing to submit untimely
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new and additional evidence (discovery closed in this case on September 28, 2017 after several extensions and the dispositive motion deadline was December 15, 2017, also after several extensions had been granted), the Plaintiffs filed a Motion for Leave of Court to File Additional Affidavits from 23 additional putative class members. (ECF No. 95.) The Defendants filed a Response to the Plaintiffs’ motion on July 17, 2019 (ECF No. 98), and the Plaintiffs filed a Reply on July 24, 2019 (ECF No. 99). These 23 additional Affidavits are strikingly untimely and the motion to file them is DENIED.
B. The Court’s Previous Order Denying Plaintiffs’ Original Motion to Certify Class Without Prejudice
On December 22, 2016, the Court issued an Order denying Plaintiffs’ original motion for class certification without prejudice, finding inconsistencies between Plaintiffs’ evolving class definition and the Sixth Circuit’s ruling specifically defining the touchstone of unconstitutionality in this action as the allegedly non-private nature of the searches. (ECF No. 56, December 22, 2016 Opinion and Order Denying Plaintiffs’ Motion for Class Certification Without Prejudice 9-10, PgID 514-15.) At oral argument on the motion for class certification, Plaintiffs’ counsel acknowledged that the Sixth Circuit’s March 9, 2016 Opinion limited this action to claims of nonprivate searches, specifically stating that if in “going through the grievances, if it was not specifically alleged to have been conducted in front of others, we would have no
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choice but to voluntarily dismiss those potential claimants.” (ECF No. 100, Transcript of November 16, 2016 Hearing 9:17-20) (hereinafter “11/16/16 Hr’g Tr.”) Based on the Sixth Circuit’s directive and counsel’s representations that inmate grievances would be forthcoming, the Court ultimately concluded that Plaintiffs’ third proposed class of “women who suffered compensable injuries related to the chair portion of the search in full view of others during a discrete time frame” could potentially be ascertained “based on objective criteria such as exhausted grievances.” (ECF No. 56, 12/22/16 Order Denying Class Certification 10-11, PgID 515-16.) Despite finding that the Plaintiffs had preliminarily demonstrated ascertainability based on their anticipated review of grievances, the Court concluded that Plaintiffs failed to “affirmatively demonstrate” the remaining Rule 23 factors as required under WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”). This Court was particularly troubled by the fact that named Plaintiff Salem had not even alleged in her Affidavit that her chair search was done in view of others and thus her claims were not typical of the class, and also by the “non-frivolous concerns regarding exhaustion of grievances” that the Defendants had raised regarding whether
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the named Plaintiffs, not to mention the hundreds of proposed putative class members, had fully exhausted their claims as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”). (12/22/16 Order at 13-14, PgID 518-19.)
The Court recognizes that Plaintiffs have no duty to plead exhaustion, and that Defendants bear the burden of establishing that Plaintiffs have not exhausted their remedies through the grievance procedure. However, given the fact that the Defendants both pleaded exhaustion as an affirmative defense and have strenuously argued failure to exhaust in their opposition to the motion for class certification, and given the Court’s obligation under Wal-Mart to conduct “a rigorous analysis” of the Rule 23 factors, and to “probe behind pleadings,” which often “entail[s] some overlap with the merits of plaintiff’s underlying claim,” the exhaustion issue is front and center in the class certification analysis in this case. In fact, at the November 16, 2016 hearing on the motion for class certification, counsel for the Plaintiffs expressly stated on the record that “if [the named Plaintiffs] failed to exhaust, they would not be eligible to participate.” (11/16/16 Hr’g Tr. 11:11-12.) As the Court observed in its Order declining to certify a class, Plaintiffs’ request for class certification presented the Court “with the unappealing prospect of certifying the class only to have both named Plaintiffs later dismissed from the suit based on a failure to exhaust their claims.” (12/22/16 Opinion and Order 14, PgID 519) (citing Johannes v. Washington,
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No. 14-cv-11691, 2015 WL 5634446, at *9-10 (E.D. Mich. Sept. 25, 2015) (Michelson, J.)).
Three years on, it appears that the Court is still faced with this prospect because there is no evidence in this record that either of the named Plaintiffs, or even any one of the 188 affiants, exhausted a grievance specifically complaining that they had been subjected to the chair search procedure in the full view of others. While the Affidavits finally filed by the Plaintiffs attempt to backfill the Plaintiffs’ claims with assertions that they were searched utilizing the chair in view of numerous other people, the record in this case clearly demonstrates that the non-private nature of these searches was never an issue that the Plaintiffs expressly grieved, complained of, or otherwise brought to the attention of anyone at the MDOC. II. CERTIFICATION UNDER RULE 23
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). “To come within the exception, a party seeking to maintain a class action ‘must affirmatively demonstrate his compliance’ with Rule 23.” Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). “[T]hat is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350. “[C]ertification is proper only
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if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Id. at 350-51 (internal quotation marks and citation omitted). The Court may not “presume” compliance with Rule 23’s requirements but must satisfy itself through “rigorous analysis,” that necessarily “entails some overlap with the merits of plaintiff’s underlying claim,” that there has been “actual” compliance. Id. at 351.
To merit class certification, the Plaintiffs must show that, as required under Fed. R. Civ. P. 23(a), “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” In re Whirlpool Corp. Front Loading-Washer Pdcts. Liability Litig., 722 F.3d 838, 850 (6th Cir. 2013) (citing Fed. R. Civ. P. 23(a)). “These four requirements—numerosity, commonality, typicality, and adequate representation—serve to limit class claims to those that are fairly encompassed within the claims of the named plaintiffs because class representatives must share the same interests and injury as the class members.” Id. at 850 (citing Dukes, 131 S. Ct. at 2550). “In addition to fulfilling the four prerequisites of Rule 23(a), the proposed class must also meet at least one of the three requirements listed in Rule 23(b).” Id. Where,
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as here, the Plaintiffs seek to certify a class under Rule 23(b)(3), the Plaintiffs must demonstrate ‘that the questions of law or fact common to class members predominate over any questions affecting only individual members’ and that the class action is ‘superior to other available methods’ to adjudicate the controversy fairly and efficiently.” Id. at 850-51. “The plaintiffs carry the burden to prove that the class certification prerequisites are met, and the plaintiffs, as class representatives, [are] required to establish that they possess the same interest and suffered the same injury as the class members they seek to represent.” Id. at 851 (internal citation omitted).
A. Plaintiffs’ Proposed Class Definition and Plaintiffs’ Underlying Claim
In the December 22, 2016 Opinion and Order denying without prejudice Plaintiffs’ initial class certification motion, the Court addressed the following proposed plaintiff class:
Any women who are currently, or have formerly been, incarcerated at the Women's Huron Valley Correctional Facility who were subject to the “chair portion” of the strip search in view of others between November 1, 2010 and November 1, 2013, and who allege they have suffered a compensable injury as a result of the search. (Salem II at 9-10, Pg ID 514-15.) In the instant Motion for Class Certification, Plaintiffs propose a class definition identical to this definition, except that the relevant time span is “from November 1, 2010 to the present.” (Pls.’ Mot. Class Cert. at 8, Pg
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ID 722.) Plaintiffs also seek to add the following six subclasses to the putative class
definition:
Any women subject to search during 2009-2010 time period before Warden’s investigation of feasibility of chair-based strip search; any women subject to search and complaining that they were not given disposable seat covers before the April, 2011 memorandum from the Warden; any women subject to search and complaining that they were not given hand sanitizer before the April, 2011 memorandum from the Warden; any women subject to search and complaining that they were not given disposable seat covers after the April, 2011 memo from the Warden; any women subject to search and complaining that they were not given hand sanitizer after the April, 2011 memo from the Warden; and any women subject to search after December 14, 2011 to present time period after chair-based strip search policy "ended" in writing.
(Pls.’ Mot. Class Cert. at 8, Pg ID 722.) Notably, however, none of these proposed
subclasses are limited to individuals who were subject to strip searches in view of
other inmates or persons without a legitimate penological need to be present. For that
reason, these proposed sub-classes are outside the scope of this action, which (as
emphasized above) has been limited by the Sixth Circuit to non-private strip searches.
(See Salem, 643 F. App’x at 531) (“[V]iewing the facts in the light most favorable to
Plaintiffs, we uphold the judgment of the district court denying qualified immunity to
Warren regarding the non-private searches.”).) For that reason, this Court addresses
certification of the following class only:
Any women who are currently, or have formerly been, incarcerated at the
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Women's Huron Valley Correctional Facility who were subject to the “chair portion” of the strip search in view of others from November 1, 2010 to the present, and who allege they have suffered a compensable injury as a result of the search. The Rule 23 inquiry, necessarily entwined as it is with the merits, must begin with an understanding of the Plaintiffs’ underlying claim. It is not possible to conduct a “rigorous” examination of the requirements of adequacy, typicality, commonality, and predominance without reference to the elements of the underlying claims. While the Complaint is a logical starting point in many instances, here six years of litigation and one round of appeal to the Sixth Circuit precedes this Court’s Rule 23 analysis, and so the Court addresses the claim as shaped by the course of these proceedings. In any event, the Complaint provides no insight into the Plaintiffs’ only remaining claim, captioned “Count II - § 1983 - 4th and 14th Amendment Due Process and Privacy Violations,” which is pled in an entirely conclusory fashion, does not even distinguish among the various named Defendants or specifically attribute any alleged conduct to any particular Defendant, and certainly does not separately allege a Monell2 claim. Understanding Plaintiffs’ interpretation of the underlying claim in this action is no easy task as Plaintiffs have failed to explain their theories of liability and have
2 Monell v. Dept. of Soc. Serv. of City of New York, 436 U.S. 658 (1978).
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never articulated the theory behind their Monell claims against the MDOC and the Warden in her official capacity in anything other than broad conclusory terms. Against the weight of the undisputed evidence that the WHV chair search Policy does not authorize non-private searches, Plaintiffs rely directly on the chair search Policy and argue this as a blanket policy case, analogizing to several “strip search” cases in which courts have certified classes of prisoners (or former prisoners) who challenged blanket established institutional strip search policies applied in an across-the-board manner to defined categories of inmates. See, e.g., In re Nassau Cty. Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) (certifying a class of all newly-admitted misdemeanor detainees strip searched without reasonable suspicion pursuant to a blanket policy); Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002) (certifying a class where the defendants “implemented a uniform, indiscriminate policy of strip searching all detainees, in the absence of reasonable suspicion”); Johnson v. District of Columbia, 248 F.R.D. 46 (D.D.C. 2008) (certifying a class of arrestees who were subject to a blanket “drop, squat, and cough” search without individualized reasonable suspicion); Calvin v. Sheriff of Will Cty., No. 03-C-3086, 2004 WL 1125922 (N.D. Ill. May 17, 2004) (finding commonality and certifying a strip search class as to a blanket “no reasonable suspicion” strip search policy, that was applied routinely to a defined class of arrestees, where “the ultimate legal
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question is not whether jail personnel made erroneous reasonable suspicion determinations regarding each individual,” but rather whether the blanket policy, which did not require reasonable suspicion, unconstitutionally “avoided all such inquiry”); Eddelman v. Jefferson Cty. Ky., 96 F.3d 1448 (6th Cir. 1996) (unpublished) (finding that the fact that some searches were more or less intrusive did not defeat commonality because the differences were not relevant where the plaintiffs claimed that all searches without reasonable suspicion of those arrested for minor offenses was unconstitutional, regardless of whether the arrestee was forced to disrobe or whether the search occurred in the presence of others).
But the chair search Policy does not authorize non-private searches, and yet Plaintiffs preface their motion for class certification with the statement that “[t]he strip search procedure was a policy implemented by the Michigan Department of Corrections. As implemented policy, the strip search was not a matter to be addressed through the filing of grievances.” (Pls.’ Mot. 8, PgID 722.) Plaintiffs assert that several inmates were told that the chair search procedure was “policy” and could not be grieved. (Id.) It is undisputed that the chair search procedure was Policy and the content of MDOC policies, as discussed infra, are not generally grievable except as specifically applied to the prisoner. However, there is no dispute that the chair search Policy did not authorize non-private searches, and in fact demanded the opposite. The
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Policy Directives and WHV Operating Procedures governing “Search and Arrest in Correctional Facilities” that were in effect before, during and after the time period relevant to this case all required that strip searches be conducted only by employees of the “same sex” (with limited exceptions) and be “conducted in a place which prevents the search from being observed by those not assisting in that search” (again, with limited exceptions). (See ECF No. 11-2, PD 04.04.110 (eff. 02/01/09), PgID 119; WHV OP 04.04.110 (eff. 05/01/2009), PgID 130; ECF No. 17-4, PD 04.04.110 (eff. 04/09/2012), PgID 199.) Plaintiffs have cited no provision of PD 04.04.110, WHV-OP-04.04.110, or any other formal policy or directive that would have authorized officers to conduct strip-searches on inmates in the presence of other inmates or other individuals not necessary to the penological purposes of the search.
The touchstone of unconstitutionality that survived the Defendants’ appeal to the Sixth Circuit is the claim that the chair strip searches were conducted in full view of other inmates or persons without a legitimate penological need to be present. The Plaintiffs have expressly acknowledged that this is the scope of the claim going forward in this case:
Ms. Miller: Your Honor, I believe that because the unconstitutional – the standard that we were given from the Sixth Circuit is that it was done in view of others. So in my view, no other claims would survive. We’re still in discovery. If we confined it to that definition while we’re going through the grievances, if it was not specifically alleged to have been
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conducted in front of others, we would have no choice but to voluntarily dismiss those potential claimants. (11/16/16 Hr’g Tr. 9:13-20.) (emphasis added).
It is undisputed that the scope of this action is now limited to claims that Plaintiffs were subject to non-private chair strip searches, and there is no colorable argument that the chair search Policy authorized the chair strip searches to be conducted in view of others. In fact the Policy directed a one-on-one, same-sex search. Yet Plaintiffs repeatedly tether their Fourth Amendment claim to the Policy itself, insisting that they are relieved of any exhaustion requirement because the chair search was “Policy” and they were unable to grieve “Policy.” Plaintiffs insist in their motion for class certification that “the filing of grievances cannot be a prerequisite to class membership because the strip search procedure was policy and under MDOC’s own instruction, ‘not able to be grieved.’” (Pls.’ Mot. 10, PgID 724.) Plaintiffs argue, without citation to any authority, that therefore the Court should rely on the 188 afterthe-fact affidavits that they created for inmates to sign and simply excuse the fact that it appears that none of them, including the named Plaintiffs, grieved, much less fully exhausted, the issue of non-private chair searches at the time those searches occurred. But non-private searches were never Policy and such intrusions were always grievable. Yet Plaintiffs have not produced one fully exhausted grievance from any
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inmate, let alone from the named Plaintiffs, grieving this aspect of the search (or for that matter any fully exhausted grievances period).
Plaintiffs appear to recognize the weakness of their theory, arguing in their motion for class certification that “exclud[ing] women from the class action solely because they did not expressly state that they were strip searched in front of others in their grievance is an undue burden to place upon these women who had just endured a trauma and report limited reading and writing skills.” (Pls.’ Mot. 10, PgID 724.) Yet counsel for Plaintiffs previously stated in a hearing before this Court that if a proposed Plaintiff had not alleged in a grievance that she had been searched in front of others, Plaintiffs would have “no choice but to dismiss them from this action.” (11/16/16 Hr’g Tr. 9:19-20.) But that was before counsel apparently discovered that none of the proposed class members was sufficiently aggrieved by the presence of others at the time of their searches to mention that affront in any grievance, or in any forum meeting with the Warden, or in any other manner contemporaneously with the searches. (See discussion infra.) Only now, having been presented with check-box affidavits that present this specific query, do the proposed class members recall and report that “others” were present.
This non-private aspect of the search is the essence of the constitutional claim that has survived in this case – as Plaintiffs’ counsel conceded at the previous class
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certification hearing, there is no Fourth Amendment claim without such an allegation. Regardless of how Plaintiffs attempt to characterize their claims, the Fourth Amendment violation they complain of was in fact always grievable. Plaintiffs’ attempt at revisionist history, trying to give extreme importance now to an issue that appears not to have merited mention by the inmates at the time of the actual events under scrutiny, cannot change the nature of the Fourth Amendment claim that Plaintiffs must demonstrate.
Plaintiffs’ motion for class certification offers no clarity at all on the nature of their claim. The brief speaks in vague generalities proclaiming that “the nature and extent of defendants’ unconstitutional practices are common to the named Plaintiffs and all proposed and potential class members,” with no amplification whatsoever describing those vague but common “practices.” Plaintiffs acknowledge that “the circumstances surrounding each class member’s chair portion of Defendants’ strip search procedure were not identical,” but simply conclude that nonetheless the Plaintiffs’ claims all “stem from the same alleged unconstitutional conduct.” (Pls.’ Mot. 17, PgID 731.)
All that is missing here is everything. After six years of opportunity to discover evidence and develop theories of liability, there is no explanation or analysis of the alleged unconstitutional conduct that was “common to all” other than the blanket
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assertion that the all class members suffered from the same unconstitutional conduct, i.e., a chair search pursuant to the MDOC Policy, which it is undisputed did not authorize the conduct of which the class complains. “‘It is not sufficient for a party to
mention a possible argument in a most skeletal way, leaving the court to put flesh on its
bones.’” Bishop v. Gosiger, Inc., 692 F. Supp. 2d 762, 774 (E.D. Mich. 2010) (quoting Meridia Prods. Liab. Lit. v. Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006)). “‘[I]ssues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’” Id. (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)).
Determining the Defendants’ liability as to each and every search will require individualized proof regarding whether others were present and whether the presence of “others” was related to the penological purpose of the search. In addition, as discussed in detail infra, individualized inquiries regarding exhaustion also will require separate analysis as to each class member’s claim. In short, “mini-trials” will be required to determine whether, in any given instance, the circumstances of the search were such that Plaintiffs can assert a viable claim that Defendants violated their Fourth Amendment rights. As discussed supra, unlike a claim related to a blanket policy that has been indisputably applied across-the-board to a defined group of individuals, Plaintiffs’ claim relates to the manner in which individual searches were
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carried out and whether they were carried out in violation of a governing Policy
specifying private searches. In short, Plaintiffs’ underlying claim relates to numerous
unrelated allegedly non-private searches that, if they occurred as alleged, may have
violated WHV Policy and could and should have been grieved. With this
understanding of Plaintiff’s underlying claim, the Court now turns to an analysis of
the Rule 23 factors, beginning with those that most clearly mandate denial of class
certification here.3
3 As discussed supra, Plaintiffs have made no effort to develop any theory of Monell liability apart from their reliance on the chair search Policy itself. And even then, Plaintiffs have never explained how the Policy itself supports their Monell claim. In arguing that the Warden was not entitled to qualified immunity, Plaintiffs alluded to a claim based on a “policy of inaction,” citing Garretson v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir. 2005). (ECF No. 67, Pls.’ Resp. to Defs.’ Mot. for Summ. Judg. and Qualified Immunity 17, PgID 788.) There are several problems with this reference. First, the discussion of a “policy of inaction” in Garretson to which the Plaintiffs cited was with respect to Garretson’s claim against the municipality, not the individual officers, and thus Garretson was a completely inapt reference in the context of the Warden’s liability in her individual capacity and her entitlement to qualified immunity. In referencing Garretson in this context, Plaintiffs conflate the concept of supervisory liability of a policymaker in an individual capacity with a policy of inaction claim against a municipality. See Essex v. Cty. of Livingston, 518 F. App’x 351, 355-56 (6th Cir. 2013). If Plaintiffs were suggesting some type of Monell claim against the MDOC and the Warden in her official capacity with this reference (even though the issue before the Court was solely the Warden’s entitlement to qualified immunity), they have made no effort to develop such a claim. In fact, having elected to base their claims on the argument that the chair search Policy authorized the claimed Fourth Amendment violations and that therefore the Policy could not be grieved, they cannot credibly turn around and argue that they are actually making a claim that there was a custom or practice of violating the chair search Policy. In any event, there is no evidence in this fully-developed record that would support such a
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claim. In order to establish a “policy of inaction,” Plaintiffs must show:
(1) a clear and persistent pattern of [non-private chair strip searches]; (2) notice, or constructive notice of such pattern, to [the MDOC]; (3) tacit approval of the deliberate indifference and failure to act amounting to an official policy of inaction; and (4) that the custom or policy of inaction was the “moving force,” or direct causal link, behind the constitutional injury.
Garretson, 407 F.3d at 796 (citing Doe v. Claiborne Cty., 103 F.3d 495, 508 (6th Cir. 1996)). Here, after six years of litigation, as discussed at length in this Opinion and Order, Plaintiffs have failed to submit competent evidence that the Warden or the WHV was made aware that there was a persistent pattern of inmates being chair strip searched in view of other inmates or persons without a legitimate penological need to be present, let alone that there was official approval of and a failure to act in response to such a pattern. While many aspects of the chair strip search were brought to the attention of the Warden (and were addressed) there is simply no evidence that the inmates complained that the searches were being conducted in a non-private setting. In fact, the only contemporaneous partial grievances that have been submitted indicate that the search was conducted by a single corrections officer. See ECF No. 67-2, PgID 913-17, Partial Grievance of inmate DeBruin, complaining that she was “asked to strip and sit in a chair by officer Sharpe,” never mentioning the presence of another individual and suggesting the presence of a single corrections officer; ECF No. 67-2, Partial Grievance of inmate Radtke, complaining that she was “forced to perform a body cavity search in front of WHV officer,” which made her feel violated and humiliated, making no mention of the presence of the others and suggesting the presence of a single corrections officer. After six years of litigating this case, Plaintiffs have failed to articulate or proffer evidence in support of any variant of a custom or practice claim and it is not the Court’s job to hypothesize such a claim or search the record for evidence in support of such a claim. “[D]istrict courts cannot be expected to dig through the record to find the seeds of a party’s cause of action. Plaintiff must mark each site, identifying the genuine disputes of fact that preclude summary judgment on a particular claim. The district court had no obligation to do plaintiff’s work for her, nor do we.” Sumpter v. Wayne Cty., 868 F.3d 473,490 (6th Cir. 2017). Similarly, Plaintiffs’ completely conclusory one-sentence reference in their motion for class certification to a “failure to protect this vulnerable population
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B. Commonality, Typicality, Predominance
To obtain class certification, Plaintiffs must demonstrate that “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” Fed. R. Civ. P. 23(a)(3), and that “the representative parties will fairly and adequately protect the interests of the class,” Fed. R. Civ. P. 23(a)(4). If Plaintiffs satisfy these factors, and thereby satisfy all four prerequisites set forth in Fed. R. Civ. P. 23(a), they must then satisfy one of the three prongs of Rule 23(b). Here, Plaintiffs proceed under Rule 23(b)(3), which allows a class action to be maintained if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). “[T]he commonality and typicality requirements of Rule 23(a) tend to merge.” Dukes, 564 U.S. at 349 n. 5. If the Court finds a clear failure of proof on the issue of commonality, “it is unnecessary to resolve whether [Plaintiffs] have satisfied the typicality and adequate-representation requirements of Rule 23(a).” Id.
by declining to supervise, train, monitor, discipline, regulate prison staff,” with zero analysis of any element of any one of these types of Monell claims (Pls.’ Mot. 6, PgID 720), is so lacking in substance after six years of litigation that it merits no analysis. “‘It is not sufficient for a party to mention a possible argument in a most skeletal way, leaving the court to put flesh on its bones.’” Bishop, 692 F. Supp. 2d at 774.
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1. Individualized inquiries as to liability preclude class certification.
Plaintiffs’ claim that class members were searched pursuant to the chair search Policy in view of others who were unnecessary to the penological purposes of the search, which in fact would be contrary to the chair strip search Policy, necessarily requires resolution of particularized inquiries regarding each individual search. Unlike blanket strip search policy claims that do not rely on the particulars of any individual search, Plaintiffs’ claims are not amenable to class treatment because they do not present a “common contention . . . that is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. If Plaintiffs were claiming that a WHV policy authorized non-private searches, that all class members were searched pursuant to that policy, and that the policy was invalid on its face, resolution of the issue of the constitutionality of that policy possibly could determine “in one stroke” a central issue to those class claims. But here, the Policy prohibits the alleged unconstitutional conduct and thus the manner and degree of intrusiveness of each individual search will be central issues that cannot be resolved “in one stroke.” See, e.g., Gustafson v. Polk Cty., Wis., 226 F.R.D. 601, 605-06 (W.D. Wis. 2005) (Crabb, C.J.) (finding that commonality requirement was not met when the plaintiffs’ claims necessarily required “an examination of the extent
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of the intrusiveness of each class member’s strip search or the manner in which the searches were conducted”); Klein v. DuPage Cty., 119 F.R.D. 29 (N.D. Ill. 1988)
(declining to certify a class of inmates who complained that routine “strip-and-cavity searches” conducted before and after court appearances and visitations where the reasonableness of each search was dependent upon “special institutional security concerns” and where each search may have been conducted in a “variety of ways”).
It is undisputed that the Plaintiffs are claiming that the putative class members’ Fourth Amendment rights were violated on a number of different occasions, by a number of different individuals, under a number of different circumstances. The Affidavits report the presence of various individuals (some by name, some not), and list a number of dates on which the Plaintiffs and putative class members were searched (some with specific dates, some with only years or ranges), and do not connect the presence of any particular individual with any particular search date. Moreover, the Affiants purport to define which correctional officers were “necessary” to their particular searches by identifying individuals they deemed to be “unnecessary” parties who viewed their search and then indicating YES/NO whether “the only unnecessary party/parties identified above was/were Correctional Officer Trainees.” Again, these responses are directed generally to the inmate’s identification of a group of “others” who were alleged to have been present without specification of which
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individuals were present at and “unnecessary” for any particular search. This question seemed to confound many Affiants (as it does the Court) as several of the inmates either did not answer this question or scribbled out their original response and provided a different response, likely because an inmate would have no basis for determining the penological necessity of others who may have been present during her search – especially when asked to recall the circumstances of the event many years after the search occurred.
The Defendants’ liability as to each and every search will require individualized proof regarding whether “others” were present and whether the presence of “others” was related to the penological purpose of the search. Here, the Policy prohibits the alleged unconstitutional conduct and thus the manner and degree of intrusiveness of each individual search will be central issues that cannot be resolved “in one stroke,” defeating commonality. Dukes, 564 U.S. at 350.
2. Individualized inquiries regarding exhaustion preclude class certification.
Under the PLRA, a prisoner may not bring an action “with respect to prison conditions under section 1983 of this title, or any other Federal law ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Congress enacted this provision to address the “outsized share” of prisoner litigation
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filings and to ensure that “the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit.” Jones v. Bock, 549 U.S. 199, 203 (2007). Put another way, the purpose of § 1997e(a) is to “reduce the quantity and improve the quality of prisoner suits.” Porter v. Nussle, 534 U.S. 516, 524 (2002). In addition, exhaustion “gives an agency an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of [the agency’s] procedures.” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (internal quotation marks and citations omitted).
“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought into court.” Jones, 549 U.S. at 211. The prison’s grievance process determines when a prisoner has properly exhausted his or her claim. Id. at 218 (“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). Even where a prisoner has made some attempts to go through the prison’s grievance process, “[t]he plain language of the statute makes exhaustion a precondition to filing an action in federal court.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). The prisoner “may not exhaust his [or her] administrative remedies during the pendency of the federal suit.” Id. (citations omitted); see also Woodford, 548 U.S. at
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95 (“A prisoner who does not want to participate in the prison grievance system will have little incentive to comply with the system’s procedural rules unless noncompliance carries a sanction....”). However, “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216. Instead, failure to exhaust administrative remedies is an affirmative defense under the PLRA. As such, Defendants bear the burden of proof on exhaustion. Surles v. Andison, 678 F.3d 452, 456 (6th Cir. 2012) (“A PLRA defendant bears the burden of proving that a PLRA plaintiff has not exhausted his administrative remedies.”).
a. Grievance Procedures at the MDOC
Pursuant to its Policy Directive 03.02.130, dated July 9, 2007, the administrative remedies available at the MDOC are as follows. First, the prisoner must attempt to resolve any issue with the staff member involved within two business days of becoming aware of a grievable issue. (ECF No. 50-1, Policy Directive 03.02.130 (eff. 07/09/2007) ¶ P, PgID 471-77.) If the issues are not resolved within five business days, the prisoner may file a Step I grievance using the appropriate form. (Id.) “The issues should be stated briefly but concisely” and “[d]ates, times, places, and names of all those involved in the issue being grieved are to be included.” (Id. ¶ R.) The prisoner should receive a response within fifteen business days of filing the grievance. (Id. ¶ X.)
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If the prisoner is dissatisfied with the disposition of the grievance, or does not
receive a response by ten business days after the due date, he or she may file a Step
II grievance using the appropriate form. (Id. ¶ BB.) As with Step I, a response to the
Step II grievance should be issued within fifteen business days. (Id. ¶ CC.)
Similarly, if the prisoner is dissatisfied with the Step II response or does not
receive a response by ten business days after the response was due, he or she may file
a Step III grievance. (Id. ¶ FF.) The matter is fully exhausted after the disposition of
the Step III grievance. Surles, 678 F.3d at 455 (“A grievant must undertake all steps
of the MDOC process for his grievance to be considered fully exhausted.”) (emphasis
added).
b. Exhaustion as an issue precluding class certification
As this Court recognized in December 2016 when denying Plaintiffs’ prior
motion for class certification without prejudice:
Defendants have raised substantive and non-frivolous concerns regarding exhaustion of grievances. It is unclear from the complaint, affidavits, and briefing whether the named representative Plaintiffs have exhausted their claims as required by the Prison Litigation Reform Act. See Jones v. Bock, 549 U.S. 199, 211 (2007) (holding that “[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”). The Court recognizes that Plaintiffs have no duty to plead exhaustion. See Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012) (“A PLRA defendant bears the burden of proving that a PLRA plaintiff has not exhausted his administrative
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remedies.”). Yet, in the present case there are real concerns over whether either named Plaintiff exhausted their grievances. (See Compl., ¶¶ 35-38, alleging that Plaintiffs “are regularly not allowed to file grievances challenging policies or procedures and Defendants do not provide an alternative administrative mechanism to exhaust the claims set forth in this Complaint.”).
Thus, the Court is faced with the unappealing prospect of certifying a class only to have both named Plaintiffs later dismissed from the suit based on a failure to exhaust their claims. See Johannes v. Washington, No. 14-cv-11691, 2015 WL 5634446, at * 9-10 (E.D. Mich. Sept. 25, 2015) (Michelson, J.) (declining to certify a class before addressing threshold issue of exhaustion because defendants raised “non-trivial concerns about exhaustion” and “[o]therwise the Court risks certifying a class only to later find that the claims of all six of the class representatives must be dismissed, and, therefore, their claims are atypical and they are inadequate class representatives.”). These legitimate concerns lead the Court to conclude that Plaintiffs have not satisfied the requirements of Rule 23(a)(3) and (4) and have not shown that the named Plaintiffs are adequate representatives of the potential class or that their claims are typical of the class. Accordingly, the Court concludes that it would be imprudent to certify a class at this time.
(12/22/16 Opinion and Order 13-14, PgID 518-19).
Those same “substantive and non-frivolous concerns regarding exhaustion of
grievances” remain at issue here and similarly preclude certification. Specifically,
despite the Court’s ruling above, Plaintiffs only submitted three unexhausted
grievances with their instant motion for class certification, none of which belong to
the named Plaintiffs and all of which were rejected as untimely filed. (See ECF Nos.
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66-4, Wascher-McIntosh Griev., PgID 746-51, 66-5, Turner Griev., PgID 752-57, and 66-6, Tanner Griev., PgID 758-63.) See Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009) (stating that a prisoner cannot satisfy the exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance). Plaintiffs otherwise failed to submit any exhausted grievance by the named Plaintiffs (or any putative class member) with their instant motion (although they did previously provide grievance records for Abcumby which do not appear exhausted, as explained further below), and instead propose new criteria for ascertaining class membership – the 188 affidavits by prisoners who swear that they were subjected to the chair strip search in view of others.
Defendants argue that Plaintiffs make only conclusory allegations regarding exhaustion, without citation to any evidence in the record, and that “Plaintiffs’ failure to produce even one exhausted claim of a potential class member calls into question whether this action is suitable as a class action.” (ECF No. 71, Defs’ Resp., PgID 947-48, 950.) The Court agrees that the unanswered issue of whether either of the named Plaintiffs, or even any putative class member, have exhausted their administrative remedies regarding the sole remaining claim in this case – that they were subjected to the chair strip search in view of other inmates or persons without a legitimate penological need to be present – raises concerns regarding Plaintiffs’
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ability to meet their burden to demonstrate that: (1) “the claims or defenses of the representative parties are typical of the claims or defenses of the class” (typicality) (Rule 23(a)(3)); (2) “the representative parties will fairly and adequately protect the interests of the class” (adequacy) (Rule 23(a)(4)); and (3) “that the questions of law or fact common to class members predominate over any questions affecting only individual members” (predominance) (Rule 23(b)(3)).
i. Plaintiffs have failed to produce any exhausted grievances, despite their unsupported assertions that the named Plaintiffs have “exhaust[ed] their [administrative] remedies” and the majority of putative class members’ attestations that they have “completed the grievance process”
As explained above, “[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought into court.” Jones, 549 U.S. at 211. Plaintiffs concede in their motion for class certification that they “have since [their prior motion for class certification] received grievances and other documents from the MDOC,” (Pls.’ Mot. 7, PgID 721), and Defendants confirm that Plaintiffs “hav[e] all of the relevant grievances.” (ECF No. 71, Defs.’ Resp. 6, PgID 944).
Plaintiffs then unambiguously state that “both named Plaintiffs did exhaust their remedies by filing Step I-III grievances.” (Pls.’ Mot. 18, PgID 732.) However, they fail to attach those purported grievances to their motion (even though they do attach (unexhausted) grievance documents of three putative class members). The only
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evidence regarding Plaintiff Abcumby’s alleged administrative exhaustion in the record is six pages of grievance records attached to Plaintiffs’ Response to Defendants’ Motion for Summary Judgment and Qualified Immunity (ECF No. 67-2, Pls.’ Resp. Opp’n Summ. J. Ex. 15, Abcumby Grievance Records, PgID 918-23), and while those documents may evidence that Plaintiff Abcumby initiated a grievance regarding the chair strip search procedure, they do not show that she exhausted the process. The record contains no grievance records for Plaintiff Salem at all, despite her uncorroborated statement in her February 9, 2014 affidavit that she “filed a grievance on September 4, 2011” regarding “utilizing the chair in the strip search.” (ECF No. 17-5, Pls.’ Resp. Opp’n MTD, Ex. 4, PgID 211.)
In addition, the overwhelming majority of the affidavits supplied by Plaintiffs at the time they filed their reply brief similarly assert in a check-box fashion that the affiants “did complete the grievance process regarding the search(es).” (ECF Nos. 92, 93, 94.) However, again, Plaintiffs fail to supply even one of those “complete[d]” grievances in support of their motion for class certification.
While recognizing that it is Defendants’ burden to prove failure to exhaust administrative remedies, the exhaustion issue nevertheless impacts Plaintiffs’ ability to demonstrate that they are adequate class representatives and that their claims and defenses are typical of those of the class members, and raises concerns about the
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potential for individualized factual and legal issues predominating over class-wide issues.
ii. The grievances that have been supplied fail to complain about the “non-private” nature of the searches
Of the few unexhausted grievances Plaintiffs have provided to the Court, no grievance contains allegations stating or inferring that other inmates or other persons “not assisting in that search” were in the room or otherwise complains about the “nonprivate” nature of the prisoner’s search. Rather, these grievances complain only about being subjected to the “spread labia” chair search, which they found “humiliating” and “degrading.” (See Wascher-McIntosh Griev., PgID 747; Turner Griev., PgID 757; Tanner Griev., PgID 763; see also Radtke, Williams, deBruin, and Abcumby Grievs., PgID 901-23.)
Plaintiffs contend that the grievances submitted cannot be expected to contain “every allegation of misconduct that occurred within the strip search procedure.” (Pls.’ Mot.9, PgID 723.) But the purpose of the exhaustion requirement is to provide “fair notice of … alleged mistreatment or misconduct that forms the basis of the constitutional or statutory claim made against a defendant in a prisoner’s complaint.” Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2006) (quotation marks and citation omitted), abrogated on other grounds by Jones, 549 U.S. at 219. Therefore, “[a]n
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inmate’s grievance must give ‘sufficient notice of the matter being grieved …,’ so that ‘[p]rison officials … ha[ve] a chance to provide a remedy for the inmate and to decide whether the objectives of the review process have been served.’” Rivers v. Turner, No. 3:14 CV 2547, 2016 WL 4065884, at *3 (N.D. Ohio July 29, 2016) (quoting Maxwell v. Corr. Med. Servs., Inc., 538 F. App’x 682, 688 (6th Cir. 2013)); Mattox v. Edelman, 851 F.3d 583, 591 (6th Cir. 2017) (“We have also explained that the purpose of the PLRA’s exhaustion requirement ‘is to allow prison officials a fair opportunity to address grievances on the merits, to correct prison errors that can and should be corrected and to create an administrative record for those disputes that eventually end up in court.’”) (quoting Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)); Woodford, 548 U.S. at 90 (“The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to ‘afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.’”). Therefore, it is important that “[t]he issues [a plaintiff] may raise … in [her] lawsuit are limited to the specific issues raised … in [her] grievance.” Vandiver v. Martin, 48 F. App’x 517, 519 (6th Cir. 2002) (emphasis added) (“The exhaustion requirement would be defeated if an inmate were permitted to raise additional issues … in a § 1983 action that were never mentioned in the grievance.”); see also Ford v. Martin, 49 F. App’x 584, 585 (6th Cir.
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2002) (finding failure to exhaust when the issues in the “grievances did not raise the same issues as those asserted in the … complaint”); Baldridge-El v. Gundy, 238 F.3d 419, 2000 WL 1721014, at *1 (6th Cir. 2000) (table case) (finding claims were properly dismissed when they were not included in the grievances the plaintiff had filed); Rumsey v. Mich. Dep’t of Corr., No. 1:10 CV 880, 2013 WL 5442400, at *7 (W.D. Mich. June 24, 2013) (explaining that the plaintiff was required to bring the specific allegations to the attention of prison officials through the grievance procedure); Bartelson v. Parker, No. 19-cv-281, 2019 WL 3849159, at *1 (E.D. Ky. Aug. 15, 2019) (concluding that plaintiff’s § 1983 claim regarding a strip search conducted in view of other inmates was not exhausted when the underlying grievance “complained only that the search was done in front of a security camera [but] did not allege or complain that it was conducted in front of other inmates”).
Here, while Plaintiffs have submitted a few unexhausted grievances complaining about the “spread labia” chair strip search Policy as applied to the individual grievant, there is no grievance in the record complaining that other inmates were in the room or otherwise complaining about the “non-private” nature of the search, and thus no grievance that would serve to provide notice of this alleged constitutional violation to prison officials. In addition, even the Warden Forum Committee notes produced earlier in this litigation fail to include any mention of a
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complaint about the “non-private” nature of any search, although there were other discussions regarding the manner of search, whether it violated religious principles, etc. (ECF No. 67-2, Warden Forum Comm. Notes, PgID 882, 889, 896-97, 899-90.) Accordingly, there is no record evidence before the Court that Defendants were “on notice” of any complaint that strip searches were being conducted in a “non-private” manner in violation of the chair strip search Policy. Plaintiffs’ counsel conceded at the hearing on the original motion for class certification that Plaintiffs’ inability to demonstrate a class member’s exhaustion of any grievance regarding the “nonprivate” nature of any search would result in dismissal of that Plaintiff or putative class member from the action.
iii. Plaintiffs and putative class members were required to grieve alleged violations of the strip search policy
The MDOC policy directive on Prisoner/Parolee Grievances, PD 03.02.130, provides that while “[a] grievant may not grieve the content of policy or procedure except as it was specifically applied to the grievant[,]” (PD 03.02.130(F)(1) (emphasis added), PgID 471-72), “[g]rievances may be submitted regarding alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant, including alleged violations of this policy and related procedures.” (Id.. (E) (emphasis added).) Thus, prisoners may grieve alleged violations of policy
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or procedure as well as the content of policies or procedures as “specifically applied” to them, and they must exhaust those grievances before they are permitted to seek relief in federal court. See Jones, 549 U.S. at 211; Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (“So long as the prison system has an administrative process that will review a prisoner’s complaint … the prisoner must exhaust his prison remedies.”) (quoting Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir. 1999)). This requirement applies to “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 F.3d 485, 489 (7th Cir. 2002).
Plaintiffs try to get around the requirement that they must exhaust their administrative remedies in part by arguing that “[a]s implemented policy, the strip search was not a matter to be addressed through the filing of grievances.” (Pls. Mot. 8, PgID 722, citing Ex. 2, Warden Warren Dep. 8.) Plaintiffs refer to testimony that Defendant Warren provided in her deposition:
Q. . . . What types of issues can be grieved? A. Grieved by? Q. Inmates. A. Prisoners can grieve any issue they feel is unjust. However, they
cannot grieve policy.
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Q. Okay. So when, as here in this case, there are complaints about an existing policy, what can the inmate do besides a grievance to have their issues heard?
A. Once they grieve through the third step and have exhausted all of their remedies, they can then go to a court for a decision.
Q. If they can't grieve the policy, so they can’t even get to the threestep process, what can they do as an alternative?
A. They can always grieve even if it is denied. They just have to exhaust their remedies.
(Warren Dep. 8:1-22, PgID 745.) Plaintiffs similarly contend in their Reply brief that they “learned throughout discovery that the strip search procedure was policy and therefore not grievable” because “[a]s the MDOC does not permit inmates to grieve policy, such as the strip search procedure, the Plaintiffs cannot be required to have filed futile grievances merely to exhaust administrative remedies.” (ECF No. 73, Pls.’ Reply 2, PgID 1806.)
First, Plaintiffs have cited no authority for their argument that the perceived (or even actual) futility of filing grievances is a basis for excusing noncompliance with the PLRA’s administrative exhaustion requirement, and the governing case law weighs in the opposite direction. See Hix v. Tennessee Dep’t of Corr., 196 F. App’x 350, 354 (6th Cir. 2006) (“There is no futility exception to the exhaustion requirement.”) (citing Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)); Jones v. Douglas, 108 F. App’x 254, 256 (6th Cir. 2004) (“[U]nder Booth, even futile claims
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must be exhausted under § 1997e(a) before filing a § 1983 complaint.”) (citing Booth,
532 U.S. at 738); see also Cox v. Mayer, 332 F.3d 422, 428 (6th Cir. 2003) (“Wrote
the Court: ‘[The Court] will not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise.’ And so, neither
shall we.”) (quoting Booth, 532 at 741 n. 6).
Second, as explained below, the assertion that Plaintiffs would not be permitted
to grieve the “content” of policy would be true if Plaintiffs were making a facial
challenge to the blanket application of the MDOC chair strip search policy (i.e.,
arguing that a specific section of the policy as outlined in PD 04.04.110 was
unconstitutional), but they are not. They are plainly alleging a violation of that policy
“as it was specifically applied” to them.4
4 Plaintiffs claim that “[m]any of the grievances filed by women subjected to the strip search procedure were rejected for reason that the inmates were ‘unable to grieve policy.’” (Pls. Mot. 9, PgID 723, referring to Wascher-McIntosh Griev. and Turner Griev.) However, a review of those grievances reveals that is simply not true. Rather, those grievances were rejected as “untimely” filed. Specifically, in the two grievances cited by Plaintiffs, it was the grievant herself who claimed that she did not file the grievance earlier because she allegedly was told it was not a grievable issue because it was policy, while each grievance indicates that it was actually rejected because it was untimely. (See Wascher-McIntosh Griev., PgID 746, Turner Griev., PgID 757.) Plaintiffs have failed to produce even one grievance that was rejected as improperly grieving the content of the strip search policy as opposed to a violation of the policy. Indeed, Plaintiff’s Abcumby’s grievance documents attached as an exhibit to earlier filings in this case indicate that she was expressly instructed to grieve the issue. (Abcumby Griev., PgID 919.)
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Thus, to the extent Plaintiffs or putative class members are complaining that they were subjected to a strip search “in the presence of individuals other than the officer and the inmate, for whose presence there was no legitimate penological justification,” they are necessarily complaining about a violation of the applicable policy or procedure as “specifically applied” to them, and not about the “content of a policy or procedure.” Accordingly, Plaintiffs were, pursuant to PD 03.02.130, required to file grievances regarding such alleged violations and to exhaust those grievances prior to bringing such a claim in this Court. See Townsend v. Ouellette, No. 1:17-cv-935, 2019 WL 1333741, at *5 (W.D. Mich. Feb. 11, 2019) (plaintiff was required to grieve a dispute about the content of a policy directive regarding religious beliefs “‘as it was specifically applied’ to him”) (citing Wayne v. Heyns, No. 1:13-cv1308, 2015 WL 1478205, at *8 (W.D. Mich. Mar. 31, 2015) (“To the extent that plaintiff is asserting claims based on the policy directive as it was specifically applied to him, it is pellucid that he was required to exhaust his claims through the MDOC’s grievance process before he filed his suit.”)), report and recommendation adopted by 2019 WL 1332017 (W.D. Mich. Mar. 25, 2019); see also Doe 1 v. Mich. Dep’t of Corr., No. 13-14356, 2016 WL 465496, at *7-9 (E.D. Mich. Feb. 8, 2016) (requiring exhaustion of prisoners’ complaints about MDOC housing policy as “specifically applied” to them). Therefore, Plaintiffs were plainly required to file a grievance
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regarding any alleged violation of the strip search policy as applied to them, unless the grievance procedure was “unavailable” as described below.

iv.

Any analysis regarding the “unavailability” of the

grievance process would require individualized

assessment precluding certification.

As explained above, the duty to exhaust administrative remedies under the PLRA is mandatory and without exception. Jones, 549 U.S. at 211 (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”) The “one significant qualifier” in the statute is that “the remedies must indeed be ‘available’ to the prisoner.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). “Available” means “‘capable of use,’” and thus “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1858-59 (citation omitted). The Supreme Court has identified three examples of circumstances that make a procedure unavailable: (1) “when (despite what regulations or guidance materials promise) it operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use”; and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.
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Plaintiffs appear to suggest (although they have never directly argued such a
point by citing relevant authority or specific record evidence) that they and at least
some putative class members should be excused from the mandatory requirement to
exhaust their administrative remedies regarding claimed violations of the strip search
policy because they were allegedly prevented or “thwarted” from pursuing those
remedies when certain plaintiffs were allegedly told by corrections personnel that they
could not grieve “policy.” (See Pls.’ Mot. 9-11, PgID 723-25; Compl., ¶¶ 35-38,
alleging that Plaintiffs “are regularly not allowed to file grievances challenging
policies or procedures and Defendants do not provide an alternative administrative
mechanism to exhaust the claims set forth in this Complaint.”) As another court in
this District has previously recognized:
Courts have held that prison officials may render the process unavailable if they provide incorrect information about filing or fail to respond appropriately to a plaintiff's request to file. See, e.g., Davis v. Fernandez, 798 F.3d 290 (5th Cir. 2015) (“Grievance procedures are unavailable to an inmate if the correctional facility’s staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process.”); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) (“An administrative remedy is not ‘available,’ and therefore does not need to be exhausted, if prison officials erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to pursue it.”); Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (“When a prisoner has no means of verifying prison officials’ claims about the administrative grievance process, incorrect statements by officials may indeed make remedies unavailable.”); Brown v. Croak, 312 F.3d 109, 112 (3rd Cir. 2002) (finding that the plaintiff raised a
44

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question of fact about the availability of grievances when he was given incorrect filing information); Smith v. Woods, No. 9:03-CV-480, 2006 WL 1133247, at *15 (N.D.N.Y. April 24, 2006) (“[C]ase law exists supporting the proposition that, assuming plaintiff was instructed by prison officials, contrary to prison regulations, that he could not file a grievance, and plaintiff indeed did not initiate the grievance process by filing that grievance in reliance on that misrepresentation,” the process was unavailable.) However, the Sixth Circuit has indicated that even in these situations, “the prisoner must make some affirmative efforts to comply with the administrative procedure.” Brock v. Kenton Cty., Ky., 93 F. App’x 793, 798 (6th Cir. 2004). The efforts must be “‘sufficient under the circumstances.’” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015). Veeder v. Tri-Cap, No. 17-cv-11690, 2018 WL 7254610, at *7 (E.D. Mich. Dec. 13,
2018), report and recommendation adopted by 2019 WL 208281 (E.D. Mich. Jan. 15,
2019). The Sixth Circuit explained that when “[f]aced with a policy that was not
clearly unavailable, the only way to determine if the process was available, or futile,
was to try. Here, a process existed, and therefore … ‘compliance with those rules …
is required.’” Napier v. Laurel Cty., Ky., 636 F.3d 218, 224 (6th Cir. 2011) (citation
omitted).5 Further, “[i]t is well established in this Circuit that nonspecific allegations
5 The Napier court explained that:
Our Court has consistently analyzed whether an inmate’s efforts to exhaust were sufficient under the circumstances, but in each case, the prisoner did something. See Bruce v. Corr. Med. Serv., Inc., 389 Fed. Appx. 462, 467 (6th Cir. 2010) (noting that prisoner attempted to file a grievance and “was told Policy 501.01 would not allow it”); Flournoy v. Schomig, 152 Fed. Appx. 535, 537 (7th Cir. 2005) (recognizing that plaintiff had submitted an “emergency grievance” before being transferred, then filed another after transfer); Rancher v. Franklin Cnty.,
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of fear and subjective feelings of futility will not excuse a failure to exhaust administrative remedies.” Buffman v. United States, No. 13-cv-14024, 2015 WL 71840, at *3 (E.D. Mich. Jan. 6, 2015) (citing Boyd v. Corr. Corp. of Am., 380 F.3d 989, 998 (6th Cir. 2004)).
Thus, Plaintiffs’ suggestion that they or certain class members were misled about their ability to grieve the chair strip searches at issue here, if true, may raise a question of fact as to whether the administrative remedies for those particular Plaintiffs/putative plaintiffs were “unavailable” to them. This will require a fact intensive review for each claim that is not amenable to class-wide determination. Resolution of those claims would devolve into mini-trials on exhaustion for each class member regarding what each Plaintiff or putative plaintiff knew or should have discovered about the grievance process, which MDOC individual(s) each class member allegedly spoke to, what was said and when. Plaintiffs also will be required to demonstrate, for every claimed “unavailable remedy,” the “affirmative efforts” made to comply with the grievance procedure “under the circumstances” (i.e.,
122 Fed. Appx. 240, 242 (6th Cir. 2005) (excusing the exhaustion requirement because the prisoner had filed a grievance with the jail, contacted prison personnel, and submitted documents from other prisoners stating that the jail had refused to accept medical grievances). Napier, 636 F.3d at 224 (emphasis in original).
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attempts to file a grievance) and the results of those efforts. And if Plaintiffs make this showing, Defendants then would be permitted to respond to each claim and “present evidence showing that the plaintiff’s ability to exhaust was not hindered.” Surles, 678 F.3d at 457 n.10; see also McBee v. Campbell Cty. Detention Ctr., No. 175481, 2018 WL 2046303, at *4 (6th Cir. Mar. 15, 2018) (requiring “defendants [to] present ‘proof that they did not interfere with [a prisoner’s] ability to exhaust [her] administrative remedies’”) (quoting Surles, 678 F.3d at 457); Doe 1, 2016 WL 465496, at *11 (noting that if a plaintiff contends he was prevented from exhausting his administrative remedies, the defendant must present evidence that the plaintiff’s ability was not hindered). See also Ratliff v. Graves, 761 F. App’x 565, 566-67 (6th Cir. 2019) (plaintiff’s remedies not unavailable even though jailer failed to provide grievance forms in response to several requests where evidence showed that plaintiff failed to ask other jailers for forms and failed to establish that other jailers “thwarted” him); Doe 1, 2016 WL 465496, at *11 (grievance procedure not unavailable even though “prisoners were informed that the issues ‘will be handled administratively’ and that the investigations were conducted and closed by PREA investigators, and thus “‘Defendants did not utilize the grievance procedure to resolve the sexual misconduct grievances and the response of the MDOC did not allow for any appeal to step 2 or
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3 of the grievance process’” because plaintiffs still could have appealed to step 2 or 3 if dissatisfied or if they did not receive a timely response).
The need for individualized inquiries as to liability, exhaustion, and the availability of exhaustion defeats commonality and typicality, and results in the certainty that individualized factual and legal issues would predominate over classwide issues.
C. Ascertainability Although generally a threshold issue, the Court notes here in closing that the proposed Plaintiff class is not sufficiently ascertainable. “[B]efore a court may certify a class pursuant to Rule 23, ‘the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.’” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012) (citation omitted); Newberg on Class Actions § 3:3 (5th ed.) (“Courts generally treat the requirement [of definiteness] as a precursor to Rule 23 and therefore examine the implicit requirements before proceeding the Rule's explicit requirements.”) In evaluating the “ascertainability” of a class, the Sixth Circuit has indicated that class definitions which are “amorphous” or “imprecise” do not meet this standard. Id. at 537-38 (citation omitted). Further,
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[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused by particular wrongful actions taken by the defendants will be sufficiently objective for proper inclusion in a class definition. Id. at 538-39 (citation omitted); Newberg on Class Actions § 3.1 (5th ed.) (“Despite the specificity of Rule 23, courts have grafted onto it two additional criteria, often referred to as the ‘implicit requirements’ of class certification: that the class be ‘definite’ or ‘ascertainable’ and that the class representative be a member of the class.”). Applying these standards, this Court found in its initial Order denying class certification that the proposed class definition quoted above “is ascertainable and can be determined based on objective criteria such as exhausted grievances” (12/22/16 Order 11, Pg ID 516), but went on to deny Plaintiffs’ initial class certification motion on a combination of numerosity, typicality, and adequacy grounds (see id. at 11-15, Pg ID 516-20). Now, Defendants argue in opposition to Plaintiffs’ Motion for Class Certification that Plaintiffs have failed to show that administrative grievances are in fact a valid method for determining an ascertainable class, since they have failed “to submit any exhausted grievances, even after they have acknowledged that the best
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means of ascertaining the class is by exhausted grievances.” (Defs.’ Resp. 4, PgID 942.)
In their Reply, Plaintiffs propose a new criteria for ascertaining class membership: the 188 affidavits discussed at length supra that have been sworn by inmates who allege that they were subjected to “chair” strip searches at WHV in view of other inmates or individuals not necessary to serve any penological purpose. (ECF Nos. 92, 93, 94.) Although they assert that they “initially believed that they would be able to use the grievances as an ascertainable means for determining class membership, the Plaintiffs learned throughout discovery that the strip search procedure was policy and therefore not grievable.” (ECF No. 73, Pls.’ Reply Supp. Class Cert. at 2, Pg ID 1806.) Plaintiffs also cite Sixth Circuit authority supporting the use of class-member affidavits as a method of determining ascertainability, at least where there are other independent means of verifying class membership. See Rikos v. Procter & Gamble Co., 799 F.3d 497, 525-27 (6th Cir. 2015) (upholding the district court’s determination that a proposed class was ascertainable because the class was defined by objective criteria, and could be corroborated through the use of the defendant’s internal data and class member affidavits). However Rikos is not a case controlled in any way by the exhaustion requirements of the PLRA. In fact, Plaintiffs have failed to cite any law that stands for the proposition that inmate affidavits,
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submitted years after the events they purport to describe, can substitute for properly filed and exhausted contemporaneous grievances. Indeed to allow such a practice would thwart the very purpose of the grievance exhaustion requirement, which is to alert the institution to the allegedly offending conduct and to permit the institution an opportunity to address that conduct short of a legal confrontation with the inmate. Without first addressing the exhaustion of each class member’s grievance of the nonprivate nature of the search, the class as defined is not sufficiently ascertainable.
D. Conclusion as to Class Certification
“The crux of this case is commonality.” Dukes, 564 U.S. at 349. Individualized issues as to liability and exhaustion as to each putative class members’ chair search experiences abound and defeat commonality and typicality in this action, and those individualized inquiries predominate over any class-wide issues that Plaintiffs have presented. Accordingly, the Plaintiffs’ Motion to Certify Class is DENIED.
III. The Court Will Hold a Bench Trial on the Issue of the Two Named Plaintiffs’ Exhaustion of Administrative Remedies to Determine Whether This Action May Proceed to Trial as to the Two Named Plaintiffs As discussed above, there are disputed issues of fact regarding whether the two
named Plaintiffs, Abcumby and Salem, have exhausted their administrative remedies regarding the sole remaining issue in this case – that they were subjected to chair strip
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searches performed in the presence of individuals who were unnecessary to the
penological purposes of the search – including whether exhaustion may be excused
if those remedies were “unavailable” to each of the plaintiffs. The Sixth Circuit Court
of Appeals has held that “disputed issues of fact regarding exhaustion under the PLRA
present[] a matter of judicial administration that could be decided in a bench trial.” Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015).6 In deciding that issue, the Sixth
Circuit explained that “exhaustion under the PLRA is analogous to other threshold
issues of judicial administration that ‘courts must address to determine whether
litigation is being conducted in the right forum at the right time,’” and that “[m]atters
of judicial administration often require judges to decide factual disputes that are not
bound up with the merits of the underlying dispute.” Id. (quotation marks and
citations omitted). The rationale behind a judge making a preliminary determination
regarding exhaustion under the PLRA is that “[a] jury might decide the merits of the
case that should never have gotten to the merits stage because the judge should have
6 The Lee court noted that “all six of the circuits that have addressed th[is] issue agree that ‘judges may resolve factual disputes relevant to the exhaustion issue without the participation of the jury.’” Id. at 677-78 (citing Small v. Camden Cty., 728 F.3d 265, 271 (3d Cir. 2013); Messa v. Goord, 652 F.3d 305, 308-09 (2d Cir. 2011) (per curiam); Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Bryant v. Rich, 530 F.3d 1368, 1373-77 (11th Cir. 2008); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), overruled on other grounds by Albion v. Baca, 747 F.3d 1162, 1166, 1170-71 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 403 (2014)).
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found that the prisoner had failed to exhaust his administrative remedies.” Lee v. Freeman, No. 16-14162, 2017 WL 4158794, at *6 (E.D. Mich. Aug. 25, 2017), report and recommendation adopted by 2017 WL 4150789 (E.D. Mich. Sept. 19, 2017). Within the context of these evidentiary hearings, federal district court judges can resolve all genuine issues of material fact related to the exhaustion of administrative remedies, including making credibility determinations, and these findings must be accepted unless they are clearly erroneous. Lee, 789 F.3d at 678-80; Hill v. Smith, 186 F. App’x 271, 274 (3d Cir. 2006) (review of a district court’s “factual findings on exhaustion is for clear error, giving due regard for the opportunity of the trial court to judge the credibility of the witnesses.”).
Accordingly, the matter will be set for a bench/evidentiary hearing directed solely to the issue of whether Plaintiffs Salem and Abcumby have exhausted their administrative remedies regarding the claim that they were subject to chair strip searches performed in the presence of individuals who were unnecessary to the legitimate penological purpose of the search, including whether the grievance process for that claim was “unavailable” to either Plaintiff. The parties may submit exhibits limited solely to this issue, which may include affidavits or declarations of Abcumby, Salem and/or the MDOC officials involved in the grievance process and any relevant MDOC grievance records for the two named Plaintiffs, including any MDOC Step III
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Grievance Report(s) with attached grievances for Abcumby and/or Salem. Affidavits, declarations or other documents regarding grievance records for prisoners or former prisoners other than Abcumby and Salem may not be submitted to the Court for purposes of this evidentiary hearing.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion to Certify Class (ECF No. 66) is DENIED.

Plaintiffs’ Motion for Leave of Court to File Additional Affidavits (ECF No. 95) is DENIED.

A bench trial on the issue of the named Plaintiffs’ exhaustion of administrative remedies will be held on November 6, 2019 at 10:00 a.m. The parties are hereby ORDERED to file with the Court and to submit to opposing counsel bench briefs up to ten (10) pages in length (in compliance with E.D. Mich. L.R. 5.1 regarding formatting of briefs) and all proposed exhibits (limited in content as discussed supra) two weeks in advance of the hearing.

IT IS SO ORDERED. Dated: September 16, 2019

s/Paul D. Borman Paul D. Borman United States District Judge

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 Case 2:13-cv-14567-PDB-RSW ECF No. 106 filed 10/18/19 PageID.4020 Page 1 of 1

 
 U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:13−cv−14567−PDB−RSW

CLOSED

Salem et al v. Michigan Department of Corrections et al Assigned to: District Judge Paul D. Borman Referred to: Magistrate Judge R. Steven Whalen Demand: $75,000

Case in other court:

U.S. Court of Appeals − Sixth Circuit, 15−01598

Cause: 42:1983 Prisoner Civil Rights

Plaintiff

Date Filed: 11/01/2013 Date Terminated: 10/18/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Amira Salem

represented by Racine M. Miller The Michigan Law Firm 2254 Cole Street Suite B Birmingham, MI 48009 844−464−3476 Fax: 248.480.0906 Email: racine.michelle@gmail.com ATTORNEY TO BE NOTICED

Teresa J. Gorman Teresa J. Gorman PLLC 5700 Crooks Road Suite 200 Troy, MI 48098 248−763−6943 Fax: 248−689−3268 Email: terigorman@aol.com ATTORNEY TO BE NOTICED

Kenneth J. Hardin , II Hardin Thompson, P.C. 30555 Southfield Road Suite 400 Southfield, MI 48076 248−593−1400 Email: kenhardin@hardinlawpc.net ATTORNEY TO BE NOTICED

Plaintiff Keshuna Abcumby

represented by Racine M. Miller (See above for address) ATTORNEY TO BE NOTICED

Teresa J. Gorman (See above for address) ATTORNEY TO BE NOTICED

Kenneth J. Hardin , II (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Michigan Department of Corrections

represented by A. Peter Govorchin Michigan Department of Attorney General

Defendant Daniel H. Heyns Director at MDOC TERMINATED: 12/22/2016
Defendant THOMAS FINCO Deputy Director MDOC TERMINATED: 12/22/2016

525 West Ottawa Street Suite 4th Floor, G. Mennen Williams Building P.O. Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: AG−Complex@michigan.gov TERMINATED: 07/14/2015 ATTORNEY TO BE NOTICED
Allan J. Soros Michigan Department of Attorney General MDOC Division P.O. Box 30217 525 W. Ottawa Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: sorosa@michigan.gov ATTORNEY TO BE NOTICED
Cori E. Barkman Michigan Department of Attorney General MDOC Division 525 West Ottawa PO Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: barkmanc@michigan.gov ATTORNEY TO BE NOTICED
Michael R. Dean Michigan Department of Attorney General P.O. Box 30217 525 W. Ottawa St. Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: deanm2@michigan.gov ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) TERMINATED: 07/14/2015 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) TERMINATED: 07/14/2015 ATTORNEY TO BE NOTICED
Cori E. Barkman

Defendant Dennis Straub Former Deputy Director TERMINATED: 12/22/2016
Defendant RANDY TREACHER Chief Deputy MDOC TERMINATED: 12/22/2016
Defendant Millicent Warren Warden

(See above for address) ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) TERMINATED: 07/14/2015 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) TERMINATED: 07/14/2015 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin (See above for address) TERMINATED: 07/14/2015 ATTORNEY TO BE NOTICED
Allan J. Soros (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/01/2013

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−4362948 − Fee: &#036 400. County of 1st Plaintiff: Washtenaw − County Where Action Arose: Washtenaw − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Hardin, Kenneth) (Entered: 11/01/2013)

11/04/2013 11/18/2013
11/20/2013 11/21/2013 11/27/2013 12/16/2013 01/21/2014 01/21/2014 01/21/2014 01/21/2014 01/31/2014 02/06/2014 02/07/2014 02/12/2014
02/13/2014 03/11/2014
03/25/2014 03/28/2014

2 SUMMONS Issued for * All Defendants * (TMcg) (Entered: 11/04/2013)
3 CERTIFICATE of Service/Summons Returned Executed. THOMAS FINCO served on 11/12/2013, answer due 12/3/2013; Daniel H. Heyns served on 11/12/2013, answer due 12/3/2013; Michigan Department of Corrections served on 11/12/2013, answer due 12/3/2013; RANDY TREACHER served on 11/12/2013, answer due 12/3/2013; Millicent Warren served on 11/12/2013, answer due 12/3/2013. (Hardin, Kenneth) (Entered: 11/18/2013)
4 ATTORNEY APPEARANCE: A. Peter Govorchin appearing on behalf of THOMAS FINCO, Daniel H. Heyns, Michigan Department of Corrections, RANDY TREACHER, Millicent Warren (Govorchin, A.) (Entered: 11/20/2013)
5 ATTORNEY APPEARANCE: Teresa J. Gorman appearing on behalf of All Plaintiffs (Gorman, Teresa) (Entered: 11/21/2013)
6 STIPULATED ORDER to Extend Time to File Response re 1 Complaint filed by Amira Salem, Keshuna Abcumby. Response due by 1/20/2014 Signed by District Judge Paul D. Borman. (DTof) (Entered: 11/27/2013)
7 CERTIFICATE of Service/Summons Returned Executed. Dennis Straub served on 12/5/2013, answer due 12/26/2013. (Hardin, Kenneth) (Entered: 12/16/2013)
8 ATTORNEY APPEARANCE: Cori E. Barkman appearing on behalf of All Defendants (Barkman, Cori) (Entered: 01/21/2014)
9 ATTORNEY APPEARANCE: Michael R. Dean appearing on behalf of All Defendants (Dean, Michael) (Entered: 01/21/2014)
10 ATTORNEY APPEARANCE: A. Peter Govorchin appearing on behalf of Dennis Straub (Govorchin, A.) (Entered: 01/21/2014)
11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Govorchin, A.) (Entered: 01/21/2014)
12 NOTICE of Appearance by Racine M. Miller on behalf of All Plaintiffs. (Miller, Racine) (Entered: 01/31/2014)
13 STIPULATED PROTECTIVE ORDER − Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/06/2014)
14 EXHIBIT A (Attachment C) re 13 Protective Order by All Defendants (Govorchin, A.) (Entered: 02/07/2014)
15 STIPULATED ORDER to Extend Time to File Response re 11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity filed by Daniel H. Heyns, RANDY TREACHER, Michigan Department of Corrections, THOMAS FINCO, Millicent Warren, Dennis Straub. Response due by 3/11/2014 Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/12/2014)
16 NOTICE OF HEARING on 11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity. Motion Hearing set for 6/20/2014 03:00 PM before District Judge Paul D. Borman (DTof) (Entered: 02/13/2014)
17 RESPONSE to 11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1 − Memorandum, # 3 Exhibit Exhibit 2 − Notice to Staff, # 4 Exhibit Exhibit 3 − 2012 Policy, # 5 Exhibit Exhibit 4 − Affidavits, # 6 Document Continuation Appendix − Inmates for Whom Plaintiffs have Copies of Filed Grievances Regarding the Search) (Miller, Racine) (Entered: 03/11/2014)
18 REPLY to Response re 11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A) (Govorchin, A.) (Entered: 03/25/2014)
19 AFFIDAVIT of Amira Salem re 17 Response to Motion, − supplemental by Amira Salem (Miller, Racine) (Entered: 03/28/2014)

04/03/2014 06/19/2014 06/26/2014
05/01/2015 05/19/2015 05/21/2015 05/21/2015 05/28/2015 06/02/2015 06/11/2015 06/12/2015 06/12/2015 06/12/2015
06/16/2015 07/14/2015 09/08/2015

20 NOTICE OF HEARING on 11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity. Motion Hearing set for 6/20/2014 03:00 PM before District Judge Paul D. Borman (DTof) (Entered: 04/03/2014)
Set/Reset Deadlines as to 11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity. Motion Hearing RESET for 6/26/2014 03:00 PM before District Judge Paul D. Borman *FROM 6/20/2014* (DTof) (Entered: 06/19/2014)
Minute Entry for proceedings held before District Judge Paul D. Borman: Motion Hearing held on 6/26/2014 re 11 MOTION to Dismiss and for Summary Judgment Based Upon Qualified Immunity filed by Daniel H. Heyns, RANDY TREACHER, Michigan Department of Corrections, THOMAS FINCO, Millicent Warren, Dennis Straub. Disposition: Taken under advisement.(Court Reporter Leann Lizza) (DTof) (Entered: 07/29/2014)
21 OPINION AND ORDER granting in part and denying in part 11 Motion to Dismiss. Signed by District Judge Paul D. Borman. (DTof) (Entered: 05/01/2015)
22 STIPULATED ORDER to Extend Time to Answer or Otherwise Respond to re 1 Complaint filed by Amira Salem, Keshuna Abcumby. Response due by 5/26/2015 Signed by District Judge Paul D. Borman. (DTof) (Entered: 05/19/2015)
23 NOTICE OF APPEAL by Dennis Straub, Michigan Department of Corrections, RANDY TREACHER, Millicent Warren, Daniel H. Heyns, THOMAS FINCO. Fee Status: No Fee Paid. (Dean, Michael) (Entered: 05/21/2015)
24 Certificate of Service re 23 Notice of Appeal. (DPar) (Entered: 05/21/2015)
Appeal Fee received for 23 Notice of Appeal filed by Daniel H. Heyns, RANDY TREACHER, Michigan Department of Corrections, THOMAS FINCO, Millicent Warren, Dennis Straub in the amount of $ 505.00 − Receipt No. DET080062. (Huff, W.) (Entered: 05/29/2015)
25 STIPULATED ORDER STAYING CASE Pending Appeal (DTof) (Entered: 06/02/2015)
26 NOTICE OF CROSS APPEAL by All Plaintiffs re 21 Order on Motion to Dismiss. Receipt No: 0645−5203326 − Fee: $ 505 − Fee Status: Fee Paid. (Miller, Racine) (Entered: 06/11/2015)
27 Certificate of Service re 26 Notice of Cross Appeal. (SOso) (Entered: 06/12/2015)
Court Reporter Acknowledgment of Transcript Order Form received on 06/12/2015. Transcript for court proceeding held on: 06/26/2014. Estimated transcript completion date: 07/12/2015. Estimated number of pages: 25. Payment arrangements were made on 06/12/2015. (Lizza, L.) (Entered: 06/12/2015)
28 TRANSCRIPT of Defendants' Motion To Dismiss held on 06/26/2014. (Court Reporter: Leann S. Lizza) (Number of Pages: 24) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 7/6/2015. Redacted Transcript Deadline set for 7/13/2015. Release of Transcript Restriction set for 9/10/2015. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 06/12/2015)
29 MOTION for Withdrawal of Attorney A. Peter Govorchin by THOMAS FINCO, Daniel H. Heyns, Michigan Department of Corrections, Dennis Straub, RANDY TREACHER, Millicent Warren. (Govorchin, A.) (Entered: 06/16/2015)
30 ORDER granting 29 Motion to Withdraw as Attorney. Signed by Magistrate Judge R. Steven Whalen. (AChu) (Entered: 07/14/2015)
31 ORDER from U.S. Court of Appeals − Sixth Circuit re 23 Notice of Appeal filed by Daniel H. Heyns, RANDY TREACHER, Michigan Department of Corrections, THOMAS FINCO, Millicent Warren, Dennis Straub [Appeal Case Number 15−1694] (KCla) (Entered: 09/10/2015)

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03/31/2016
04/14/2016 04/15/2016 04/20/2016 05/25/2016 06/06/2016 06/06/2016 06/07/2016 06/29/2016
06/30/2016 07/20/2016 08/09/2016 08/11/2016 08/11/2016 08/22/2016 08/31/2016 09/01/2016

TEXT−ONLY CERTIFICATE OF SERVICE re 14 DVD Exhibit. Sent via FedEx Tracking # 8682 3863 7457 to the US Court of Appeals − 6th Circuit. (ATee) (Entered: 11/23/2015)
32 OPINION from U.S. Court of Appeals − Sixth Circuit re 23 Notice of Appeal filed by Daniel H. Heyns, RANDY TREACHER, Michigan Department of Corrections, THOMAS FINCO, Millicent Warren, Dennis Straub [Appeal Case Number 15−1598] (Ahmed, N) (Entered: 03/09/2016)
33 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 23 Notice of Appeal filed by Daniel H. Heyns, RANDY TREACHER, Michigan Department of Corrections, THOMAS FINCO, Millicent Warren, Dennis Straub, 32 Appeal Order/Opinion/Judgment [Appeal Case Number 15−1598] (Ahmed, N) (Entered: 03/31/2016)
34 MOTION to Compel Compliance with Subpoena to non−party by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Subpoena and Green Card for Fred Abcumby) (Miller, Racine) (Entered: 04/14/2016)
35 NOTICE by All Plaintiffs of withdrawal of 34 MOTION to Compel Compliance with Subpoena to non−party . (Miller, Racine) (Entered: 04/15/2016)
36 NOTICE TO APPEAR: Scheduling Conference set for 5/31/2016 04:00 PM before District Judge Paul D. Borman *SEE NOTICE FOR FURTHER INFORMATION* (DTof) (Entered: 04/20/2016)
Set Deadlines/Hearings: Scheduling Conference RESET for 6/7/2016 04:00 PM before District Judge Paul D. Borman (DTof) (Entered: 05/25/2016)
TEXT−ONLY NOTICE:Scheduling Conference set for 06/07/2016 is Cancelled. (DTof) (Entered: 06/06/2016)
37 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Miller, Racine) (Entered: 06/06/2016)
38 SCHEDULING ORDER: Discovery due by 11/30/2016 Dispositive Motion Cut−off set for 1/15/2017 Signed by District Judge Paul D. Borman. (Refer to image for additional dates) (DTof) (Entered: 06/07/2016)
39 ANSWER to Complaint with Affirmative Defenses with Jury Demand w/Certificate of Service by THOMAS FINCO, Daniel H. Heyns, Michigan Department of Corrections, Dennis Straub, RANDY TREACHER, Millicent Warren. (Dean, Michael) (Entered: 06/29/2016)
40 STIPULATION AND ORDER extending Initial Disclosures Exchange Date. Signed by District Judge Paul D. Borman. (DTof) (Entered: 06/30/2016)
41 STIPULATED ORDER Extending time in which to file motion to certify class. Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/20/2016)
43 ORDER to Strike 42 MOTION to Certify Class filed by Amira Salem, Keshuna Abcumby. Signed by District Judge Paul D. Borman. (DTof) (Entered: 08/09/2016)
44 MOTION to Certify Class by All Plaintiffs. (Hardin, Kenneth) (Entered: 08/11/2016)
45 NOTICE OF HEARING on 44 MOTION to Certify Class . Motion Hearing set for 10/27/2016 03:00 PM before District Judge Paul D. Borman (DTof) (Entered: 08/11/2016)
46 STIPULATION AND ORDER Regarding Deadlines ( Dispositive Motion Cut−off RESET for 3/18/2017) Signed by District Judge Paul D. Borman. (DTof) (Entered: 08/22/2016)
47 STIPULATED ORDER to Extend Time to File Response re 44 MOTION to Certify Class filed by Amira Salem, Keshuna Abcumby. Response due by 9/15/2016 Signed by District Judge Paul D. Borman. (DTof) (Entered: 08/31/2016)
48 Defendants Witness List with Certificate of Service WITNESS LIST by THOMAS FINCO, Daniel H. Heyns, Michigan Department of Corrections, Dennis Straub, RANDY TREACHER, Millicent Warren (Dean, Michael) (Entered: 09/01/2016)

09/01/2016 09/15/2016
09/29/2016 10/24/2016
11/01/2016 11/28/2016 11/30/2016 12/22/2016 02/09/2017 04/06/2017 06/14/2017
07/19/2017 07/19/2017 10/17/2017 11/13/2017 12/15/2017
12/15/2017 12/15/2017

49 WITNESS LIST by All Plaintiffs (Hardin, Kenneth) (Entered: 09/01/2016)
50 RESPONSE to 44 MOTION to Certify Class Defendants' Response in Opposition to Plaintiffs' Motion for Class Certification with Certificate of Service filed by THOMAS FINCO, Daniel H. Heyns, Michigan Department of Corrections, Dennis Straub, RANDY TREACHER, Millicent Warren. (Attachments: # 1 Exhibit A − Policy Directive 03.02.130) (Dean, Michael) (Entered: 09/15/2016)
51 REPLY to Response re 44 MOTION to Certify Class filed by All Plaintiffs. (Hardin, Kenneth) (Entered: 09/29/2016)
52 ORDER Directing Defendants to File a Sur−reply on or before 11/1/2016 to 44 MOTION to Certify Class filed by Amira Salem, Keshuna Abcumby, Set Motion and R&R Deadlines/Hearings as to 44 MOTION to Certify Class :( Motion Hearing RESET for 11/16/2016 03:00 PM before District Judge Paul D. Borman) Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/24/2016)
53 SUR−REPLY re 44 MOTION to Certify Class filed by Michigan Department of Corrections, Millicent Warren. (Dean, Michael) (Entered: 11/01/2016)
54 STIPULATION Extending Timeframe for Discovery by All Defendants (Dean, Michael) (Entered: 11/28/2016)
55 ORDER Regarding Dates ( Expert Discovery due by 3/30/2017; Dispositive Motion Cut−off set for 4/15/2017) − Signed by District Judge Paul D. Borman. (DTof) (Entered: 11/30/2016)
56 OPINION AND ORDER denying 44 Motion to Certify Class. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/22/2016)
57 STIPULATION AND ORDER Extending Discovery, ( Discovery due by 4/28/2017, Dispositive Motion Cut−off set for 6/15/2017) Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/09/2017)
58 STIPULATION AND ORDER Extending dates ( Discovery due by 6/28/2017, Dispositive Motion Cut−off set for 8/15/2017) Signed by District Judge Paul D. Borman. (DTof) (Entered: 04/06/2017)
59 STIPULATION AND ORDER Extending Dates;( Fact Discovery due by 9/28/2017; Dispositive Motion Cut−off set for 11/15/2017) − Signed by District Judge Paul D. Borman. *NO FURTHER EXTENSION REQUESTS WILL BE GRANTED* (DTof) (Entered: 06/14/2017)
60 ORDER REFERRING OTHER MATTERS to Magistrate Judge Whalen : Settlement Conference. ( Dispositive and Daubert Motion Cut−off RESET for 12/1/2017) Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/19/2017)
61 NOTICE TO APPEAR: Settlement Conference set for 10/17/2017 at 01:30 PM before Magistrate Judge R. Steven Whalen. See notice for additional information. (THac) (Entered: 07/19/2017)
Minute Entry for proceedings before Magistrate Judge R. Steven Whalen: Settlement Conference held on 10/17/2017 − Disposition: No settlement reached. (CCie) (Entered: 10/17/2017)
62 STIPULATED ORDER ( Dispositive Motion Cut−off RESET for 12/15/2017) Signed by District Judge Paul D. Borman. (DTof) (Entered: 11/13/2017)
63 MOTION for Summary Judgment and Qualified Immunity by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Excerpts of Millicent Warren's Deposition, # 3 Exhibit B − Affidavit of Millicent Warren) (Dean, Michael) (Entered: 12/15/2017)
64 MOTION for Partial Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Hardin, Kenneth) (Entered: 12/15/2017)
65 Amended MOTION for Summary Judgment and Qualified Immunity by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Millicent Warren's Deposition, # 3 Exhibit B − Affidavit of Millicent Warren) (Dean, Michael) (Entered: 12/15/2017)

12/15/2017 01/05/2018
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01/16/2018
01/26/2018 01/26/2018 01/29/2018
04/04/2018 04/04/2018
04/04/2018 04/05/2018
04/05/2018 04/19/2018 05/02/2018 05/02/2018 05/02/2018 07/26/2018

66 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6) (Hardin, Kenneth) (Entered: 12/15/2017)
67 RESPONSE to 65 Amended MOTION for Summary Judgment and Qualified Immunity filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Deposition Transcript of Millicent Warren, # 2 Document Continuation Exhibits to Dep) (Miller, Racine) (Entered: 01/05/2018)
68 STIPULATED ORDER − Set Motion and R&R Deadlines/Hearings as to 66 MOTION to Certify Class , 65 Amended MOTION for Summary Judgment and Qualified Immunity, 64 MOTION for Partial Summary Judgment :( Responses due by 1/26/2018, Replies due by 2/9/2018) Signed by District Judge Paul D. Borman. (DTof) (Entered: 01/08/2018)
69 NOTICE OF HEARING on 66 MOTION to Certify Class , 65 Amended MOTION for Summary Judgment and Qualified Immunity, 64 MOTION for Partial Summary Judgment . Motion Hearing set for 3/29/2018 01:30 PM before District Judge Paul D. Borman (DTof) (Entered: 01/16/2018)
70 RESPONSE to 64 MOTION for Partial Summary Judgment filed by All Defendants. (Dean, Michael) (Entered: 01/26/2018)
71 RESPONSE to 66 MOTION to Certify Class filed by All Defendants. (Dean, Michael) (Entered: 01/26/2018)
Set/Reset Deadlines as to 66 MOTION to Certify Class , 65 Amended MOTION for Summary Judgment and Qualified Immunity, 64 MOTION for Partial Summary Judgment . Motion Hearing RESET for 4/4/2018 02:30 PM before District Judge Paul D. Borman (DTof) (Entered: 01/29/2018)
76 ORDER to Strike 75 Reply to Response to Motion, filed by Amira Salem, Keshuna Abcumby, 74 Reply to Response to Motion, filed by Amira Salem, Keshuna Abcumby. Signed by District Judge Paul D. Borman. (DTof) (Entered: 04/04/2018)
Minute Entry for proceedings before District Judge Paul D. Borman: Motion Hearing held on 4/4/2018 re 65 Amended MOTION for Summary Judgment and Qualified Immunity filed by Michigan Department of Corrections, Millicent Warren, 64 MOTION for Partial Summary Judgment filed by Amira Salem, Keshuna Abcumby Disposition: Motions taken under advisement. (Court Reporter: Leann Lizza) (DTof) (Entered: 04/04/2018)
Minute Entry for proceedings before District Judge Paul D. Borman: Motion to Certify Class Not Held. (Court Reporter: Leann Lizza) (DTof) (Entered: 04/04/2018)
77 ORDER to Strike 72 Reply to Response to Motion filed by Amira Salem, Keshuna Abcumby, 73 Reply to Response to Motion filed by Amira Salem, Keshuna Abcumby AND Ordering Sanctions. Signed by District Judge Paul D. Borman. (DTof) (Entered: 04/05/2018)
78 ORDER Requiring Additional Filings − see order for deadlines. Signed by District Judge Paul D. Borman. (DTof) (Entered: 04/05/2018)
81 STIPULATION re 78 Order by All Plaintiffs (Hardin, Kenneth) (Entered: 04/19/2018)
82 SUR−REPLY re 64 MOTION for Partial Summary Judgment filed by All Defendants. (Dean, Michael) (Entered: 05/02/2018)
83 SUR−REPLY re 65 Amended MOTION for Summary Judgment and Qualified Immunity filed by All Defendants. (Dean, Michael) (Entered: 05/02/2018)
84 SUR−REPLY re 66 MOTION to Certify Class filed by All Defendants. (Dean, Michael) (Entered: 05/02/2018)
85 NOTICE TO APPEAR: Hearing set for 8/2/2018 02:00 PM before District Judge Paul D. Borman *SEE NOTICE FOR SUBJECT OF HEARING AND WHO MUST ATTEND* (DTof) (Entered: 07/26/2018)

07/27/2018 08/01/2018 08/01/2018
08/08/2018 08/08/2018 08/15/2018 08/24/2018
09/14/2018 09/14/2018 09/14/2018 09/15/2018 12/18/2018 06/25/2019 07/11/2019 07/17/2019 07/24/2019 09/16/2019
09/16/2019

RESET HEARING: Miscellaneous Hearing RESET for 8/1/2018 02:00 PM before District Judge Paul D. Borman (DTof) (Entered: 07/27/2018)
Minute Entry for proceedings before District Judge Paul D. Borman: Miscellaneous Hearing held on 8/1/2018 (Court Reporter: Janice Coleman) (DTof) (Entered: 08/01/2018)
86 ORDER to Strike 80 Exhibit Index filed by Amira Salem, Keshuna Abcumby, 79 Affidavit filed by Amira Salem, Keshuna Abcumby AND Imposing Sanctions, ( Re−filing due by 8/16/2018) Signed by District Judge Paul D. Borman. (DTof) (Entered: 08/01/2018)
87 Emergency MOTION for Order Amending Court's August 1, 2019 Order Striking Filings by All Plaintiffs. (Gorman, Teresa) (Entered: 08/08/2018)
88 Emergency MOTION for Order Amending Court's August 1, 2018 Order Striking Filings by All Plaintiffs. (Gorman, Teresa) (Entered: 08/08/2018)
89 ORDER granting 88 Motion for Order Amending Deadline. Signed by District Judge Paul D. Borman. (DTof) (Entered: 08/15/2018)
90 OPINION AND ORDER Denying 64 Plaintiffs' Motion for Partial Summary Judgment, and Denying 65 Defendants' Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (SPin) Modified on 8/27/2018 (DTof). (Entered: 08/24/2018)
91 AFFIDAVIT of Kenneth J. Hardin II by All Plaintiffs (Gorman, Teresa) (Entered: 09/14/2018)
92 AFFIDAVIT by All Plaintiffs (Hardin, Kenneth) (Entered: 09/14/2018)
93 AFFIDAVIT by All Plaintiffs (Hardin, Kenneth) (Entered: 09/14/2018)
94 AFFIDAVIT by All Plaintiffs (Hardin, Kenneth) (Entered: 09/15/2018)
95 MOTION for Leave to File Additional Affidavits by All Plaintiffs. (Hardin, Kenneth) (Entered: 12/18/2018)
96 NOTICE of Change of Address/Contact Information by Racine M. Miller on behalf of All Plaintiffs. (Miller, Racine) (Entered: 06/25/2019)
97 ORDER Requiring Response to 95 Motion for Leave to File. Response due by 7/26/2019 Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/11/2019)
98 RESPONSE to 95 MOTION for Leave to File Additional Affidavits filed by THOMAS FINCO, Daniel H. Heyns, Michigan Department of Corrections, Dennis Straub, RANDY TREACHER, Millicent Warren. (Dean, Michael) (Entered: 07/17/2019)
99 REPLY to Response re 95 MOTION for Leave to File Additional Affidavits filed by All Plaintiffs. (Hardin, Kenneth) (Entered: 07/24/2019)
100 TRANSCRIPT of Plaintiffs' Motion For Class Certification held on 11/16/2016. (Court Reporter: Leann S. Lizza) (Number of Pages: 21) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/7/2019. Redacted Transcript Deadline set for 10/17/2019. Release of Transcript Restriction set for 12/16/2019. Transcript may be viewed at the court public terminal or purchased through the Court Reporter (WWW.TRANSCRIPTORDERS.COM) before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 09/16/2019)
101 OPINION AND ORDER DENYING 66 MOTION to Certify Class filed by Amira Salem, Keshuna Abcumby, DENYING 95 MOTION for Leave to File Additional Affidavits filed by Amira Salem, Keshuna Abcumby., ( AND SETTING Bench Trial for 11/6/2019 10:00 AM before District Judge Paul D. Borman) *SEE OPINION AND ORDER FOR MATERIALS SUBMISSION DEADLINES* Signed by District Judge Paul D. Borman. (DTof) (Entered: 09/16/2019)

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102 ATTORNEY APPEARANCE: Allan J. Soros appearing on behalf of Michigan Department of Corrections, Millicent Warren with Certificate of Service (Soros, Allan) (Entered: 09/19/2019)
103 ORDER for Writ of Habeas Corpus ad Testificandum Issued for Plaintiff Keshuna Abcumby AND WRIT. Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/09/2019)
104 AMENDED ORDER with Petition for Writ of Habeas Corpus ad Testificandum Issued [CORRECTS DAY OF THE WEEK]. Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/10/2019)
105 STIPULATION of Dismissal With Prejudice by All Plaintiffs (Hardin, Kenneth) (Entered: 10/17/2019)
106 ORDER DISMISSING CASE Signed by District Judge Paul D. Borman. (MVer) (Entered: 10/18/2019)