UNlTED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE 4; JOHN DOE 5; JOHN DOE 8; JOHN DOE 9; JOHN DOE 10; and JOHN DOE 12;
Plaintiffs,
V.

Case No. 2: l 5-cv-13852
SENIOR U.S. DISTRICT JUDGE HON. ARTHERJ. TARNOW
U.S. MAGISTRATE JUDGE MONA K. MAJZOUB

ANDERSON ET. AL.,

Defendants.
___ j

SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE (hereinafter the "Agreement" or "Release") is entered into between John Does 1, 2, 4, 5, 8, 9, 10 and 12 in the above-captioned action (hereinafter the "Plaintiffs" or the "John Doe Plaintiffs") and Dustin Anderson; Scott Arp; Noah Beesley; Adam Coburn; Sergeant Conklin; CO Deschaine; Jason Erway; Charles Go11nast; Michael Hall; CO Hammer; Duane Heyrman; Tami Hoogewind; Erik Jacobson; Edward Juranek; Joseph Martens; CO Mcleod; Cody Pennell; Aimee Rogers; CO Ross; CO Sherwood; Ronald Stambaugh; Gretchen Walters; Scott Schooley; Gary Stump; Matthew Ward; Warden Kenneth McKee; and Heidi Washington (hereinafter individually and collectively referred .to as the "Defendants"). The John Doe Plaintiffs and the Defendants shall collectively be referred to as the "Parties." WHEREAS, the John Doe Plaintiffs are individuals who are or were incarcerated in the Michigan Depa1iment of Conections and who as Plaintiffs in the above-captioned lawsuit alleged

retaliation by the Defendants following the Plaintiffs' paiiicipation in litigation challenging the MDOC's policy of housing youth with adult prisoners.
WHEREAS, the John Doe Plaintiffs have asserted that their treatment by the Defendants violated their First Amendment rights under the United States Constitution.
WHEREAS, the Parties now desire to resolve the pending litigation, Case No. 2: 15-cv13852, and accordingly have agreed to enter into this Agreement;
TT TS AGREED AS FOLLOWS: 1. Settlement Agreement. In consideration for the waivers, release, and other covenants and consideration provided in this Agreement, and provided that the John Doe Plaintiffs sign this Agreement and dismiss their pending lawsuit, Case No. 2:15-cv-13852, the Defendants will provide the John Doe Plaintiffs with payment as set forth in Paragraph 2 below and will agree to the additional settlement tenns as set forth in Paragraphs 3 -9. 2. Financial Payment. The Defendants will pay to the John Doe Plaintiffs a total amount of Three Hundred and Fifty Thousand dollars ($350,000), payable via check made out to the trust account of the Law Offices of Deborah LaBelle (the "Settlement Payment"). The Settlement Payment shall be made within twenty one days of the John Doe Plaintiffs signing and returning the executed Settlement Agreement and Release to counsel for the Defendants. 3. Additional Settlement Tenns. As further consideration of the waivers, release and other covenants and consideration provided in this Agreement, the Michigan Department of Corrections waives any right to collect any portion of the settlement proceeds under the State C01Tectional Facilities Reimbursement Act, MCL 800.401 et seq. MDOC will not seek reimbursement from the settlement proceeds from the John Doe Plaintiffs for any existing institutional debt under Policy Directive 04.02.105, which has accrued or exists up to and including
2

the date of settlement. Any institutional debt incurred after the date of settlement will be subject to collection from the John Doe Plaintiffs' trust accounts. Nothing in this settlement agreement shall waive any Plaintiffs' obligation for payment of court ordered victims restitution or valid court orders for fees and costs under state or federal authority, or any valid court ordered child support on record with the Michigan Department of Corrections.
4. The John Doe Plaintiffs shall each receive notice from the MDOC of any payment of these obligations from this settlement.
5. The settlement proceeds will be subject to any setoff that the Michigan Department of Treasury is empowered by law to exercise.
6. Within 7 days of the settlement agreement, the MDOC agrees to begin two consecutive 90 day PREA monitoring periods for each plaintiff presently incarcerated. The monitoring for retaliation shall be in compliance with PREA regulations 115.71 and any audit requirements under these regulations. A rep01i for each Plaintiff shall be provided to the Plaintiff after the completion of each 90 day period subject to redactions needed for security purposes.
7. Within 7 days of the settlement agreement each Plaintiff in MDOC custody shall be re-assessed pursuant to PREA screening guidelines and requirements by a qualified individual appointed by the Central Office of MDOC.
8. The Hearings Administrator at Central Office shal-1 review every Class II and III misconducts with a guilty finding to determine if the description of behavior found in the misconduct is consistent with the definition of the charge and the decision rendered is based upon the available evidence. The Hearings Administrator shall also review to ensure the misconduct was not issued for a retaliatory purpose and that any punishment imposed after a finding of guilt is consistent with punishments for similar instances of misconduct.
3

9. The MDOC cannot guarantee that a named Defendant shall not have a supervisory and/or custodial role with regard to any of the Plaintiffs throughout the time they remain in MDOC custody, but will, to the extent it is operationally µossible for MDOC, attempt to have the narnecl~-----Defendants exercise no supervisory or custodial role in regard to the Plaintiffs.
10. Release of Claims. In exchange for the consideration provided in Paragraphs 2-9, the John Doe Plaintiffs, on behalf of themselves, their offspring, heirs, administrators, representatives, executors, successors, agents, attorneys and assigns, hereby irrevocably and unconditionally release and forever discharge the Defendants and all other persons acting by, through, under or in concert with any of them, from all claims for retaliation that were brought in or could have been brought in Case No. 2: 15-cv- 13-852 or that otherwise allege retaliation stemming from Plaintiffs' participation in litigation over the placement of youth with adult prisoners by the MDOC.
11. Dismissal with Prejudice of the Pending Litigation. Following the execution of this Settlement Agreement and Release, it is agreed and urnlerstood that the Parties will file with the court within seven (7) days of the payment of the cons-ideration outlined in paragraph 2 a stipulated dismissal, with prejudice and without costs, of the above-captioned action,
12. By entering into this Settlement Agreement and Release, Plaintiffs herein are not waiving any of their rights or claims asserted in case numbers 2: 13-cv-14356-RHC-RSW currently pending before Judge Cleland; 2: l 6-cv-13765, which has been consolidated with 2: l 3-cv-14356RHC-RSW; 2:l 7-cv-11181-RHC-RSW currently pending appeal; or case number 13-001196-CZ and 15-001006-CZ pending before Judge Kuhnke in the 2211d Circuit Court, State of Michigan, or any other on-going litigation that any of the Plaintiffs may have filed involving any of the named
4

Defendants. Likewise, nothing in this Release prohibits Plaintjffs from bringing any claims against the Defendants for any actions that occur after the date that this Agreement is executed.
13. The parties acknowledge and agree that if any provision of this Release is found, held or deemed by a comi of competent jurisdiction to be void, unlawful or unenforceable under any applicable statute or controlling law, the remainder of this Release shall continue in full force and effect.
14. This Release is deemed made and entered into in Michigan, and in all respects shall be interpreted, enforced and governed under the laws of Michigan without regard to conflicts of law principles of any jurisdiction, to the extent not preempted by federal law.
15. If any dispute arises regarding the enforcement of this Agreement, the parties agree to consent to the jurisdiction of this Comi for resolution of the dispute. Moreover, the parties agree that the prevailing party in any such dispute shall have their attorney fees and costs paid by the non-prevailing party.
16. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Facsimile and PDF versions of signatures hereto shall be deemed original signatures, which may be relied upon by all Parties hereby and shall be binding on the respective signor.
I acknowledge and agree that I have carefully read and fully understand all of the provisions of this Release, that I have had an opportunity to discuss the Settlement Agreement and Release with an attorney, and that I voluntarily enter into this Settlement Agreement and Release by signing below.
5

John Doe 2 John Doe 4 John Doe 5 John Doe 8 John Doe 9 Jolm Doe 10
Director, MDOC ../!!)Behalf of the Defen
L~ LISA GEMINI~ Director, Office of Legal Affairs, MDOC On Behalf of the Defendants
6

_Z__, Dated: June

2018

John Doe 1
JOn() Tu~?
John Doe 2 John Doe 4 John Doe 5 John Doe 8 John Doe 9 John Doe 10 John Doe 12

HEIDT WASHINGTON Director, MDOC On Behalf of the Defendants
LISA GEMINIK Director, Office of Legal Affairs, MDOC On Behalf of the Defendants

6

Dated: J u n e ~ ' 2018
John Doe 1
r J ~
~e4· John Doe 5 John Doe 8 John Doe 9 John Doe 10
John Doe 12
HEIDI WASHINGTON Director, MDOC On Behalf of the Defendants LISA GEMINIK Director, Office of Legal Affairs, MDOC On Behalf of the Defendants
6

8 , Dated: June

2018

John Doe 1 John Doe 2

John Doe 8
John Doe 9
John Doe 10
John Doe 12
HEIDT WASHINGTON Director, MDOC On Behalf of the Defendants
LISA GEMINIK Director, Office of Legal Affairs, MDOC On Behalf of the Defendants

6

Dated: June \\.p , 2018
John Doe 1 John Doe 2 fohnDoe 4 John Doe 5 John Doe 8 John Doe 9 John Doe 10 John Doe 12
HEIDI WASHINGTON Director, MDOC On Behalf of the Defendants LISA GEMINIK Director, Office of Legal Affairs, MDOC On Behalf of the Defendants
6

Dated: June ~ ' 2018
John Doe 1 John Doe 2 JohnDoe4 John Doe 5 John Doe 8
~e~q
John Doe 10 John Doe 12
HEIDJ WASHINGTON Director, MDOC -On Behalf of the Defendants LISA GEMINIK Director, Office of Legal Affairs, MDOC On Behalf of the Defendants
6

Dated: June ----1iQ._, 2018
John Doe 1 John Doe 2 John Doe 4 John Doe 5 John Doe 8 John Doe 9
a£ m. ·--t}ee_ -~tJ
John Doe 10 John Doe 12
HEIDI WASHINGTON Director, MDOC On Behalf of the Defendants LISA GEMINIK Director, Office of Legal Affairs, MDOC On Behalf of the Defendants
6

Dated: June _l_l_, 2018
Jolm Doe 1 John Doe 2 John Doe 4 John Doe 5 John Doe 8 John Doe 9 John Doe 10
HEIDI WASHINGTON Director, MDOC On Behalf of the Defendants LISA GEMINIK Director, Office of Legal Affairs, MDOC On Behalf of the Defendants
6

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DlffiORAH LaBELLE (P3 I595)

AN LYN ADD1S (P76568)

Attorneys for Plainti[fa

221 N. Main St., Ste. 300

Ann Arbor, Mt 48 l 04

(734) 996-5620

dcblabzt!~aol.com

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MlC}·.J\EL L. PITT (P24429)

PEGGY GOLDBERG PTTT (P31407)

CARYS. McGEHEE (P423 l 8)

Attorneys for .Plnlntiff 117 W. 4111 Sr., Ste. 200

Royal Oak, r.1"I 48067

(248) 398-9800

mpitl@pittlawpc.com

ppi t!@pittlawpc.co m

cmcgehee@pittlawpc.com

Bf L.l.1 SC11 UETTE /\tt()rney General

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MJCHAELF. MURPHY {P29213)

HEATHER MEfNGAST (PS.5439)

MARK DONNELLY (P3928 l)

/\ssisLant Attorneys General

Attorneys for Defendants

Department of Attorney Genernl

P.O. Box 30212

Lansing Ml 48909

{517) 373-1 J 24

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RfCHARD A. SOBLE (P20766) Attorney for Plnintiffs SOBLE ROWE KR1ClmAU1'·1 LLP 302 E. Ubcrry Ann Arbor. MI 48 l Qr! (73'-'i) 996-5600 dick@srklip.com
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JENN. tFF. R 8 S.1\LVATORE (P66640)~ NAKJSHA CJIANEY (P650M) Atl'orney!) for Plain.tiff lO1 N. Main St.l Ste. 555 Ann Arbor, M 148104 (734) 663-7550 salvatorc@spplawyers.com cl1rmey@spplnwye.rs. com

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ANLYN ADDIS (P76568) Attorneys for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, Ml 48104 (734) 996-5620 deblabelle@aol.com aaddis@sbcglobal.net

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MICHAEL L. PITT (P24429) PEGGY GOLDBERG PITT (PJ 14-07) CARY S. McGEHEE (P42318) . Attorneys for Plaintiff 117 W. 4111 St.~ Ste. 200 Royal Oak, MI 48067
(248) 398~9800
mpi tt@pittlawpc.com ppitt@pittlawpc.oom cmc.gehee@pittlawpc.con1

BILL·SCI1UETTE Attorney General

Isl____ . ·... ·--~ ___ . ~--·-··-- d MICHAEL F. MURPHY (P29213)

HEATHER METNGAST (P55439)

MARK DONNEU,Y (P3928 l)

Assistant Attorneys General

Attorneys fof Defenda1Jts

Department of Attorney Genera]

P.O. Box30212

.

Lansing Ml 48909

(517) 373-1124

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RICHARD A. SOBLE (P20766) Attorney for Plaintiffs SOBLE ROWE KRICHBAUM LLP 302 E.- Liberty Ann Arbor, Ml 48104 (734) 996-5600 dick@srk!Ip.com

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JENNIFER B SAINATORE (P66640)

NAKISHA CHANEY (P65066)

Attorneys for Plaintiff

101 N. Mah, St., Ste. 555

Ann Arbor1 Ml 48104 (734) 663-7550

saivatore@spplawyers.com

chaney@spplawyers.com

7

 
 U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:15−cv−13852−AJT−MKM

CLOSED

Doe v. Anderson et al Assigned to: District Judge Arthur J. Tarnow Referred to: Magistrate Judge Mona K. Majzoub Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 11/02/2015 Date Terminated: 07/11/2018 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

John Doe 1, 2, 3, 4, 5, 8, 9, 10, and 12

represented by Anlyn Marie Ellen Addis Law Offices of Deborah LaBelle 221 N. Main Suite 300 Ann Arbor, MI 48104 734−996−5620 Fax: 734−769−2196 Email: anlyn.addis@gmail.com ATTORNEY TO BE NOTICED

Beth M. Rivers Pitt McGehee Palmer & Rivers 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: brivers@pittlawpc.com ATTORNEY TO BE NOTICED

Cary S. McGehee Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: cmcgehee@pittlawpc.com ATTORNEY TO BE NOTICED

Deborah A. LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104 734−996−5620 Email: deblabelle@aol.com ATTORNEY TO BE NOTICED

Michael L. Pitt Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: mpitt@pittlawpc.com ATTORNEY TO BE NOTICED

Nakisha N. Chaney Salvatore Prescott & Porter 105 E. Main Street Northville, MI 48167 248−679−8711 Email: chaney@spplawyers.com

V. Defendant Dustin Anderson

ATTORNEY TO BE NOTICED
Richard A. Soble Soble Rowe Krichbaum 302 East Liberty Street Ann Arbor, MI 48104−1166 734−996−5600 Fax: 734−662−0552 Email: dick@srkllp.com ATTORNEY TO BE NOTICED
Sarah Prescott Salvatore Prescott, PLLC 105 East Main Street Northville, MI 48167 248−679−8711 Fax: 248−773−7280 Email: prescott@salvatoreprescott.com ATTORNEY TO BE NOTICED
Jennifer B. Salvatore Salvatore Prescott, PLLC 105 E. Main Street Northville, MI 48167 (248) 679.8711 Fax: 248−773−7280 Email: salvatore@salvatoreprescott.com ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd Michigan Dept of Attorney General MDOC Division 525 West Ottawa P.O. Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: odowdk@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi Michigan Attorney General P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: AG_PEET@michigan.gov TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi Michigan Dept of Attorney General State Operations Division 525 West Ottawa P.O. Box 30754 Lansing, MI 48909 517−335−7573 Fax: 517−335−7578 Email: grossic@michigan.gov

Defendant

ATTORNEY TO BE NOTICED
Douglas G. Powe Lansing, MI 48909 Email: ag−complex@michigan.gov TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson Michigan Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, MI 48909 517−335−3055 Email: nelsonm23@michigan.gov TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly Michigan Department of Attorney General Complex Litigation Division P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: donnellym@michigan.gov TERMINATED: 06/13/2019 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@mich.gov ATTORNEY TO BE NOTICED
Michael F. Murphy MI Dept of Attorney General MDOC Division P.O. Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−7157 Email: AG−Complex@michigan.gov ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh Michigan Department of Attorney General MDOC Division 525 W. Ottawa Street P.O. Box 30217 4th Floor Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: Vandenberght@michigan.gov ATTORNEY TO BE NOTICED

Scott Arp
Defendant Noah Beesley

represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019

Defendant Adam Coburn
Defendant Conklin Sergeant

ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address)

Defendant
Deschaine Corrections Officer

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED

Defendant Jason Erway
Defendant Charles Gollnast

Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Hall TERMINATED: 08/16/2017

Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address)

Defendant Hammer Corrections Officer TERMINATED: 08/16/2017
Defendant Francis Heyrman TERMINATED: 12/20/2017

ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED

Defendant Tami Hoogewind
Defendant Erik Jacobson

Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED

Defendant Edward Juranek

Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address)

Defendant Joseph Martens
Defendant McLeod Corrections Officer TERMINATED: 03/31/2017

ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson

Defendant Cody Pennell TERMINATED: 08/16/2017
Defendant Aimee Rogers

(See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ross Corrections Officer

Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address)

Defendant Sherwood Corrections Officer TERMINATED: 03/31/2017
Defendant Ronald Stambaugh

ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED

Defendant Gretchen Walters
Defendant Scott Schooley

Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gary Stump TERMINATED: 08/16/2017

Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address)

Defendant Matthew Ward
Defendant Kenneth McKee Warden

TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED

Defendant Heidi Washington

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED

Defendant Michigan Department of Corrections TERMINATED: 02/17/2016
Defendant Duane Heyrman
Date Filed # Docket Text

Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael R. Dean (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) ATTORNEY TO BE NOTICED

11/02/2015
11/02/2015 11/02/2015
11/09/2015 11/10/2015 11/10/2015 11/12/2015 11/12/2015 11/12/2015 11/12/2015 11/12/2015 12/10/2015 01/04/2016 01/04/2016 01/04/2016 01/14/2016
01/15/2016 01/15/2016 01/28/2016 01/29/2016

1 COMPLAINT filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−5408734 − Fee: $ 400. County of 1st Plaintiff: Macomb − County Where Action Arose: Macomb − County of 1st Defendant: Ionia. [Previously dismissed case: No] [Possible companion case(s): Washtenaw Circuit Court, 13−1196−CZ, Judge Carol Kuhnke] (Salvatore, Jennifer) (Entered: 11/02/2015)
2 SUMMONS Issued for * All Defendants * (DWor) (Entered: 11/02/2015)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DWor) (Entered: 11/02/2015)
3 ATTORNEY APPEARANCE: Deborah A. LaBelle appearing on behalf of All Plaintiffs (LaBelle, Deborah) (Entered: 11/09/2015)
4 AMENDED COMPLAINT with Jury Demand filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Salvatore, Jennifer) (Entered: 11/10/2015)
REQUEST for SUMMONS for Michigan Department of Corrections, Heidi Washington. (Salvatore, Jennifer) (Entered: 11/10/2015)
5 NOTICE of Appearance by Michael L. Pitt on behalf of All Plaintiffs. (Pitt, Michael) (Entered: 11/12/2015)
6 NOTICE of Appearance by Beth M. Rivers on behalf of All Plaintiffs. (Rivers, Beth) (Entered: 11/12/2015)
7 SUMMONS Issued for *Heidi Washington* (LHos) (Entered: 11/12/2015)
8 SUMMONS Issued for *Michigan Department of Corrections* (LHos) (Entered: 11/12/2015)
9 ATTORNEY APPEARANCE: Cary S. McGehee appearing on behalf of All Plaintiffs John Doe 1; John Doe 2; John Doe3; John Doe 4; John Doe 5; John Doe 8; John Doe 9; John Doe 10 and John Doe 12 (McGehee, Cary) (Entered: 11/12/2015)
10 WAIVER OF SERVICE Returned Executed. All Defendants. (Salvatore, Jennifer) (Entered: 12/10/2015)
11 ATTORNEY APPEARANCE: Douglas G. Powe appearing on behalf of All Defendants (Powe, Douglas) (Entered: 01/04/2016)
12 ATTORNEY APPEARANCE: Michael R. Dean appearing on behalf of All Defendants (Dean, Michael) (Entered: 01/04/2016)
13 ATTORNEY APPEARANCE: Adam L.S. Fracassi appearing on behalf of All Defendants (Fracassi, Adam) (Entered: 01/04/2016)
14 MOTION by Plaintiffs to Proceed Under Pseudonymous Status by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Ex. 1, # 3 Exhibit Ex. 2, # 4 Exhibit Ex. 3, # 5 Exhibit Ex. A, # 6 Exhibit Ex. B, # 7 Exhibit Ex. C) (Salvatore, Jennifer) (Entered: 01/14/2016)
15 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by All Defendants. (Powe, Douglas) (Entered: 01/15/2016)
16 MOTION to Sever Motion to Change Venue, and Motion to Reassign Case by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Powe, Douglas) (Entered: 01/15/2016)
17 RESPONSE to 14 MOTION by Plaintiffs to Proceed Under Pseudonymous Status filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Powe, Douglas) (Entered: 01/28/2016)
18 RESPONSE to 16 MOTION to Sever Motion to Change Venue, and Motion to Reassign Case filed by John Doe. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Complaint, # 3 Exhibit 2 − Lee, # 4 Exhibit 3 − Carter, # 5 Exhibit 4 − Fitts, # 6 Exhibit 5 − Farrugia, # 7 Exhibit 6 − McKerchie, # 8 Exhibit 7 − Real Prop., # 9

02/04/2016 02/05/2016 02/17/2016
02/18/2016
02/19/2016 03/02/2016 03/02/2016 03/04/2016 03/04/2016 03/07/2016 03/08/2016
03/21/2016 03/22/2016
03/25/2016 03/29/2016 03/29/2016

Exhibit 8 − Barnett, # 10 Exhibit 9 − Currency, # 11 Exhibit 10 − Colosimo) (Salvatore, Jennifer) (Entered: 01/29/2016)
19 REPLY to Response re 14 MOTION by Plaintiffs to Proceed Under Pseudonymous Status filed by All Plaintiffs. (Salvatore, Jennifer) (Entered: 02/04/2016)
20 REPLY to Response re 16 MOTION to Sever Motion to Change Venue, and Motion to Reassign Case filed by All Defendants. (Powe, Douglas) (Entered: 02/05/2016)
21 STIPULATED ORDER Allowing Plaintiffs to File Second Amended Complaint and Removing the Michigan Department of Corrections with Proposed Second Amended Complaint attached. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/17/2016)
22 AMENDED COMPLAINT with Jury Demand Second filed by All Plaintiffs against Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. NO NEW PARTIES ADDED. (Salvatore, Jennifer) (Entered: 02/18/2016)
23 ORDER granting 14 Motion to Proceed Under Pseudonymous Status. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/19/2016)
24 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by All Defendants. (Dean, Michael) (Entered: 03/02/2016)
25 NOTICE of Change of Address/Contact Information by Jennifer B. Salvatore on behalf of All Plaintiffs. (Attachments: # 1 Exhibit A − Proposed Order) (Salvatore, Jennifer) (Entered: 03/02/2016)
26 ORDER denying 16 Motion to Sever, to Change Venue, and to Reassign Case. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 03/04/2016)
27 NOTICE TO APPEAR: Scheduling/Settlement Conference set for 3/21/2016 03:00 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 03/04/2016)
28 ORDER Granting Substitution of Counsel. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 03/07/2016)
29 MOTION for Summary Judgment by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M−1, # 15 Exhibit M−2, # 16 Exhibit N, # 17 Exhibit O) (Dean, Michael) (Entered: 03/08/2016)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Scheduling Conference held on 3/21/2016. (MLan) Modified on 3/22/2016 (MLan). (Entered: 03/22/2016)
30 SCHEDULING ORDER: Witnesses to be exchanged by 6/20/2016, Discovery Motions to be filed by 5/19/2017, Discovery due by 6/16/2017, Dispositive Motion Cut−off set for 7/17/2017, Joint Final Pretrial Order due 10/16/2017, Final Pretrial Conference set for 10/23/2017 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (Refer to image for additional dates) (MLan) (Entered: 03/22/2016)
31 NOTICE of Appearance by Sarah Prescott on behalf of All Plaintiffs. (Prescott, Sarah) (Entered: 03/25/2016)
32 Ex Parte MOTION for Leave to File Brief in Excess of 25 Pages by All Plaintiffs. (LaBelle, Deborah) (Entered: 03/29/2016)
33 RESPONSE to 32 Ex Parte MOTION for Leave to File Brief in Excess of 25 Pages, 29 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4−A, # 6 Exhibit 4−B, # 7 Exhibit 5−A, # 8 Exhibit 5−B, # 9 Exhibit 5−C, # 10 Exhibit 5−D, # 11 Exhibit 5−E, # 12 Exhibit 5−F, # 13 Exhibit 5−G, # 14 Exhibit 6−A, # 15 Exhibit 6−B, # 16

03/30/2016 04/05/2016 04/12/2016 04/14/2016 04/14/2016 04/14/2016 04/18/2016 04/29/2016
04/29/2016 05/02/2016 05/04/2016
05/04/2016 05/11/2016 05/11/2016
05/12/2016

Exhibit 6−C, # 17 Exhibit 6−D, # 18 Exhibit 7, # 19 Exhibit 8−A, # 20 Exhibit 8−B, # 21 Exhibit 9−A, # 22 Exhibit 9−B, # 23 Exhibit 9−C, # 24 Exhibit 10, # 25 Exhibit 11−A, # 26 Exhibit 11−B, # 27 Exhibit 12−A, # 28 Exhibit 12−B, # 29 Exhibit 12−C, # 30 Exhibit 12−D, # 31 Exhibit 12−E, # 32 Exhibit 12−F, # 33 Exhibit 12−G, # 34 Exhibit 12−H, # 35 Exhibit 12−J) (LaBelle, Deborah) (Entered: 03/29/2016)
TEXT−ONLY ORDER granting 32 Ex Parte MOTION for Leave to File Brief in Excess of 25 Pages filed by John Doe. Signed by District Judge Victoria A. Roberts. (MLan) (Entered: 03/30/2016)
34 NOTICE of Appearance by Richard A. Soble on behalf of All Plaintiffs. (Soble, Richard) (Entered: 04/05/2016)
35 MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Summary Judgment by All Defendants. (Dean, Michael) (Entered: 04/12/2016)
36 EXHIBIT 4−B re 33 Response to Motion,,, by All Plaintiffs (LaBelle, Deborah) (Entered: 04/14/2016)
37 EXHIBIT 10 re 33 Response to Motion,,, by All Plaintiffs (LaBelle, Deborah) (Entered: 04/14/2016)
38 CERTIFICATE OF SERVICE re 37 Exhibit, 36 Exhibit by All Plaintiffs (LaBelle, Deborah) (Entered: 04/14/2016)
39 RESPONSE to 35 MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Summary Judgment filed by All Plaintiffs. (Salvatore, Jennifer) (Entered: 04/18/2016)
40 REPLY to Response re 29 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9) (Dean, Michael) (Entered: 04/29/2016)
41 MOTION for Leave to File Excess Pages by All Defendants. (Dean, Michael) (Entered: 04/29/2016)
TEXT−ONLY ORDER granting 41 MOTION for Leave to File Excess Pages, 35 MOTION for Extension of Time. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 05/02/2016)
42 STIPULATION and Proposed Order Substituting Previously Filed Exhibits with Redacted Exhibits by John Doe (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−Redacted Ex. M−2 to ECF Doc. 29 , # 3 Exhibit 2−Redacted Ex. 5−G to ECF Doc. 33 , # 4 Exhibit 3−Redacted Ex. 9−A to ECF Doc. 33 , # 5 Exhibit 4−Redacted Ex. 9−B to ECF Doc. 33 , # 6 Exhibit 5−Redacted Ex. 11−B to ECF Doc. 33 , # 7 Exhibit 6−Redacted Ex. 12−D to ECF Doc. 33 ) (Salvatore, Jennifer) (Entered: 05/04/2016)
43 ORDER granting 42 Stipulation to redact Exhibits. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 05/04/2016)
44 MOTION for Protective Order by All Plaintiffs. (Attachments: # 1 Exhibit Ex. A−Proposed Protective Order) (Salvatore, Jennifer) (Entered: 05/11/2016)
45 MOTION for Protective Order to Stay Discovery by Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B) (Donnelly, Mark) (Entered: 05/11/2016)
NOTICE of Error directed to: Mark E. Donnelly re 46 Certificate of Service,. Document is prohibited discovery, disclosure or a certificate of service thereof. Document was stricken. [No Image Associated with this docket entry] (LHos) (Entered: 05/12/2016)

05/12/2016
05/12/2016 05/25/2016 05/25/2016
06/01/2016 06/01/2016 06/10/2016 06/13/2016 06/20/2016 06/20/2016 06/30/2016 07/22/2016 07/25/2016
08/23/2016 10/13/2016 10/18/2016

47 Corrected MOTION for Protective Order to Stay Discovery by Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C) (Donnelly, Mark) Modified on 5/12/2016 (LHos). (Entered: 05/12/2016)
48 NOTICE OF HEARING on 29 MOTION for Summary Judgment. Motion Hearing set for 7/25/2016 02:30 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 05/12/2016)
49 RESPONSE to 45 MOTION for Protective Order to Stay Discovery, 47 MOTION for Protective Order to Stay Discovery filed by John Doe. (Attachments: # 1 Exhibit A − Defendants' Response to Plaintiffs' 1st Discovery Requests) (Salvatore, Jennifer) (Entered: 05/25/2016)
50 RESPONSE to 44 MOTION for Protective Order [Doc. #44] filed by Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Michigan Department of Corrections, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A) (Donnelly, Mark) (Entered: 05/25/2016)
51 REPLY to Response re 44 MOTION for Protective Order filed by John Doe. (Salvatore, Jennifer) (Entered: 06/01/2016)
52 REPLY to Response re 45 MOTION for Protective Order to Stay Discovery filed by All Defendants. (Dean, Michael) (Entered: 06/01/2016)
53 NOTICE of Appearance by Deborah A. LaBelle on behalf of All Plaintiffs. (LaBelle, Deborah) Modified on 6/10/2016 (LHos).[DOCUMENT IS AN APPEARANCE FOR ANLYN ADDIS] (Entered: 06/10/2016)
54 ORDER denying as moot 45 Motion for Protective Order; denying 47 Motion for Protective Order. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 06/13/2016)
55 WITNESS LIST by All Defendants (Dean, Michael) (Entered: 06/20/2016)
56 WITNESS LIST by All Plaintiffs (LaBelle, Deborah) (Entered: 06/20/2016)
57 STIPULATION Regarding Supplemental Responses to Plaintiffs' April 11, 2016 Discovery by All Defendants (Dean, Michael) (Entered: 06/30/2016)
58 NOTICE of Appearance by Margaret A. Nelson on behalf of All Defendants. (Nelson, Margaret) (Entered: 07/22/2016)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Motion Hearing held on 7/25/2016 re 29 MOTION for Summary Judgment filed by Gretchen Walters, Joseph Martens, Matthew Ward, Scott Arp, Ronald Stambaugh, Francis Heyrman, Jason Erway, Tami Hoogewind, Dustin Anderson, Deschaine, Adam Coburn, Noah Beesley, Michigan Department of Corrections, Scott Schooley, McLeod, Sherwood, Heidi Washington, Charles Gollnast, Conklin, Gary Stump, Kenneth McKee, Michael Hall, Erik Jacobson, Edward Juranek, Ross, Hammer, Aimee Rogers, Cody Pennell. Disposition: Motion taken under advisement (Court Reporter: Lawrence Przybysz) (MLan) (Entered: 07/26/2016)
59 Amended WITNESS LIST by All Defendants (Dean, Michael) (Entered: 08/23/2016)
60 NOTICE of Appearance by Mark E. Donnelly on behalf of All Defendants. (Donnelly, Mark) (Entered: 10/13/2016)
61 STIPULATED PROTECTIVE ORDER. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/18/2016)

10/31/2016 11/15/2016
11/15/2016
11/16/2016 12/12/2016 12/12/2016 12/12/2016 12/27/2016 12/27/2016 01/16/2017
01/30/2017 02/02/2017 02/03/2017 02/06/2017 02/06/2017 02/06/2017

62 NOTICE of Appearance by Anlyn Marie Ellen Addis on behalf of All Plaintiffs. (Addis, Anlyn) (Entered: 10/31/2016)
63 NOTICE of Appearance by Christina M. Grossi on behalf of Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Grossi, Christina) (Entered: 11/15/2016)
64 NOTICE of Appearance by Michael F. Murphy on behalf of Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Murphy, Michael) (Entered: 11/15/2016)
65 STIPULATED ORDER Extending Plaintiffs' Deadline to Respond to Defendants' Discovery Requests. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/16/2016)
66 OBJECTION to Subpoenaed document request by All Defendants. (Attachments: # 1 Exhibit A) (Murphy, Michael) (Entered: 12/12/2016)
67 OBJECTION to Subpoenaed document request by All Defendants. (Attachments: # 1 Exhibit A) (Murphy, Michael) (Entered: 12/12/2016)
68 ORDER REFERRING OTHER MATTERS to Magistrate Judge Mona K. Majzoub: Objections to Subpoenaed Document Requests, re 67 Objection, 66 Objection. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 12/12/2016)
69 NOTICE of Change of Address/Contact Information by Nakisha N. Chaney on behalf of All Plaintiffs. (Chaney, Nakisha) (Entered: 12/27/2016)
70 STIPULATED ORDER to Extend Plaintiffs' Deadline to Respond to Defendants' Discovery Requests. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 12/27/2016)
71 MOTION to Enforce Stipulation to Modify Deposition Procedure by John Doe. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Deposition Transcript − Ronald Stambaugh, # 3 Exhibit 2 − Deposition Transcript − Matthew Sherwood, # 4 Exhibit 3 − Deposition Transcript − Gretchen Walters, # 5 Exhibit 4 − Deposition Transcript − Michael Hall, # 6 Exhibit 5 − Stokes v. Xerox Corp, # 7 Exhibit 6 − Order Granting Plaintiffs' Motion to Proceed Under Pseudonymous Status) (Salvatore, Jennifer) (Entered: 01/16/2017)
72 MOTION re 61 Protective Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Prescott, Sarah) (Entered: 01/30/2017)
73 STIPULATED ORDER Extending Time for Response to 71 MOTION to Enforce Stipulation to Modify Deposition Procedure: Response due by 2/6/2017. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/02/2017)
74 ORDER REFERRING MOTIONS to Magistrate Judge Mona K. Majzoub: 71 MOTION to Enforce Stipulation to Modify Deposition Procedure filed by John Doe, 72 MOTION re 61 Protective Order filed by John Doe. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/03/2017)
75 Notice of Determination of Motion Without Oral Argument re 71 MOTION to Enforce Stipulation to Modify Deposition Procedure. Response due by 2/6/2017. (LBar) (Entered: 02/06/2017)
76 Notice of Determination of Motion Without Oral Argument re 72 MOTION re 61 Protective Order (LBar) (Entered: 02/06/2017)
77 RESPONSE to 71 MOTION to Enforce Stipulation to Modify Deposition Procedure Oral Argument Requested filed by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1− Deposition Transcript (02/12/2015), # 3 Exhibit 2− Deposition Transcript (02/26/2015), # 4 Exhibit 3− Order (04/23/2014))

02/13/2017
02/13/2017 02/13/2017
02/23/2017 03/24/2017
03/29/2017 03/31/2017 04/03/2017 04/05/2017 04/05/2017 04/05/2017
04/14/2017 04/14/2017 04/14/2017

(Donnelly, Mark) (Entered: 02/06/2017)
78 REPLY to Response re 71 MOTION to Enforce Stipulation to Modify Deposition Procedure filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Deposition Transcript of John Doe #2, # 3 Exhibit B − Deposition Transcript of John Doe #4, # 4 Exhibit C − Deposition Transcript of John Doe #3, # 5 Exhibit D − Protective Order on Disclosure of Perpetrators Identified by John Doe Plaintiffs) (Salvatore, Jennifer) (Entered: 02/13/2017)
79 STIPULATION AND ORDER for Deposition of Incarcerated Plaintiff and Third−Party Witnesses. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/13/2017)
80 RESPONSE to 72 MOTION re 61 Protective Order filed by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1− MDOC Employee Handbook (Abridged), # 3 Exhibit 2− MDOC PD 01.06.110, # 4 Exhibit 3− King v. Caruso, 542 F.Supp. 2d 703, 725 (ED Mich. 2008)) (Grossi, Christina) (Entered: 02/13/2017)
81 Supplemental Authority STATEMENT of Plaintiffs' Notice of Supplemental Authority by All Plaintiffs (Attachments: # 1 Exhibit) (Addis, Anlyn) (Entered: 02/23/2017)
82 MOTION to Compel Responses to Plaintiff's First Request for Production of Documents and Deposition Testimony, MOTION for Protective Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G) (Prescott, Sarah) (Entered: 03/24/2017)
83 STIPULATION AND ORDER to Take Prisoner Depositions. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 03/29/2017)
84 ORDER granting in part and denying in part 29 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (CPic) (Entered: 03/31/2017)
85 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 82 MOTION to Compel Responses to Plaintiff's First Request for Production of Documents and Deposition Testimony MOTION for Protective Order filed by John Doe. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 04/03/2017)
86 Notice of Determination of Motion Without Oral Argument re 82 MOTION to Compel Responses to Plaintiff's First Request for Production of Documents and Deposition Testimony MOTION for Protective Order . JOINT Statement of Resolved and Unresolved Issues to be filed on or before May 8, 2017. (LBar) (Entered: 04/05/2017)
Set Deadlines as to 82 MOTION to Compel Responses to Plaintiff's First Request for Production of Documents and Deposition Testimony MOTION for Protective Order . JOINT Statement of Resolved/Unresolved Issues due by 5/8/2017 (LBar) (Entered: 04/05/2017)
87 STIPULATION AND ORDER Set Motion Deadlines as to 82 MOTION to Compel Responses to Plaintiff's First Request for Production of Documents and Deposition Testimony and for Protective Order: (Response due by 4/14/2017, JOINT Statement of Resolved/Unresolved Issues due by 5/8/2017) − Signed by Magistrate Judge Mona K. Majzoub. (LBar) (Entered: 04/05/2017)
88 MOTION to Compel Complete Responses to Plaintiffs' Interrogatories regarding Trial Witnesses by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F) (Prescott, Sarah) (Entered: 04/14/2017)
89 MOTION for Leave to File Excess Pages by All Defendants. (Dean, Michael) (Entered: 04/14/2017)
90 RESPONSE to 82 MOTION to Compel Responses to Plaintiff's First Request for Production of Documents and Deposition Testimony MOTION for Protective Order filed by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1− Table of Parties and Claims, # 3 Exhibit 2− Dean/Labelle Exchange, # 4 Exhibit 3− Prescott/Donnelly Exchange, # 5 Exhibit 4− Robinson Subpoena, # 6

04/14/2017
04/20/2017 04/20/2017 04/20/2017 04/20/2017 04/28/2017
05/08/2017 05/16/2017 05/19/2017 05/19/2017 05/25/2017 05/26/2017 06/02/2017 06/02/2017 06/02/2017

Exhibit 5− McGehee Letter (1/13/17), # 7 Exhibit 6− Murphy Letter (1/30/17), # 8 Exhibit 7− Donnelly Letter (3/7/17), # 9 Exhibit 8− Plaintiffs' Second Request to Produce 13−1196−CZ, # 10 Exhibit 9− Dean/Salvatore Exchange, # 11 Exhibit 10− Grossi/Prescott/Donnelly Exchange) (Dean, Michael) (Entered: 04/14/2017)
91 MOTION for Reconsideration re 84 Order on Motion for Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8) (LaBelle, Deborah) (Entered: 04/14/2017)
TEXT−ONLY ORDER granting 89 MOTION for Leave to File Excess Pages. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 04/20/2017)
92 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 88 MOTION to Compel Complete Responses to Plaintiffs' Interrogatories regarding Trial Witnesses filed by John Doe. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 04/20/2017)
93 Notice of Determination of Motion Without Oral Argument re 88 MOTION to Compel Complete Responses to Plaintiffs' Interrogatories regarding Trial Witnesses. JOINT Statement of Resolved and Unresolved Issues to be filed on or before May 19, 2017. (LBar) (Entered: 04/20/2017)
Set Deadlines as to 88 MOTION to Compel Complete Responses to Plaintiffs' Interrogatories regarding Trial Witnesses. JOINT Statement of Resolved/Unresolved Issues due by 5/19/2017 (LBar) (Entered: 04/20/2017)
94 RESPONSE to 88 MOTION to Compel Complete Responses to Plaintiffs' Interrogatories regarding Trial Witnesses filed by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1− Email Exchange, # 3 Exhibit 2− John Doe 1 Discovery Response to Defendant Arp, # 4 Exhibit 3− John Doe 3 Discovery Response to Defendant Hammer, # 5 Exhibit 4− John Doe 5 Discovery Response to Defendant Anderson, # 6 Exhibit 5− John Doe 12 Discovery Response to Defendant Heyrman) (Donnelly, Mark) (Entered: 04/28/2017)
95 STATEMENT of Resolved and Unresolved Issues by John Doe (Salvatore, Jennifer) (Entered: 05/08/2017)
96 STIPULATED ORDER Extending Deadline to File Discovery Motions, ( Discovery Motion Cut−off set for 6/2/2017) Signed by District Judge Arthur J. Tarnow. (TMcg) (Entered: 05/16/2017)
97 STATEMENT of Resolved and Unresolved Issues re 88 MOTION to Compel Complete Responses to Plaintiffs' Interrogatories regarding Trial Witnesses by All Plaintiffs (Salvatore, Jennifer) (Entered: 05/19/2017)
98 Second Supplemental WITNESS LIST by All Defendants (Murphy, Michael) (Entered: 05/19/2017)
99 MOTION TO EXTEND Discovery Deadline by John Doe. (Salvatore, Jennifer) (Entered: 05/25/2017)
100 MOTION re 84 Order on Motion for Summary Judgment (to Correct Order Pursuant to Fed. R. Civ. P. 60(A) by All Defendants. (Attachments: # 1 Exhibit 1− Email Exchange (Concurrence)) (Nelson, Margaret) (Entered: 05/26/2017)
101 MOTION to Compel Certain Depositions and Preserve the Right to Take Others After Discovery Cut−Off as Needed by All Defendants. (Attachments: # 1 Exhibit 1− Email Exchange 5/30/17) (Murphy, Michael) (Entered: 06/02/2017)
102 MOTION to Compel Complete Responses to Plaintiffs' Second Request for Production of Documents by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Chaney, Nakisha) (Entered: 06/02/2017)
103 MOTION to Enforce Subpoena to MDOC by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Chaney, Nakisha) (Entered: 06/02/2017)

06/08/2017
06/14/2017 06/16/2017
06/16/2017 06/22/2017
06/22/2017
06/23/2017 06/23/2017 06/26/2017 06/26/2017 06/26/2017 06/28/2017 07/06/2017
07/20/2017

104 RESPONSE to 99 MOTION TO EXTEND Discovery Deadline filed by Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Michigan Department of Corrections, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Grossi, Christina) (Entered: 06/08/2017)
105 NOTICE TO APPEAR: Status Conference to discuss discovery issues and possible extension of scheduling order dates set for 6/22/2017 11:30 AM before District Judge Arthur J. Tarnow. (MLan) (Entered: 06/14/2017)
106 RESPONSE to 102 MOTION to Compel Complete Responses to Plaintiffs' Second Request for Production of Documents Oral Argument Requested filed by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 1− Vitamin Health, Inc. v. Hartland Casualty, # 3 Exhibit 2− Wilmington Trust Co. v. AEP Generating Co., # 4 Exhibit 3− Class Notice, # 5 Exhibit 4− Protective Order) (Murphy, Michael) (Entered: 06/16/2017)
107 RESPONSE to 103 MOTION to Enforce Subpoena to MDOC Oral Argument Requested filed by Michigan Department of Corrections. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Class Notice, # 3 Exhibit 2− Circuit Court Protective Order) (Murphy, Michael) (Entered: 06/16/2017)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Status Conference held on 6/22/2017. Tentative scheduling order dates set: Dispositive Motion Cut−off set for 10/27/2017, Joint Final Pretrial Order due 1/22/2017, Final Pretrial Conference set for 1/29/2018 02:30 PM before District Judge Arthur J. Tarnow. These dates may be revisited following completion of outstanding discovery issues. (MLan) (Entered: 06/22/2017)
108 ORDER REFERRING MOTIONS to Magistrate Judge Mona K. Majzoub: 101 MOTION to Compel Certain Depositions and Preserve the Right to Take Others After Discovery Cut−Off as Needed filed by Defendants, 103 MOTION to Enforce Subpoena to MDOC filed by Plaintiffs, 102 MOTION to Compel Complete Responses to Plaintiffs' Second Request for Production of Documents filed by Plaintiffs. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 06/22/2017)
109 REPLY to Response re 102 MOTION to Compel Complete Responses to Plaintiffs' Second Request for Production of Documents filed by All Plaintiffs. (Attachments: # 1 Exhibit A) (Chaney, Nakisha) (Entered: 06/23/2017)
110 REPLY to Response re 103 MOTION to Enforce Subpoena to MDOC filed by All Plaintiffs. (Attachments: # 1 Exhibit A) (Chaney, Nakisha) (Entered: 06/23/2017)
111 Notice of Determination of Motion Without Oral Argument re 101 MOTION to Compel Certain Depositions and Preserve the Right to Take Others After Discovery Cut−Off as Needed (LBar) (Entered: 06/26/2017)
112 Notice of Determination of Motion Without Oral Argument re 102 MOTION to Compel Complete Responses to Plaintiffs' Second Request for Production of Documents (LBar) (Entered: 06/26/2017)
113 Notice of Determination of Motion Without Oral Argument re 103 MOTION to Enforce Subpoena to MDOC (LBar) (Entered: 06/26/2017)
114 ORDER Extending Discovery Dates. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 06/28/2017)
115 MOTION Omnibus ruling on all pending discovery motions. by Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, Cody Pennell, Ross, Scott Schooley, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Donnelly, Mark) (Entered: 07/06/2017)
116 RESPONSE to 115 MOTION Omnibus ruling on all pending discovery motions. filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 07/20/2017)

07/27/2017
08/04/2017 08/15/2017 08/15/2017 08/16/2017 08/29/2017
08/29/2017 09/14/2017 09/18/2017 09/20/2017 10/02/2017 10/16/2017 10/17/2017

117 REPLY to Response re 115 MOTION Omnibus ruling on all pending discovery motions. filed by Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, Cody Pennell, Ross, Scott Schooley, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Dean, Michael) (Entered: 07/27/2017)
118 Supplemental WITNESS LIST by All Plaintiffs (Salvatore, Jennifer) (Entered: 08/04/2017)
119 SUPPLEMENTAL BRIEF re 102 MOTION to Compel Complete Responses to Plaintiffs' Second Request for Production of Documents filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Chaney, Nakisha) (Entered: 08/15/2017)
120 SUPPLEMENTAL BRIEF re 103 MOTION to Enforce Subpoena to MDOC filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Chaney, Nakisha) (Entered: 08/15/2017)
121 STIPULATED ORDER Dismissing Plaintiff John Doe, #3, Defendants Cody Pennell, Gary Stump, Michael Hall and Hammer (Corrections Officer). Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 08/16/2017)
122 SUPPLEMENTAL BRIEF re 119 Supplemental Brief, to Response to Plaintiffs' Motion to Compel Responses to Their Second Request for Production of Documents (Oral Argument Requested) filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Vitamin Health, Inc. v. Hartland Casualty, # 3 Exhibit 2− Wilmington Trust Co. v. AEP Generating Co., # 4 Exhibit 3− John Doe 1 Deposition Transcript (6/1/2017), # 5 Exhibit 4− John Doe 4 Deposition Transcript (6/7/2017), # 6 Exhibit 5− John Doe 5 Deposition Transcript (5/25/2017), # 7 Exhibit 6− John Doe 9 Deposition Transcript (5/9/2017), # 8 Exhibit 7− John Doe 10 Deposition Transcript (5/30/2017), # 9 Exhibit 8− John Doe 12 Deposition Transcript (7/24/2017), # 10 Exhibit 9− Stryker Corp. v. Ridgeway, # 11 Exhibit 10− Affidavit of Andrew Banas) (Grossi, Christina) (Entered: 08/29/2017)
123 SUPPLEMENTAL BRIEF re 107 Response to Motion, to Enforce Subpoena (Oral Argument Requested) filed by Michigan Department of Corrections. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Affidavit of Andrew Banas) (Grossi, Christina) (Entered: 08/29/2017)
124 NOTICE OF HEARING on 115 MOTION for Omnibus ruling on all pending discovery motions. Motion Hearing set for 11/2/2017 11:00 AM before District Judge Arthur J. Tarnow. (MLan) (Entered: 09/14/2017)
125 ORDER Modifying 114 Order to Extend Discovery Dates. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 09/18/2017)
126 ORDER granting in part and denying in part 71 Motion to Enforce Stipulation to Modify Deposition Procedure and denying 72 Motion to Modify Stipulated Protective Order − Signed by Magistrate Judge Mona K. Majzoub. (LBar) (Entered: 09/20/2017)
127 MOTION for Reconsideration re 125 Order or Rehearing by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Email Exchange, # 3 Exhibit 2 − Defendants' Response 7/14/17, # 4 Exhibit 3− 7/27/17 Pickles Email, # 5 Exhibit 4− 8/3/17 Murphy Email, # 6 Exhibit 5− Defendants' Objections to Depositioin 8/3/17) (Donnelly, Mark) (Entered: 10/02/2017)
128 RESPONSE to 127 MOTION for Reconsideration re 125 Order or Rehearing filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Chaney, Nakisha) (Entered: 10/16/2017)
129 STIPULATION AND ORDER Extending Scheduling Order: Dispositive Motion Cut−off set for 2/2/2018, Joint Final Pretrial Order to be submitted by 5/3/2018, Final Pretrial Conference set for 5/10/2018 02:30 PM before District Judge Arthur J. Tarnow. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/17/2017)

10/18/2017 10/18/2017 10/18/2017 10/20/2017
10/27/2017 11/01/2017
11/01/2017
11/02/2017 11/03/2017 11/06/2017
11/07/2017 12/07/2017 12/20/2017

130 ORDER granting 100 MOTION to Correct 84 Order on 29 Motion for Summary Judgment filed by defendants. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/18/2017)
131 ORDER granting 91 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/18/2017)
132 ORDER granting 127 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 10/18/2017)
TEXT−ONLY ORDER Requiring the parties to file an Updated Joint Statement of Resolved and Unresolved Issues by 10/27/2017 at 12:00 p.m. regarding 88 Plaintiffs' Motion to Compel Complete Responses to Plaintiffs' Interrogatories Regarding Trial Witnesses . The Joint Statement should reflect the parties' current positions in light of Defendants' Second Supplemental Witness List 98 and Defendants' May 2017 Supplemental Responses to Plaintiffs' Interrogatories Regarding Trial Witnesses, the latter of which the parties are ordered to attach as an exhibit to the Joint Statement − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 10/20/2017)
133 STATEMENT of Resolved and Unresolved Issues re 88 MOTION to Compel Complete Responses to Plaintiffs' Interrogatories regarding Trial Witnesses by All Plaintiffs (Attachments: # 1 Exhibit A) (Chaney, Nakisha) (Entered: 10/27/2017)
134 OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL 82 , GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL 88 , GRANTING DEFENDANTS' MOTION TO COMPEL 101 , GRANTING PLAINTIFFS' MOTION TO COMPEL 102 , AND DENYING PLAINTIFFS' MOTION TO ENFORCE SUBPOENA 103 − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 11/01/2017)
135 MOTION for Reconsideration re 131 Order on Motion for Reconsideration or Rehearing and/or to Alter or Amend Judgment by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − JD 2 Grievance Form RMI 1505−0978−19D, # 3 Exhibit 2 − Excerpts of JD 2 Dep. Transcript 2/2/2015, # 4 Exhibit 3 − JD 8 Grievance Form IBC 1511−3121−03B, # 5 Exhibit 4 − Rumsey v. Mich. Dept. of Corr.) (Donnelly, Mark) (Entered: 11/01/2017)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Status Conference held on 11/2/2017, Motions terminated: 115 MOTION for Omnibus ruling on all pending discovery motions filed by defendants, 99 MOTION TO EXTEND Discovery Deadline filed by plaintiffs. Discovery due by 12/15/2017. (MLan) (Entered: 11/02/2017)
136 ORDER denying 135 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/03/2017)
137 MOTION to Seal 135 MOTION for Reconsideration re 131 Order on Motion for Reconsideration or Rehearing and/or to Alter or Amend Judgment Exhibit 2 by Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Michigan Department of Corrections, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Email Request, # 3 Exhibit Attachment 1 − Redacted Transcript Excerpt, # 4 Exhibit 2 − Proposed Order) (Donnelly, Mark) (Entered: 11/06/2017)
138 ORDER granting 137 Motion to Seal Exhibit 2 re 135 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 11/07/2017)
139 MOTION to Dismiss Francis Heyrman and Amend Complaint to Add Duane Heyrman as Defendant by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Chaney, Nakisha) (Entered: 12/07/2017)
140 ORDER granting 139 MOTION to Dismiss Francis Heyrman and Amend Complaint to Add Duane Heyrman as Defendant filed by Plaintiffs. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 12/20/2017)

01/03/2018
01/03/2018 01/03/2018 01/23/2018 01/23/2018
01/24/2018 01/30/2018 02/01/2018 02/06/2018 02/07/2018 02/08/2018 02/08/2018 02/09/2018 02/09/2018

141 AMENDED COMPLAINT with Jury Demand (THIRD) filed by All Plaintiffs against Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, McLeod, Michigan Department of Corrections, Cody Pennell, Aimee Rogers, Ross, Scott Schooley, Sherwood, Ronald Stambaugh, Gary Stump, Gretchen Walters, Matthew Ward, Heidi Washington, Duane Heyrman. NEW PARTIES ADDED. (Chaney, Nakisha) (Entered: 01/03/2018)
REQUEST for SUMMONS for Duane Heyrman. (Chaney, Nakisha) (Entered: 01/03/2018)
142 SUMMONS Issued for *Duane Heyrman* (DWor) (Entered: 01/03/2018)
143 Plaintiffs' Second Supplemental WITNESS LIST by John Doe (Attachments: # 1 Exhibit A − Dkt. 56 Plaintiffs' Witness List, # 2 Exhibit B − Dkt. 118 Plaintiffs' Supplemental Witness List) (Chaney, Nakisha) (Entered: 01/23/2018)
144 MOTION to Compel by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L) (Chaney, Nakisha) (Entered: 01/23/2018)
145 WAIVER OF SERVICE Returned Executed. Duane Heyrman waiver sent on 1/9/2018, answer due 3/12/2018. (Chaney, Nakisha) (Entered: 01/24/2018)
146 STIPULATION AND ORDER Extending Time for Response to 141 Amended Complaint. Response due by 3/9/2018. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 01/30/2018)
147 STIPULATION AND ORDER: Dispositive Motion Cut−off set for 2/9/2018. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/01/2018)
148 RESPONSE to 144 MOTION to Compel Oral Argument Requested filed by All Defendants. (Murphy, Michael) (Entered: 02/06/2018)
149 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 144 MOTION to Compel filed by John Doe. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/07/2018)
150 Notice of Determination of Motion Without Oral Argument re 144 MOTION to Compel (LHos) (Entered: 02/08/2018)
151 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 2/12/2018 01:30 PM before District Judge Arthur J. Tarnow. (MLan) (Entered: 02/08/2018)
152 Ex Parte MOTION for Leave to File Excess Pages for Brief in Support of Motion for Summary Judgment by All Defendants. (Donnelly, Mark) (Entered: 02/09/2018)
153 MOTION for Summary Judgment (Partial) by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − JD 1 Affidvit, # 3 Exhibit 2 − JD 1 Misconduct Ticket, # 4 Exhibit 3 − JD 1 Deposition Transcript Excerpts, # 5 Exhibit 4 − JD 2 Grievance RMI 1505−0978−19D, # 6 Exhibit 5 − Rogers (Burzynski) Deposition Transcript Excerpts, # 7 Exhibit 6 − JD 2 Deposition Transcript Excerpts, # 8 Exhibit 7− JD 4 Deposition Transcript Excerpts, # 9 Exhibit 8 − Gollnast Deposition Transcript Excerpts, # 10 Exhibit 9 − JD 5 Deposition Transcript Excerpts, # 11 Exhibit 10 − Ross Deposition Transcript Excerpts, # 12 Exhibit 11 − JD 5 Misconduct Ticket, # 13 Exhibit 12 − Anderson Deposition Transcript Excerpt, # 14 Exhibit 13 − JD 8 Grievance IBC 1511−3121−03B, # 15 Exhibit 14 − JD 8 Cell Usage Report, # 16 Exhibit 15 − JD 8 Deposition Transcript Excerpts, # 17 Exhibit 16 − JD 9 Deposition Transcript Excerpts, # 18 Exhibit 17 − Juranek Deposition Transcript Excerpts, # 19 Exhibit 18 − JD 10 Grievance JCF 1412−3044−17c, # 20 Exhibit 19 − JD 10 Grievance IBC 1504−1069−17c, # 21 Exhibit 20 − Hoogewind Deposition Transcript Excerpts, # 22 Exhibit 21 − McKee Deposition Transcript Excerpts, # 23 Exhibit 22 − Email Correspondence regarding sign, # 24 Exhibit 23 − JD 10 Deposition Transcript Excerpts, # 25 Exhibit 24 − Ward Depostion Transcript Excerpts, # 26 Exhibit 25 − MDOC PD 03.03.130, # 27 Exhibit 26 − MDOC PD 05.06.116) (Donnelly, Mark) (Entered: 02/09/2018)

02/12/2018 02/13/2018
02/21/2018 03/06/2018 03/06/2018 04/19/2018 05/17/2018 06/15/2018 07/11/2018 12/07/2018
12/12/2018 06/13/2019
06/13/2019

Minute Entry for proceedings before District Judge Arthur J. Tarnow: Telephonic Status Conference held on 2/12/2018. Counsel to report back within a week with proposed mediators. (CPic) (Entered: 02/12/2018)
154 REPLY to Response re 144 MOTION to Compel filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H) (Chaney, Nakisha) (Entered: 02/13/2018)
155 STIPULATION AND ORDER Extending Time for Response to 153 Motion for Summary Judgment. Response due by 4/23/2018. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 02/21/2018)
156 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by All Defendants. (Murphy, Michael) (Entered: 03/06/2018)
TEXT−ONLY NOTICE: Final Pretrial Conference on 5/10/2018 is Cancelled. New date to be set following mediation and determination of dispositive motion(s),if necessary. (MLan) (Entered: 03/06/2018)
157 STIPULATION AND ORDER Extending Time for Response to 153 Motion for Partial Summary Judgment. Response due by 5/21/2018. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 04/19/2018)
158 NOTICE by All Plaintiffs Notice of Settlement (Soble, Richard) (Entered: 05/17/2018)
159 NOTICE by All Plaintiffs Amended Notice of Settlement (Soble, Richard) (Entered: 06/15/2018)
160 STIPULATED ORDER DISMISSING CASE. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 07/11/2018)
161 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 12/12/2018 03:30 PM before District Judge Arthur J. Tarnow. Counsel to provide phone numbers to mike_lang@mied.uscourts.gov prior to the conference. (MLan) (Entered: 12/07/2018)
Minute Entry for proceedings before District Judge Arthur J. Tarnow: Telephonic Status Conference held on 12/12/2018. (MLan) (Entered: 12/13/2018)
162 CONSENT ORDER OF SUBSTITUTION: Attorney Kevin J. O'Dowd For Defendants. Attorney Margaret A. Nelson; Douglas G. Powe; Mark E. Donnelly and Adam L.S. Fracassi terminated. Signed by District Judge Arthur J. Tarnow. (MLan) (Entered: 06/13/2019)
163 NOTICE of Appearance by Tracy E. Van den Bergh on behalf of Dustin Anderson, Scott Arp, Noah Beesley, Adam Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Duane Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, Kenneth McKee, Aimee Rogers, Ross, Scott Schooley, Ronald Stambaugh, Gretchen Walters, Matthew Ward, Heidi Washington. (Van den Bergh, Tracy) (Entered: 06/13/2019)

 
 2:15-cv-13852-AJT-MKM Doc # 1 Filed 11/02/15 Pg 1 of 38 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3;

JOHN DOE 4; JOHN DOE 5; JOHN DOE 8;

JOHN DOE 9; JOHN DOE 10 and

JOHN DOE 12,

HON.

Plaintiffs, vs.

Case No. 2:15-cv-13852

DUSTIN ANDERSON; SCOTT ARP; NOAH BEESLEY; ADAM COBURN; SERGEANT CONKLIN; CO DESCHAINE; JASON ERWAY; CHARLES GOLLNAST; MICHAEL HALL; CO HAMMER; FRANCIS HEYRMAN; TAMI HOOGEWIND; ERIK JACOBSON; EDWARD JURANEK; JOSEPH MARTENS; CO MCLEOD; CODY PENNELL; AIMEE ROGERS; CO ROSS; CO SHERWOOD; RONALD STAMBAUGH; GRETCHEN WALTERS; SCOTT SCHOOLEY; GARY STUMP; MATTHEW WARD; and WARDEN KENNETH MCKEE, Defendants are named in their individual capacities,

Defendants.

DEBORAH LaBELLE (P31595) Attorneys for the Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (734) 996-5620 deblabelle@aol.com aaddis@sbcglobal.net
RICHARD A. SOBLE (P32716) Attorneys for the Plaintiffs 221 N. Main St., Ste. 200 Ann Arbor, MI 48104 (734) 996-5600 dick@srkllp.com

JENNIFER B. SALVATORE (P66640) MICHAEL L. PITT (P24429)

NAKISHA CHANEY (P65066)

PEGGY GOLDBERG PITT (P31407)

Attorneys for Plaintiffs

CARY S. McGEHEE (P42318)

101 N. Main St., Ste. 555

Attorneys for the Plaintiffs

Ann Arbor, Michigan 48104

117 W. 4th St., Ste. 200

(734) 663-7550

Royal Oak, MI 48067

jsalvatore@nachtlaw.com

(248) 398-9800

nchaney@nachtlaw.com

mpitt@pittlawpc.com

ppitt@pittlawpc.com

cmcgehee@pittlawpc.com

2:15-cv-13852-AJT-MKM Doc # 1 Filed 11/02/15 Pg 2 of 38 Pg ID 2
COMPLAINT AND JURY DEMAND Plaintiffs, through their attorneys, submit this Complaint and state the following:
INTRODUCTORY STATEMENT 1. During the spring of 2013, Plaintiffs, youth under the age of 18 housed in adult prisons in Michigan, participated in an inquiry conducted by the InterAmerican Commission on Human Rights, which resulted in a hearing focused on the violations of human rights of Michigan children held in adult prisons. John Doe 1 testified at the hearing via a video conference tape and written submission. Following the exposure of the mistreatment of youth in Michigan facilities, these Plaintiffs filed litigation, on behalf of themselves and as class representatives on behalf of children confined in adult prisons operated by the Michigan Department of Corrections (MDOC), alleging sexual and physical abuse by adult prisoners and MDOC staff. 2. On October 15, 2013 and December 9, 2013, Plaintiffs engaged in protected activity by exercising their 1st and 6th Amendment rights to file civil rights litigation against the MDOC, supervisory officials and Wardens in federal and state court, in the Washtenaw Circuit Court, Case No. 13-1196-CZ and in Federal Court in the Eastern District of Michigan, Case No. 13-14356.
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3. Due to the personal nature of the allegations involving rapes and sexual abuse of Plaintiffs by MDOC staff and other prisoners as incarcerated youth, and the specter of retaliation by both staff and adult prisoners for public disclosure of the abuse, the state and federal courts issued orders allowing Plaintiffs to proceed anonymously as John Does. Protective Orders were also issued in the state court action limiting the disclosure of Plaintiffs’ names to specific circumstances that would allow Defendants to defend the litigation.
4. Despite these orders allowing Plaintiffs to proceed anonymously, there was a pattern and practice by the Defendants of disclosing Plaintiffs’ identities to MDOC staff and other prisoners as a retaliatory action that subjected Plaintiffs to threats, physical injury, severe emotional distress, and further retaliatory actions for their participation in the class action litigation addressing abuse of youthful prisoners.
5. The disclosure of Plaintiffs in a manner that subjected them to further abuse and harm was part of a concerted effort to deter Plaintiffs and other class members from participating in this litigation.
6. Defendants engaged in retaliatory acts against Plaintiffs for exposing the abuse of youth by MDOC staff or abuse which MDOC staff, including Defendants, facilitated or failed to intervene to prevent. The retaliation included retaliatory transfers, prolonged isolation, destruction of legal and other property,
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denial of visits, false misconduct tickets, excessive and destructive room searches, verbal harassment and threats, excessive pat-downs, interference with attorney communications, knowingly placing Plaintiffs in situations likely to cause them harm, and intentional disclosure of Plaintiffs’ identities within the prison system, making them more vulnerable to abuse.
7. Each of the Defendants have initiated, facilitated, and/or participated in the retaliation experienced by Plaintiffs.
8. Plaintiffs bring this Complaint seeking damages and injunctive relief for violations of their First Amendment rights.
JURISDICTION AND VENUE 9. This Complaint arises from retaliation experienced by Plaintiffs at MDOC facilities located in Jackson, Macomb, Gratiot, Lapeer, Ionia, Manistee, and Baraga counties, where Plaintiffs have been housed at various times. 10. This Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§1331 and 1343 and pursuant to 42 U.S.C. §1983. This action arose under the First Amendment to the United States Constitution. 11. Joinder of the parties is appropriate pursuant to Fed. R. Civ. Pro. 19 and/or 20. 12. The amount in controversy in this case exceeds $75,000.
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13. Venue is appropriate in this court under 28 U.S.C. §1391(b) because a Defendant resides in this District, and some of the events and occurrences occurred in this District.
PARTIES A. PLAINTIFFS
14. Plaintiffs are citizens of the United States and at all relevant times were children when they were placed in facilities under the jurisdiction of the MDOC. Plaintiffs brought legal claims initiated in 2013 on behalf of themselves and a class of youthful prisoners held in adult correctional facilities under the jurisdiction of the Michigan Department of Corrections against the Governor, the Michigan Department of Corrections and its supervisors and wardens.
15. Plaintiffs were retaliated against by Defendants for their participation in the litigation, which challenged the sexual and physical abuse and neglect by MDOC staff and sexual and physical abuse at the hands of adult prisoners.
16. Plaintiffs are all currently incarcerated in MDOC facilities.
B. DEFENDANTS 17. Defendants are corrections officers and other MDOC officials who
engaged in retaliatory conduct against one or more of the Plaintiffs because of Plaintiffs’ exercise of protected conduct—filing and participation in litigation
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against the MDOC. The retaliation occurred at the following MDOC facilities: Robert G. Cotton Correctional Facility (“Cotton”); Oaks Correctional Facility (“Oaks”); Bellamy Creek Correctional Facility (“Bellamy Creek”); Ionia Maximum Correctional Facility (“IMAX”); Macomb Correctional Facility (“Macomb”); Michigan Reformatory (“Michigan Reformatory”); St. Louis Correctional Facility (“St. Louis”); Alger Correctional Facility (“Alger”); and Baraga Correctional Facility (“Baraga”).
18. Defendant Anderson, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 5.
19. Defendant Arp, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Does 1, 5, 8 and 10.
20. Defendant Beesley, Corrections Officer at Baraga, engaged in unlawful retaliation against John Doe 12.
21. Defendant Coburn, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Does 1, 5, 8 and 10.
22. Defendant Conklin, Sergeant at IMAX, engaged in unlawful retaliation against John Doe 12.
23. Defendant Deschaine, Corrections Officer at Baraga, engaged in unlawful retaliation against John Doe 12.
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24. Defendant Erway, ARUS at Oaks, engaged in unlawful retaliation against John Doe 8.
25. Defendant Gollnast, Corrections Officer at Macomb, engaged in unlawful retaliation against John Doe 4.
26. Defendant Hall, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 3.
27. Defendant Hammer, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 3.
28. Defendant Heyrman, Corrections Officer at Baraga Correctional Facility, engaged in unlawful retaliation against John Doe 12.
29. Defendant Hoogewind, Corrections Officer at Michigan Reformatory, engaged in unlawful retaliation against John Doe 2.
30. Defendant Jacobson, Corrections Officer at Baraga, engaged in unlawful retaliation against John Doe 12.
31. Defendant Juranek, Corrections Officer at Alger, engaged in unlawful retaliation against John Doe 9.
32. Defendant Martens, Corrections Officer at IMAX, engaged in unlawful retaliation against John Does 2 and 12.
33. Defendant McLeod, Corrections Officer at IMAX, engaged in unlawful retaliation against John Doe 2.
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34. Defendant Pennell, Corrections Officer at St. Louis, engaged in unlawful retaliation against John Doe 3.
35. Defendant Rogers, ARUS at Michigan Reformatory, engaged in unlawful retaliation against John Doe 2.
36. Defendant Ross, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 5.
37. Defendant Sherwood, Corrections Officer at IMAX, engaged in unlawful retaliation against John Doe 2.
38. Defendant Stambaugh, Corrections Officer at IMAX, engaged in unlawful retaliation against John Does 2 and 12.
39. Defendant Walters, ARUS at Bellamy Creek, engaged in unlawful retaliation against John Does 8 and 10.
40. Defendant Schooley, Deputy Warden at Michigan Reformatory, engaged in unlawful retaliation against John Does 2 and 10.
41. Defendant Stump, Sergeant at Bellamy Creek, engaged in unlawful retaliation against John Doe 3.
42. Defendant Ward, ARUS at Cotton, engaged in unlawful retaliation against John Doe 10.
43. Defendant Kenneth McKee, Warden at Bellamy Creek, engaged in unlawful retaliation against John Does 1, 3, 4, 5, 8 and 10.
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FACTS 44. At all relevant times, the State of Michigan placed children as young as thirteen years of age, including Plaintiffs, in adult prisons under the supervision of the Michigan Department of Corrections (MDOC) without separating them from adult prisoners, despite their known, obvious and substantial vulnerability to harm from sexual and physical abuse by adult prisoners. 45. The MDOC failed to take adequate steps to protect youth under their supervision, failed to comply with the mandates of the federal Prison Rape Elimination Act of 2003 and standards promulgated thereunder. 42 U.S.C. § 15601 et seq; 28 C.F.R. 115.14 et seq. and engaged in discriminatory, abusive and degrading treatment of those youth, including Plaintiffs, under their supervision. Plaintiffs filed a lawsuit against MDOC, supervisory officers and wardens for violation of their rights under the Elliott-Larsen Civil Rights Act (ELCRA), and for federal constitutional violations. The lawsuits were filed in state and federal courts in October and December of 2013. 46. All of the Plaintiffs herein are plaintiffs or class representatives in the state and federal cases, which are on-going. Defendants, and each of them, were aware of Plaintiffs’ participation in the litigation either through proper or improper disclosure of Plaintiffs’ identities.
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47. Plaintiffs suffered the following retaliation by the named Defendants as a result of exercising their First Amendment rights to speak out regarding the violations of their rights as set forth more fully below.
A. JOHN DOE 1 48. John Doe 1 was incarcerated in an adult MDOC prison in early 2012 at
age 17. 49. On March 11, 2013, the Inter-American Commission on Human Rights
held a hearing on the “Human Rights Situation of Children Deprived of Liberty with Adults in the United States.” The hearing was held based on a joint request from the American Civil Liberties Union of Michigan and the International Women’s Human Rights Clinic of the City University of New York, filed on January 10, 2013.
50. John Doe 1 participated in the hearing via a videotaped and written statement submitted to the Commission, and in preparation for the hearing received correspondence and meetings from legal counsel.
51. Following John Doe 1’s preparation for and participation in the InterAmerican Commission Hearing, at which he detailed abuse from staff and adult prisoners, Defendant Coburn, a correctional officer at the Bellamy Creek Correctional Facility, began to enter John Doe 1’s cell on nearly a daily basis to look through his correspondence and legal property, which included correspondence related to potential litigation on sexual abuse of youth in MDOC facilities.
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52. On or about May 28, 2013, Defendant Coburn falsely announced over a loudspeaker that John Doe 1 was “HIV positive and needed to start his treatment.” When John Doe 1 complained, Defendant Coburn told him to “go call his lawyers.”
53. Following the denial of his grievances, Defendant Coburn and Defendant Arp again began entering John Doe 1’s cell on a daily basis, destroying property, including his art work and family pictures.
54. John Doe 1 filed suit on October 15, 2013 and December 9, 2013, alleging violations of his rights for MDOC’s and its officials’ and employees’ deliberate indifference to the safety of youth in their care and custody. The complaint details repeated anal rapes of John Doe 1 by adult male prisoners in his cell and in the shower. The complaint provides facts that over an extended period, corrections officers witnessed men cycling in and out of John Doe 1’s cell, sexually assaulting him. Following the filing of suit, Defendant Coburn entered John Doe 1’s cell and removed all of his legal material.
55. Defendant Coburn, along with Defendant Arp, began targeting John Doe 1 for pat down searches that were physically aggressive and made open statements and comments identifying John Doe 1 as a Plaintiff in the litigation, telling other prisoners which cell he could be found in, and accusing John Doe 1 of filing a false complaint. The statements of Defendants Coburn and Arp were made in front of other prisoners, disclosing John Doe 1’s status as one of the Plaintiffs in
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the litigation, reporting sexual assaults by other prisoners and staff, endangering John Doe 1.
56. In February 2014, John Doe 1 stopped getting legal mail from his attorneys.
57. As a result of all the harassment and retaliation, John Doe 1 requested that he be transferred to a Level I facility, consistent with his true custody level instead of being kept at a Level IV facility. John Doe 1 was advised that he would not be moved because of his participation in the litigation.
58. John Doe 1 believes that this denial and lack of programming due to Level IV placement contributed to the denial of his parole.
59. On or around June 2, 2015, Plaintiff was in the law library typing a letter to his attorneys and Defendant Arp told John Doe 1 to give him the letter. When John Doe 1 refused to give Defendant Arp the confidential communication, Defendant Arp issued John Doe 1 a misconduct. John Doe 1 was advised that he would get less punishment if he did not contest the misconduct. John Doe 1 was then given a 15 day loss of privileges for refusal to give attorney correspondence to Defendant Arp and was barred from the law library for six months. John Doe 1 lost phone calls, visits and recreation. Prior to this retaliatory misconduct John Doe 1 had zero points.
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60. The retaliation against John Doe 1, following his participation in the state and federal court litigation regarding the above abuse, continued until his release as set forth in Count I.
B. JOHN DOE 2 61. John Doe 2 was incarcerated in an adult MDOC prison in early 2011
when he was 16 years old, where he was brutally beaten and raped by his adult cellmate at the Thumb Correctional Facility in Lapeer, Michigan. An MDOC staff member at the Thumb facilitated the abuse and assault by opening John Doe 2’s cell to allow adult prisoners to assault him in his cell, and failed to give him medical treatment despite documented rectal bleeding after the assaults.
62. John Doe 2 filed litigation in the state and federal courts on October 15, 2013 and December 9, 2013, regarding his abuse and as a result, suffered a pattern of retaliatory actions for his participation in these class actions.
63. Beginning in the summer of 2014 at the Michigan Reformatory, John Doe 2 began to have his cell routinely searched and property destroyed and legal material confiscated.
64. During one of the cell searches, Defendant Schooley confiscated Plaintiff’s journal, in which he detailed his ongoing abuse and harassment and turned the journal over to the Assistant Attorney Generals representing the Michigan Department of Corrections.
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65. Defendants Rogers and Hoogewind verbally harassed John Doe 2 and made threats regarding his participation in the litigation. Defendants also publically disclosed his identity and participation in the litigation. After John Doe 2 reported that he was receiving threats from other prisoners due to the disclosure of his identity, Plaintiff was issued a false misconduct, while Defendants taunted him about the litigation.
66. In March 2015, John Doe 2 had his security level increased to Level V and was transferred to administrative segregation at IMAX. In the midst of the transfer, John Doe 2’s property, which contained evidence of sexual abuse and assaults that occurred at Michigan Reformatory, disappeared. Plaintiff filed a grievance on the taking of his property.
67. Upon arrival at IMAX, John Doe 2 was advised by several staff that they have been made aware he is a John Doe in the pending litigation. Defendants Sherwood, Martens, and McLeod harassed John Doe 2 for his participation in the litigation and mocked him for being sexually abused.
68. Defendants initiated a series of retaliatory actions including false misconducts, placement of John Doe 2 on food loaf, excessive room searches during which Plaintiff’s property was destroyed, and legal mail read. Defendant Sherwood refused to give John Doe 2 grievance forms for the above actions, and told him to “tell his lawyers” and “put it in his lawsuit.”
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69. John Doe 2 received grievance forms from another officer and filed grievances for harassment, retaliatory searches and threats by Defendant Sherwood, and other MDOC staff.
70. The harassment and retaliation are ongoing.
C. JOHN DOE 3 71. John Doe 3 was incarcerated in an adult MDOC prison early in the fall
of 2010, when he was 16 years old. He was housed in a unit surrounded by adult prisoners in Jackson, Michigan, resulting in sexual harassment and abuse by adult prisoners. John Doe 3 was then transferred to the Thumb Correctional Facility in Lapeer, Michigan, where he was sexually abused by adult male prisoners on more than three separate occasions.
72. While at the Thumb, John Doe 3 was also abused by MDOC staff who grabbed and pulled John Doe 3’s genitals and sexually abused and harassed John Doe 3 during body searches, while showering and/or performing basic bodily functions.
73. At the age of 17, John Doe 3 was transferred to the Chippewa Correctional Facility, where he was routinely sexually and physically assaulted by correctional staff by having his genitals grabbed and pulled on during body searches and sexually harassed and abused by adult male prisoners.
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74. After John Doe 3 detailed these abuses in state and federal court litigation, John Doe 3 was retaliated against by Defendants for his filing and participation in the litigation.
75. While John Doe 3 was housed at the St. Louis Correctional Facility, in January 2014, staff began making comments about John Doe 3 being a snitch and being involved in the litigation. Plaintiff’s cell was then targeted for searches, and when Plaintiff returned to his cell, his legal documents were spread out in the cell and his family photographs had been thrown in the toilet. Plaintiff was advised that Defendant Pennell performed the search.
76. Defendant Pennell publicly identified John Doe 3 as a Plaintiff in the litigation and began a pattern of harassment and retaliatory actions by ordering John Doe 3 to submit to a shakedown every time he saw him. Pennell also searched his room excessively through January and February 2014. During one of the room searches on February 24, 2014, Plaintiff was required to go in a room for a strip search while his cell was searched. When Plaintiff returned, his journal, which he had been keeping for the litigation, was missing. Plaintiff was never given a contraband slip.
77. When John Doe 3 was later transferred to the Bellamy Creek Correctional Facility he was immediately identified as a John Doe, and Defendant McKee authorized and directed a sign to be posted outside Plaintiff’s cell that read
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“do not interview.” Staff understood this sign as identifying Plaintiff as a John Doe in the sexual abuse lawsuit and staff disclosed this information to other prisoners who harassed and taunted John Doe 3.
78. While at Bellamy Creek, Defendants Hall, Hammer and Stump taunted Plaintiff about his participation in the litigation, physically assaulted him on multiple occasions and excessively searched his cell, ripped up his legal documents, and destroyed property.
79. John Doe 3 filed grievances regarding the room searches, improper treatment of his legal documents, harassment and physical assaults. After John Doe 3 filed grievances against these Defendants, Defendants Stump and Hammer threatened Plaintiff and then issued false misconducts for insolence against John Doe 3 on October 10, 2015.
80. On October 21, 2015, Plaintiff was told to cuff up and placed in a closet before Defendant Stump searched his cell. After the cell search Defendant Hammer alleged that he found a weapon in Plaintiff’s cell resulting in the issuance of a false misconduct and Plaintiff losing his programming and job, endangering his parole.
81. The harassment and retaliation are ongoing.
D. JOHN DOE 4 82. John Doe 4 was 16 years old when he was incarcerated in the Thumb
Correctional Facility, where he was subjected to physical and sexual assaults and
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abuse by MDOC staff including an assault by a female MDOC staff member who repeatedly opened John Doe 4’s cell for purposes of engaging in coerced sexual intercourse with him.
83. John Doe 4, following his participation in the state and federal court litigation regarding the above abuse, has been subjected to a pattern of retaliation at the facilities he was housed in, by the following acts of Defendants:
84. While John Doe 4 was at the Thumb, his identity as a Doe Plaintiff was publically disclosed resulting in humiliation and harassment by staff and other prisoners.
85. Upon his transfer to Macomb, Defendant Gollnast went through his legal property and announced to prisoners and staff that John Doe 4 was claiming he had been raped and that he was a Doe Plaintiff, subjecting Plaintiff to continuing harassment and threats.
86. Upon transfer to Bellamy Creek, Plaintiff was harassed by being issued a false sexual misconduct ticket, interference with attorney telephone calls, and ongoing harassment regarding his status as a John Doe.
87. The harassment and retaliation are ongoing.
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E. JOHN DOE 5 88. John Doe 5 was first incarcerated in an adult MDOC prison in
September of 2011 at the age of 16, where he was placed in a cell with an adult prisoner and physically assaulted and anally raped by his adult cellmate.
89. John Doe 5 was also subjected to humiliating and extreme sexual harassment, comments and sexual touching and abuse by MDOC female staff at the Thumb Correctional Facility and was repeatedly raped in his cell by adult prisoners at LRF. MDOC staff were aware of assaults and aware that adult male prisoners were paying John Doe 5’s cellmate for access to John Doe 5 for purposes of sexually assaulting him. Defendants failed to take any action to intervene to prevent the sexual trafficking of John Doe 5 or protect John Doe 5 from abuse.
90. John Doe 5 was repeatedly sexually abused and sexually harassed at URF and physically assaulted when he attempted to resist. MDOC staff at URF were aware of the abusive conduct directed toward John Doe 5 by adult prisoners, refused to provide him with requested protective custody, and threatened him with disciplinary tickets. After transfer to DRF, John Doe 5 was again sexually abused, assaulted and raped by two adult male prisoners on separate occasions in a shower area.
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91. John Doe 5, following his participation in the state and federal court litigation regarding the above abuse, was subjected to a pattern of retaliation for his participation in the litigation.
92. In preparation for the filing of the litigation, Plaintiffs’ counsel visited, called and exchanged written information with John Doe 5 while he was held at the Bellamy Creek Correctional Facility.
93. On October 10, 2013, Defendant Coburn told John Doe 5 he knew he was filing a lawsuit and his stay was going to be a lot harder. Immediately after the lawsuit was filed and before it was served, Defendant McKee was advised of the lawsuit and the identity of John Doe 5 as a Plaintiff. Defendant McKee subsequently authorized the placement of a “do not interview” sign outside of John Doe 5’s door.
94. John Doe 5 began to receive harassment from Defendant Coburn who identified John Doe to other prisoners and relayed the details of the complaint to other prisoners and staff. Defendant Coburn began shaking down John Doe 5’s cell on a daily basis, either by himself or with the assistance of other officers. After the shakedowns, Plaintiff’s legal materials were left open and spread out across his bed.
95. Defendants Coburn and Arp continued to threaten John Doe 5 about his lawsuit, telling him he should drop it if he ever wanted to go home, refusing to call him out for his work and program details and encouraging other prisoners to take action against him.
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96. Following Defendant Coburn’s and Arp’s actions, Plaintiff John Doe 5 was assaulted by another prisoner and placed in segregation.
97. The person who assaulted John Doe 5 was found guilty of threatening behavior and spent less than a month in segregation. John Doe 5 was held in administrative segregation for nine (9) months for admitting that he warned his assaulter if he ever hit him again he would “slap him.”
98. While in segregation at Bellamy Creek, Defendant Ross refused Plaintiff food and told other prisoners they should pay attention to what happens to John Doe 5, and then decide if it’s worth it to snitch and sue the MDOC. John Doe 5 was told that he was being held in segregation for so long because of the litigation.
99. John Doe 5 continued to have his cell searched, his legal property spread out, and continued to receive harassment and threats regarding his participation in the litigation.
100. Defendant Anderson went through Plaintiff’s legal work and read it out loud to staff and prisoners while Plaintiff was showering. When Plaintiff returned some prisoners were laughing and asking him about the rapes. Others threatened to hurt him for reporting.
101. The harassment and retaliation are ongoing.
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F. JOHN DOE 8 102. John Doe 8 was incarcerated in an adult MDOC prison at the age of 17,
where he was raped in the shower by an adult male prisoner and sexually assaulted and abused by other adult male prisoners. As a result of the sexual abuse, John Doe 8 contracted genital warts.
103. After being sexually assaulted, John Doe 8 spent more than 10 weeks in isolation for protective purposes. He was on suicide watch and has attempted suicide on multiple occasions.
104. John Doe 8, following his participation in the state and federal court litigation regarding the above abuse, was subjected to a pattern of retaliatory acts by Defendants.
105. Prior to John Doe 8 being added as a Plaintiff, counsel met, wrote and spoke to him while incarcerated at the Oaks Correctional Facility. In February 2015, John Doe 8 was added as a Plaintiff and class representative in the pending litigation.
106. Shortly after the attorney communications, John Doe 8 started getting his room shook down. During one period his room was searched five (5) days in a row. After the room searches, Plaintiff’s legal property and papers were left open and strewn around the room. Plaintiff’s personal property was taken and/or destroyed and Plaintiff began to be singled out for minor infractions and issued misconduct tickets.
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107. Plaintiff complained to Defendant Erway regarding harassment. Defendant Erway responded by arranging for Plaintiff’s transfer resulting in the loss of his opportunity to participate in programming required for Plaintiff’s parole.
108. Plaintiff filed a grievance for retaliatory transfer and harassment against Defendant Erway.
109. Upon his transfer to Bellamy Creek, Plaintiff John Doe 8 was subjected to a series of petty misconducts and harassment due to his being a participant in the litigation. Defendant Walters refused Plaintiff’s request for help and protection stating she could not talk to him because he is a John Doe. Defendant Coburn and Defendant Arp verbally harassed and threatened John Doe 8 about the litigation in front of other prisoners and staff. As a result of the harassment and the comments of other prisoners, John Doe 8 believed he was in danger for reporting abuse and participating in the litigation.
110. The harassment and retaliation is ongoing.
G. JOHN DOE 9 111. John Doe 9 was incarcerated in an adult MDOC prison in September
2011 when he was 17 years old. While at Chippewa Correctional Facility, John Doe 9 was targeted with sexual harassment and abuse and threats of violence by an adult prisoner. The adult prisoner would make John Doe 9 clean his shoes and clothes,
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would take his things, and would regularly grope and pull on his genitals and grab his buttocks.
112. John Doe 9 was transferred to Kinross Correctional Facility, where John Doe 9 was threatened with physical violence by older prisoners, and sexually abused by a male MDOC staff member. The staff member took John Doe 9 to remote areas of the prison for strip searches, where he would grope his body and grab his genitals. The male staff member also sexually harassed John Doe 9 while he was showering and/or performing basic bodily functions.
113. While at Kinross, John Doe 9 was anally raped by an adult prisoner in the shower.
114. In October 2014, counsel began meeting with John Doe 9 for purposes of adding him as a Plaintiff and class representative to the on-going litigation. Following these meetings and continuing through John Doe 9’s participation in the state and federal court litigation, he was subjected to a pattern of retaliatory actions by Defendants.
115. After Plaintiff met with Plaintiffs’ counsel, spoke on the telephone and received legal mail, staff at Alger Correctional Facility learned he was involved in the litigation. John Doe 9 began to receive harassment from staff regarding attorney communications, including from Defendant Juranek.
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116. Defendant Juranek subjected Plaintiff to a series of harassing room searches and would degrade John Doe 9 about his involvement in the litigation. When Defendant Juranek would observe Plaintiff in the hallway, he would call over the loudspeaker, “I need the rape victim to report to the bubble, this is a direct order.”
117. As a result of these comments and harassment, Plaintiff John Doe 9 believed he was in danger for his reporting abuse and participation in the litigation. He began to receive threats from other prisoners.
118. The harassment and retaliation are ongoing.
H. JOHN DOE 10 119. John Doe 10 was incarcerated in an adult MDOC prison in late 2010,
when he was 16 years old. He was housed with older adult prisoners who sexually and physically assaulted him at the Thumb Correctional Facility in Lapeer, Michigan.
120. When John Doe 10 was 17 he was transferred to the Saginaw Correctional Facility where he was sexually assaulted in the shower by an older adult prisoner and sexually abused and physically assaulted by other adult prisoners.
121. In October of 2014, counsel began meeting with John Doe 10 for purposes of adding him as a Plaintiff and class representative. Following these meetings and continuing through John Doe 10’s participation in the state and federal court litigation, he was subjected to a pattern of retaliatory actions by Defendants.
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122. After Plaintiff John Doe 10 met with Plaintiffs’ counsel, spoke on the telephone with counsel and received legal mail, staff at Cotton Correctional Facility became aware of Plaintiffs’ involvement in the litigation. Plaintiff John Doe 10, began to receive comments and harassment from staff, including from ARUS Ward regarding his attorney communications.
123. As a result of these comments and comments from other prisoners, Plaintiff John Doe 10 believed he was in danger for his reporting his abuse and participation in the litigation. On or around December 5, 8 and 9, 2014, Plaintiff asked for placement in protective custody. Only after Plaintiff was assaulted by another prisoner was Plaintiff placed in temporary segregation. While in temporary segregation, all Plaintiff’s legal work, papers and property were taken.
124. Plaintiff filed a grievance regarding his loss of property, and requested to be placed in long term protective custody. Defendant Ward harassed Plaintiff regarding the litigation and told John Doe 10 that he wouldn’t have been assaulted if he wasn’t gay, he should be ashamed and why is he still alive. John Doe 10 filed a grievance against Defendant Ward.
125. On or around December 19-22, 2014, John Doe 10 was placed on suicide watch. After release, he received some property but the amended complaint adding John Doe 10 as a Plaintiff was missing.
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126. Plaintiff was subsequently denied a contact visit with his counsel and harassment by other staff and other prisoners increased. John Doe 10’s placement in long term protective custody was denied and he was transferred to Michigan Reformatory.
127. Shortly after his transfer, John Doe 10 was stabbed 27 times by prisoners aware of his John Doe status. John Doe 10 was then placed again in temporary segregation.
128. While in temporary segregation other prisoners threw trash and called him a snitch. Defendant Schooley was aware of the acts of other prisoners and refused to intervene. Defendant advised John Doe 10 that he cannot be placed in long term protective custody without approval of Lansing due to his status as a Doe. Plaintiff was then transferred to Bellamy Creek.
129. On or about April 8, 2014, Plaintiff John Doe 10 participated in a Doe class meeting at Bellamy Creek and three days later Defendant Coburn searched Plaintiff’s cell twice a day during the same shift and Plaintiff’s property was strewn about.
130. On or about April 18, 2014, Defendant Coburn singled out Plaintiff for punishment stating it was because “you’re suing the state and you’re gay.” Defendant Coburn taunted John Doe 10 over the intercom, mocked kissing him, threatened him and stated “now go tell your lawyer.”
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131. Defendants Coburn, Arp and Walters added John Doe 10 to their pattern of harassing John Does in their units by engaging in verbal harassment, punishment and refusing to call Plaintiff out for his detail as a porter, requiring arbitrary pack ups, searching Plaintiff’s cell excessively, and telling other officers to destroy items in Plaintiff’s cell.
132. After John Doe 10 filed grievances for retaliation and harassment, Defendant Coburn and Defendant Arp threatened Plaintiff with misconducts, loss of programs and more time in prison if he complained about retaliation again.
133. The harassment and retaliation are ongoing.
I. JOHN DOE 12
134. John Doe 12 is currently a prisoner at an adult prison under the jurisdiction of the MDOC and was incarcerated at an adult prison in 2010 when he was 17 years old.
135. During his incarceration at the Charles Egeler Reception and Guidance Center (“RGC”), John Doe 12 was surrounded by adult prisoners, where he was targeted with sexual harassment, threatened and placed in isolation when he reported the abuse. John Doe 12 was 17 years old when he was transferred to the Mound Facility in January 2011, where he was sexually abused and raped by two adult prisoners in his cell. As a result of the sexual abuse, John Doe 12 contracted genital warts.
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136. At Alger Correctional Facility, John Doe 12 was sexually harassed, abused, pressured for sex and threatened by adult male prisoners.
137. In May 2015, John Doe 12 met with counsel to discuss joining the federal litigation.
138. Prior to being added as a Plaintiff, John Doe 12 received correspondence and draft legal documents from counsel. On or around March 20, 2015, Plaintiff filed a grievance due to his legal mail related to the federal Doe case being opened out of his presence. Following the opening of his legal mail, Plaintiff’s room began to be searched excessively and his property and legal material destroyed while housed at the Baraga Facility. Plaintiff filed a grievance against Defendant Beesley for destructive searches and threatening comments against Plaintiff and other youth for bringing the lawsuit.
139. During the May attorney visit, Defendant Beesley encouraged other staff to flip John Doe 12’s cell. John Doe 12 returned to find shampoo poured over his family pictures and his cell in disarray. Defendant Beesley threatened John Doe 12 if he continued with the litigation.
140. After Plaintiff filed a grievance for excessive cell searches and harassment, Defendant Beesley retaliated by physically assaulting Plaintiff and telling him to keep Defendant Beesley’s name and any other correctional officer’s names out of his litigation.
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141. After Plaintiff joined the litigation, Defendants Deschaine and Heyrman told other prisoners and staff that John Doe 12 claimed he had been raped before and mocked and taunted him with more abuse. Plaintiff John Doe 12 continued to receive destructive cell searches, loss of legal property, denial of privileges and threats from Defendants about the litigation.
142. Plaintiff John Doe 12 was placed on a grievance restriction on or around June 23, 2015 because of the grievances he had filed, and other staff advised him that they will side with Defendant Beesley.
143. On or around June 29, 2015, Defendant Jacobson physically assaulted Plaintiff, ordered him to strip and forced him to expose himself to other prisoners during a shakedown while Plaintiff was using the bathroom. Plaintiff’s room was then destroyed and Defendant Jacobson told Plaintiff to stop grieving Defendant Beesley, stating “see what your lawyer is getting you into?”
144. Plaintiff’s attempts to file grievances were rejected. 145. Plaintiff was transferred to IMAX where Defendant Conklin taunted him about his status as a John Doe and warned him about being involved in the litigation. Later that day, Plaintiff was gassed by Defendant Conklin, and placed in hard restraints during the time he was scheduled for a visit with his attorney.
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146. At IMAX, Defendants Marten and Stambaugh told Plaintiff they knew he was a John Doe and a “butt boy” and made threatening statements regarding his filing a lawsuit against MDOC and getting staff in trouble.
147. The harassment and retaliation are ongoing.
COUNT I First Amendment Retaliation
42 U.S.C. § 1983 148. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 149. Plaintiffs engaged in constitutionally protected conduct, and had a clearly established constitutional right to be free from retaliation by Defendants, for filing a lawsuit against MDOC and prison officials complaining about their conditions of confinement and for speaking to the press regarding those claims. 150. Defendants were aware of the fact that Plaintiffs engaged in this protected activity. 151. Following the filing of the state and/or federal court lawsuits, and/or participation in attorney meetings in connection with those cases, Defendants, acting with indifference with regards to Plaintiffs’ federally protected rights, targeted Plaintiffs because they engaged in protected activity in the following ways:
a. Plaintiff John Does have been subjected to verbal abuse, and called degrading names such as “bitch,” “fag,” “rat,” and “butt boy” by
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Defendants in regards to their participation in the litigation. Many of these comments, as well as references to the Plaintiffs’ participation in the litigation, were made in front of other prisoners and MDOC staff, resulting in abusive questioning and threats of harm directed toward Plaintiffs. b. Since their attendance at meetings with counsel in the litigation, Plaintiffs who attended the meetings have been mocked and harassed by Defendants in regards to their involvement in the litigation. c. Plaintiff John Does have had their identity exposed by Defendants, resulting in increased threats and harm. d. Plaintiff John Does have been subjected to excessive cell searches since their involvement in the litigation. e. During the searches Defendants removed legal documents from the possession of Plaintiff John Does. On multiple occasions, MDOC staff have read portions of the documents out loud to other prisoners and staff, disclosing the content of Plaintiffs’ deposition testimony to staff and prisoners. f. Legal documents were taken from John Doe 2’s possession by Defendant Deputy Warden Schooley at Michigan Reformatory, which were turned over to Defendant’s counsel for use in the litigation.
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g. While John Doe 5 was in the shower, a corrections officer at IBC (Defendant Anderson) went through his legal work and read it aloud to MDOC staff and other prisoners. When John Doe 5 returned, prisoners were laughing and asking questions about the abuse he experienced.
h. Defendants have threatened and taunted Plaintiffs and class members about their involvement in this litigation.
i. John Doe 5 was held in solitary confinement at IBC for nine months as a result of reporting sexual abuse by another prisoner to MDOC staff. Following the nine months in solitary, John Doe 5 was moved to Oaks Correctional Facility, where he was placed in the same unit as one of the individual perpetrators who he had identified in his deposition. That perpetrator subsequently began harassing John Doe 5 and asking why he “told on him.”
j. John Doe Plaintiffs have been subjected to increased strip searches and pat downs, room searches and excessive punishment, and verbal harassment and threats.
k. John Doe Plaintiffs have been targeted for a greater number of body and room searches, and have experienced increased intrusiveness in those searches. The searches often occur in or around attorney communications (attendance at class meetings, receipt of legal mail,
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attorney-client telephone calls or visits from attorneys). During cell searches, legal documents have been read, ripped up and thrown around Plaintiffs’ cells. l. John Doe Plaintiffs have been harassed by Defendants about the content of attorney-client communications and group meetings, and their involvement and claims in this litigation. m. Following an attorney visit at Bellamy Creek, John Doe 5 was required to perform a strip search, during which he was questioned about this litigation. n. John Doe Plaintiffs have been targeted for improper misconduct tickets. For example, John Doe 1 was issued a Class II misconduct ticket for refusing to allow a corrections officer to read a letter being typed to his attorney, and John Doe 10 was issued a Class II misconduct ticket for Interference with Administrative Rules after filing a grievance on retaliatory harassment by MDOC staff at Bellamy Creek that could not be substantiated. o. John Does 1, 2, 3, 5, 8, and 10 have also been targeted for minor rule infractions normally overlooked by staff. By way of example, John Doe 8 was issued a Class III misconduct ticket for handing noodles to another prisoner; John Doe 3 was issued a Class III misconduct ticket
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for giving leftover food from his tray to another prisoner in the chow hall; and John Doe 10 was issued a Class III misconduct ticket for taking a small amount of food from the chow hall. 152. Defendants’ actions have resulted in harm to Plaintiffs including physical and emotional harm and harsher terms of confinement. Defendants’ actions have also been intended to and have in fact interfered with the prosecution of the state and federal litigation, and have discouraged Plaintiffs’ as well as other class members’ participation in the litigation and willingness to speak out about abuses they have experienced. To that end, Defendants’ actions would deter a person of ordinary firmness from continuing to engage in the protected conduct. 153. Defendants’ actions against Plaintiffs were the proximate cause of the violations of federally protected First Amendment rights. 154. At all relevant times, Defendants acted under color of state law, using their positions of power, title and authority to unlawfully retaliate against Plaintiffs. 155. There was no legitimate government interest in the retaliation and otherwise unlawful conduct against Plaintiffs. 156. Defendants’ unlawful acts violated Plaintiffs’ clearly established constitutional rights, including the right to be free from retaliation for filing a lawsuit against prison officials and for speaking with the press about abuses in prison. 157. It would be clear to a reasonable officer that such conduct was unlawful.
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158. Plaintiffs continue to suffer harm as a result of Defendants’ misconduct. 159. The retaliatory acts and harassment against John Does 2, 3, 4, 5, 8, 9, 10 and 12 is ongoing.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court: A. Award damages to Plaintiffs for harm caused by Defendants’ violations of law, including punitive and exemplary damages where appropriate; B. Enjoin Defendants from further acts of retaliation against Plaintiffs; C. Establish a process for independent reporting and review of misconducts issued against Plaintiffs to determine if the misconducts are retaliatory. D. Establish a procedure for direct review and response to Plaintiffs’ grievances regarding retaliatory acts; and E. Award the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees and costs. F. Other relief as justice requires.
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Respectfully submitted,

/s/ Deborah LaBelle
DEBORAH LaBELLE (P31595) ANLYN ADDIS (P76568) Attorneys for Plaintiffs 221 N Main St., Ste. 300 Ann Arbor, MI 48104 (734) 996-5620 deblabelle@aol.com aaddis@sbcglobal.net

/s/ Richard A. Soble
RICHARD A. SOBLE (P32716) SOBLE ROWE KRICHBAUM LLP Attorneys for Plaintiffs 221 N Main St., Ste. 200 Ann Arbor, MI 48104 Phone: (734) 996-5600 dick@srkllp.com

/s/ Michael L. Pitt
MICHAEL L. PITT(P24429) PEGGY GOLDBERG PITT (P31407) CARY S. McGEHEE (P42318) Pitt McGehee Palmer Rivers & Golden PC Attorneys for Plaintiffs 117 W 4th St., Ste. 200 Royal Oak, MI 48067 Phone: (248) 398-9800 mpitt@pittlawpc.com ppitt@pittlawpc.com cmcgehee@pittlawpc.com

/s/ Jennifer B. Salvatore
JENNIFER B. SALVATORE (P66640) NAKISHA CHANEY (P65066) NACHT, ROUMEL & SALVATORE, P.C. Attorneys for Plaintiffs 101 N. Main Street, Ste. 555 Ann Arbor, Michigan 48104 (734) 663-7550 jsalvatore@nachtlaw.com nchaney@nachtlaw.com

Date: November 2, 2015
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DEMAND FOR TRIAL BY JURY NOW COME Plaintiffs, by and through their counsel, and hereby demand a trial by jury as to all of those issues so triable as of right.
Respectfully submitted,

/s/ Deborah LaBelle
DEBORAH LaBELLE (P31595) Attorneys for Plaintiffs 221 N Main St., Ste. 300 Ann Arbor, MI 48104 (734) 996-5620 deblabelle@aol.com aaddis@sbcglobal.net

/s/ Richard A. Soble
RICHARD A. SOBLE (P32716) SOBLE ROWE KRICHBAUM LLP Attorneys for Plaintiffs 221 N Main St., Ste. 200 Ann Arbor, MI 48104 Phone: (734) 996-5600 dick@srkllp.com

/s/ Michael L. Pitt
MICHAEL L. PITT(P24429) PEGGY GOLDBERG PITT (P31407) CARY S. McGEHEE (P42318) Pitt McGehee Palmer Rivers & Golden PC Attorneys for Plaintiffs 117 W 4th St., Ste. 200 Royal Oak, MI 48067 Phone: (248) 398-9800 mpitt@pittlawpc.com ppitt@pittlawpc.com cmcgehee@pittlawpc.com

/s/ Jennifer B. Salvatore
JENNIFER B. SALVATORE (P66640) NAKISHA CHANEY (P65066) NACHT, ROUMEL & SALVATORE, P.C. Attorneys for Plaintiffs 101 N. Main Street, Ste. 555 Ann Arbor, Michigan 48104 (734) 663-7550 jsalvatore@nachtlaw.com nchaney@nachtlaw.com

38

 
 Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3891 Page 1 of 39

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN DOE 4; JOHN DOE 5; JOHN DOE 8; JOHN DOE 9; JOHN DOE 10 and JOHN DOE 12,

No. 2:15-cv-13852

Plaintiffs,

HON. ARTHUR J. TARNOW

vs.

MAG. MONA K. MAJZOUB

DUSTIN ANDERSON; SCOTT ARP; NOAH THIRD AMENDED BEESLEY; ADAM COBURN; SERGEANT COMPLAINT CONKLIN; CO DESCHAINE; JASON ERWAY; CHARLES GOLLNAST; MICHAEL HALL; CO HAMMER; DUANE HEYRMAN; TAMI HOOGEWIND; ERIK JACOBSON; EDWARD JURANEK; JOSEPH MARTENS; CO MCLEOD; CODY PENNELL; AIMEE ROGERS; CO ROSS; CO SHERWOOD; RONALD STAMBAUGH; GRETCHEN WALTERS; SCOTT SCHOOLEY; GARY STUMP; MATTHEW WARD; WARDEN KENNETH MCKEE; and HEIDI WASHINGTON, Director, Michigan Department of Corrections, (Defendant Washington is named in her official capacity),

Defendants.

DEBORAH LaBELLE (P31595) JENNIFER B. SALVATORE

ANLYN ADDIS (P76568)

(P66640)

Attorneys for the Plaintiffs

SARAH S. PRESCOTT (P70510)

221 N. Main St., Ste. 300

NAKISHA N. CHANEY (P65066)

Ann Arbor, MI 48104

Salvatore Prescott & Porter, PLLC

(734) 996-5620

Attorneys for the Plaintiffs

deblabelle@aol.com

105 E. Main Street

aaddis@sbcglobal.net

Northville, MI 48167

Phone: (248) 679-8711

salvatore@spplawyers.com

prescott@spplawyers.com

chaney@spplawyers.com

RICHARD A. SOBLE (P20766) SOBLE ROWE KRICHBAUM, LLP Attorneys for Plaintiffs 302 E. Liberty Street Ann Arbor, MI 48104 (734) 996-5600 dick@srkllp.com

Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3892 Page 2 of 39

MICHAEL L. PITT (P24429) PEGGY GOLDBERG PITT (P31407) CARY S. McGEHEE (P42318) Attorneys for the Plaintiffs 117 W. 4th St., Ste. 200 Royal Oak, MI 48067 (248) 398-9800 mpitt@pittlawpc.com ppitt@pittlawpc.com cmcgehee@pittlawpc.com

MICHAEL F. MURPHY (P29213) MICHAEL R. DEAN (P71333) ADAM L.S. FRACASSI (P79546) Assistant Attorneys General Attorneys for Defendants P.O. Box 30736 Lansing, Michigan 48909 (517) 373-6434 murphym2@michigan.gov deanm2@michigan.gov fracassia@michigan.gov

THIRD AMENDED COMPLAINT

Plaintiffs, through their attorneys, submit this Third Amended Complaint and

state the following:

INTRODUCTORY STATEMENT

1. During the spring of 2013, Plaintiffs, youth under the age of 18 housed

in adult prisons in Michigan, participated in an inquiry conducted by the Inter-

American Commission on Human Rights, which resulted in a hearing focused on

the violations of human rights of Michigan children held in adult prisons. John Doe

1 testified at the hearing via a video conference tape and written submission.

Following the exposure of the mistreatment of youth in Michigan facilities, these

Plaintiffs filed litigation, on behalf of themselves and as class representatives on

behalf of children confined in adult prisons operated by the Michigan Department

of Corrections (MDOC), alleging sexual and physical abuse by adult prisoners and

MDOC staff.

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2. On October 15, 2013 and December 9, 2013, Plaintiffs engaged in protected activity by exercising their 1st and 6th Amendment rights to file civil rights litigation against the MDOC, supervisory officials and Wardens in federal and state court, in the Washtenaw Circuit Court, Case No. 13-1196-CZ and in Federal Court in the Eastern District of Michigan, Case No. 13-14356.
3. Due to the personal nature of the allegations involving rapes and sexual abuse of Plaintiffs by MDOC staff and other prisoners as incarcerated youth, and the specter of retaliation by both staff and adult prisoners for public disclosure of the abuse, the state and federal courts issued orders allowing Plaintiffs to proceed anonymously as John Does. Protective Orders were also issued in the state court action limiting the disclosure of Plaintiffs’ names to specific circumstances that would allow Defendants to defend the litigation.
4. Despite these orders allowing Plaintiffs to proceed anonymously, there was a pattern and practice by the Defendants of disclosing Plaintiffs’ identities to MDOC staff and other prisoners as a retaliatory action that subjected Plaintiffs to threats, physical injury, severe emotional distress, and further retaliatory actions for their participation in the class action litigation addressing abuse of youthful prisoners.
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5. The disclosure of Plaintiffs in a manner that subjected them to further abuse and harm was part of a concerted effort to deter Plaintiffs and other class members from participating in this litigation.
6. Defendants engaged in retaliatory acts against Plaintiffs for exposing the abuse of youth by MDOC staff or abuse which MDOC staff, including Defendants, facilitated or failed to intervene to prevent. The retaliation included retaliatory transfers, prolonged isolation, destruction of legal and other property, denial of visits, false misconduct tickets, excessive and destructive room searches, verbal harassment and threats, excessive pat-downs, interference with attorney communications, knowingly placing Plaintiffs in situations likely to cause them harm, and intentional disclosure of Plaintiffs’ identities within the prison system, making them more vulnerable to abuse.
7. Each of the Defendants have initiated, facilitated, and/or participated in the retaliation experienced by Plaintiffs.
8. Plaintiffs bring this Complaint seeking damages and injunctive relief for violations of their First Amendment rights.
JURISDICTION AND VENUE 9. This Complaint arises from retaliation experienced by Plaintiffs at MDOC facilities located in Jackson, Macomb, Gratiot, Lapeer, Ionia, Manistee, and Baraga counties, where Plaintiffs have been housed at various times.
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10. This Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§1331 and 1343 and pursuant to 42 U.S.C. §1983. This action arose under the First Amendment to the United States Constitution.
11. Joinder of the parties is appropriate pursuant to Fed. R. Civ. Pro. 19 and/or 20.
12. The amount in controversy in this case exceeds $75,000. 13. Venue is appropriate in this court under 28 U.S.C. §1391(b) because a Defendant resides in this District, and some of the events and occurrences occurred in this District.
PARTIES A. PLAINTIFFS
14. Plaintiffs are citizens of the United States and at all relevant times were children when they were placed in facilities under the jurisdiction of the MDOC. Plaintiffs brought legal claims initiated in 2013 on behalf of themselves and a class of youthful prisoners held in adult correctional facilities under the jurisdiction of the Michigan Department of Corrections against the Governor, the Michigan Department of Corrections and its supervisors and wardens.
15. Plaintiffs were retaliated against by Defendants for their participation in the litigation, which challenged the sexual and physical abuse and neglect by MDOC staff and sexual and physical abuse at the hands of adult prisoners.
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16. Plaintiffs are all currently incarcerated in MDOC facilities. B. DEFENDANTS
17. Defendants are corrections officers and other MDOC officials who engaged in retaliatory conduct against one or more of the Plaintiffs because of Plaintiffs’ exercise of protected conduct—filing and participation in litigation against the MDOC. The retaliation occurred at the following MDOC facilities: Robert G. Cotton Correctional Facility (“Cotton”); Oaks Correctional Facility (“Oaks”); Bellamy Creek Correctional Facility (“Bellamy Creek”); Ionia Maximum Correctional Facility (“IMAX”); Macomb Correctional Facility (“Macomb”); Michigan Reformatory (“Michigan Reformatory”); St. Louis Correctional Facility (“St. Louis”); Alger Correctional Facility (“Alger”); and Baraga Correctional Facility (“Baraga”).
18. Defendant Anderson, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 5.
19. Defendant Arp, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Does 1, 5, 8 and 10.
20. Defendant Beesley, Corrections Officer at Baraga, engaged in unlawful retaliation against John Doe 12.
21. Defendant Coburn, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Does 1, 5, 8 and 10.
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22. Defendant Conklin, Sergeant at IMAX, engaged in unlawful retaliation against John Doe 12.
23. Defendant Deschaine, Corrections Officer at Baraga, engaged in unlawful retaliation against John Doe 12.
24. Defendant Erway, ARUS at Oaks, engaged in unlawful retaliation against John Doe 8.
25. Defendant Gollnast, Corrections Officer at Macomb, engaged in unlawful retaliation against John Doe 4.
26. Defendant Hall, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 3.
27. Defendant Hammer, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 3.
28. Defendant Heyrman, Corrections Officer at Baraga Correctional Facility, engaged in unlawful retaliation against John Doe 12.
29. Defendant Hoogewind, Corrections Officer at Michigan Reformatory, engaged in unlawful retaliation against John Doe 2.
30. Defendant Jacobson, Corrections Officer at Baraga, engaged in unlawful retaliation against John Doe 12.
31. Defendant Juranek, Corrections Officer at Alger, engaged in unlawful retaliation against John Doe 9.
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32. Defendant Martens, Corrections Officer at IMAX, engaged in unlawful retaliation against John Does 2 and 12.
33. Defendant McLeod, Corrections Officer at IMAX, engaged in unlawful retaliation against John Doe 2.
34. Defendant Pennell, Corrections Officer at St. Louis, engaged in unlawful retaliation against John Doe 3.
35. Defendant Rogers, ARUS at Michigan Reformatory, engaged in unlawful retaliation against John Doe 2.
36. Defendant Ross, Corrections Officer at Bellamy Creek, engaged in unlawful retaliation against John Doe 5.
37. Defendant Sherwood, Corrections Officer at IMAX, engaged in unlawful retaliation against John Doe 2.
38. Defendant Stambaugh, Corrections Officer at IMAX, engaged in unlawful retaliation against John Does 2 and 12.
39. Defendant Walters, ARUS at Bellamy Creek, engaged in unlawful retaliation against John Does 8 and 10.
40. Defendant Schooley, Deputy Warden at Michigan Reformatory, engaged in unlawful retaliation against John Does 2 and 10.
41. Defendant Stump, Sergeant at Bellamy Creek, engaged in unlawful retaliation against John Doe 3.
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42. Defendant Ward, ARUS at Cotton, engaged in unlawful retaliation against John Doe 10.
43. Defendant Kenneth McKee, Warden at Bellamy Creek, engaged in unlawful retaliation against John Does 1, 3, 4, 5, 8 and 10.
44. Defendant Heidi Washington is the Director of the Michigan Department of Corrections. Her duties and responsibilities include developing and implementing policies and procedures for the operation and management of the Michigan Department of Corrections and its employees. She is responsible for the care, custody and protection of prisoners under the jurisdiction of the Michigan Department of Corrections. Plaintiffs seek injunctive relief only against Defendant Washington.
FACTS 45. At all relevant times, the State of Michigan placed children as young as thirteen years of age, including Plaintiffs, in adult prisons under the supervision of the Michigan Department of Corrections (MDOC) without separating them from adult prisoners, despite their known, obvious and substantial vulnerability to harm from sexual and physical abuse by adult prisoners. 46. The Defendants failed to take adequate steps to protect youth under their supervision, failed to comply with the mandates of the federal Prison Rape Elimination Act of 2003 and standards promulgated thereunder. 42 U.S.C. § 15601
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et seq; 28 C.F.R. 115.14 et seq. and engaged in discriminatory, abusive and degrading treatment of those youth, including Plaintiffs, under their supervision. Plaintiffs filed a lawsuit against MDOC, supervisory officers and wardens for violation of their rights under the Elliott-Larsen Civil Rights Act (ELCRA), and for federal constitutional violations. The lawsuits were filed in state and federal courts in October and December of 2013.
47. All of the Plaintiffs herein are plaintiffs or class representatives in the state and federal cases, which are on-going. Defendants, and each of them, were aware of Plaintiffs’ participation in the litigation either through proper or improper disclosure of Plaintiffs’ identities.
48. Plaintiffs suffered the following retaliation by the named Defendants as a result of exercising their First Amendment rights to speak out regarding the violations of their rights as set forth more fully below.
A. JOHN DOE 1 49. John Doe 1 was incarcerated in an adult MDOC prison in early 2012 at
age 17. 50. On March 11, 2013, the Inter-American Commission on Human Rights
held a hearing on the “Human Rights Situation of Children Deprived of Liberty with Adults in the United States.” The hearing was held based on a joint request from the
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American Civil Liberties Union of Michigan and the International Women’s Human Rights Clinic of the City University of New York, filed on January 10, 2013.
51. John Doe 1 participated in the hearing via a videotaped and written statement submitted to the Commission, and in preparation for the hearing received correspondence and meetings from legal counsel.
52. Following John Doe 1’s preparation for and participation in the InterAmerican Commission Hearing, at which he detailed abuse from staff and adult prisoners, Defendant Coburn, a correctional officer at the Bellamy Creek Correctional Facility, began to enter John Doe 1’s cell on nearly a daily basis to look through his correspondence and legal property, which included correspondence related to potential litigation on sexual abuse of youth in MDOC facilities.
53. On or about May 28, 2013, Defendant Coburn falsely announced over a loudspeaker that John Doe 1 was “HIV positive and needed to start his treatment.” When John Doe 1 complained, Defendant Coburn told him to “go call his lawyers.”
54. Following the denial of his grievances, Defendant Coburn and Defendant Arp again began entering John Doe 1’s cell on a daily basis, destroying property, including his art work and family pictures.
55. John Doe 1 filed suit on October 15, 2013 and December 9, 2013, alleging violations of his rights for MDOC’s and its officials’ and employees’ deliberate indifference to the safety of youth in their care and custody. The
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complaint details repeated anal rapes of John Doe 1 by adult male prisoners in his cell and in the shower. The complaint provides facts that over an extended period, corrections officers witnessed men cycling in and out of John Doe 1’s cell, sexually assaulting him. Following the filing of suit, Defendant Coburn entered John Doe 1’s cell and removed all of his legal material.
56. Defendant Coburn, along with Defendant Arp, began targeting John Doe 1 for pat down searches that were physically aggressive and made open statements and comments identifying John Doe 1 as a Plaintiff in the litigation, telling other prisoners which cell he could be found in, and accusing John Doe 1 of filing a false complaint. The statements of Defendants Coburn and Arp were made in front of other prisoners, disclosing John Doe 1’s status as one of the Plaintiffs in the litigation, reporting sexual assaults by other prisoners and staff, endangering John Doe 1.
57. In February 2014, John Doe 1 stopped getting legal mail from his attorneys.
58. As a result of all the harassment and retaliation, John Doe 1 requested that he be transferred to a Level I facility, consistent with his true custody level instead of being kept at a Level IV facility. John Doe 1 was advised that he would not be moved because of his participation in the litigation.
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59. John Doe 1 believes that this denial and lack of programming due to Level IV placement contributed to the denial of his parole.
60. On or around June 2, 2015, Plaintiff was in the law library typing a letter to his attorneys and Defendant Arp told John Doe 1 to give him the letter. When John Doe 1 refused to give Defendant Arp the confidential communication, Defendant Arp issued John Doe 1 a misconduct. John Doe 1 was advised that he would get less punishment if he did not contest the misconduct. John Doe 1 was then given a 15 day loss of privileges for refusal to give attorney correspondence to Defendant Arp and was barred from the law library for six months. John Doe 1 lost phone calls, visits and recreation. Prior to this retaliatory misconduct John Doe 1 had zero points.
61. The retaliation against John Doe 1, following his participation in the state and federal court litigation regarding the above abuse, continued until his release as set forth in Count I. B. JOHN DOE 2
62. John Doe 2 was incarcerated in an adult MDOC prison in early 2011 when he was 16 years old, where he was brutally beaten and raped by his adult cellmate at the Thumb Correctional Facility in Lapeer, Michigan. An MDOC staff member at the Thumb facilitated the abuse and assault by opening John Doe 2’s cell
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to allow adult prisoners to assault him in his cell, and failed to give him medical treatment despite documented rectal bleeding after the assaults.
63. John Doe 2 filed litigation in the state and federal courts on October 15, 2013 and December 9, 2013, regarding his abuse and as a result, suffered a pattern of retaliatory actions for his participation in these class actions.
64. Beginning in the summer of 2014 at the Michigan Reformatory, John Doe 2 began to have his cell routinely searched and property destroyed and legal material confiscated.
65. During one of the cell searches, Defendant Schooley confiscated Plaintiff’s journal, in which he detailed his ongoing abuse and harassment and turned the journal over to the Assistant Attorney Generals representing the Michigan Department of Corrections.
66. Defendants Rogers and Hoogewind verbally harassed John Doe 2 and made threats regarding his participation in the litigation. Defendants also publically disclosed his identity and participation in the litigation. After John Doe 2 reported that he was receiving threats from other prisoners due to the disclosure of his identity, Plaintiff was issued a false misconduct, while Defendants taunted him about the litigation.
67. In March 2015, John Doe 2 had his security level increased to Level V and was transferred to administrative segregation at IMAX. In the midst of the
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transfer, John Doe 2’s property, which contained evidence of sexual abuse and assaults that occurred at Michigan Reformatory, disappeared. Plaintiff filed a grievance on the taking of his property.
68. Upon arrival at IMAX, John Doe 2 was advised by several staff that they have been made aware he is a John Doe in the pending litigation. Defendants Sherwood, Martens, and McLeod harassed John Doe 2 for his participation in the litigation and mocked him for being sexually abused.
69. Defendants initiated a series of retaliatory actions including false misconducts, placement of John Doe 2 on food loaf, excessive room searches during which Plaintiff’s property was destroyed, and legal mail read. Defendant Sherwood refused to give John Doe 2 grievance forms for the above actions, and told him to “tell his lawyers” and “put it in his lawsuit.”
70. John Doe 2 received grievance forms from another officer and filed grievances for harassment, retaliatory searches and threats by Defendant Sherwood, and other MDOC staff.
71. The harassment and retaliation are ongoing. C. JOHN DOE 3
72. John Doe 3 was incarcerated in an adult MDOC prison early in the fall of 2010, when he was 16 years old. He was housed in a unit surrounded by adult prisoners in Jackson, Michigan, resulting in sexual harassment and abuse by adult
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prisoners. John Doe 3 was then transferred to the Thumb Correctional Facility in Lapeer, Michigan, where he was sexually abused by adult male prisoners on more than three separate occasions.
73. While at the Thumb, John Doe 3 was also abused by MDOC staff who grabbed and pulled John Doe 3’s genitals and sexually abused and harassed John Doe 3 during body searches, while showering and/or performing basic bodily functions.
74. At the age of 17, John Doe 3 was transferred to the Chippewa Correctional Facility, where he was routinely sexually and physically assaulted by correctional staff by having his genitals grabbed and pulled on during body searches and sexually harassed and abused by adult male prisoners.
75. After John Doe 3 detailed these abuses in state and federal court litigation, John Doe 3 was retaliated against by Defendants for his filing and participation in the litigation.
76. While John Doe 3 was housed at the St. Louis Correctional Facility, in January 2014, staff began making comments about John Doe 3 being a snitch and being involved in the litigation. Plaintiff’s cell was then targeted for searches, and when Plaintiff returned to his cell, his legal documents were spread out in the cell and his family photographs had been thrown in the toilet. Plaintiff was advised that Defendant Pennell performed the search.
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77. Defendant Pennell publicly identified John Doe 3 as a Plaintiff in the litigation and began a pattern of harassment and retaliatory actions by ordering John Doe 3 to submit to a shakedown every time he saw him. Pennell also searched his room excessively through January and February 2014. During one of the room searches on February 24, 2014, Plaintiff was required to go in a room for a strip search while his cell was searched. When Plaintiff returned, his journal, which he had been keeping for the litigation, was missing. Plaintiff was never given a contraband slip.
78. When John Doe 3 was later transferred to the Bellamy Creek Correctional Facility he was immediately identified as a John Doe, and Defendant McKee authorized and directed a sign to be posted outside Plaintiff’s cell that read “do not interview.” Staff understood this sign as identifying Plaintiff as a John Doe in the sexual abuse lawsuit and staff disclosed this information to other prisoners who harassed and taunted John Doe 3.
79. While at Bellamy Creek, Defendants Hall, Hammer and Stump taunted Plaintiff about his participation in the litigation, physically assaulted him on multiple occasions and excessively searched his cell, ripped up his legal documents, and destroyed property.
80. John Doe 3 filed grievances regarding the room searches, improper treatment of his legal documents, harassment and physical assaults. After John Doe
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3 filed grievances against these Defendants, Defendants Stump and Hammer threatened Plaintiff and then issued false misconducts for insolence against John Doe 3 on October 10, 2015.
81. On October 21, 2015, Plaintiff was told to cuff up and placed in a closet before Defendant Stump searched his cell. After the cell search Defendant Hammer alleged that he found a weapon in Plaintiff’s cell resulting in the issuance of a false misconduct and Plaintiff losing his programming and job, endangering his parole.
82. The harassment and retaliation are ongoing. D. JOHN DOE 4
83. John Doe 4 was 16 years old when he was incarcerated in the Thumb Correctional Facility, where he was subjected to physical and sexual assaults and abuse by MDOC staff including an assault by a female MDOC staff member who repeatedly opened John Doe 4’s cell for purposes of engaging in coerced sexual intercourse with him.
84. John Doe 4, following his participation in the state and federal court litigation regarding the above abuse, has been subjected to a pattern of retaliation at the facilities he was housed in, by the following acts of Defendants:
85. While John Doe 4 was at the Thumb, his identity as a Doe Plaintiff was publically disclosed resulting in humiliation and harassment by staff and other prisoners.
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86. Upon his transfer to Macomb, Defendant Gollnast went through his legal property and announced to prisoners and staff that John Doe 4 was claiming he had been raped and that he was a Doe Plaintiff, subjecting Plaintiff to continuing harassment and threats.
87. Upon transfer to Bellamy Creek, Plaintiff was harassed by being issued a false sexual misconduct ticket, interference with attorney telephone calls, and ongoing harassment regarding his status as a John Doe.
88. The harassment and retaliation are ongoing. E. JOHN DOE 5
89. John Doe 5 was first incarcerated in an adult MDOC prison in September of 2011 at the age of 16, where he was placed in a cell with an adult prisoner and physically assaulted and anally raped by his adult cellmate.
90. John Doe 5 was also subjected to humiliating and extreme sexual harassment, comments and sexual touching and abuse by MDOC female staff at the Thumb Correctional Facility and was repeatedly raped in his cell by adult prisoners at LRF. MDOC staff were aware of assaults and aware that adult male prisoners were paying John Doe 5’s cellmate for access to John Doe 5 for purposes of sexually assaulting him. Defendants failed to take any action to intervene to prevent the sexual trafficking of John Doe 5 or protect John Doe 5 from abuse.
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91. John Doe 5 was repeatedly sexually abused and sexually harassed at URF and physically assaulted when he attempted to resist. MDOC staff at URF were aware of the abusive conduct directed toward John Doe 5 by adult prisoners, refused to provide him with requested protective custody, and threatened him with disciplinary tickets. After transfer to DRF, John Doe 5 was again sexually abused, assaulted and raped by two adult male prisoners on separate occasions in a shower area.
92. John Doe 5, following his participation in the state and federal court litigation regarding the above abuse, was subjected to a pattern of retaliation for his participation in the litigation.
93. In preparation for the filing of the litigation, Plaintiffs’ counsel visited, called and exchanged written information with John Doe 5 while he was held at the Bellamy Creek Correctional Facility.
94. On October 10, 2013, Defendant Coburn told John Doe 5 he knew he was filing a lawsuit and his stay was going to be a lot harder. Immediately after the lawsuit was filed and before it was served, Defendant McKee was advised of the lawsuit and the identity of John Doe 5 as a Plaintiff. Defendant McKee subsequently authorized the placement of a “do not interview” sign outside of John Doe 5’s door.
95. John Doe 5 began to receive harassment from Defendant Coburn who identified John Doe to other prisoners and relayed the details of the complaint to
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other prisoners and staff. Defendant Coburn began shaking down John Doe 5’s cell on a daily basis, either by himself or with the assistance of other officers. After the shakedowns, Plaintiff’s legal materials were left open and spread out across his bed.
96. Defendants Coburn and Arp continued to threaten John Doe 5 about his lawsuit, telling him he should drop it if he ever wanted to go home, refusing to call him out for his work and program details and encouraging other prisoners to take action against him.
97. Following Defendant Coburn’s and Arp’s actions, Plaintiff John Doe 5 was assaulted by another prisoner and placed in segregation.
98. The person who assaulted John Doe 5 was found guilty of threatening behavior and spent less than a month in segregation. John Doe 5 was held in administrative segregation for nine (9) months for admitting that he warned his assaulter if he ever hit him again he would “slap him.”
99. While in segregation at Bellamy Creek, Defendant Ross refused Plaintiff food and told other prisoners they should pay attention to what happens to John Doe 5, and then decide if it’s worth it to snitch and sue the MDOC. John Doe 5 was told that he was being held in segregation for so long because of the litigation.
100. John Doe 5 continued to have his cell searched, his legal property spread out, and continued to receive harassment and threats regarding his participation in the litigation.
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101. Defendant Anderson went through Plaintiff’s legal work and read it out loud to staff and prisoners while Plaintiff was showering. When Plaintiff returned some prisoners were laughing and asking him about the rapes. Others threatened to hurt him for reporting.
102. The harassment and retaliation are ongoing. F. JOHN DOE 8
103. John Doe 8 was incarcerated in an adult MDOC prison at the age of 17, where he was raped in the shower by an adult male prisoner and sexually assaulted and abused by other adult male prisoners. As a result of the sexual abuse, John Doe 8 contracted genital warts.
104. After being sexually assaulted, John Doe 8 spent more than 10 weeks in isolation for protective purposes. He was on suicide watch and has attempted suicide on multiple occasions.
105. John Doe 8, following his participation in the state and federal court litigation regarding the above abuse, was subjected to a pattern of retaliatory acts by Defendants.
106. Prior to John Doe 8 being added as a Plaintiff, counsel met, wrote and spoke to him while incarcerated at the Oaks Correctional Facility. In February 2015, John Doe 8 was added as a Plaintiff and class representative in the pending litigation.
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107. Shortly after the attorney communications, John Doe 8 started getting his room shook down. During one period his room was searched five (5) days in a row. After the room searches, Plaintiff’s legal property and papers were left open and strewn around the room. Plaintiff’s personal property was taken and/or destroyed and Plaintiff began to be singled out for minor infractions and issued misconduct tickets.
108. Plaintiff complained to Defendant Erway regarding harassment. Defendant Erway responded by arranging for Plaintiff’s transfer resulting in the loss of his opportunity to participate in programming required for Plaintiff’s parole.
109. Plaintiff filed a grievance for retaliatory transfer and harassment against Defendant Erway.
110. Upon his transfer to Bellamy Creek, Plaintiff John Doe 8 was subjected to a series of petty misconducts and harassment due to his being a participant in the litigation. Defendant Walters refused Plaintiff’s request for help and protection stating she could not talk to him because he is a John Doe. Defendant Coburn and Defendant Arp verbally harassed and threatened John Doe 8 about the litigation in front of other prisoners and staff. As a result of the harassment and the comments of other prisoners, John Doe 8 believed he was in danger for reporting abuse and participating in the litigation.
111. The harassment and retaliation is ongoing.
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G. JOHN DOE 9 112. John Doe 9 was incarcerated in an adult MDOC prison in September
2011 when he was 17 years old. While at Chippewa Correctional Facility, John Doe 9 was targeted with sexual harassment and abuse and threats of violence by an adult prisoner. The adult prisoner would make John Doe 9 clean his shoes and clothes, would take his things, and would regularly grope and pull on his genitals and grab his buttocks.
113. John Doe 9 was transferred to Kinross Correctional Facility, where John Doe 9 was threatened with physical violence by older prisoners, and sexually abused by a male MDOC staff member. The staff member took John Doe 9 to remote areas of the prison for strip searches, where he would grope his body and grab his genitals. The male staff member also sexually harassed John Doe 9 while he was showering and/or performing basic bodily functions.
114. While at Kinross, John Doe 9 was anally raped by an adult prisoner in the shower.
115. In October 2014, counsel began meeting with John Doe 9 for purposes of adding him as a Plaintiff and class representative to the on-going litigation. Following these meetings and continuing through John Doe 9’s participation in the state and federal court litigation, he was subjected to a pattern of retaliatory actions by Defendants.
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116. After Plaintiff met with Plaintiffs’ counsel, spoke on the telephone and received legal mail, staff at Alger Correctional Facility learned he was involved in the litigation. John Doe 9 began to receive harassment from staff regarding attorney communications, including from Defendant Juranek.
117. Defendant Juranek subjected Plaintiff to a series of harassing room searches and would degrade John Doe 9 about his involvement in the litigation. When Defendant Juranek would observe Plaintiff in the hallway, he would call over the loudspeaker, “I need the rape victim to report to the bubble, this is a direct order.”
118. As a result of these comments and harassment, Plaintiff John Doe 9 believed he was in danger for his reporting abuse and participation in the litigation. He began to receive threats from other prisoners.
119. The harassment and retaliation are ongoing. H. JOHN DOE 10
120. John Doe 10 was incarcerated in an adult MDOC prison in late 2010, when he was 16 years old. He was housed with older adult prisoners who sexually and physically assaulted him at the Thumb Correctional Facility in Lapeer, Michigan.
121. When John Doe 10 was 17 he was transferred to the Saginaw Correctional Facility where he was sexually assaulted in the shower by an older adult prisoner and sexually abused and physically assaulted by other adult prisoners.
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122. In October of 2014, counsel began meeting with John Doe 10 for purposes of adding him as a Plaintiff and class representative. Following these meetings and continuing through John Doe 10’s participation in the state and federal court litigation, he was subjected to a pattern of retaliatory actions by Defendants.
123. After Plaintiff John Doe 10 met with Plaintiffs’ counsel, spoke on the telephone with counsel and received legal mail, staff at Cotton Correctional Facility became aware of Plaintiffs’ involvement in the litigation. Plaintiff John Doe 10, began to receive comments and harassment from staff, including from ARUS Ward regarding his attorney communications.
124. As a result of these comments and comments from other prisoners, Plaintiff John Doe 10 believed he was in danger for his reporting his abuse and participation in the litigation. On or around December 5, 8 and 9, 2014, Plaintiff asked for placement in protective custody. Only after Plaintiff was assaulted by another prisoner was Plaintiff placed in temporary segregation. While in temporary segregation, all Plaintiff’s legal work, papers and property were taken.
125. Plaintiff filed a grievance regarding his loss of property, and requested to be placed in long term protective custody. Defendant Ward harassed Plaintiff regarding the litigation and told John Doe 10 that he wouldn’t have been assaulted if he wasn’t gay, he should be ashamed and why is he still alive. John Doe 10 filed a grievance against Defendant Ward.
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126. On or around December 19-22, 2014, John Doe 10 was placed on suicide watch. After release, he received some property but the amended complaint adding John Doe 10 as a Plaintiff was missing.
127. Plaintiff was subsequently denied a contact visit with his counsel and harassment by other staff and other prisoners increased. John Doe 10’s placement in long term protective custody was denied and he was transferred to Michigan Reformatory.
128. Shortly after his transfer, John Doe 10 was stabbed 27 times by prisoners aware of his John Doe status. John Doe 10 was then placed again in temporary segregation.
129. While in temporary segregation other prisoners threw trash and called him a snitch. Defendant Schooley was aware of the acts of other prisoners and refused to intervene. Defendant advised John Doe 10 that he cannot be placed in long term protective custody without approval of Lansing due to his status as a Doe. Plaintiff was then transferred to Bellamy Creek.
130. On or about April 8, 2014, Plaintiff John Doe 10 participated in a Doe class meeting at Bellamy Creek and three days later Defendant Coburn searched Plaintiff’s cell twice a day during the same shift and Plaintiff’s property was strewn about.
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131. On or about April 18, 2014, Defendant Coburn singled out Plaintiff for punishment stating it was because “you’re suing the state and you’re gay.” Defendant Coburn taunted John Doe 10 over the intercom, mocked kissing him, threatened him and stated “now go tell your lawyer.”
132. Defendants Coburn, Arp and Walters added John Doe 10 to their pattern of harassing John Does in their units by engaging in verbal harassment, punishment and refusing to call Plaintiff out for his detail as a porter, requiring arbitrary pack ups, searching Plaintiff’s cell excessively, and telling other officers to destroy items in Plaintiff’s cell.
133. After John Doe 10 filed grievances for retaliation and harassment, Defendant Coburn and Defendant Arp threatened Plaintiff with misconducts, loss of programs and more time in prison if he complained about retaliation again.
134. The harassment and retaliation are ongoing.
I. JOHN DOE 12
135. John Doe 12 is currently a prisoner at an adult prison under the jurisdiction of the MDOC and was incarcerated at an adult prison in 2010 when he was 17 years old.
136. During his incarceration at the Charles Egeler Reception and Guidance Center (“RGC”), John Doe 12 was surrounded by adult prisoners, where he was targeted with sexual harassment, threatened and placed in isolation when he reported
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the abuse. John Doe 12 was 17 years old when he was transferred to the Mound Facility in January 2011, where he was sexually abused and raped by two adult prisoners in his cell. As a result of the sexual abuse, John Doe 12 contracted genital warts.
137. At Alger Correctional Facility, John Doe 12 was sexually harassed, abused, pressured for sex and threatened by adult male prisoners.
138. In May 2015, John Doe 12 met with counsel to discuss joining the federal litigation.
139. Prior to being added as a Plaintiff, John Doe 12 received correspondence and draft legal documents from counsel. On or around March 20, 2015, Plaintiff filed a grievance due to his legal mail related to the federal Doe case being opened out of his presence. Following the opening of his legal mail, Plaintiff’s room began to be searched excessively and his property and legal material destroyed while housed at the Baraga Facility. Plaintiff filed a grievance against Defendant Beesley for destructive searches and threatening comments against Plaintiff and other youth for bringing the lawsuit.
140. During the May attorney visit, Defendant Beesley encouraged other staff to flip John Doe 12’s cell. John Doe 12 returned to find shampoo poured over his family pictures and his cell in disarray. Defendant Beesley threatened John Doe 12 if he continued with the litigation.
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141. After Plaintiff filed a grievance for excessive cell searches and harassment, Defendant Beesley retaliated by physically assaulting Plaintiff and telling him to keep Defendant Beesley’s name and any other correctional officer’s names out of his litigation.
142. After Plaintiff joined the litigation, Defendants Deschaine and Heyrman told other prisoners and staff that John Doe 12 claimed he had been raped before and mocked and taunted him with more abuse. Plaintiff John Doe 12 continued to receive destructive cell searches, loss of legal property, denial of privileges and threats from Defendants about the litigation.
143. Plaintiff John Doe 12 was placed on a grievance restriction on or around June 23, 2015 because of the grievances he had filed, and other staff advised him that they will side with Defendant Beesley.
144. On or around June 29, 2015, Defendant Jacobson physically assaulted Plaintiff, ordered him to strip and forced him to expose himself to other prisoners during a shakedown while Plaintiff was using the bathroom. Plaintiff’s room was then destroyed and Defendant Jacobson told Plaintiff to stop grieving Defendant Beesley, stating “see what your lawyer is getting you into?”
145. Plaintiff’s attempts to file grievances were rejected. 146. Plaintiff was transferred to IMAX where Defendant Conklin taunted him about his status as a John Doe and warned him about being involved in the
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litigation. Later that day, Plaintiff was gassed by Defendant Conklin, and placed in hard restraints during the time he was scheduled for a visit with his attorney.
147. At IMAX, Defendants Marten and Stambaugh told Plaintiff they knew he was a John Doe and a “butt boy” and made threatening statements regarding his filing a lawsuit against MDOC and getting staff in trouble.
148. The harassment and retaliation are ongoing.
COUNT I First Amendment Retaliation
42 U.S.C. § 1983 149. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 150. Plaintiffs engaged in constitutionally protected conduct, and had a clearly established constitutional right to be free from retaliation by Defendants, for filing a lawsuit against MDOC and prison officials complaining about their conditions of confinement and for speaking to the press regarding those claims. 151. Defendants were aware of the fact that Plaintiffs engaged in this protected activity. 152. Following the filing of the state and/or federal court lawsuits, and/or participation in attorney meetings in connection with those cases, Defendants, acting with indifference with regards to Plaintiffs’ federally protected rights, targeted Plaintiffs because they engaged in protected activity in the following ways:
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a. Plaintiff John Does have been subjected to verbal abuse, and called degrading names such as “bitch,” “fag,” “rat,” and “butt boy” by Defendants in regards to their participation in the litigation. Many of these comments, as well as references to the Plaintiffs’ participation in the litigation, were made in front of other prisoners and MDOC staff, resulting in abusive questioning and threats of harm directed toward Plaintiffs.
b. Since their attendance at meetings with counsel in the litigation, Plaintiffs who attended the meetings have been mocked and harassed by Defendants in regards to their involvement in the litigation.
c. Plaintiff John Does have had their identity exposed by Defendants, resulting in increased threats and harm.
d. Plaintiff John Does have been subjected to excessive cell searches since their involvement in the litigation.
e. During the searches Defendants removed legal documents from the possession of Plaintiff John Does. On multiple occasions, MDOC staff have read portions of the documents out loud to other prisoners and staff, disclosing the content of Plaintiffs’ deposition testimony to staff and prisoners.
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f. Legal documents were taken from John Doe 2’s possession by Defendant Deputy Warden Schooley at Michigan Reformatory, which were turned over to Defendant’s counsel for use in the litigation.
g. While John Doe 5 was in the shower, a corrections officer at IBC (Defendant Anderson) went through his legal work and read it aloud to MDOC staff and other prisoners. When John Doe 5 returned, prisoners were laughing and asking questions about the abuse he experienced.
h. Defendants have threatened and taunted Plaintiffs and class members about their involvement in this litigation.
i. John Doe 5 was held in solitary confinement at IBC for nine months as a result of reporting sexual abuse by another prisoner to MDOC staff. Following the nine months in solitary, John Doe 5 was moved to Oaks Correctional Facility, where he was placed in the same unit as one of the individual perpetrators who he had identified in his deposition. That perpetrator subsequently began harassing John Doe 5 and asking why he “told on him.”
j. John Doe Plaintiffs have been subjected to increased strip searches and pat downs, room searches and excessive punishment, and verbal harassment and threats.
33

Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3924 Page 34 of 39
k. John Doe Plaintiffs have been targeted for a greater number of body and room searches, and have experienced increased intrusiveness in those searches. The searches often occur in or around attorney communications (attendance at class meetings, receipt of legal mail, attorney-client telephone calls or visits from attorneys). During cell searches, legal documents have been read, ripped up and thrown around Plaintiffs’ cells.
l. John Doe Plaintiffs have been harassed by Defendants about the content of attorney-client communications and group meetings, and their involvement and claims in this litigation.
m. Following an attorney visit at Bellamy Creek, John Doe 5 was required to perform a strip search, during which he was questioned about this litigation.
n. John Doe Plaintiffs have been targeted for improper misconduct tickets. For example, John Doe 1 was issued a Class II misconduct ticket for refusing to allow a corrections officer to read a letter being typed to his attorney, and John Doe 10 was issued a Class II misconduct ticket for Interference with Administrative Rules after filing a grievance on retaliatory harassment by MDOC staff at Bellamy Creek that could not be substantiated.
34

Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3925 Page 35 of 39
o. John Does 1, 2, 3, 5, 8, and 10 have also been targeted for minor rule infractions normally overlooked by staff. By way of example, John Doe 8 was issued a Class III misconduct ticket for handing noodles to another prisoner; John Doe 3 was issued a Class III misconduct ticket for giving leftover food from his tray to another prisoner in the chow hall; and John Doe 10 was issued a Class III misconduct ticket for taking a small amount of food from the chow hall.
153. Defendants’ actions have resulted in harm to Plaintiffs including physical and emotional harm and harsher terms of confinement. Defendants’ actions have also been intended to and have in fact interfered with the prosecution of the state and federal litigation, and have discouraged Plaintiffs’ as well as other class members’ participation in the litigation and willingness to speak out about abuses they have experienced. To that end, Defendants’ actions would deter a person of ordinary firmness from continuing to engage in the protected conduct.
154. Defendants’ actions against Plaintiffs were the proximate cause of the violations of federally protected First Amendment rights.
155. At all relevant times, Defendants acted under color of state law, using their positions of power, title and authority to unlawfully retaliate against Plaintiffs.
156. There was no legitimate government interest in the retaliation and otherwise unlawful conduct against Plaintiffs.
35

Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3926 Page 36 of 39
157. Defendants’ unlawful acts violated Plaintiffs’ clearly established constitutional rights, including the right to be free from retaliation for filing a lawsuit against prison officials and for speaking with the press about abuses in prison.
158. It would be clear to a reasonable officer that such conduct was unlawful. 159. Plaintiffs continue to suffer harm as a result of Defendants’ misconduct. 160. The retaliatory acts and harassment against John Does 2, 3, 4, 5, 8, 9, 10 and 12 is ongoing.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court: A. Award damages to Plaintiffs for harm caused by Defendants’ violations of law, including punitive and exemplary damages where appropriate; B. Enjoin Defendants from further acts of retaliation against Plaintiffs; C. Establish a process for independent reporting and review of misconducts issued against Plaintiffs to determine if the misconducts are retaliatory. D. Establish a procedure for direct review and response to Plaintiffs’ grievances regarding retaliatory acts; and E. Award the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees and costs. F. Other relief as justice requires.
36

Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3927 Page 37 of 39
Respectfully submitted,

/s/ Deborah LaBelle
DEBORAH LaBELLE (P31595) ANLYN ADDIS (P76568) Attorneys for the Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (734) 996-5620 deblabelle@aol.com aaddis@sbcglobal.net

/s/ Michael L. Pitt MICHAEL L. PITT(P24429) PEGGY GOLDBERG PITT (P31407) CARY S. McGEHEE (P42318) Pitt McGehee Palmer Rivers & Golden PC Attorneys for Plaintiffs 117 W 4th St., Ste. 200 Royal Oak, MI 48067 Phone: (248) 398-9800 mpitt@pittlawpc.com ppitt@pittlawpc.com cmcgehee@pittlawpc.com
/s/ Nakisha N. Chaney NAKISHA CHANEY (P65066) JENNIFER B. SALVATORE (P66640) Salvatore Prescott & Porter, PLLC Attorneys for Plaintiffs 105 East Main Street Northville, MI 48167 (248) 679-8711 salvatore@spplawyers.com chaney@spplawyers.com

Date: January 3, 2018

37

Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3928 Page 38 of 39

DEMAND FOR TRIAL BY JURY

NOW COME Plaintiffs, by and through their counsel, and hereby demand a

trial by jury as to all of those issues so triable as of right.

Respectfully submitted,

/s/ Deborah LaBelle
DEBORAH LaBELLE (P31595) ANLYN ADDIS (P76568) Attorneys for the Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (734) 996-5620 deblabelle@aol.com aaddis@sbcglobal.net

/s/ Michael L. Pitt
MICHAEL L. PITT(P24429) PEGGY GOLDBERG PITT (P31407) CARY S. McGEHEE (P42318) Pitt McGehee Palmer Rivers & Golden PC Attorneys for Plaintiffs 117 W 4th St., Ste. 200 Royal Oak, MI 48067 Phone: (248) 398-9800 mpitt@pittlawpc.com ppitt@pittlawpc.com cmcgehee@pittlawpc.com

/s/ Nakisha N. Chaney
NAKISHA CHANEY (P65066) JENNIFER B. SALVATORE (P66640) Salvatore Prescott & Porter, PLLC Attorneys for Plaintiffs 105 East Main Street Northville, MI 48167 (248) 679-8711 salvatore@spplawyers.com chaney@spplawyers.com

38

Case 2:15-cv-13852-AJT-MKM ECF No. 141 filed 01/03/18 PageID.3929 Page 39 of 39

CERTIFICATE OF SERVICE I hereby certify that on January 3, 2017, the foregoing document was electronically filed with the Clerk of the Court using the Court’s electronic filing system, which will send notification of such filing to all counsel of record.

Dated: January 3, 2017

/s/ Tara L. Lank Tara L. Lank, Legal Secretary

39

 
 Case 2:15-cv-13852-AJT-MKM ECF No. 160 filed 07/11/18 PageID.4503 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN

DOE 4; JOHN DOE 5; JOHN DOE 8; JOHN DOE

9; JOHN DOE 10; and JOHN DOE 12,

NO. 2:15-cv-13852

Plaintiffs,

HON. ARTHUR J. TARNOW

v

MAG. MONA K. MAJZOUB

DUSTIN ANDERSON; SCOTT ARP; NOAH

BEESLEY; ADAM COBURN; SERGEANT

CONKLIN; CO DESCHAINE; JASON ERWAY;

CHARLES GOLLNAST; MICHAEL HALL; CO

HAMMER; DUANE HEYRMAN; TAMI

HOOGEWIND; ERIK JACOBSON; EDWARD

JURANEK; JOSEPH MARTENS; CO MCLEOD;

CODY PENNELL; AIMEE ROGERS; CO ROSS;

CO SHERWOOD; RONALD STAMBAUGH;

GRETCHEN WALTERS; SCOTT SCHOOLEY; GARY STUMP; MATTHEW WARD; WARDEN KENNETH MCKEE, and HEIDI WASHINGTON, Director, Michigan Department of Corrections (Defendant Washington is named in her official capacity);

Defendants.

Deborah LaBelle (P31595) Attorneys for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (734) 996-5620 deblabelle@aol.com
Michael L. Pitt (P24429) Cary S. McGehee (P42318) Beth Rivers (P33614) Attorneys for Plaintiffs 117 W. Fourth St., Ste. 200 Royal Oak, MI 48067

Richard A. Soble (P20766) Attorneys for Plaintiffs 302 E. Liberty St. Ann Arbor, MI 48104 (734) 996-5600 dick@srkllp.com

Jennifer B. Salvatore (P66640) Sarah Prescott (P70510) Nakisha Chaney (P65066) Attorney for Plaintiffs 105 E. Main Street Northville, MI 48167 (248) 679-8711 salvatore@salvatoreprescott.com prescott@salvatoreprescott.com

Mark E. Donnelly (P39281) Michael R. Dean (P71333) Adam L.S. Fracassi (P79546) Margaret A. Nelson (P30342) Michael F. Murphy (P29213) Christina M. Grossi (P67482)

Case 2:15-cv-13852-AJT-MKM ECF No. 160 filed 07/11/18 PageID.4504 Page 2 of 3

(248) 398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com

Michigan Department of Attorney General Attorneys for Defendants P.O. Box 30736

brivers@pittlawpc.com

Lansing, Michigan 48909

(517) 373-6434

donnellym@michigan.gov

deanm2@michigan.gov

fracassia@michigan.gov nelsonm9@michigan.gov murphym2@michigan.gov grossic@michigan.gov

/

STIPULATED ORDER OF DISMISSAL

Upon consideration of the parties reaching a mutually agreeable settlement

and stipulating to the entry of this order to resolve this case, and with the Court fully

advised in the premises, it is hereby ORDERED as follows:

1. This lawsuit is dismissed with prejudice.

2. No costs or fees shall be awarded to any party in this lawsuit.

All parties shall bear their own costs and fees.

3. This Court shall retain jurisdiction to enforce the Settlement

Agreement and this Order and to resolve disputes concerning

interpretation of or compliance therewith.

IT IS SO ORDERED.

By the Court:

s/Arthur J. Tarnow HON. ARTHUR J. TARNOW United States District Judge

Dated: July 11, 2018

2

Case 2:15-cv-13852-AJT-MKM ECF No. 160 filed 07/11/18 PageID.4505 Page 3 of 3
The parties by and through counsel stipulate to the entry of this order and waive notice of entry:
/s/Nakisha Chaney (w/consent) Nakisha Chaney (P65066) Attorney for Plaintiffs 105 East Main St Northville, MI 48167 (248) 679-8711 chaney@spplawyers.com
/s/Michael F. Murphy Michael F. Murphy (P29213) Attorney for Defendants MI Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 murphym2@michigan.gov

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN DOE 4; JOHN DOE 5; JOHN DOE 8; JOHN DOE 9; JOHN DOE 10 AND JOHN DOE 12,
Plaintiff,
v.
ANDERSON ET. AL.,
Defendant.
/

Case No. 15-13852
SENIOR U.S. DISTRICT JUDGE ARTHUR J. TARNOW
U.S. MAGISTRATE JUDGE MONA K. MAJZOUB

ORDER DENYING DEFENDANTS’ MOTION TO SEVER, TO CHANGE VENUE, AND TO REASSIGN CASE [16]
Defendants filed a Motion to Sever, to Change Venue and to Reassign the Case on January 15, 2016 [16]. Plaintiffs responded on January 29, 2016 [18] and Defendants replied on February 5, 2016 [20]. For the reasons stated below, this Motion is DENIED.
1. STATEMENT OF FACTS Plaintiffs are nine John Doe prisoners who allege retaliation in the form of, inter alia, retaliatory transfers, prolonged isolation, destruction of legal and other
1

property, denial of visits, false misconduct tickets, verbal harassment and threats, and intentional disclosures of Plaintiffs’ identities. These retaliatory acts took place at various Michigan Department of Corrections (MDOC) facilities within both the Western and Eastern District of Michigan. Plaintiffs experienced these acts of retaliation after their identities were disclosed as participants in a pending suit challenging the MDOC policy and practice of holding youths with adult prisoners, following sexual and physical assaults at the hands of adult prisoners and custodial staff while they were minors.
Plaintiffs allege that the incidents of retaliation are not separate, isolated incidents against the Plaintiffs but were rather a concerted and widespread effort to disclose Plaintiffs’ identities, which had been protected under Court order, to deter Plaintiffs and other class members from participating in pending litigation in State and Federal Court against the MDOC, supervisory officials and Wardens.
2. ANALYSIS a. REQUEST TO SEVER
Defendants are seeking to sever the claims that deal with instances of retaliation at facilities located within the Western District, which includes 24 of the 27 Defendants, pursuant to Federal Rule of Civil Procedure 21 (Fed. R. Civ. Pro.). For the reasons stated below, this request is denied.
2

Persons may be joined as Defendants if: Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transactions, occurrence, or series of transactions or occurrences; and any question of law or fact common to all defendants will arise in the action.
Fed. R. Civ. Pro. 20(a)(2). When considering whether parties have been improperly joined, Courts are to give the words “transaction or occurrence” a “broad and liberal interpretation” to “avoid a multiplicity of suits.” Lasa Per L'Industria Del Maro Society Pero Azioni v. Alexander, 414 F.2d 143, 147 (6th Cir.1969). Accordingly, the term transaction has been held to “comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.” Id at 147.
There is no mention of geography as a factor in a joiner analysis. Therefore, the fact that some claims pertain to incidents that occurred in another judicial district alone does not warrant severance of these claims. In considering whether severance is appropriate, the Court will look to the factors of Fed. R. Civ. Pro. 20(a)(2).
Defendants argue that retaliation claims are, by their very nature factually unique and individual, since they are not based on a theory of respondent superior
3

liability. They assert the claims that arose out of events that took place in the Western District should be severed since they did not arise out of the same transaction or occurrence and do not share a common question of fact and law with those that arose in the Eastern District.
Plaintiffs direct the Court’s attention to the Supreme Court decision in United States v. Mississippi to support proper joinder of Defendants. 380 U.S. 128 (1965). In United States v. Mississippi, the Court reversed a District Court’s decision severing claims because “the complaint improperly attempted to hold the six county registrars jointly liable for what amounted to nothing more than individual torts committed by them separately.” Id at 142. The Supreme Court held that the claims against the various Defendants, who were from diverse geographical locations, were properly joined because Plaintiffs alleged in their complaint that, while acting individually, Defendants were acting pursuant to a common plan that was seeking inevitably to deprive minorities of the right to vote, meeting the requirements of Fed. R. Civ. Pro. 20(a). Id.
Courts within the Sixth Circuit have cited this case, and held that parties are properly joined in cases where Defendants are “from different geographical areas, acted independently of each other, and perhaps had never met one another” and are alleged to have individually committed torts so long as Plaintiffs allege that the
4

unlawful acts complained of satisfy the requirements of transactional relatedness and commonality in fact or law. Patrick Collins, Inc. v. John Does 1-21, 282 F.R.D. 161, 166 (E.D. Mich.) report and recommendation adopted, 286 F.R.D. 319 (E.D. Mich. 2012). This can be satisfied by having an overarching policy or plan that is alleged which necessarily results in unlawful activity. See Kunin v. Costco Wholesale Corp., No. 10-11456, 2011 WL 6090132, at *4 (E.D. Mich. Dec. 7, 2011).
In the case at bar, Defendants are alleged to have retaliated against Plaintiffs in a concerted effort to deter them from seeking relief. Similar to the policy at issue in United States v. Mississippi, Defendants in this case are accused of committing individual acts of retaliation in service of an overarching, unlawful purpose, to deter Plaintiffs from seeking legal redress of their injuries. Moreover, the claims share factual similarities since the general policies of MDOC are the same for all of the facilities in which Defendants were housed. Thus, the allegations of retaliation are “part of a series of transactions or occurrences the validity of which depended to a large extent upon ‘question(s) of law or fact common to all of them.’” United States v. Mississippi, 380 U.S. at 143.
Because the individual claims are alleged to be part and parcel of a broader practice to punish Plaintiffs for speaking out about their sexual and physical
5

assault, these claims satisfy the requirements of Fed. R. Civ. Pro. 20 and Defendant
Motion to Sever is, accordingly, denied.
b. REQUEST TO CHANGE VENUE
In civil actions, venue is appropriate in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
28 U.S.C.A. § 1391(b). In the case at bar, three of the Defendants reside in the
Eastern District, so venue is proper and this Court owes Plaintiffs’ choice of venue
the deference required under Koster v. American Lumbermens Mutual Casualty
Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Duha v. Agrium, Inc.,
448 F.3d 867, 873 (6th Cir. 2006).
For the convenience of the parties and witness, “a district court may transfer
any civil action to any other district or division where it might have been brought
or to any district or division to which all parties have consented.” 28 U.S.C.A.
§1404(a). When deciding whether to transfer a case or not, the Court considers the
following factors:
6

(1) the convenience of the parties; (2) the convenience of the witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining unwilling witnesses; (6) the practical problems associated with trying the case most expeditiously and inexpensively; and (7) the interest of justice. Sullivan v. Tribley, 602 F. Supp. 2d 795, 800 (E.D. Mich. 2009). Defendants’ argument rests on the proposition that transferring the severed
parties to the Western District is appropriate since all the severed parties reside in the Western District. However, the Court has declined to sever the Defendants who
reside in the Western District, or those Defendants whose claims arose in the
Western District, therefore this argument is moot. Therefore, the Court must consider the seven factors above with respect to all Defendants.
When considering these factors, it becomes clear that the Court should not grant Defendants’ request to change of venue or transfer to the Western District
because substantial deference must be given to Plaintiff’s choice of forum. Four of
the nine Plaintiffs currently are incarcerated at facilities in the Eastern District. It is therefore not more convenient for all parties to have the venue transferred to the
Western District. Because prison populations are inherently transient, it is simply
not possible to predict how this might change during the course of this litigation. Indeed, there may well ultimately be even more Plaintiffs incarcerated in facilities
in the Eastern District in the future. Additionally, while it might be convenient for
7

the Defendants who reside in the Western District, there are additional Defendants residing in the Eastern District and there is no reason provided for why the burden on inconvenience should be shifted and the deference for Plaintiffs’ choice of forum should be disturbed. Similarly, the convenience of the witnesses and the cost of obtaining willing witnesses do not require transfer since potential witnesses reside in both districts.
The relative ease of access to sources to proof does not weigh in favor of transfer either, since this concern “is a less significant factor in this era of electronic communication” and depositions can be taken in locations convenient to the witnesses residing in the Western District. Real Prop., 2015 U.S. Dist. LEXIS 118254 at *15; See also Barnett v. MCI Serv. Parts, Inc., 2005 U.S. Dist. LEXIS 8850, *6 (E.D. Mich. 2005). Defendants have not argued that compulsory process will be an issue and therefore the Court does not attach any weight to this factor. Duha, 448 F.3d at 877.
Finally, trial efficiency and the interests of justice do not require transfer. Per the Plaintiff’s response, “[d]epositions will be held at the MDOC facility in which each Defendant is employed.” [18 at 16]. Moreover, the Court has denied the Motion to Sever. It is, therefore, not apparent that a transfer would serve the
8

interests of justice since several of the Plaintiffs and three of the Defendants reside in the Eastern District.
When all factors are appropriately considered, there is absolutely no compelling reason to override Plaintiffs’ choice of forum. Considering the deference that must be granted to Plaintiff’s choice, and the lack of adequate proof of inconvenience, Defendant’s Motion for Transfer is denied.
c. REQUEST TO REASSIGN CASE Defendants request that the case before the Court be reassigned to Judge Cleland as either a companion case to the matter of Doe v. MDOC, et. al., No. 13cv-14356, or, alternatively, be reassigned to promote “docket efficiency” and “judicial economy” under Local Rule 83.11(2) and (3). Local Rule 83.11(b)(7)(A) defines a companion case as one “in which it appears that: (i) substantially similar evidence will be offered at trial or (ii) the same or related parties are present, and the cases arise out of the same transactions or occurrences.” The case currently before Judge Cleland raises claims under the Fourth, Eighth, and Fourteenth Amendments, as well as statutory violations of 18. U.S.C. §§1591 and 1594, predicated upon the sexual and physical assault of the Plaintiffs as minors while incarcerated in MDOC facilities. The instant case raises retaliation claims. The only connection between these two cases is that Plaintiffs in
9

this case allege that they were retaliated for the filing of a state class action and the federal case pending before Judge Cleland.
The facts relevant to Doe v. MDOC, et. al., No. 13-cv-14356 are distinct from the legally significant facts here. While acts of sexual and physical abuse are referred to in Plaintiff’s amended complaint, they do not underpin the retaliation claims at issue herein, which necessarily rest upon wholly distinct factual allegations.
The only common parties in the two cases are the Director of the MDOC, one warden, and four Plaintiffs. However, the claims do not overlap and these shared parties alone do not require this Court to reassign the case at bar. The acts alleged here concern retaliation, and thus do not share common facts, occurrences and evidence with Judge Cleland’s case. Thaddeus-c v. Blatter, 175 F. 3d 378 (6th Cir. 1999).
In this case, the Plaintiffs’ retaliation claims do not arise out of the alleged occurrences of sexual and physical assault at issue in the case before Judge Cleland. Rather, the retaliation claims arise out of the filing of that case (as well as
10

currently pending state actions). See Jones v. City of Allen Park, 167 F. App'x 398, 409 (6th Cir. 2006).1
Defendants argue that, since the claims all stem from actions occurring within the facilities in which Plaintiffs were or are incarcerated, there exists a similar transaction or occurrence supporting the conclusion that this matter is a companion case. However, as shown above, the facts required to prove the claims in each case are wholly distinct, and the fact that the transactions relevant to both cases occurred in the same place is not determinative. There is no showing that substantially similar evidence will be presented or that the cases arise out of the same transactions and occurrences.
In the alternative, Defendants seek reassignment under Local Rule 83.11(2) and (3) for judicial and docket efficiency. However, for the reasons stated above, reassignment is also inappropriate under these rules because there is no common
1In Jones, the Court concluded that the retaliation case (Jones) was not companion to discrimination case (Madrigal), notwithstanding the fact that there was an overlap of some of the individuals involved in both suits. The Court reasoned that the focus of the testimony was different, since the Jones case would present witnesses to provide proof of unlawful retaliation, while the possible companion case Madrigal would present witnesses to establish discrimination on the basis of race and national origin. Therefore, Jones arose out of the litigation of Madrigal, but did not share a common occurrence or transaction.
11

question of law or fact. Thus, efficiency would be significantly served by a reassignment since the claims are wholly distinct.
Accordingly, Defendants’ Motion for Reassignment is denied. IT IS ORDERED that Defendants’ Motion to Sever, to Change Venue, And to Reassign Case [16] is DENIED. SO ORDERED.

Dated: March 4, 2016

s/Arthur J. Tarnow Arthur J. Tarnow Senior United States District Judge

12

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN DOE 4; JOHN DOE 5; JOHN DOE 8; JOHN DOE 9; JOHN DOE 10; AND JOHN DOE 12,
Plaintiff,
v.
DUSTIN ANDERSON, ET. AL.,
Defendant.
/

Case No. 15-13852
SENIOR U.S. DISTRICT JUDGE ARTHUR J. TARNOW
U.S. MAGISTRATE JUDGE MONA K. MAJZOUB

ORDER DENYING DEFENDANTS’ CORRECTED MOTION FOR PROTECTIVE ORDER TO STAY DISCOVERY [47]; DENYING AS MOOT DEFENDANTS’ MOTION FOR PROTECTIVE ORDER [45] On May 11, 2016, Defendants filed a Motion for Protective Order to Stay
Discovery [45]. Defendants filed a Corrected Motion for Protective Order to Stay Discovery [47] on May 12, 2016. Plaintiffs responded to Defendants Motion [49] on May 25, 2016 and Defendants replied on June 1, 2016. [52]. For the reasons stated below, this Defendants’ Corrected Motion for Protective Order to Stay Discovery [47] is DENIED and Defendants’ Motion for Protective Order [45] is DENIED as moot.
1

Per Federal Rule of Civil Procedure 26(c)(1), a Court may, “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” “A stay of discovery for any reason is a matter ordinarily committed to the sound discretion of the trial court.” Ohio Bell Tel. Co. v. Glob. NAPs Ohio, Inc., No. 2:06-CV-0549, 2008 WL 641252, at *1 (S.D. Ohio Mar. 4, 2008), citing Chrysler Corp. v. Fedders Corp.. 643 F.2d 1229 (6th Cir.1981). When ruling on a motion to stay, “the Court is required to weigh the burden of proceeding with discovery upon the party from whom discovery is sought against the hardship which would be worked by a denial of discovery.” Id. The Court is also “required to take into account any societal interests which are implicated by either proceeding or postponing discovery.” Id.
Defendants are seeking a stay of discovery pending the ruling on the exhaustion issue, as briefed in their Motion for Summary Judgment filed on March 8, 2016. [29]. Defendants argue that the Court should grant a stay of discovery because: (1) the motion to stay was brought early on in the litigation; (2) the nine Plaintiffs have distinct claims of retaliation against the individual Defendants and therefore, if a Plaintiff is dismissed from the case based on a lack of exhaustion, the scope of discovery will be affected; (3) the Defendants’ motion for summary judgment is well-founded; (4) discovery is to be completed by June 16, 2017, so a
2

stay will not delay the progression of the case; and (5) exhaustion is a requirement under the Prison Litigation Reform Act of 1995 (PLRA) which must be decided before a lawsuit under PLRA can proceed.
“[T]he fact that a party has filed a case-dispositive motion is usually deemed insufficient to support a stay of discovery.” Malibu Media, LLC v. Doe, No. 2:14CV-1132, 2015 WL 2128156, at *2 (S.D. Ohio May 6, 2015), see also Ohio Bell Tel. Co. v. Glob. NAPs Ohio, Inc., No. 2:06-CV-0549, 2008 WL 641252, at *1 (S.D. Ohio Mar. 4, 2008); Williams v. New Day Farms, LLC, No. 2:10-CV-0394, 2010 WL 3522397, at *2 (S.D. Ohio Sept. 7, 2010). By requesting this stay, Defendants are arguing that dismissal of some or all of the Defendants is likely to occur, otherwise a stay would not be required. This necessitates the Court to, in effect, “make a preliminary finding of the likelihood of success on the motion.” Ohio Bell Tel. Co. at *1. In this case, a stay would be appropriate if the question of exhaustion was not “fairly debatable.” Id. However, after reviewing Defendants’ Motion for Summary Judgment, Plaintiffs’ response, and Defendants’ reply, it is clear that the issues presented are fairly debatable and the issue of exhaustion is not a frivolous question.
While this case does contain multiple Plaintiffs with separate claims, many of the Defendants’ arguments relating to exhaustion are applicable across many of
3

the Plaintiffs, so while there are individual complaints of retaliation for nine separate Plaintiffs, many of those claims rise or fall according to the same arguments presented, so the differentiation that Defendants make between this case and other cases where only one Plaintiff was present is not very strong.
Defendants also argue that the issue of exhaustion is different from other cases where the Courts denied stays of discovery pending motions regarding the question of subject matter jurisdiction or other threshold issues. However, the Sixth Circuit has held that while exhaustion is a prerequisite for bringing a suit in Court, it is analogous to other threshold issues of judicial administration, including personal jurisdiction and improper venue. Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015). Therefore, while the motion deals with exhaustion, this is not a factor that weighs in favor of granting the motion.
Finally, while Defendants argue that the discovery period is open until next year, as Defendants themselves pointed out, there are nine Plaintiffs and twentyseven Defendants and the allegations concern acts undertaken in multiple facilities in the State. Discovery will necessarily take time, and in the event that the Motion for Summary Judgment reveals questions of fact, these will have to be resolved as well before the case could move forward. Therefore, any possible stay pending a decision on exhaustion could have an impact on the progression of the case and
4

could necessitate an extension of the discovery period. As a result, the Court finds that the burden of postponing discovery weighs in favor of the Plaintiffs and the Court denies Defendants’ Corrected Motion for Protective Order to Stay Discovery. [47]. In addition, Defendants’ Motion for Protective Order to Stay Discovery [45] is denied as moot.
IT IS ORDERED that Defendants’ Corrected Motion for Protective Order to Stay Discovery [47] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Protective Order to Stay Discovery [45] is DENIED as moot.
SO ORDERED.

Dated: June 13, 2016

s/Arthur J. Tarnow Arthur J. Tarnow Senior United States District Judge

5

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DOE, Plaintiff,
v.

Case No. 15-13852
SENIOR UNITED STATES DISTRICT JUDGE ARTHUR J. TARNOW

ANDERSON ET. AL., Defendant.

MAGISTRATE JUDGE MONA K. MAJZOUB

/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [29]
Plaintiffs filed a complaint against Defendants on November 2, 2015 [1], alleging First Amendment retaliation under §1983. Plaintiff filed a second amended complaint on February 18, 2016 [22], adding facts and removing the Michigan Department of Corrections as a party. Defendants filed a Motion for Summary Judgment based on a failure to exhaust remedies was filed on March 8, 2016 [29]. Plaintiffs responded on March 29, 2016 [33] and Defendants replied on April 29, 0216 [40]. The Court held a hearing on the Motion on July 25, 2016. For the reasons stated below, this Motion is GRANTED in part and DENIED in part. Specifically, Motion is granted as with respect to all of John Doe 2 and John
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Doe 8’s claims. Additionally, Defendants Hoogewind, McLeod, Rogers, Sherwood and Schooley are dismissed from the case because none of the claims against them were properly exhausted. Summary Judgment is denied for several of Plaintiff’s claims as discussed below.
FACTUAL BACKGROUND Plaintiffs, during the spring of 2013, were under the age of 18 and housed in adult prisons in Michigan. At this time, John Doe 1 participated in an inquiry conducted by the Inter-American Commission on Human Rights, which resulted in a hearing focused on the violations of the human rights of Michigan children incarcerated in adult prisons. Following the exposure of abuse by John Doe 1’s testimony and associated written submission to the Inter-American Commission on Human Rights, Plaintiffs filed litigation on behalf of themselves, and as class representatives on behalf of children confined in adult prisons operated by the Michigan Department of Corrections (MDOC). Plaintiffs consist of nine John Does who allege retaliation resulting from their exposure of the abuse of youth housed in MDOC facilities by MDOC staff, or of abuse that MDOC staff facilitated or failed to intervene to prevent, through the testimony before the Inter-American Commission on Human Rights and in their civil rights litigation in Washtenaw Circuit Court and in Federal Court in the
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Eastern District of Michigan. Defendants consist of members of MDOC staff who are alleged to have engaged in various forms of retaliation against the Plaintiffs, including, inter alia, “prolonged isolation, destruction of legal and other property, denial of visits, false misconduct tickets, excessive and destructive room searches, verbal harassment and threats, excessive pat-downs, interference with attorney communications, knowingly placing Plaintiffs in situations likely to cause them harm, and intentional disclosure of Plaintiffs’ identities within the prison system, making them more vulnerable to abuse.” [22 at ¶6].
Each specific allegation of each Plaintiff and their grievance process will be discussed in detail below.
ANALYSIS 1. EXHAUSTION IN GENERAL Defendants allege that Plaintiffs have failed to exhaust available administrative remedies, as required by the Prison Litigation Reform Act (PLRA). Under the PLRA, prisoners filing claims in federal court concerning prison conditions must exhaust “all ‘available’ remedies” before their claims may be heard. Porter v. Nussle, 534 U.S. 516, 524 (2002). For exhaustion to be proper, Plaintiffs must comply with an agency’s procedural rules for grievances, with the boundaries of proper exhaustion being defined by the prison’s requirements. See
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Woodford v. Ngo, 548 U.S. 81, 90 (2006); Jones v. Bock, 549 U.S. 199, 218 (2007). It falls to the District Courts, with some reasonable discretion, to determine if the “exhaustion requirement has been substantially met before proceeding to the merits of any prisoner claims.” Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999).
When considering exhaustion, summary judgment is only appropriate if Defendant can “establish the absence of a ‘genuine dispute as to any material fact’ regarding non-exhaustion,” and the Court must look at the evidence “in the light most favorable to the party opposing the motion.” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011).
2. MDOC GRIEVANCE POLICY Per MDOC policy directive, when grieving “alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant,” a prisoner must follow these requirements:
(1) Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff member involved within two business days after becoming aware of the grievable issue. [29-3 at ¶P] (2) If the issue is not resolved, the grievant may file a Step I grievance. The Step I grievance must be filed within five business days after the grievant attempted to resolve the issue with appropriate staff Id.
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(3) Information provided [by the prisoner in the grievance form] is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names of all those involved in the issue being grieved are to be included. [29-3 at ¶R].
(4) A grievant may file a Step II grievance if s/he is dissatisfied with the response received at Step I or if s/he did not receive a timely response. To file a Step II grievance, the grievant must request a Prisoner/Parolee Grievance Appeal (CSJ-247B) from the Step I Grievance Coordinator and send the completed form to the Step II Grievance Coordinator designated for the facility, field office, or other office being grieved within ten business days after receiving the Step I response or, if no response was received, within ten business days after the date the response was due, including any extensions. [29-3 at ¶BB].
(5) A grievant may file a Step III grievance if s/he is dissatisfied with the Step II response or does not receive a timely response. To file a Step III grievance, the grievant must send a completed Step III grievance, using the Prisoner/Parolee Grievance Appeal form (CSJ247B), to the Grievance and Appeals Section within ten business days after receiving the Step II response or, if no response was received, within ten business days after the date the response was due, including any extensions. [29-3 at ¶FF]
(6) The total grievance process from the point of filing a Step I grievance to providing a Step III response shall generally be completed within 120 calendar days unless an extension has been approved in writing by the Grievance Coordinator at Step I and/or Step II. [29-3 at ¶S].
Additionally, if the conduct alleged includes staff sexual misconduct:
All grievances alleging such conduct [staff sexual misconduct], whether filed with the inspector or a CFA or FOA grievance coordinator, shall be referred to the Internal Affairs Division for review as set forth in PD 01.01.140 “Internal Affairs… if the
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grievance is determined to fall within the jurisdiction of the Internal Affairs Division; in such cases, an investigation shall be conducted in accordance with PD 01.01.140 and the grievant notified that an extension of time is therefore needed to respond to the grievance. The Manager of the Internal Affairs Division or designee also shall notify the Warden or FOA Deputy Director or designee, and the inspector or grievance coordinator as appropriate, if it is determined that the grievance is not within the jurisdiction of the Internal Affairs Division; in such cases, the grievance shall continue to be processed as a Step I grievance in accordance with this policy.
[29-3 at ¶Q].
3. PLAINTIFF JOHN DOE 1.
a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Second Amended Complaint filed on February 18, 2016 [22], John
Doe 1 alleged the following:
i. BELLAMY CREEK (IBC)1 DEFENDANT COBURN
John Doe 1 (JD 1) alleges that, after testifying for the Inter-American
Human Rights Commission on sexual abuse of juveniles in adult Michigan prisons,
Defendant Coburn performed the following retaliatory acts: (1) Coburn entered JD
1’s cell on daily basis to look through JD 1’s correspondence and legal property;
(2) Coburn falsely announced over loudspeaker that JD 1 was HIV positive; (3)
Coburn destroyed JD 1’s property with co-Defendant Arp.
1 A glossary is attached on page 56 detailing the various institutions and their abbreviations.
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Additionally, after JD 1 filed suit alleging violations of his rights arising from MDOC’s and its officials’ and employees’ deliberate indifference to the safety of youth in their care and custody, Coburn (1) entered JD 1’s cell and removed all of his legal materials; (2) along with co-Defendant Arp, Coburn targeted JD 1 for pat down searches and made open statements and comments identifying JD 1 as a Plaintiff the pending litigation, which exposed him as a person reporting sexual assaults by other prisoners and staff. [22 at ¶¶49-61].
ii. IBC DEFENDANT ARP JD 1 alleges that after testifying for the Inter-American Human Rights Commission on sexual abuse of juveniles in adult Michigan prisons, Defendant Arp, along with Defendant Coburn, destroyed JD 1’s property. JD 1 alleges that, after he filed suit alleging violations of his rights resulting from MDOC’s and its officials’ and employees’ deliberate indifference to the safety of youth in their care and custody, Arp (1) along with co-Defendant Coburn, targeted JD 1 for pat down searches and made open statements and comments identifying JD 1 as a Plaintiff the pending litigation, exposing him as a person reporting sexual assaults by other prisoners and staff; (2) approached JD 1 in the library and demanded that JD 1 handover a letter to his attorney. JD 1 was given a 15 day loss of privilege and was banned from the law library for 6 months when he
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refused to surrender the letter. JD 1 also lost recreation privileges, phone calls, and visits as further consequences. [22 at ¶¶49-61].
iii. IBC DEFENDANT WARDEN MCKEE JD 1 also alleges that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, there are no factual allegations detailing Warden McKee’s actions in the amended complaint, and there is no evidentiary support for this claim. Accordingly, summary judgment is granted as to this claim for lack of the requisite exhaustion.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION In his response, JD 1 identifies one specific grievance and supplies an affidavit stating why other grievances were not filed pertaining to his other allegations.
i. IBC-1306-1534-17Z [29-E]- AGAINST COBURN AND MCKEE
Grievance IBC-1306-1534-17Z was filed on June 11, 2013 concerning the allegation that Coburn announced over the loudspeaker that JD 1 was HIV positive. The grievance alleges that, on May 28, 2013, Coburn “stated over the intercom for all of the unit to hear that I was HIV/AIDS positive and that I needed to start my treatment.” [29-6 at 737]. The grievance further states that “[JD 1]
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feel[s] like officer Coburn purposely put my life in jeopardy with defamation of character.” Id. This grievance was appealed through step III. [29-6 at 734].
Defendants argue that this grievance was not properly exhausted, because it was filed before participation in litigation began, does not allege that Coburn acted in retaliation for JD 1’s participation in the litigation, and there was therefore no fair notice of a First Amendment retaliation claim in that grievance. Bell v. Konteh, 450 F. 3d 651, 654 (6th Cir. 2004) (internal citations omitted).
However, as JD 1 points out, the Amended Complaint contemplates the protected activity to include the time when JD 1 complained about sexual abuse, met with counsel, and testified before the Inter-American Commission regarding his abuse, and is thus not an issue to be decided in a motion alleging failure to exhaust.
With respect to the argument that JD 1 failed to exhaust the grievance because its content failed to provide fair notice of the alleged misconduct that forms the basis of the constitutional claim, Plaintiff asserts that the standard applied to whether prisoners have described the alleged misconduct sufficiently in their grievances is “not a particularly strict” standard, and prisoners are not required to “allege a specific legal theory or facts that correspond to all the required elements of a particular legal theory,” and that instead only “fair notice
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[must be] given.” Bell, 450 F.3d at 654. This is consistent with the practice of liberally construing pro se prisoners’ filings. Id. Other Courts have held that the term “retaliation” does not need to be included in a grievance in order to properly exhaust a claim for retaliation. See Jackson v. Huss, No. 1:14-CV-426, 2015 WL 5691026, at *7 (W.D. Mich. Sept. 28, 2015) (finding that the allegations that Defendant was “not treating [the prisoner] because of my complaints against the prison” was sufficient to put prison officials on notice that Plaintiff was asserting a retaliation claim).
In the grievance at issue, JD 1 does not specifically use the word “retaliation” and does not include any allegations that even under a liberal pro se reading could be construed as retaliation. The claims relate to a defamation of character but at no point does the grievance even allude to a possible retaliation claim. Therefore, summary judgment is granted on this grievance against Coburn.
JD 1 also alleges that McKee is an appropriate party to this retaliation claim in this grievance. McKee was the Warden who denied the grievance at all three steps, however he is not mentioned by name in the grievance, and there are no allegations in the amended complaint detailing the actions taken by the Warden that were retaliatory. Because Plaintiff has failed to show how the grievance is applicable to McKee, he was not fairly put him on notice for a retaliation claim.
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The mere denial of a grievance, without more, should not be sufficient to raise a retaliation claim, and this grievance is unexhausted as to Defendant McKee.
ii. AFFIDAVIT- EVIDENCE AGAINST ARP AND COBURN As stated in JD 1’s affidavit, following the filing of his first grievance against Coburn, JD 1 “began to experience an excessive number of retaliatory room searches and verbal harassment” and he reasonably concluded that filing any additional grievances challenging institutional staff for the continued retaliation would be futile and, render him a target for further harassment and threats, exposing him as a John Doe Plaintiff in this proceeding [29-7]. The Sixth Circuit has “excused a prisoner’s lack of complete compliance [with the grievance process] when the improper actions of prison officials render the administrative remedies functionally unavailable.” Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014), cert. granted sub nom. Simmons v. Himmelreich, 136 S. Ct. 445, 193 L. Ed. 2d 346 (2015), and aff'd and remanded sub nom. Simmons v. Himmelreich, 136 S. Ct. 1843 (2016). To determine whether the process was functionally unavailable, the Court “must ask whether [the prison official’s] threats and actions would ‘deter a person of ordinary firmness from [continuing with the grievance process].’” Id (citations omitted).
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The last instance of alleged retaliation resulted in JD 1 being accused of being HIV positive, rendering him subject to the threats of multiple prisoners. Plaintiff not unreasonably feared further exposure as a John Doe Plaintiff resulting in still further harassment and threats. There is good reason why anonymity is critical in proceedings such as this. Identification as a John Doe Plaintiff would expose him as having reported physical abuse committed by prisoners and MDOC officials, as well as an individual who had been raped. It is a question of fact whether a person of ordinary firmness would not continue the grievance process to protect exposure of their identity. Therefore, the affirmative defense of failure to exhaust the claims of alleged retaliation by Arp and Coburn is rejected because questions of fact remain regarding a person of ordinary firmness would continue the grievance process or not.
4. JOHN DOE 2 [JD 2] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Second Amended Complaint, JD 2 alleged the following: i. MICHIGAN REFORMATORY (RMI) DEFENDANT SCHOOLEY
JD 2 alleges that, after the filing of the lawsuit, Schooley confiscated JD 2’s journal which detailed on going abuse and harassment, and delivered it to the Assistant Attorney General representing the MDOC in the lawsuit. [22 at ¶65].
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ii. RMI DEFENDANTS ROGERS AND HOOGEWIND

JD 2 alleges that, after the filing of the lawsuit, Defendants Rogers and

Hoogewind verbally assaulted him and made threats concerning his participation in

the current litigation. Additionally, Rogers and Hoogewind are alleged to have

publically disclosed JD 2’s identity and his participation in litigation concerning

ongoing sexual abuse of juveniles by prisoners and MDOC officers. When JD 2

complained that he was receiving threats from other prisoners because of

disclosure of his identity, he was issued a false misconduct, and was subject to

continued verbal harassment by Rogers and Hoogewind [22 at 66].

iii. IONIA CORRECTIONAL FACILITY (ICF) DEFENDANTS SHERWOOD, MARTENS AND MCLEOD

JD 2 was transferred to administrative segregation at ICF in March 2015. JD

2 alleges that Defendants Sherwood, Martens and McLeod harassed him as a result

of his participation in the pending litigation, and mocked him for being sexually

abused. [22 at ¶68]. These Defendants are also alleged to have performed several

retaliatory acts, including issuance of false misconducts, placement of JD 2 on

food loaf, performing excessive room searches resulting in destruction of JD 2’s

property, and reading JD 2’s legal mail. [22 at ¶69]. JD 2 alleges that Sherwood

refused to give him grievance forms for these actions, and told him to put it in his

lawsuit. Id.

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b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. ICF DEFENDANTS: GRIEVANCES AGAINST DEFENDANTS MARTENS, MCLEOD, SHERWOOD AND STAMBAUGH 1. EXHIBIT 33-5A AND 33-5B
These exhibits contain the same handwritten grievance concerning the destruction of property and legal mail. However, retaliation is not mentioned, and the names of the named ICF Defendants are not stated. This grievance was rejected as excessively vague, resulting in a procedural default, so it cannot be considered properly exhausted under the PLRA and summary judgment is granted as to this grievance. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006).
2. ICF-2015-10-1906-17i [33-5E] In this grievance, JD 2 requested protection from Miniard because he identified his as a JD. None of the named Defendants is mentioned in grievance. Per evidence provided by Defendant, the grievance resulted in JD 2 being placed in administrative segregation, and thus out of harm’s way. JD 2 reportedly was advised that, when released to the general population, if he continued to feel there was a threat to his safety, he could once again request protection and another investigation would be conducted at that time. Therefore the grievance was resolved, and no named Defendants were placed on notice of any new or continuing grievance. Summary judgment is granted as to this grievance.
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3. ICF-2015-09-1617-03b [33-5E]

JD 2 asserted a Grievance against Powell (not named as a Defendant herein)

for his alleged failure to pick up JD 2’s legal mail. The Response by the MDOC

states that the grievance was resolved because video footage was reviewed that

showed Powell making a legal mail run at JD 2’s cell. JD 2 was advised of this and

purportedly stated “ok, I will resolve the grievance.” The grievance appears to be

resolved, and no named Defendants were placed on notice concerning the

grievance. Summary judgment is granted as to this claim.

i. RMI DEFENDANTS - GRIEVANCES AGAINST DEFENDANTS ROGERS, HOOGEWIND AND SCHOOLEY

1. EXHIBIT 33-5F

Plaintiff alleges that he filed a step III grievance for retaliation at RMI after

his transferred to ICR, but that the grievance was returned to him. However, all

that is provided concerning this particular grievance is a document requesting

Plaintiff to provide a date for the incident, which does not support the allegation in

the response or the allegations in the complaint. Therefore, this exhibit does not

support exhaustion against the RMI Defendants and summary judgment is granted

as to this claim.

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2. RMI-1505-10978-19D [40-3 AT 16] JD 2 alleges that this complaint was a grievance against Hoodgewind and Rogers for destruction of property. However, the actual grievance named CO Greer as the person who packed the property, and the response stated that Officers Hoogewind and Burge worked the shift at issue in JD 2’s complaint. While JD 2 failed to allege any wrongdoing on the part of Hoogewind, Rogers or Schooley in his grievance, their identification placed them on notice of the alleged retaliation claims. However, the grievance was resolved at step II and there was no appeal to step III and was, accordingly, subject to a procedural default. Therefore, this exhibit does not support exhaustion of the claim against the RMI Defendants and summary judgment be granted as to this grievance as well. Given that summary judgment has been granted as to all of JD 2’s claims, JD 2 is dismissed from the case.
5. JOHN DOE 3 [JD 3] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Second Amended Complaint, JD 3 alleges the following: i. ST. LOUIS CORRECTIONAL FACILITY (SLF) DEFENDANT PENNELL
JD 3 alleges that, following his entry into the litigation regarding the sexual abuse of juvenile prisoners in adult MDOC facilities, his cell was targeted for
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searches. After these searches were performed, JD 3 would return to a cell where his legal documents were spread out in the open and family photographs were discarded in the toilet. [22 at ¶76]. JD 3 was advised that Defendant Pennell had performed these searches. Id. JD 3 further alleges that Defendant Pennell publically identified him as a Plaintiff in the litigation, and commenced a pattern of harassment that included requiring him to submit to a shakedown every time he encountered Pennell, that excessive room searches were conducted during which Pennell once required JD 3 to be strip searched, and that JD 3’s journal, which had been used to record notes concerning the pending litigation, was removed from his cell. [22 at ¶77].
ii. IBC DEFENDANT MCKEE JD 3 further alleges that, after his transfer from SLF to IBC, Defendant McKee authorized and directed that a sign to be posted outside his cell that read ‘do not interview.’ [22 at 78]. This was understood by staff to identify JD 3 as a Plaintiff in the lawsuit, which is the alleged to have been subsequently disclosed to other prisoners. Id.
iii. IBC DEFENDANTS HALL, HAMMER AND STUMP Defendants Hall, Hammer and Stump are alleged to have taunted JD 3 concerning his participation in litigation, physically assaulting him on multiple
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occasions, and conducting excessive searches of his cell, ripping up his legal documents and destroying his property [22 at 79]. JD 3 alleges that, on October 10, 2015, after he submitted grievances concerning these occurrences, Defendants Hall, Hammer and Stump threatened to issue false misconducts for insolence. Id. JD 3 further alleges that, on October 21, 2015, he was ordered to ‘cuff up’ and was placed in a closet while Defendant Stump searched his cell. [22 at 80]. When JD 3 was returned to the cell, Defendant Hammer falsely claimed that he found a weapon in Plaintiff’s cell, resulting in the issuance of a misconduct charge and Plaintiff losing his programming and job, endangering his parole. Id.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. IBC-1410-3045-17C [33-6B]- AGAINST DEFENDANTS HALL AND MCKEE
This grievance concerns JD 3’s allegations that, when JD 3 asked Officer Hall if he could call the kitchen for a different tray because his cake looked like someone had taken bites out of it, Hall responded with an obscenity, “fuck you,” and that when JD 3 further pressed as to why he was being so disrespectful, Hall replied “eat a dick” and referred to his genital area. [29-8 at 754; 29-8 at 751-755]. In the grievance, JD 3 states that “I feel that Officer Hall’s behavior was highly disrespectful and uncaused for, and also I feel Officer Hall treated me less than human because I’m a prisoner.” Id. This grievance was referred to the PREA
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office, and referred to Internal Affairs for investigation, where they found insufficient evidence to substantiate the grievance. JD 3 appealed through step III. JD 3 contends that this grievance was exhausted as to both McKee and Hall.
Defendant argues that the grievance is not exhausted because it does not concern any of the specific allegations against Hall in the amended complaint, and fails to allege that the conduct reflected a retaliatory purpose. Therefore, it is argued that the grievance failed to provide Defendant with fair notice of the alleged mistreatment or misconduct underlying the constitutional claim. Bell, 450 F. 3d at 654.
Plaintiff alleged that “I feel Officer Hall treated me less than human because I’m a prisoner.” This is not sufficient even under a lessened standard to put Defendant on notice for a first amendment retaliation claim. Bell, 450 F. 3d at 654.
Additionally, Plaintiff’s response brief does not address the argument that the allegations in the complaint do not correspond to the grievance he argues was exhausted. There were no allegations of general sexual harassment in the complaint, rather the harassment alleged at taunts about JD 3 participation in the litigation. Without a more specific retaliation purpose regarding participation in the litigation, Defendant Hall was not on notice from this grievance as to the allegations in the complaint.
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Warden McKee was not named in the grievance, and merely signed off on the form. Plaintiffs argue that the signing of the grievance implicates him in the retaliation, but there are no facts alleged to support this, and there is no case law presented to support the argument that a person who signs off on a grievance which is the basis of a retaliation law suit can also be liable for that retaliation. If this were the rule, Wardens and other signatories would become automatically subject to suit merely as a result of their signature on the form.
Considering the facts alleged in the grievance against Hall and McKee, administrative remedies were not exhausted as to Hall and McKee in this grievance.
ii. IBC-1505-1274-17B [33-6A]- AGAINST DEFENDANTS HAMMER, STUMP AND MCKEE
In the grievance, JD 3 alleges that “officers of unit 5” searched his room on May 11, 2015 between 6:30pm and 8:30pm and “and mixed my legal work concerning a class action lawsuit with my bunky’s legal work…the officers have been searching my room a lot more usual and completely destroying it since I attended a class meeting at this facility. This is [an act] of retaliation and I demand that it stops.” [33-7; 29-8 at762-765].
It is undisputed that JD 3 appealed this grievance through step III. Defendant argues that the grievance was not properly exhausted because it failed to
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specifically name those alleged to have committed the grievance against him, as required by MDOC policy [29-3 at ¶R], and that therefore the grievance was subject to a procedural defaulted and cannot have exhausted the claim. Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010) (boundaries of proper exhaustion are formed by MDOC’s policy).
However, as Plaintiffs point out, Courts refuse to enforce procedural requirements when prison officials declined to enforce them in the first instance. Id at 325. In this instance, the grievance was rejected for a lack of evidence or information that substantiates the allegations, and was on the basis of an unforgiven procedurally default. Because it was rejected on the merits, the Court must determine whether the grievance was otherwise properly exhausted.
While it is true that the MDOC’s policy states that names should be specified, Courts have held that, so long as the facts contained in the grievances allow a Defendant to be identified, exhaustion is still possible. See e.g. Binion v. Glover, No. 07-13443, 2008 WL 4097407, at *4 (E.D. Mich. Aug. 29, 2008); Calhoun v. Hill, No. 07-11613, 2008 WL 4277171, at *3 (E.D. Mich. Sept. 17, 2008). In this grievance, JD 3 states that the complaint concerns “officers of unit 5” who were working on a certain date and a certain time. These allegations are adequate to put officers on notice concerning the grievance. Therefore, this
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grievance is exhausted as to Hammer and Stump. However, McKee was not an officer of unit 5 and therefore this claim should not be considered exhausted as to McKee.
iii. IBC-15-05-1312-17z [33-6C]- AGAINST DEFENDANT STUMP
JD 3 alleges that an identifier was not provided in the resolution of this grievance. However, the allegations match the substance in grievance IBC-15051312-17z submitted by Defendant. [40-4 at 1388]. In this grievance, JD 3 alleged that Stump hit JD 3 in the head with the door and made threatening statement: “what’s up bitch number 1.” [40-4 at 1388]. JD 3 asserts that he only received a notice of receipt for grievance at step I- and without any grievance identifiers and didn’t know which of the various grievances he filed were being responded to, so could not appeal and received no adequate response from the facility.
Per Section 1997e(a), a prisoner is required to exhaust “such remedies as are available,” which the Sixth Circuit has held to mean “that a prisoner is required to exhaust only those procedures that he is reasonably capable of exhausting.” Braswell v. Corr. Corp. of Am., 419 F. App'x 622, 625 (6th Cir. 2011). While Defendants submit evidence that there was a step II appeal response, they fail to produce a step II grievance form. The evidence presented creates a question of fact whether JD 3 was reasonably capable of exhausting this grievance. If he was
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provided with the step II response with the grievance ID number, then he could have been reasonably required to exhaust. However, Plaintiff asserts that he did not receive an identifier for this grievance, and that he merely received a receipt concerning this specific ID number grievance without any idea of which of his multiple grievances submitted it was referring to. Therefore, summary judgment on the retaliation claim against Stump is denied, because there is a question of fact concerning whether he reasonably was capable of exhausting this grievance.
iv. IBC-15-10-2925-28e [29-8]-- AGAINST DEFENDANTS PENNELL, HALL, HAMMER AND STUMP
In this grievance filed on October 26, 2015, JD 3 alleges that he was experiencing retaliation as a result of his status as a John Doe, stemming from his filing of grievances challenging excessive searches of his cell, excessive shakedowns and strip searches, the public consideration of his legal documents, and by publically identifying him as a John Doe complainant. [29-8]. This grievance was denied at step I on a procedural basis of exceeding the time limits applicable to filing a grievance on these issues. JD 3 appealed this decision through step III, but the rejection on the basis of timeliness was upheld.
As JD 3 pointed out in his step II appeal, this conclusion was an error on the part of MDOC. While his grievance does mention dates from May, which would fall outside the requirements of timeliness imposed by the regulations, this
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reference refers to prior grievances filed that JD 3 alleged to be the cause of retaliation he was currently experiencing. As clearly provided in the grievance, the date of October 21, 2015 was the date of the retaliation that he was challenging in the grievance. Therefore, his grievance was timely filed within the five day time period established by MDOC policy, and JD 3 properly exhausted the grievance by appealing it through step III. Therefore, summary judgment is denied as to this grievance against Defendants Pennell, Hall, Hammer and Stump.
6. JOHN DOE 4 [JD 4] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Amended Complaint, JD 4 raised the following claims. i. MACOMB (MRF) DEFENDANT GOLLNAST
JD 4 alleged that Defendant Gollnast rifled through his legal property, and further that he announced to prisoners and staff that JD 4 was claiming to have been raped by prisoners and staff, and that he was Plaintiff in a lawsuit concerning these allegations. [22 at ¶86].
ii. IBC DEFENDANT MCKEE JD 4 also alleged that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, there are no factual allegations implicating Warden McKee in the amended complaint, and he is not even referred
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to in the response brief. Therefore, any retaliation claim against McKee must be dismissed for failure to exhaust.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION JD 4 did not pursue the grievance process because, per his affidavit [33, Ex. 7], after Gollnast’s actions, fellow prisoners harassed him about what happened and threatened him about what they would do if the information concerning his involvement was in fact true. Per his testimony, this humiliated JD 4, and made him fear filing a grievance because of the actions of other prisoners he would face once he was identified as a John Doe Plaintiff complaining of sexual assault. Because of the nature of the grievance process, he feared that anyone could learn about his grievance, the details about his sexual assault allegations, and his involvement in the case. Because of the threats he faced, and his past experiences of rape and abuse at the hands of MDOC staff and prisoners, a person of ordinary firmness could be deterred from proceeding with the grievance process. Therefore, summary judgment is denied on this claim because of an issue of fact remains. Himmelreich, 766 F.3d at 577.
7. JOHN DOE 5 [JD 5] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
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In the amended complaint, JD 5 alleges that retaliation occurred after his participation in the lawsuit.
i. IBC DEFENDANT COBURN JD 5 alleged that Defendant Coburn: (1) informed JD 5 that he knew he was filing a lawsuit and that, as a result, his stay would be more difficult; (2) identified JD 5 to other prisoners and staff, informing them of the details of complaint; (3) along with Defendant Arp, threatened JD 5 about his participation in the lawsuit, informing him that if it was not abandoned, he would never go home, would not be called out for work and program details, and that other prisoners would be encouraged to take action against him [22 at ¶94-96]. After experiencing an assault by a prisoner shortly after this incident, JD 5 was kept in administrative segregation for 9 months because he warned his assaulter that, if he ever hit him again, he would “slap him.” [22 at ¶98].
ii. IBC DEFENDANT MCKEE JD 5 further alleged that Defendant McKee authorized the placement of a ‘do not interview’ sign outside JD 5’s door, which alerted the staff that JD 5 was a John Doe Plaintiff in the law suit. [22 at ¶94].
iii. IBC DEFENDANT ARP
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Defendant Arp, with Coburn, was accused of threatening JD 5 about his participation in the lawsuit, and allegedly informed him that, if he not drop it, he would never go home, would not be called out for work and program details, and other prisoners would be encouraged to take action against him. After being assaulted shortly after this incident by a fellow prisoner, JD 5 was kept in administrative segregation for 9 months for warning his assaulter that, if he ever hit him again, he would “slap him.” [22 at ¶98].
iv. IBC DEFENDANT ROSS JD 5 further alleged that Defendant Ross refused him food, and informed other prisoners they should pay attention to what happened to JD 5 and decide if snitching and suing the MDOC was worth it. [22 at ¶99].
v. IBC DEFENDANT ANDERSON It was alleged the Defendant Anderson searched JD 5’s cell, going through his legal work, reading from it out loud to staff and prisoners while JD 5 showered – directly leading to threats and harassment by prisoners. [22 at ¶101].
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. AFFIDAVIT- AGAINST IBC DEFENDANTS
In an affidavit [33 at Ex. 8A], JD 5 states that he filed step I grievances against IBC officers for the following: (1) “retaliatory harassment after they called
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me a rat and a liar, and made threats about my involvement in the sexual abuse litigation;” (2) filed a grievance “for excessive use of solitary confinement” and never received a response or a grievance identifier but was interviewed; (3) filed two grievances on the Defendants at IBC for retaliatory harassment and destructive room searches and again never received a response. He further states that he knew he wouldn’t be allowed to proceed to step II without an identifier, so he believed there was no way to continue the grievance process. Also, while he contemplated inquiring about the grievances for which he hadn’t received a response, he feared being placed on grievance restriction. He feared further reporting of abuse and harassment because of the mistreatment he had received in response to his prior grievances. These facts both support a finding that remedies were not reasonably available, and that a person of ordinary firmness would be deterred from completing the exhaustion of these grievances. Himmelreich, 766 F. 3d at 577.
Plaintiff asserts that his affidavit satisfies the exhaustion for claims: against ICF Defendants, including Arp, for retaliatory harassment; against McKee for retaliatory placement in solitary confinement; and against ICF Defendants for retaliatory placement in solitary confinement [See 33-4 at 1162]. Defendants assert that these allegations are untrue, and even if true, show that JD 5 did not properly
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exhaust any of these grievances. Because of the dispute of fact, summary judgment should not be granted on JD 5’s claims against any of the Defendants.
8. JOHN DOE 8 a. FACTUAL ALLEGATIONS IN THE COMPLAINT
After filing the lawsuit, JD 8 alleges the following retaliatory actions: i. ECF DEFENDANT ERWAY
JD 8 alleges that he complained to Erway about harassment that included: excessive searches of his cell; leaving his legal property strewn around the room; removal and destruction of his personal property; and being singled out for misconduct tickets. Erway is alleged to have retaliated by arranging for JD 8’s transfer. [22 at ¶107-108].
ii. IBC DEFENDANT ARP AND COBURN JD 8 alleges that Defendants Arp and Coburn verbally harassed and threatened him concerning the litigation in front of other prisoners and staff, causing him to be afraid to report abuse and to participate in the litigation. [22 at ¶110].
iii. IBC DEFENDANT WALTERS JD 8 alleges that Defendant Walters refused his request for help and protection, stating that JD 8 was a JD so she couldn’t talk to him. Id.
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iv. IBC DEFENDANT MCKEE JD 8 also alleges that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, once again, there are no specific factual allegations pled against Warden McKee in the amended complaint. This claim has not been exhausted because McKee was never placed on notice of any alleged retaliation and therefore summary judgment is granted on this claim.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. IBC-1510-2924-17C- AGAINST DEFENDANTS ARP, COBURN AND WALTERS
On September 28, 2015, JD 8 filed a grievance that alleged the following: “I have been targeted and harassed by Cos Lempke, Arp, Coburn and Walters…[they] have repeatedly called me out just to harass me about people I associate with and about my sexual orientation. They have called me names such as a ‘disgusting homosexual’ and referring me as a ‘fuck boy’ and ‘chomo’…Walters has threatened and harassed me for the people I associate with. She has also been causing conflict between me and inmates I have had problems with, and not protecting me from further harm or harassment by them.”[33 at 9B].
The Step I response stated that “…evidence produced in this investigation did not substantiate any policy violations and this matter is considered closed/denied.” JD 8 appealed to step II, stating “actions made by staff show a
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clear pattern of retaliation for a pending lawsuit I’m involved in on MDOC staff. The actions have increased since filing this lawsuit and is causing severe mental distress.” This appeal was denied, stating “that prisoner is attempting to continue with his allegation(s) even after receiving the above grievance response that the matter is closed” and advised that “continuing to grieve this issue- that has already been closed, as stated above- will result in name being referred…for consideration of recommending it [sic] be placed on modified access status for continuing to abuse and misuse the grievance process” and step II appeal denied.
Defendants argue that this grievance was not exhausted because JD 8 did not appeal to step III, the grievance process was not complete before this action was filed, Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999), and it does not allege the conduct was done for a retaliatory purpose.
First, it seems clear that retaliation can be read into the grievance because the grievance states that JD 8 was harassed because of people he associates with and because of his sexual orientation. Since JD 8 alleges in the complaint that retaliation was in part due to his participation in a class action law suit, alleging that he was harassed because of people he associates with put the Defendants on notice of the retaliation claim at issue under a liberal pro se pleading standard.
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Second, JD 8 failure to appeal to step III does not constitute a failure to exhaust. The step II response unequivocally stated that “continuing to grieve this issue- that has already been closed, as stated above- will result in name being referred…for consideration of recommending it [sic] be placed on modified access status for continuing to abuse and misuse the grievance process.” This clearly amounts to official threat concerning completion of the administrative process. Under these circumstances, it is possible that administrative remedies were not “reasonably available” since he had been twice informed that the process was closed and was being improperly threatened with modified access if he continued to appeal the grievance. Braswell v. Corr. Corp. of Am., 419 F. App'x 622, 625 (6th Cir. 2011). Additionally, the threat of being placed on modified grievance access would surely be a stiff penalty since JD 8 was in fear of harassment and abuse and had been sexually assaulted by staff and fellow prisoners in his past. A person who fears harassment and abuse would take a threat to be placed on modified grievance status very seriously and thus the administrative remedies were not reasonably available to JD 8.
However, even if it is found that the grievance was exhausted by the denial of step II due to a lack of reasonably available administrative remedies, that denial happened on December 18, 2015 while the original complaint was filed on
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November 2, 2015. Per the plain language of the PLRA, “[n]o action shall be brought…until such administrative remedies as are available are exhausted.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Plaintiffs rely on Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) to argue that because the grievance was exhausted before the final amended complaint was filed on February 18, 2016, then their claims relating to this grievance should not be dismissed. In Curry, the Court identified three factors in deciding that the case should not need to be dismissed despite the fact that the claims had not been exhausted before the filing of the complaint: (1) evidence showed that exhaustion had actually occurred; (2) this exhaustion happened before the filing of the amended complaint; and (3) the conduct being challenged predated the effective date of the new PLRA or occurred almost simultaneously.
Defendants argue that the use of this case to support non-dismissal of this claim in inapposite, and argue that this decision was factually specific given footnote 3 in the case which states that:
We recognize that these circumstances are not likely to be repeated in this Court. It is only because the events at issue occurred so long ago (i.e., near passage of the Act and before this Court's adoption of processes for compliance with the Act) that the situation presents itself now. It is unlikely subsequent plaintiffs would find themselves in these unique circumstances
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Curry v. Scott, 249 F.3d 493, fn. 3 (6th Cir. 2001). In a case that rejected an argument similar to Plaintiffs’ here, the Court noted that the examples given by the Court in Curry are distinct, and declined to apply Curry, both because the claims being litigated occurred after the passage of the PLRA and there was no amended complaint filed. Kittle v. Squier, No. 2:11-CV-97, 2012 WL 5473142, at *2 (W.D. Mich. Nov. 9, 2012) (stating that “the Court [in Curry] found that ‘exhaustion of remedies prior to the filing of an amended complaint…could constitute exhaustion ‘prior to filing a suit in federal court’ within the meaning of §1997e.’”). Therefore, there is an argument that these criteria were not factually specific and that there was a contemplation that exhausting before an amended complaint was filed could in fact suffice.
However, the allegations contained in this grievance were pled in the original complaint, therefore the argument that administrative remedies for this grievance were exhausted before being brought is not very strong. Defendants here did not have an opportunity to correct any improper action before the Court intervened. In fact, the complaint was filed an entire month before the step I response was even received; further negating Plaintiff’s assertion that the administrative remedies were exhausted per Curry. Jordan v. Caruso, No. 2:08-
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CV-261, 2010 WL 3220143, at *12 (W.D. Mich. Aug. 10, 2010), aff'd (Jan. 11, 2013). Therefore, summary judgment is granted on this grievance.
ii. IBC-1511-3121-03B [33-9C]- AGAINST DEFENDANT ARP This grievance states that JD 8 told Lt Reed that “I fear for my safety. I stated that C/O Arp has threatened my safety in unit 2 and has made multiple retaliatory actions for grievances and litigation I file on him. I was denied any sort of protection…” Defendants state that this claim should be dismissed because JD 8 failed to appeal to step III, does not allege conduct pled by JD 8 against Officer Reed and does not complain specifically against Arp, and, if found to have been exhausted, was exhausted after the complaint was filed. While the grievance was not specifically against Arp, the step I investigation focused in significant part on his actions and concluded “no evidence found that supports [JD 8’s] claim officer Arp tried to have [JD 8] assaulted or that he threatened him in anyway.” In fact, the merits response only mentions Arp by name and not Reed at all. Therefore, it is sufficient to find that Arp was placed on notice by the merits summary about his retaliatory actions alleged by JD 8. Lee v. Willey, 789 F.3d 673, 680-81 (6th Cir. 2015). In terms of exhaustion, Step II appeal response stated ‘grievance denied.’ There is a question of fact of whether exhausted or not because of JD 8 alleges that
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he was threatened that he would be placed on modified access in response to his

appeal. However, the Curry issue of the grievance being exhausted before the

complaint was filed is even more extreme for this grievance since the grievance

itself was filed on November 17, 2015, after the original complaint was filed on

November 2, 2015. Moreover, the original complaint contains allegations against

Arp that mirror those in the grievance. Therefore, summary judgment is granted on

this grievance.

iii. IBC-1509-2614-17z- AGAINST DEFENDANTS ARP, COBURN AND WALTERS

This grievance alleges that Defendant Walters harassed him for a letter he

wrote concerning his sexual fantasies. [29-11 at 797]. It also mentions that other

unnamed “unit staff, correctional officers and Inspector Wakefield” have subjected

him to derogatory comments. Id. This grievance was denied at step III on January

19, 2016. [29-11 at 794].

Defendants argue that this grievance does not allege retaliatory conduct of

any kind and does not correspond with the allegations pleaded against Walters in

the amended complaint. This is correct. There is no retaliatory motive to be found

in the text of the grievance, and Defendant Walters was not on notice about the

behavior that underlies JD 8’s constitutional claim for retaliation with respect to

this grievance.

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Additionally, Plaintiff contends that this grievance is against all IBC Defendants, including Arp and Coburn. [33-4 at 1163]. However, Arp and Coburn are not named and the grievance is not specific enough to put them on notice, because the unnamed IBC Defendants are alleged to have harassed JD 8 since his arrival. Moreover, there is again the problem of no retaliatory motive to be found in the grievance. Therefore, the other IBC Defendants were not on notice concerning the allegations contained in this grievance. Additionally, this grievance again encounters the Curry problem of having been exhausted on January 19, 2016, well after the first complaint was filed.
Accordingly, summary judgment is granted as to this grievance with respect to Arp, Coburn and Walters.
iv. TWO GRIEVANCES AGAINST ERWAY JD 8 further identifies two grievances against Erway and states that they were filed on or around August 9, 2015 and September 7, 2015. JD 8 complained that he “talked to Erway in 1 block about helping me with threats I’ve been receiving from [another prisoner]. Erway stated that he was going to ride me out soon. He did not take care of the immediate threats I was receiving from this inmate…it is unfair, cruel and unusual for me to lose my yards & chow making me
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suffer to threats of ‘getting my jaw broke’ and punish me for [the other inmate’s] behavior” [40 at Ex. 6, pg. 98].
JD 8 states that he never received a response from the facility and did not receive an identifier. He did attach kites filed in late August, filed with the grievance coordinator at IBC when he was transferred, requesting a grievance identifier for his grievance on retaliation and the response and was told to contact the coordinator at Oaks. When he received no response, he filed a grievance directly to step III in which he detailed his attempts and the failure of the grievance process. He was not provided with an identifier for the grievance and was rejected for filing directly to step III [33 at 9A].
Given the repeated attempts that JD 8 made to exhaust this grievance, there are facts to raise an inference that JD 8 exhausted since JD 8 made repeated “affirmative efforts to comply with the administrative procedure,” demonstrating that the procedure was unavailable. Brock v. Kenton Cty., KY, 93 F. App'x 793, 798 (6th Cir. 2004). However, the content of the grievance does not provide any notice of retaliation and therefore summary judgment is granted as to the grievances against Erway. Given that all of JD 8’s claims have been dismissed for failure to exhaust, JD 8 is dismissed from the case.
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9. JOHN DOE 9 [JD 9] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
Per the amended complaint, JD 9 alleges the following occurred after his participation in the lawsuit:
i. DEFENDANT JERANEK JD 9 alleges that Defendant Jeranek did the following: (1) performed several harassing searches of JD 9’s cell; (2) personally degraded JD 9 concerning his involvement in the case; (3) when Jeranek observed JD 9 in hallway, he would say over loudspeaker ‘I need the rape victim to report to the bubble, this is a direct order.’
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION JD 9 did not file any grievances because, per his affidavit, the retaliatory actions of Jeranek caused other prisoners to begin to ask questions, call him a rat and a snitch, and threaten him. He feared that filing a grievance would have required him to further identify himself as a John Doe Plaintiff to MDOC staff which would further endanger his safety from both staff and prisoners given his past experiences of sexual assault. Considering the threats he was facing, and his past experiences of rape and abuse at the hands of MDOC staff and prisoners, there is a question of fact of
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whether a person of ordinary firmness would be deterred from proceeding with the grievance process and summary judgment is denied. Himmelreich, 766 F.3d at 577.
10.JOHN DOE 10 a. FACTUAL ALLEGATIONS IN THE COMPLAINT
After filing the lawsuit, JD 10 alleges the following: i. COTTON (JCF) DEFENDANT WARD
JD 10 alleges that he began to receive comments and harassment from staff, including Defendant Ward, concerning attorney communications. As a result of these comments, and the comments he received from other prisoners, JD 10 believed he was in danger for reporting abuse. Ward is alleged to have harassed JD 10 about litigation, and informing him that he wouldn’t be assaulted if he wasn’t gay, that he should be ashamed, and why are you still alive.
ii. RMI DEFENDANT SCHOOLEY JD 10 alleges that Defendant Schooley was aware that he was being called a snitch and harassed by other prisoners, but refused to intervene.
iii. IBC DEFENDANTS ARP, COBURN AND WALTERS JD 10 alleges that Defendant Arp, along with Defendant Coburn, threatened him with misconducts, loss of programs, and more time in prison after JD 10 filed grievances for retaliation and harassment. Additionally, JD 10 alleges that Arp,
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Coburn and Walters verbally harassed him, punished him, refused to call him out for his detail as a porter, required arbitrary pack ups, searched his cell excessively, and told other officers to destroy items in the cell.
iv. IBC DEFENDANT COBURN JD 10 alleges that Coburn did the following: (1) searched JD 10’s cell twice a day during the same shift, and his property was strewn about; (2) singled out JD 10 for punishment saying it was because “you’re suing that state and you’re gay;” and (3) taunted JD 10 over the intercom, mocked kissing him, threatened him, and stated ‘now go tell your lawyer.’
v. IBC DEFENDANT MCKEE JD 10 also alleges that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, once again, there are no specific factual allegations pled against Warden McKee in the amended complaint, and there is no evidentiary support for this claim and summary judgment is granted as to this claim for lack of any notice.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. JCF-14-12-3044-17C [40-08 AT 6-7] AND PREA INVESTIGATION DOC [33 AT 11-A]- AGAINST DEFENDANT WARD
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This grievance alleged that Ward stood in front of his cell and said that ‘if you weren’t gay these assaults wouldn’t be taking place and you should be ashamed of yourself’ and ‘what is your purpose for living?’ JD 10 filed a step I grievance which was subsequently suspended pending a PREA investigation which was completed on 1/14/15. This investigation concluded that there was insufficient evidence to support a finding that Ward sexually harassed JD 10 [33 at 11-A].
Defendant argues that this grievance was not exhausted because JD 10 did not appeal to steps II and III. However, the policy directives concerning grievances that are investigated by internal affairs do not provide notice to a prisoner that their grievance must be appealed through all three steps, even after they accept jurisdiction and investigate the charge. See 29-3 at ¶Q; see also Langton v. Combalecer, No. 06-11987, 2008 WL 896062, at *3 (E.D. Mich. Mar. 31, 2008) (holding “Defendants' argument that Plaintiff did not utilize the internal MDOC grievance procedures is disingenuous, as sexual misconduct claims are transferred out of the grievance process to Internal Affairs. The Internal Affairs investigation satisfies the exhaustion requirement.”). Therefore, this grievance was successfully exhausted when the PREA submitted their report on the investigation on January 14, 2015.
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Based on generous reading of pro se complaints, and the details of the complaint, it can be read to allege retaliation given that JD 10’s grievance states that Ward referenced his assault and him being gay as the reasons for his alleged actions. Accordingly, the Court denies summary judgment on this claim.
ii. IBC-15-04-1060-17C [33, 11-B]- against Defendant Coburn and McKee
In his grievance, JD 10 alleged that Coburn sexually harassed the prisoner by stating “because you are suing the state and because you are gay and I don’t like that.” At conclusion of investigation, it was determined that there was no evidence to support prisoner allegations, and JD 10 was given a misconduct because of the nature of the allegation. When JD 10 appealed at step II, he was informed that the investigation is completed, and the matter and the grievance was considered closed. JD 10 states that he asked for a step III, and was informed that it was not permitted. Defendants argue that he should have used the step II form, and done it on his own after being denied one.
Based on the evidence presented, it is obvious that, despite the attempts made by JD 10 to pursue this grievance, there is a question of fact whether there were available administrative remedies, and thus if this grievance was exhausted on June 24, 2015 when he received the step II response. Brock v. Kenton Cty., KY,
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93 F. App'x 793, 798 (6th Cir. 2004). Therefore, summary judgment is not granted on this claim as to Coburn.
Once again McKee is named in this claim, but there is no evidence that he was put on notice concerning this claim and accordingly summary judgment on this grievance as to McKee is granted.
iii. IBC-1504-1069-17C- AGAINST WALTERS AND MCKEE [33-11B]
This grievance was filed against Walters and alleges sexual harassment in retaliation for the grievance JD 10 made against Coburn (see grievance discussed above). JD 10 alleges that he was moved to different cell right before dinner, and when asked why he was being moved, Walters said “because your boyfriend’s lock’s across the hall and I don’t give homosexuals what they want.”
JD 10 states that he was issued a misconduct for interference with administrative rules on May 20, 2015, and never received a response. Defendants state that they sent him a response on May 20, 2015 telling him that the investigation was complete and denying the grievance. They assert this claim should be dismissed because JD 10 did not appeal to steps II or III.
Summary judgment is denied as to this grievance against Defendant Walters. There is a question of fact regarding whether or not JD 10 ever received a response. Considering the facts in the light most favorable to JD 10, he was issued
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a misconduct when he inquired about this claim and, according to him, never received a response. Therefore there were no available administrative remedies available, and this grievance was exhausted, either upon receiving the misconduct in May or in August after 120 days passed with no response.
Again McKee is named in relation to this claim but there is no evidence that he was put on notice and summary judgment on this grievance as to McKee is granted.
iv. GRIEVANCE AGAINST SCHOOLEY AND ARP In his response, Plaintiff does not address the allegations against Schooley and Arp and there is no evidence presented of either kites presented regarding a grievance submitted against Schooley and/or Arp, and no evidence of the grievance itself or affidavit evidence testifying to the filing of a grievance against Schooley and Arp. There was no notice given to Schooley and Arp about these allegations and Plaintiff has failed to show that any efforts were made to grieve against Schooley and Arp. Therefore, with respect to JD 10’s claim against Schooley and Arp, summary judgment is granted.
11.JOHN DOE 12 [JD 12] a. FACTUAL ALLEGATIONS IN THE COMPLAINT i. AMF DEFENDANT BEESLEY
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JD 12 alleges that Beesley did the following after he met with counsel to discuss joining the lawsuit: (1) Performed destructive searches and made threatening comments to JD 12 and other youth for bringing the lawsuit; (2) During his attorney visit, Beesley encouraged other staff to flip JD 12’s cell, causing shampoo to be poured over family pictures and generally leaving the cell in disarray; (3) Threatened JD 12 if he continued with litigation; and (4) After JD 12 filed grievance, Defendant Beesley physically assaulted him, warning him to keep his name, and any other correctional officer’s names, out of the litigation.
ii. AMF DEFENDANTS DESCHAINE AND HEYRMAN After joining the litigation, JD 12 alleges that Deschaine and Heyrman told other prisoners and staff that he claimed he had been raped before, and mocked and taunted him with more abuse. Additionally, JD 12 claims that he received destructive cell searches, loss of legal property, denial of privileges, and threats from Deschaine and Heyrman about the litigation.
iii. AMF DEFENDANT JACOBSON After joining the litigation, JD 12 alleges that Jacobson physically assaulted JD 12 and ordered him to strip, forcing him to expose himself while using the bathroom to other prisoners during a shakedown. In addition, JD 12 alleges that his
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cell was destroyed and that Jacobson told him to stop grieving D Beesley, stating “see what your lawyer is getting you into?”
iv. ICF DEFENDANT CONKLIN After joining the litigation, JD 12 alleges that he was gassed by Conklin and placed in hard restraints when he was scheduled for an attorney visit. JD 12 also alleges that Conklin taunted him about his status as a JD, and warned him about being involved in litigation.
v. ICF DEFENDANTS MARTENS AND STAMBAUGH After joining the litigation, JD 12 alleges that Martens and Stambaugh told him they knew he was a JD and a ‘butt boy,’ and made threatening statements regarding his filing a lawsuit against MDOC and getting staff in trouble.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. AMF-1506-1453-17B [33 AT 12-F]- AGAINST BEASLEY AND DESCHAINE
JD 12 alleges retaliatory conduct on the part of Beasley in response to meeting with his lawyer and participating in the lawsuit when they issued him a misconduct after he had not done anything wrong. It is admitted that this grievance was properly exhausted, but Defendants contend that it does not involve allegations in the complaint. However, the acts grieved can clearly be seen as threats and harassment in response to participating in the litigation as they were in
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response to meetings with his attorney, which was alleged in the complaint. Therefore, summary judgment is denied on this claim as to Beesley. Deschaine was not interviewed as a suspect in this allegation and therefore was not on notice for this claim and summary judgment is granted as to him on this claim.
ii. AMF-15-05-1225-17A [33 AT 12-A]- AGAINST DEFENDANT BEESLEY AND HEYRMAN
JD 12 alleged that Beesley, and co-workers Massey and others, arbitrarily denied him out-of-cell exercise in retaliation for filing grievances. Defendants admit this claim was exhausted to step III, but assert doesn’t seem to correspond to any allegations in complaint. However, the complaint references loss of privileges, which this covers. Therefore, summary judgment is denied on this grievance with respect to Beesley.
Plaintiff also insists that this grievance adequately exhausts as to Defendant Heyrman, despite spelling his name wrong. However, officer “Herman” is only identified as one of the officers with whom JD 12 attempted to resolve the problem with, and does not put Heyrman on notice of the allegations in the complaint. Therefore, this grievance is not exhausted as to claims against Heyrman and summary judgment is granted as to Heyrman.
iii. AMF-1506-1301-17B [33 AT 12-D]- AGAINST DEFENDANT BEESLEY AND OTHER AMF DEFENDANTS
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The grievance of JD 12 alleges retaliation for consulting with his attorney in the form of “flipping” his cell during an attorney visit. Defendants admit that JD 12 exhausted as to Beesley in this claim. Plaintiff asserts that it adequately covers all Defendants at AMF because the grievance refers to “staff in unit 2,” along with Beesley, also “co-workers” or “others,” which includes Defendants Deschaine, Heyrman and Jacobson. Defendants argue that the grievance response addressed only the merits as to Beesley and other named people.
In the step I response, it is mentioned that unit 2 staff were interviewed, and they denied leaving JD 12’s cell in disarray. Therefore the merits of allegations addressed the merits as to other Defendants at AMF, and any procedural default argument is waived. This grievance exhausts the claims as to all AMF Defendants related to this issue and summary judgment is denied. Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010).
iv. AMF-1506-1399-17B [33 AT 12-C]- AGAINST BEESLEY AND ALL OTHER AMF DEFENDANTS
The grievance alleges that Beesley verbally threatened and harassed JD 12 in retaliation for seeing attorney. JD 12 alleges that “co-workers” were invoked and that this exhausts as to all AMF Defendants. However, this argument is unpersuasive, as the grievance does not allege all co-workers, and the merits investigation only looked at Beesley and CO Coronado who is not a Defendant in
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this case. The investigation specifically involved only “named officers.” Defendants also challenge that the grievance doesn’t involve allegations in complaint. However, “verbal threats” are surely threats and thus the grievance exhausted the claim as to Beesley and summary judgment is denied as to Beesley. The other AMF Defendants were not placed on notice with this grievance, and therefore only claims relating to Beesley are exhausted and summary judgment is granted in regards to this grievance to all other AMF Defendants.
v. AMF-1506-1303-28A [33 AT 12-E]- AGAINST DEFENDANT BEESLEY
JD 12 alleges that Beesley engaged in retaliation by taking away yard privileges. JD 12 states during attempts to resolve the problem that Beesley stated “what he can’t do his co-workers will.” This claim was rejected as a duplicate at step I, but upon step II, investigation of the merits were addressed. This grievance was exhausted through step III. Defendants assert that the grievance doesn’t involve allegations in complaint. However, the grievance alleges “verbal threats” which are alleged in the complaint and thus the grievance is exhausted as to Beesley and summary judgment as to this grievance is denied.
vi. GRIEVANCE AGAINST DEFENDANTS STAMBAUGH, CONKLIN AND MARTEN
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JD 12 was placed on modified grievance access until September 21, 2015 on June 23, 2015. It was ultimately extended until March 31, 2016. JD 12 asserts that he attempted to submit grievances for retaliatory harassment, denial of due process rights, and retaliatory denial of showers by Stambaugh from August 15 through September 15, 2015, and retaliatory harassment against Stambaugh on October 4, 2015. JD 12 attempted to file grievances against Conklin for retaliatory harassment and excessive use of force on September 28, 2015. Finally JD 12 attempted to file grievance against Marten for retaliatory harassment and denial of shower on October 4, 2015.
In support of the allegations, JD 12 has submitted his written requests to file grievances [33 at Ex. 12-J]. He alleges the grievance coordinator either received no response or that the grievance was denied as untimely. Defendants argue that these requests were all denied as “untimely” per their evidence. [29-14, 1042-1052]. There is no evidence presented by Plaintiff that these requests were not untimely, therefore, summary judgment is granted as to the grievances against Defendants Stambaugh, Conklin and Marten.
CONCLUSION In conclusion, several of the claims should be subject to summary judgment for a failure to adequately exhaust while others have been fully and properly
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exhausted and summary judgment should be denied. Additionally, there are several
claims where summary judgment is denied but a question of fact remains. These
claims will be scheduled for a jury trial to resolve the questions of fact.
IT IS ORDERED that Defendant’s Motion for Summary Judgment [29] is
DENIED in part and GRANTED in part, as follows:
 JOHN DOE 1
o Summary judgment is GRANTED on claims against Defendants Coburn and McKee.
o Summary judgment on claim is DENIED against Defendants Arp and Coburn as related to the evidence presented in Plaintiff’s affidavit because a question of fact exists.
 JOHN DOE 2
o Summary judgment is GRANTED on all of John Doe 2’s claims against Defendants Marten, McLeod, Sherwood, Stambaugh, Rogers, Hoogewind and Schooley.
 JOHN DOE 3
o For grievance IBC-1410-3045-17C, summary judgment is GRANTED on claims against Hall and McKee.
o For grievance IBC-1505-1274-17B, summary judgment is GRANTED as to McKee and DENIED as to Hammer and Stump. No question of fact remains on exhaustion.
o For grievance IBC-1505-1312-17z, summary judgment is DENIED as to Stump because a question of fact exists.
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o For grievance IBC-1510-2925-28e, summary judgment is DENIED as to claims against Pennell, Hall, Hammer and Stump. No question of fact remains on exhaustion.
 JOHN DOE 4
o Summary judgment is GRANTED for claims against McKee.
o Summary judgment is DENIED as to the claims against Gollnasst because questions of fact remain.
 JOHN DOE 5
o Summary judgment on is DENIED on all of Plaintiff’s claims against Defendants Anderson, Ross, Coburn, McKee and Arp because a question of fact exists.
 JOHN DOE 8
o Summary judgment is GRANTED on all of John Doe 8’s claims against Defendants Erway, Arp, Coburn, Walters and McKee.
 JOHN DOE 9
o Summary judgment on all of Plaintiff’s claims against Defendant Jeranek are DENIED because a question of fact exists.
 JOHN DOE 10
o For grievance JCF-1412-3044-17C, summary judgment is DENIED against Plaintiff’s claims against Ward. No questions of fact remain as to exhaustion.
o For grievance IBC-1504-1069-17C, summary judgment is DENIED as to Coburn because a question of fact exists and GRANTED as to McKee.
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o For grievance IBC-1504-1069-17C, summary judgment is GRANTED as to McKee and DENIED as to Walters because a question of fact remains.
o Summary judgment is GRANTED on all of John Doe 2’s claims against Defendants Schooley and Arp.
 JOHN DOE 12
o For grievance AMF-1506-1453-17B as against Defendant Beesley, summary judgment is DENIED. As to claims against Deschaine, summary judgment is GRANTED. No question of fact remains.
o For grievance AMF-15-05-1225-17A 17B against Defendants Beesley and Heyrman, summary judgment is GRANTED as to claims against Heyrman and DENIED as to Defendant Beesley. There are no questions of fact remaining.
o For grievance AMF-1506-1301-17B against Defendants Beesley, Deschaine, Heyrman and Jacobson, summary judgment is DENIED and no questions of fact remain.
o For grievance AMF-1506-1399-17B, summary judgment is DENIED as to Defendant Beesley and no questions of fact remain. As to claims against all other AMP Defendants, summary judgment is GRANTED.
o For grievance AMF-1506-1303-28A as against Defendant Beesley, summary judgment is DENIED. No question of fact remain.
o For claims relating to grievance against Defendants Stambaugh, Conklin and Martens, summary judgment is GRANTED.
SO ORDERED.
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Dated: March 31, 2017

s/Arthur Tarnow
Arthur J. Tarnow Senior United States District Judge

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GLOSSARY OF INSTITUTIONS Bellamy Creek (IBC) Michigan Reformatory (RMI) Ionia correctional facility (ICF) St. Louis correctional facility (SLF) Macomb (MRF) Oaks (ECF) Cotton (JCF)
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 Case 2:15-cv-13852-AJT-MKM ECF No. 130 filed 10/18/17 PageID.3636 Page 1 of 53

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE, ET AL., Plaintiffs,
v.

Case No. 15-13852
SENIOR U.S DISTRICT JUDGE ARTHUR J. TARNOW

ANDERSON, ET AL., Defendants.

U.S. MAGISTRATE JUDGE MONA K. MAJZOUB

/

CORRECTED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [29]

Plaintiffs filed a Complaint [1] against Defendants on November 2, 2015,

alleging First Amendment retaliation under § 1983. Plaintiff filed a Second

Amended Complaint [22] on February 18, 2016, adding facts and removing the

Michigan Department of Corrections as a party. Defendants filed a Motion for

Summary Judgment [29] based on a failure to exhaust remedies on March 8, 2016.

Plaintiffs responded on March 29, 2016 [33] and Defendants replied on April 29,

2016 [40]. The Court held a hearing on the Motion [29] on July 25, 2016.

On March 31, 2017, the Court issued an Order [84] granting the motion for

summary judgment in part and denying the motion in part. On April 14, 2017,

Plaintiffs filed a Motion for Reconsideration of the Court’s Order [84].

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On May 26, 2017, Defendants filed a Motion to Correct Order on Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 60(a) [100]. Plaintiffs concurred in the substance of the changes, but retained their ability to contest the contents of the Order in a Motion for Reconsideration, which they have since filed. This Corrected Order serves as granting Defendants’ Motion to Correct Order [100].
Accordingly, Defendants’ Motion to Correct Order [100] is GRANTED.1 Below is the Court’s Corrected Order, granting in part and denying in part Defendants’ Motion for Summary Judgment [29].
FACTUAL BACKGROUND During the spring of 2013, Plaintiffs were under the age of 18 and housed in adult prisons in Michigan. At this time, John Doe 1 participated in an inquiry conducted by the Inter-American Commission on Human Rights, which resulted in a hearing focused on the violations of the human rights of Michigan children incarcerated in adult prisons. Following the exposure of abuse by John Doe 1’s testimony and associated written submission to the Inter-American Commission on Human Rights, Plaintiffs filed litigation on behalf of themselves, and as class representatives on behalf of children confined in adult prisons operated by the Michigan Department of Corrections (MDOC).
1 This Corrected Order does not incorporate the Court’s analysis of Plaintiffs’ Motion for Reconsideration [91]. The Court’s ruling on Plaintiffs’ Motion for Reconsideration [91] reinstates Plaintiff John Doe 2’s and Plaintiff John Doe 8’s claims against Defendants.
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Plaintiffs consist of nine John Does who allege retaliation resulting from their exposure of the abuse of youth housed in MDOC facilities by MDOC staff, or of abuse that MDOC staff facilitated or failed to intervene to prevent, through the testimony before the Inter-American Commission on Human Rights and in their civil rights litigation in Washtenaw Circuit Court and in Federal Court in the Eastern District of Michigan. Defendants consist of members of MDOC staff who are alleged to have engaged in various forms of retaliation against the Plaintiffs, including, inter alia, “prolonged isolation, destruction of legal and other property, denial of visits, false misconduct tickets, excessive and destructive room searches, verbal harassment and threats, excessive pat-downs, interference with attorney communications, knowingly placing Plaintiffs in situations likely to cause them harm, and intentional disclosure of Plaintiffs’ identities within the prison system, making them more vulnerable to abuse.” [22 at ¶6].
Each specific allegation of each Plaintiff and their grievance process will be discussed in detail below.
ANALYSIS 1. EXHAUSTION IN GENERAL Defendants allege that Plaintiffs have failed to exhaust available administrative remedies, as required by the Prison Litigation Reform Act (PLRA). Under the PLRA, prisoners filing claims in federal court concerning prison
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conditions must exhaust “all ‘available’ remedies” before their claims may be heard. Porter v. Nussle, 534 U.S. 516, 524 (2002). For exhaustion to be proper, Plaintiffs must comply with an agency’s procedural rules for grievances, with the boundaries of proper exhaustion being defined by the prison’s requirements. See Woodford v. Ngo, 548 U.S. 81, 90 (2006); Jones v. Bock, 549 U.S. 199, 218 (2007). It falls to the District Courts, with some reasonable discretion, to determine if the “exhaustion requirement has been substantially met before proceeding to the merits of any prisoner claims.” Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999).
When considering exhaustion, summary judgment is only appropriate if Defendant can “establish the absence of a ‘genuine dispute as to any material fact’ regarding non-exhaustion,” and the Court must look at the evidence “in the light most favorable to the party opposing the motion.” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011).
2. MDOC GRIEVANCE POLICY Per MDOC policy directive, when grieving “alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant,” a prisoner must follow these requirements:
(1) Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff member involved within two business days after becoming aware of the grievable issue. [29-3 at ¶P]
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(2) If the issue is not resolved, the grievant may file a Step I grievance. The Step I grievance must be filed within five business days after the grievant attempted to resolve the issue with appropriate staff Id.
(3) Information provided [by the prisoner in the grievance form] is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names of all those involved in the issue being grieved are to be included. [29-3 at ¶R].
(4) A grievant may file a Step II grievance if s/he is dissatisfied with the response received at Step I or if s/he did not receive a timely response. To file a Step II grievance, the grievant must request a Prisoner/Parolee Grievance Appeal (CSJ-247B) from the Step I Grievance Coordinator and send the completed form to the Step II Grievance Coordinator designated for the facility, field office, or other office being grieved within ten business days after receiving the Step I response or, if no response was received, within ten business days after the date the response was due, including any extensions. [29-3 at ¶BB].
(5) A grievant may file a Step III grievance if s/he is dissatisfied with the Step II response or does not receive a timely response. To file a Step III grievance, the grievant must send a completed Step III grievance, using the Prisoner/Parolee Grievance Appeal form (CSJ247B), to the Grievance and Appeals Section within ten business days after receiving the Step II response or, if no response was received, within ten business days after the date the response was due, including any extensions. [29-3 at ¶FF]
(6) The total grievance process from the point of filing a Step I grievance to providing a Step III response shall generally be completed within 120 calendar days unless an extension has been approved in writing by the Grievance Coordinator at Step I and/or Step II. [29-3 at ¶S].
Additionally, if the conduct alleged includes staff sexual misconduct:
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All grievances alleging such conduct [staff sexual misconduct], whether filed with the inspector or a CFA or FOA grievance coordinator, shall be referred to the Internal Affairs Division for review as set forth in PD 01.01.140 “Internal Affairs… if the grievance is determined to fall within the jurisdiction of the Internal Affairs Division; in such cases, an investigation shall be conducted in accordance with PD 01.01.140 and the grievant notified that an extension of time is therefore needed to respond to the grievance. The Manager of the Internal Affairs Division or designee also shall notify the Warden or FOA Deputy Director or designee, and the inspector or grievance coordinator as appropriate, if it is determined that the grievance is not within the jurisdiction of the Internal Affairs Division; in such cases, the grievance shall continue to be processed as a Step I grievance in accordance with this policy.
[29-3 at ¶Q].
3. PLAINTIFF JOHN DOE 1.
a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Second Amended Complaint [22] filed on February 18, 2016, John
Doe 1 alleged the following: i. BELLAMY CREEK (IBC)2 DEFENDANT COBURN
John Doe 1 (JD 1) alleges that, after testifying for the Inter-American
Human Rights Commission on sexual abuse of juveniles in adult Michigan prisons,
Defendant Coburn performed the following retaliatory acts: (1) Coburn entered JD
1’s cell on daily basis to look through JD 1’s correspondence and legal property;
2 A glossary is attached on page 56 detailing the various institutions and their abbreviations.
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(2) Coburn falsely announced over loudspeaker that JD 1 was HIV positive; (3) Coburn destroyed JD 1’s property with co-Defendant Arp.
Additionally, after JD 1 filed suit alleging violations of his rights arising from MDOC’s and its officials’ and employees’ deliberate indifference to the safety of youth in their care and custody, Coburn (1) entered JD 1’s cell and removed all of his legal materials; (2) along with co-Defendant Arp, Coburn targeted JD 1 for pat down searches and made open statements and comments identifying JD 1 as a Plaintiff the pending litigation, which exposed him as a person reporting sexual assaults by other prisoners and staff. [22 at ¶¶49-61].
ii. IBC DEFENDANT ARP JD 1 alleges that after testifying for the Inter-American Human Rights Commission on sexual abuse of juveniles in adult Michigan prisons, Defendant Arp, along with Defendant Coburn, destroyed JD 1’s property. JD 1 alleges that, after he filed suit alleging violations of his rights resulting from MDOC’s and its officials’ and employees’ deliberate indifference to the safety of youth in their care and custody, Arp (1) along with co-Defendant Coburn, targeted JD 1 for pat down searches and made open statements and comments identifying JD 1 as a Plaintiff the pending litigation, exposing him as a person reporting sexual assaults by other prisoners and staff; (2) approached JD 1 in the library and demanded that JD 1 handover a letter to his attorney. JD 1 was given a
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15 day loss of privilege and was banned from the law library for 6 months when he refused to surrender the letter. JD 1 also lost recreation privileges, phone calls, and visits as further consequences. [22 at ¶¶49-61].
iii. IBC DEFENDANT WARDEN MCKEE JD 1 also alleges that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, there are no factual allegations detailing Warden McKee’s actions in the amended complaint, and there is no evidentiary support for this claim. Accordingly, summary judgment is granted as to this claim for lack of the requisite exhaustion.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION In his response, JD 1 identifies one specific grievance and supplies an affidavit stating why other grievances were not filed pertaining to his other allegations.
i. IBC-1306-1534-17Z [29-E]- AGAINST COBURN AND MCKEE
Grievance IBC-1306-1534-17Z was filed on June 11, 2013 concerning the allegation that Coburn announced over the loudspeaker that JD 1 was HIV positive. The grievance alleges that, on May 28, 2013, Coburn “stated over the intercom for all of the unit to hear that I was HIV/AIDS positive and that I needed to start my treatment.” [29-6 at 737]. The grievance further states that “[JD 1]
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feel[s] like officer Coburn purposely put my life in jeopardy with defamation of character.” Id. This grievance was appealed through step III. [29-6 at 734].
Defendants argue that this grievance was not properly exhausted, because it was filed before participation in litigation began, does not allege that Coburn acted in retaliation for JD 1’s participation in the litigation, and there was therefore no fair notice of a First Amendment retaliation claim in that grievance. Bell v. Konteh, 450 F. 3d 651, 654 (6th Cir. 2004) (internal citations omitted).
However, as JD 1 points out, the Amended Complaint contemplates the protected activity to include the time when JD 1 complained about sexual abuse, met with counsel, and testified before the Inter-American Commission regarding his abuse, and is thus not an issue to be decided in a motion alleging failure to exhaust.
With respect to the argument that JD 1 failed to exhaust the grievance because its content failed to provide fair notice of the alleged misconduct that forms the basis of the constitutional claim, Plaintiff asserts that the standard applied to whether prisoners have described the alleged misconduct sufficiently in their grievances is “not a particularly strict” standard, and prisoners are not required to “allege a specific legal theory or facts that correspond to all the required elements of a particular legal theory,” and that instead only “fair notice [must be] given.” Bell, 450 F.3d at 654. This is consistent with the practice of
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liberally construing pro se prisoners’ filings. Id. Other Courts have held that the term “retaliation” does not need to be included in a grievance in order to properly exhaust a claim for retaliation. See Jackson v. Huss, No. 1:14-CV-426, 2015 WL 5691026, at *7 (W.D. Mich. Sept. 28, 2015) (finding that the allegations that Defendant was “not treating [the prisoner] because of my complaints against the prison” was sufficient to put prison officials on notice that Plaintiff was asserting a retaliation claim).
In the grievance at issue, JD 1 does not specifically use the word “retaliation” and does not include any allegations that even under a liberal pro se reading could be construed as retaliation. The claims relate to a defamation of character but at no point does the grievance even allude to a possible retaliation claim. Therefore, summary judgment is granted on this grievance against Coburn.
JD 1 also alleges that McKee is an appropriate party to this retaliation claim in this grievance. McKee was the Warden who denied the grievance at all three steps, however he is not mentioned by name in the grievance, and there are no allegations in the amended complaint detailing the actions taken by the Warden that were retaliatory. Because Plaintiff has failed to show how the grievance is applicable to McKee, he was not fairly put him on notice for a retaliation claim. The mere denial of a grievance, without more, should not be sufficient to raise a retaliation claim, and this grievance is unexhausted as to Defendant McKee.
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ii. AFFIDAVIT- EVIDENCE AGAINST ARP AND COBURN As stated in JD 1’s affidavit, following the filing of his first grievance against Coburn, JD 1 “began to experience an excessive number of retaliatory room searches and verbal harassment” and he reasonably concluded that filing any additional grievances challenging institutional staff for the continued retaliation would be futile and, render him a target for further harassment and threats, exposing him as a John Doe Plaintiff in this proceeding [29-7]. The Sixth Circuit has “excused a prisoner’s lack of complete compliance [with the grievance process] when the improper actions of prison officials render the administrative remedies functionally unavailable.” Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014), cert. granted sub nom. Simmons v. Himmelreich, 136 S. Ct. 445, 193 L. Ed. 2d 346 (2015), and aff'd and remanded sub nom. Simmons v. Himmelreich, 136 S. Ct. 1843 (2016). To determine whether the process was functionally unavailable, the Court “must ask whether [the prison official’s] threats and actions would ‘deter a person of ordinary firmness from [continuing with the grievance process].’” Id. (citations omitted). The last instance of alleged retaliation resulted in JD 1 being accused of being HIV positive, rendering him subject to the threats of multiple prisoners. Plaintiff not unreasonably feared further exposure as a John Doe Plaintiff resulting in still further harassment and threats. There is good reason why anonymity is
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critical in proceedings such as this. Identification as a John Doe Plaintiff would expose him as having reported physical abuse committed by prisoners and MDOC officials, as well as an individual who had been raped. It is a question of fact whether a person of ordinary firmness would not continue the grievance process to protect exposure of their identity. Therefore, the affirmative defense of failure to exhaust the claims of alleged retaliation by Arp and Coburn is rejected because questions of fact remain regarding a person of ordinary firmness would continue the grievance process or not.
4. JOHN DOE 2 [JD 2] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Second Amended Complaint, JD 2 alleged the following: i. MICHIGAN REFORMATORY (RMI) DEFENDANT SCHOOLEY
JD 2 alleges that, after the filing of the lawsuit, Schooley confiscated JD 2’s journal which detailed on going abuse and harassment, and delivered it to the Assistant Attorney General representing the MDOC in the lawsuit. [22 at ¶65].
ii. RMI DEFENDANTS ROGERS AND HOOGEWIND JD 2 alleges that, after the filing of the lawsuit, Defendants Rogers and Hoogewind verbally assaulted him and made threats concerning his participation in the current litigation. Additionally, Rogers and Hoogewind are alleged to have publically disclosed JD 2’s identity and his participation in litigation concerning
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ongoing sexual abuse of juveniles by prisoners and MDOC officers. When JD 2 complained that he was receiving threats from other prisoners because of disclosure of his identity, he was issued a false misconduct, and was subject to continued verbal harassment by Rogers and Hoogewind [22 at 66].
iii. IONIA CORRECTIONAL FACILITY (ICF) DEFENDANTS SHERWOOD, MARTENS AND MCLEOD
JD 2 was transferred to administrative segregation at ICF in March 2015. JD 2 alleges that Defendants Sherwood, Martens and McLeod harassed him as a result of his participation in the pending litigation, and mocked him for being sexually abused. [22 at ¶68]. These Defendants are also alleged to have performed several retaliatory acts, including issuance of false misconducts, placement of JD 2 on food loaf, performing excessive room searches resulting in destruction of JD 2’s property, and reading JD 2’s legal mail. [22 at ¶69]. JD 2 alleges that Sherwood refused to give him grievance forms for these actions, and told him to put it in his lawsuit. Id.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. ICF DEFENDANTS: GRIEVANCES AGAINST DEFENDANTS MARTENS, MCLEOD, SHERWOOD AND STAMBAUGH 1. EXHIBIT 33-5A AND 33-5B
These exhibits contain the same handwritten grievance concerning the destruction of property and legal mail. However, retaliation is not mentioned, and
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the names of the named ICF Defendants are not stated. This grievance was rejected as excessively vague, resulting in a procedural default, so it cannot be considered properly exhausted under the PLRA and summary judgment is granted as to this grievance. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006).
2. ICF 09-1617-30b [33-5E] In this grievance, JD 2 requested protection from Miniard because he identified his as a JD. None of the named Defendants is mentioned in grievance. Per evidence provided by Defendant, the grievance resulted in JD 2 being placed in administrative segregation, and thus out of harm’s way. JD 2 reportedly was advised that, when released to the general population, if he continued to feel there was a threat to his safety, he could once again request protection and another investigation would be conducted at that time. Therefore the grievance was resolved, and no named Defendants were placed on notice of any new or continuing grievance. Summary judgment is granted as to this grievance.
3. ICF-2015-10-1906-17i [33-5E] JD 2 asserted a Grievance against Powell (not named as a Defendant herein) for his alleged failure to pick up JD 2’s legal mail. The Response by the MDOC states that the grievance was resolved because video footage was reviewed that showed Powell making a legal mail run at JD 2’s cell. JD 2 was advised of this and purportedly stated “ok, I will resolve the grievance.” The grievance appears to be
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resolved, and no named Defendants were placed on notice concerning the grievance. Summary judgment is granted as to this claim.
i. RMI DEFENDANTS - GRIEVANCES AGAINST DEFENDANTS ROGERS, HOOGEWIND AND SCHOOLEY 1. EXHIBIT 33-5F
Plaintiff alleges that he filed a step III grievance for retaliation at RMI after his transferred to ICR, but that the grievance was returned to him. However, all that is provided concerning this particular grievance is a document requesting Plaintiff to provide a date for the incident, which does not support the allegation in the response or the allegations in the complaint. Therefore, this exhibit does not support exhaustion against the RMI Defendants and summary judgment is granted as to this claim.
2. RMI-1505-10978-19D [40-3 AT 16] JD 2 alleges that this complaint was a grievance against Hoodgewind and Rogers for destruction of property. However, the actual grievance named CO Greer as the person who packed the property, and the response stated that Officers Hoogewind and Burge worked the shift at issue in JD 2’s complaint. While JD 2 failed to allege any wrongdoing on the part of Hoogewind, Rogers or Schooley in his grievance, their identification placed them on notice of the alleged retaliation claims. However, the grievance was resolved at step II and there was no appeal to step III and was, accordingly, subject to a procedural default. Therefore, this
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exhibit does not support exhaustion of the claim against the RMI Defendants and summary judgment be granted as to this grievance as well. Given that summary judgment has been granted as to all of JD 2’s claims, JD 2 is dismissed from the case.
5. JOHN DOE 3 [JD 3] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Second Amended Complaint, JD 3 alleges the following: i. ST. LOUIS CORRECTIONAL FACILITY (SLF) DEFENDANT PENNELL
JD 3 alleges that, following his entry into the litigation regarding the sexual abuse of juvenile prisoners in adult MDOC facilities, his cell was targeted for searches. After these searches were performed, JD 3 would return to a cell where his legal documents were spread out in the open and family photographs were discarded in the toilet. [22 at ¶76]. JD 3 was advised that Defendant Pennell had performed these searches. Id. JD 3 further alleges that Defendant Pennell publically identified him as a Plaintiff in the litigation, and commenced a pattern of harassment that included requiring him to submit to a shakedown every time he encountered Pennell, that excessive room searches were conducted during which Pennell once required JD 3 to be strip searched, and that JD 3’s journal, which had been used to record notes concerning the pending litigation, was removed from his cell. [22 at ¶77].
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ii. IBC DEFENDANT MCKEE JD 3 further alleges that, after his transfer from SLF to IBC, Defendant McKee authorized and directed that a sign to be posted outside his cell that read ‘do not interview.’ [22 at 78]. This was understood by staff to identify JD 3 as a Plaintiff in the lawsuit, which is the alleged to have been subsequently disclosed to other prisoners. Id.
iii. IBC DEFENDANTS HALL, HAMMER AND STUMP Defendants Hall, Hammer and Stump are alleged to have taunted JD 3 concerning his participation in litigation, physically assaulting him on multiple occasions, and conducting excessive searches of his cell, ripping up his legal documents and destroying his property [22 at 79]. JD 3 alleges that, on October 10, 2015, after he submitted grievances concerning these occurrences, Defendants Hall, Hammer and Stump threatened to issue false misconducts for insolence. Id. JD 3 further alleges that, on October 21, 2015, he was ordered to ‘cuff up’ and was placed in a closet while Defendant Stump searched his cell. [22 at 80]. When JD 3 was returned to the cell, Defendant Hammer falsely claimed that he found a weapon in Plaintiff’s cell, resulting in the issuance of a misconduct charge and Plaintiff losing his programming and job, endangering his parole. Id.
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b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. IBC-1410-3045-17C [33-6B]- AGAINST DEFENDANTS HALL AND MCKEE
This grievance concerns JD 3’s allegations that, when JD 3 asked Officer Hall if he could call the kitchen for a different tray because his cake looked like someone had taken bites out of it, Hall responded with an obscenity, “fuck you,” and that when JD 3 further pressed as to why he was being so disrespectful, Hall replied “eat a dick” and referred to his genital area. [29-8 at 754; 29-8 at 751-755]. In the grievance, JD 3 states that “I feel that Officer Hall’s behavior was highly disrespectful and uncaused for, and also I feel Officer Hall treated me less than human because I’m a prisoner.” Id. This grievance was referred to the PREA office, and referred to Internal Affairs for investigation, where they found insufficient evidence to substantiate the grievance. JD 3 appealed through step III. JD 3 contends that this grievance was exhausted as to both McKee and Hall.
Defendant argues that the grievance is not exhausted because it does not concern any of the specific allegations against Hall in the amended complaint, and fails to allege that the conduct reflected a retaliatory purpose. Therefore, it is argued that the grievance failed to provide Defendant with fair notice of the alleged mistreatment or misconduct underlying the constitutional claim. Bell, 450 F. 3d at 654.
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Plaintiff alleged that “I feel Officer Hall treated me less than human because I’m a prisoner.” This is not sufficient even under a lessened standard to put Defendant on notice for a first amendment retaliation claim. Bell, 450 F. 3d at 654.
Additionally, Plaintiff’s response brief does not address the argument that the allegations in the complaint do not correspond to the grievance he argues was exhausted. There were no allegations of general sexual harassment in the complaint, rather the harassment alleged at taunts about JD 3 participation in the litigation. Without a more specific retaliation purpose regarding participation in the litigation, Defendant Hall was not on notice from this grievance as to the allegations in the complaint.
Warden McKee was not named in the grievance, and merely signed off on the form. Plaintiffs argue that the signing of the grievance implicates him in the retaliation, but there are no facts alleged to support this, and there is no case law presented to support the argument that a person who signs off on a grievance which is the basis of a retaliation law suit can also be liable for that retaliation. If this were the rule, Wardens and other signatories would become automatically subject to suit merely as a result of their signature on the form.
Considering the facts alleged in the grievance against Hall and McKee, administrative remedies were not exhausted as to Hall and McKee in this grievance.
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ii. IBC-1505-1274-17B [33-6A]- AGAINST DEFENDANTS HAMMER, STUMP AND MCKEE
In the grievance, JD 3 alleges that “officers of unit 5” searched his room on May 11, 2015 between 6:30pm and 8:30pm and “and mixed my legal work concerning a class action lawsuit with my bunky’s legal work…the officers have been searching my room a lot more usual and completely destroying it since I attended a class meeting at this facility. This is [an act] of retaliation and I demand that it stops.” [33-7; 29-8 at762-765].
It is undisputed that JD 3 appealed this grievance through step III. Defendant argues that the grievance was not properly exhausted because it failed to specifically name those alleged to have committed the grievance against him, as required by MDOC policy [29-3 at ¶R], and that therefore the grievance was subject to a procedural defaulted and cannot have exhausted the claim. Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010) (boundaries of proper exhaustion are formed by MDOC’s policy).
However, as Plaintiffs point out, Courts refuse to enforce procedural requirements when prison officials declined to enforce them in the first instance. Id at 325. In this instance, the grievance was rejected for a lack of evidence or information that substantiates the allegations, and was on the basis of an unforgiven procedurally default. Because it was rejected on the merits, the Court must determine whether the grievance was otherwise properly exhausted.
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While it is true that the MDOC’s policy states that names should be specified, Courts have held that, so long as the facts contained in the grievances allow a Defendant to be identified, exhaustion is still possible. See, e.g., Binion v. Glover, No. 07-13443, 2008 WL 4097407, at *4 (E.D. Mich. Aug. 29, 2008); Calhoun v. Hill, No. 07-11613, 2008 WL 4277171, at *3 (E.D. Mich. Sept. 17, 2008). In this grievance, JD 3 states that the complaint concerns “officers of unit 5” who were working on a certain date and a certain time. These allegations are adequate to put officers on notice concerning the grievance. Therefore, this grievance is exhausted as to Hammer and Stump. However, McKee was not an officer of unit 5 and therefore this claim should not be considered exhausted as to McKee.
iii. IBC-15-05-1312-17z [33-6C]- AGAINST DEFENDANT STUMP
JD 3 alleges that an identifier was not provided in the resolution of this grievance. However, the allegations match the substance in grievance IBC-15051312-17z submitted by Defendant. [40-4 at 1388]. In this grievance, JD 3 alleged that Stump hit JD 3 in the head with the door and made threatening statement: “what’s up bitch number 1.” [40-4 at 1388]. JD 3 asserts that he only received a notice of receipt for grievance at step I- and without any grievance identifiers and didn’t know which of the various grievances he filed were being responded to, so could not appeal and received no adequate response from the facility.
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Per Section 1997e(a), a prisoner is required to exhaust “such remedies as are available,” which the Sixth Circuit has held to mean “that a prisoner is required to exhaust only those procedures that he is reasonably capable of exhausting.” Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 625 (6th Cir. 2011). While Defendants submit evidence that there was a step II appeal response, they fail to produce a step II grievance form. The evidence presented creates a question of fact whether JD 3 was reasonably capable of exhausting this grievance. If he was provided with the step II response with the grievance ID number, then he could have been reasonably required to exhaust. However, Plaintiff asserts that he did not receive an identifier for this grievance, and that he merely received a receipt concerning this specific ID number grievance without any idea of which of his multiple grievances submitted it was referring to. Therefore, summary judgment on the retaliation claim against Stump is denied, because there is a question of fact concerning whether he reasonably was capable of exhausting this grievance.
iv. IBC-15-10-2925-28e [29-8]-- AGAINST DEFENDANTS PENNELL, HALL, HAMMER AND STUMP
In this grievance filed on October 26, 2015, JD 3 alleges that he was experiencing retaliation as a result of his status as a John Doe, stemming from his filing of grievances challenging excessive searches of his cell, excessive shakedowns and strip searches, the public consideration of his legal documents, and by publically identifying him as a John Doe complainant. [29-8]. This
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grievance was denied at step I on a procedural basis of exceeding the time limits applicable to filing a grievance on these issues. JD 3 appealed this decision through step III, but the rejection on the basis of timeliness was upheld.
As JD 3 pointed out in his step II appeal, this conclusion was an error on the part of MDOC. While his grievance does mention dates from May, which would fall outside the requirements of timeliness imposed by the regulations, this reference refers to prior grievances filed that JD 3 alleged to be the cause of retaliation he was currently experiencing. As clearly provided in the grievance, the date of October 21, 2015 was the date of the retaliation that he was challenging in the grievance. Therefore, his grievance was timely filed within the five day time period established by MDOC policy, and JD 3 properly exhausted the grievance by appealing it through step III. Therefore, summary judgment is denied as to this grievance against Defendants Pennell, Hall, Hammer and Stump.
6. JOHN DOE 4 [JD 4] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the Amended Complaint, JD 4 raised the following claims. i. MACOMB (MRF) DEFENDANT GOLLNAST
JD 4 alleged that Defendant Gollnast rifled through his legal property, and further that he announced to prisoners and staff that JD 4 was claiming to have
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been raped by prisoners and staff, and that he was Plaintiff in a lawsuit concerning these allegations. [22 at ¶86].
ii. IBC DEFENDANT MCKEE JD 4 also alleged that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, there are no factual allegations implicating Warden McKee in the amended complaint, and he is not even referred to in the response brief. Therefore, any retaliation claim against McKee must be dismissed for failure to exhaust.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION JD 4 did not pursue the grievance process because, per his affidavit [33, Ex. 7], after Gollnast’s actions, fellow prisoners harassed him about what happened and threatened him about what they would do if the information concerning his involvement was in fact true. Per his testimony, this humiliated JD 4, and made him fear filing a grievance because of the actions of other prisoners he would face once he was identified as a John Doe Plaintiff complaining of sexual assault. Because of the nature of the grievance process, he feared that anyone could learn about his grievance, the details about his sexual assault allegations, and his involvement in the case. Because of the threats he faced, and his past experiences of rape and abuse at the hands of MDOC staff and prisoners, a person of ordinary firmness could be
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deterred from proceeding with the grievance process. Therefore, summary judgment is denied on this claim because of an issue of fact remains. Himmelreich, 766 F.3d at 577.
7. JOHN DOE 5 [JD 5] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
In the amended complaint, JD 5 alleges that retaliation occurred after his participation in the lawsuit.
i. IBC DEFENDANT COBURN JD 5 alleged that Defendant Coburn: (1) informed JD 5 that he knew he was filing a lawsuit and that, as a result, his stay would be more difficult; (2) identified JD 5 to other prisoners and staff, informing them of the details of complaint; (3) along with Defendant Arp, threatened JD 5 about his participation in the lawsuit, informing him that if it was not abandoned, he would never go home, would not be called out for work and program details, and that other prisoners would be encouraged to take action against him [22 at ¶94-96]. After experiencing an assault by a prisoner shortly after this incident, JD 5 was kept in administrative segregation for 9 months because he warned his assaulter that, if he ever hit him again, he would “slap him.” [22 at ¶98].
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ii. IBC DEFENDANT MCKEE JD 5 further alleged that Defendant McKee authorized the placement of a ‘do not interview’ sign outside JD 5’s door, which alerted the staff that JD 5 was a John Doe Plaintiff in the law suit. [22 at ¶94].
iii. IBC DEFENDANT ARP Defendant Arp, with Coburn, was accused of threatening JD 5 about his participation in the lawsuit, and allegedly informed him that, if he not drop it, he would never go home, would not be called out for work and program details, and other prisoners would be encouraged to take action against him. After being assaulted shortly after this incident by a fellow prisoner, JD 5 was kept in administrative segregation for 9 months for warning his assaulter that, if he ever hit him again, he would “slap him.” [22 at ¶98].
iv. IBC DEFENDANT ROSS JD 5 further alleged that Defendant Ross refused him food, and informed other prisoners they should pay attention to what happened to JD 5 and decide if snitching and suing the MDOC was worth it. [22 at ¶99].
v. IBC DEFENDANT ANDERSON It was alleged the Defendant Anderson searched JD 5’s cell, going through his legal work, reading from it out loud to staff and prisoners while JD 5 showered – directly leading to threats and harassment by prisoners. [22 at ¶101].
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b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. AFFIDAVIT- AGAINST IBC DEFENDANTS
In an affidavit [33 at Ex. 8A], JD 5 states that he filed step I grievances against IBC officers for the following: (1) “retaliatory harassment after they called me a rat and a liar, and made threats about my involvement in the sexual abuse litigation;” (2) filed a grievance “for excessive use of solitary confinement” and never received a response or a grievance identifier but was interviewed; (3) filed two grievances on the Defendants at IBC for retaliatory harassment and destructive room searches and again never received a response. He further states that he knew he wouldn’t be allowed to proceed to step II without an identifier, so he believed there was no way to continue the grievance process. Also, while he contemplated inquiring about the grievances for which he hadn’t received a response, he feared being placed on grievance restriction. He feared further reporting of abuse and harassment because of the mistreatment he had received in response to his prior grievances. These facts both support a finding that remedies were not reasonably available, and that a person of ordinary firmness would be deterred from completing the exhaustion of these grievances. Himmelreich, 766 F. 3d at 577.
Plaintiff asserts that his affidavit satisfies the exhaustion for claims: against ICF Defendants, including Arp, for retaliatory harassment; against McKee for retaliatory placement in solitary confinement; and against ICF Defendants for
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retaliatory placement in solitary confinement [See 33-4 at 1162]. Defendants assert that these allegations are untrue, and even if true, show that JD 5 did not properly exhaust any of these grievances. Because of the dispute of fact, summary judgment should not be granted on JD 5’s claims against any of the Defendants.
8. JOHN DOE 8 a. FACTUAL ALLEGATIONS IN THE COMPLAINT
After filing the lawsuit, JD 8 alleges the following retaliatory actions: i. ECF DEFENDANT ERWAY
JD 8 alleges that he complained to Erway about harassment that included: excessive searches of his cell; leaving his legal property strewn around the room; removal and destruction of his personal property; and being singled out for misconduct tickets. Erway is alleged to have retaliated by arranging for JD 8’s transfer. [22 at ¶107-108].
ii. IBC DEFENDANT ARP AND COBURN JD 8 alleges that Defendants Arp and Coburn verbally harassed and threatened him concerning the litigation in front of other prisoners and staff, causing him to be afraid to report abuse and to participate in the litigation. [22 at ¶110].
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iii. IBC DEFENDANT WALTERS JD 8 alleges that Defendant Walters refused his request for help and protection, stating that JD 8 was a JD so she couldn’t talk to him. Id.
iv. IBC DEFENDANT MCKEE JD 8 also alleges that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, once again, there are no specific factual allegations pled against Warden McKee in the amended complaint. This claim has not been exhausted because McKee was never placed on notice of any alleged retaliation and therefore summary judgment is granted on this claim.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. IBC-1510-2924-17C- AGAINST DEFENDANTS ARP, COBURN AND WALTERS
On September 28, 2015, JD 8 filed a grievance that alleged the following: “I have been targeted and harassed by Cos Lempke, Arp, Coburn and Walters…[they] have repeatedly called me out just to harass me about people I associate with and about my sexual orientation. They have called me names such as a ‘disgusting homosexual’ and referring me as a ‘fuck boy’ and ‘chomo’…Walters has threatened and harassed me for the people I associate with. She has also been causing conflict between me and inmates I have had problems with, and not protecting me from further harm or harassment by them.”[33 at 9B].
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The Step I response stated that “…evidence produced in this investigation did not substantiate any policy violations and this matter is considered closed/denied.” JD 8 appealed to step II, stating “actions made by staff show a clear pattern of retaliation for a pending lawsuit I’m involved in on MDOC staff. The actions have increased since filing this lawsuit and is causing severe mental distress.” This appeal was denied, stating “that prisoner is attempting to continue with his allegation(s) even after receiving the above grievance response that the matter is closed” and advised that “continuing to grieve this issue- that has already been closed, as stated above- will result in name being referred…for consideration of recommending it [sic] be placed on modified access status for continuing to abuse and misuse the grievance process” and step II appeal denied.
Defendants argue that this grievance was not exhausted because JD 8 did not appeal to step III, the grievance process was not complete before this action was filed, Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999), and it does not allege the conduct was done for a retaliatory purpose.
First, it seems clear that retaliation can be read into the grievance because the grievance states that JD 8 was harassed because of people he associates with and because of his sexual orientation. Since JD 8 alleges in the complaint that retaliation was in part due to his participation in a class action law suit, alleging
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that he was harassed because of people he associates with put the Defendants on notice of the retaliation claim at issue under a liberal pro se pleading standard.
Second, JD 8 failure to appeal to step III does not constitute a failure to exhaust. The step II response unequivocally stated that “continuing to grieve this issue- that has already been closed, as stated above- will result in name being referred…for consideration of recommending it [sic] be placed on modified access status for continuing to abuse and misuse the grievance process.” This clearly amounts to official threat concerning completion of the administrative process. Under these circumstances, it is possible that administrative remedies were not “reasonably available” since he had been twice informed that the process was closed and was being improperly threatened with modified access if he continued to appeal the grievance. Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 625 (6th Cir. 2011). Additionally, the threat of being placed on modified grievance access would surely be a stiff penalty since JD 8 was in fear of harassment and abuse and had been sexually assaulted by staff and fellow prisoners in his past. A person who fears harassment and abuse would take a threat to be placed on modified grievance status very seriously and thus the administrative remedies were not reasonably available to JD 8.
However, even if it is found that the grievance was exhausted by the denial of step II due to a lack of reasonably available administrative remedies, that denial
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happened on December 18, 2015 while the original complaint was filed on November 2, 2015. Per the plain language of the PLRA, “[n]o action shall be brought…until such administrative remedies as are available are exhausted.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Plaintiffs rely on Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) to argue that because the grievance was exhausted before the final amended complaint was filed on February 18, 2016, then their claims relating to this grievance should not be dismissed. In Curry, the Court identified three factors in deciding that the case should not need to be dismissed despite the fact that the claims had not been exhausted before the filing of the complaint: (1) evidence showed that exhaustion had actually occurred; (2) this exhaustion happened before the filing of the amended complaint; and (3) the conduct being challenged predated the effective date of the new PLRA or occurred almost simultaneously.
Defendants argue that the use of this case to support non-dismissal of this claim in inapposite, and argue that this decision was factually specific given footnote 3 in the case which states that:
We recognize that these circumstances are not likely to be repeated in this Court. It is only because the events at issue occurred so long ago (i.e., near passage of the Act and before this Court's adoption of processes for compliance with the Act) that the situation presents itself now. It is unlikely subsequent plaintiffs would find themselves in these unique circumstances
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Curry v. Scott, 249 F.3d 493, fn. 3 (6th Cir. 2001). In a case that rejected an argument similar to Plaintiffs’ here, the Court noted that the examples given by the Court in Curry are distinct, and declined to apply Curry, both because the claims being litigated occurred after the passage of the PLRA and there was no amended complaint filed. Kittle v. Squier, No. 2:11-CV-97, 2012 WL 5473142, at *2 (W.D. Mich. Nov. 9, 2012) (stating that “the Court [in Curry] found that ‘exhaustion of remedies prior to the filing of an amended complaint…could constitute exhaustion ‘prior to filing a suit in federal court’ within the meaning of §1997e.’”). Therefore, there is an argument that these criteria were not factually specific and that there was a contemplation that exhausting before an amended complaint was filed could in fact suffice.
However, the allegations contained in this grievance were pled in the original complaint, therefore the argument that administrative remedies for this grievance were exhausted before being brought is not very strong. Defendants here did not have an opportunity to correct any improper action before the Court intervened. In fact, the complaint was filed an entire month before the step I response was even received; further negating Plaintiff’s assertion that the administrative remedies were exhausted per Curry. Jordan v. Caruso, No. 2:08CV-261, 2010 WL 3220143, at *12 (W.D. Mich. Aug. 10, 2010), aff'd (Jan. 11, 2013). Therefore, summary judgment is granted on this grievance.
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ii. IBC-1511-3121-03B [33-9C]- AGAINST DEFENDANT ARP This grievance states that JD 8 told Lt Reed that “I fear for my safety. I stated that C/O Arp has threatened my safety in unit 2 and has made multiple retaliatory actions for grievances and litigation I file on him. I was denied any sort of protection…” Defendants state that this claim should be dismissed because JD 8 failed to appeal to step III, does not allege conduct pled by JD 8 against Officer Reed and does not complain specifically against Arp, and, if found to have been exhausted, was exhausted after the complaint was filed. While the grievance was not specifically against Arp, the step I investigation focused in significant part on his actions and concluded “no evidence found that supports [JD 8’s] claim officer Arp tried to have [JD 8] assaulted or that he threatened him in anyway.” In fact, the merits response only mentions Arp by name and not Reed at all. Therefore, it is sufficient to find that Arp was placed on notice by the merits summary about his retaliatory actions alleged by JD 8. Lee v. Willey, 789 F.3d 673, 680-81 (6th Cir. 2015). In terms of exhaustion, Step II appeal response stated ‘grievance denied.’ There is a question of fact of whether exhausted or not because of JD 8 alleges that he was threatened that he would be placed on modified access in response to his appeal. However, the Curry issue of the grievance being exhausted before the complaint was filed is even more extreme for this grievance since the grievance
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itself was filed on November 17, 2015, after the original complaint was filed on November 2, 2015. Moreover, the original complaint contains allegations against Arp that mirror those in the grievance. Therefore, summary judgment is granted on this grievance.
iii. IBC-1509-2614-17z- AGAINST DEFENDANTS ARP, COBURN AND WALTERS
This grievance alleges that Defendant Walters harassed him for a letter he wrote concerning his sexual fantasies. [29-11 at 797]. It also mentions that other unnamed “unit staff, correctional officers and Inspector Wakefield” have subjected him to derogatory comments. Id. This grievance was denied at step III on January 19, 2016. [29-11 at 794].
Defendants argue that this grievance does not allege retaliatory conduct of any kind and does not correspond with the allegations pleaded against Walters in the amended complaint. This is correct. There is no retaliatory motive to be found in the text of the grievance, and Defendant Walters was not on notice about the behavior that underlies JD 8’s constitutional claim for retaliation with respect to this grievance.
Additionally, Plaintiff contends that this grievance is against all IBC Defendants, including Arp and Coburn. [33-4 at 1163]. However, Arp and Coburn are not named and the grievance is not specific enough to put them on notice, because the unnamed IBC Defendants are alleged to have harassed JD 8 since his
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arrival. Moreover, there is again the problem of no retaliatory motive to be found in the grievance. Therefore, the other IBC Defendants were not on notice concerning the allegations contained in this grievance. Additionally, this grievance again encounters the Curry problem of having been exhausted on January 19, 2016, well after the first complaint was filed.
Accordingly, summary judgment is granted as to this grievance with respect to Arp, Coburn and Walters.
iv. TWO GRIEVANCES AGAINST ERWAY JD 8 further identifies two grievances against Erway and states that they were filed on or around August 9, 2015 and September 7, 2015. JD 8 complained that he “talked to Erway in 1 block about helping me with threats I’ve been receiving from [another prisoner]. Erway stated that he was going to ride me out soon. He did not take care of the immediate threats I was receiving from this inmate…it is unfair, cruel and unusual for me to lose my yards & chow making me suffer to threats of ‘getting my jaw broke’ and punish me for [the other inmate’s] behavior” [40 at Ex. 6, pg. 98]. JD 8 states that he never received a response from the facility and did not receive an identifier. He did attach kites filed in late August, filed with the grievance coordinator at IBC when he was transferred, requesting a grievance identifier for his grievance on retaliation and the response and was told to contact
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the coordinator at Oaks. When he received no response, he filed a grievance directly to step III in which he detailed his attempts and the failure of the grievance process. He was not provided with an identifier for the grievance and was rejected for filing directly to step III [33 at 9A].
Given the repeated attempts that JD 8 made to exhaust this grievance, there are facts to raise an inference that JD 8 exhausted since JD 8 made repeated “affirmative efforts to comply with the administrative procedure,” demonstrating that the procedure was unavailable. Brock v. Kenton Cty., KY, 93 F. App'x 793, 798 (6th Cir. 2004). However, the content of the grievance does not provide any notice of retaliation and therefore summary judgment is granted as to the grievances against Erway. Given that all of JD 8’s claims have been dismissed for failure to exhaust, JD 8 is dismissed from the case.
9. JOHN DOE 9 [JD 9] a. FACTUAL ALLEGATIONS IN THE COMPLAINT
Per the amended complaint, JD 9 alleges the following occurred after his participation in the lawsuit:
i. DEFENDANT JERANEK JD 9 alleges that Defendant Jeranek did the following: (1) performed several harassing searches of JD 9’s cell; (2) personally degraded JD 9 concerning his involvement in the case; (3) when Jeranek observed JD 9 in hallway, he would say
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over loudspeaker ‘I need the rape victim to report to the bubble, this is a direct order.’
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION JD 9 did not file any grievances because, per his affidavit, the retaliatory actions of Jeranek caused other prisoners to begin to ask questions, call him a rat and a snitch, and threaten him. He feared that filing a grievance would have required him to further identify himself as a John Doe Plaintiff to MDOC staff which would further endanger his safety from both staff and prisoners given his past experiences of sexual assault. Considering the threats he was facing, and his past experiences of rape and abuse at the hands of MDOC staff and prisoners, there is a question of fact of whether a person of ordinary firmness would be deterred from proceeding with the grievance process and summary judgment is denied. Himmelreich, 766 F.3d at 577.
10.JOHN DOE 10 a. FACTUAL ALLEGATIONS IN THE COMPLAINT
After filing the lawsuit, JD 10 alleges the following: i. COTTON (JCF) DEFENDANT WARD
JD 10 alleges that he began to receive comments and harassment from staff, including Defendant Ward, concerning attorney communications. As a result of these comments, and the comments he received from other prisoners, JD 10
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believed he was in danger for reporting abuse. Ward is alleged to have harassed JD 10 about litigation, and informing him that he wouldn’t be assaulted if he wasn’t gay, that he should be ashamed, and why are you still alive.
ii. RMI DEFENDANT SCHOOLEY JD 10 alleges that Defendant Schooley was aware that he was being called a snitch and harassed by other prisoners, but refused to intervene.
iii. IBC DEFENDANTS ARP, COBURN AND WALTERS JD 10 alleges that Defendant Arp, along with Defendant Coburn, threatened him with misconducts, loss of programs, and more time in prison after JD 10 filed grievances for retaliation and harassment. Additionally, JD 10 alleges that Arp, Coburn and Walters verbally harassed him, punished him, refused to call him out for his detail as a porter, required arbitrary pack ups, searched his cell excessively, and told other officers to destroy items in the cell.
iv. IBC DEFENDANT COBURN JD 10 alleges that Coburn did the following: (1) searched JD 10’s cell twice a day during the same shift, and his property was strewn about; (2) singled out JD 10 for punishment saying it was because “you’re suing that state and you’re gay;” and (3) taunted JD 10 over the intercom, mocked kissing him, threatened him, and stated ‘now go tell your lawyer.’
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v. IBC DEFENDANT MCKEE JD 10 also alleges that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, once again, there are no specific factual allegations pled against Warden McKee in the amended complaint, and there is no evidentiary support for this claim and summary judgment is granted as to this claim for lack of any notice.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. JCF-14-12-3044-17C [40-08 AT 6-7] AND PREA INVESTIGATION DOC [33 AT 11-A]- AGAINST DEFENDANT WARD
This grievance alleged that Ward stood in front of his cell and said that ‘if you weren’t gay these assaults wouldn’t be taking place and you should be ashamed of yourself’ and ‘what is your purpose for living?’ JD 10 filed a step I grievance which was subsequently suspended pending a PREA investigation which was completed on 1/14/15. This investigation concluded that there was insufficient evidence to support a finding that Ward sexually harassed JD 10 [33 at 11-A].
Defendant argues that this grievance was not exhausted because JD 10 did not appeal to steps II and III. However, the policy directives concerning grievances that are investigated by internal affairs do not provide notice to a prisoner that their grievance must be appealed through all three steps, even after they accept jurisdiction and investigate the charge. See 29-3 at ¶Q; see also Langton v.
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Combalecer, No. 06-11987, 2008 WL 896062, at *3 (E.D. Mich. Mar. 31, 2008) (holding “Defendants' argument that Plaintiff did not utilize the internal MDOC grievance procedures is disingenuous, as sexual misconduct claims are transferred out of the grievance process to Internal Affairs. The Internal Affairs investigation satisfies the exhaustion requirement.”). Therefore, this grievance was successfully exhausted when the PREA submitted their report on the investigation on January 14, 2015.
Based on generous reading of pro se complaints, and the details of the complaint, it can be read to allege retaliation given that JD 10’s grievance states that Ward referenced his assault and him being gay as the reasons for his alleged actions. Accordingly, the Court denies summary judgment on this claim.
ii. IBC-15-04-1060-17C [33, 11-B]- against Defendant Coburn and McKee
In his grievance, JD 10 alleged that Coburn sexually harassed the prisoner by stating “because you are suing the state and because you are gay and I don’t like that.” At conclusion of investigation, it was determined that there was no evidence to support prisoner allegations, and JD 10 was given a misconduct because of the nature of the allegation. When JD 10 appealed at step II, he was informed that the investigation is completed, and the matter and the grievance was considered closed. JD 10 states that he asked for a step III, and was informed that it was not
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permitted. Defendants argue that he should have used the step II form, and done it on his own after being denied one.
Based on the evidence presented, it is obvious that, despite the attempts made by JD 10 to pursue this grievance, there is a question of fact whether there were available administrative remedies, and thus if this grievance was exhausted on June 24, 2015 when he received the step II response. Brock v. Kenton Cty., KY, 93 F. App'x 793, 798 (6th Cir. 2004). Therefore, summary judgment is not granted on this claim as to Coburn.
Once again McKee is named in this claim, but there is no evidence that he was put on notice concerning this claim and accordingly summary judgment on this grievance as to McKee is granted.
iii. IBC-1504-1069-17C- AGAINST WALTERS AND MCKEE [33-11B]
This grievance was filed against Walters and alleges sexual harassment in retaliation for the grievance JD 10 made against Coburn (see grievance discussed above). JD 10 alleges that he was moved to different cell right before dinner, and when asked why he was being moved, Walters said “because your boyfriend’s lock’s across the hall and I don’t give homosexuals what they want.”
JD 10 states that he was issued a misconduct for interference with administrative rules on May 20, 2015, and never received a response. Defendants state that they sent him a response on May 20, 2015 telling him that the
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investigation was complete and denying the grievance. They assert this claim should be dismissed because JD 10 did not appeal to steps II or III.
Summary judgment is denied as to this grievance against Defendant Walters. There is a question of fact regarding whether or not JD 10 ever received a response. Considering the facts in the light most favorable to JD 10, he was issued a misconduct when he inquired about this claim and, according to him, never received a response. Therefore there were no available administrative remedies available, and this grievance was exhausted, either upon receiving the misconduct in May or in August after 120 days passed with no response.
Again McKee is named in relation to this claim but there is no evidence that he was put on notice and summary judgment on this grievance as to McKee is granted.
iv. GRIEVANCE AGAINST SCHOOLEY AND ARP In his response, Plaintiff does not address the allegations against Schooley and Arp and there is no evidence presented of either kites presented regarding a grievance submitted against Schooley and/or Arp, and no evidence of the grievance itself or affidavit evidence testifying to the filing of a grievance against Schooley and Arp. There was no notice given to Schooley and Arp about these allegations and Plaintiff has failed to show that any efforts were made to grieve
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against Schooley and Arp. Therefore, with respect to JD 10’s claim against Schooley and Arp, summary judgment is granted.
11.JOHN DOE 12 [JD 12] a. FACTUAL ALLEGATIONS IN THE COMPLAINT i. AMF DEFENDANT BEESLEY
JD 12 alleges that Beesley did the following after he met with counsel to discuss joining the lawsuit: (1) Performed destructive searches and made threatening comments to JD 12 and other youth for bringing the lawsuit; (2) During his attorney visit, Beesley encouraged other staff to flip JD 12’s cell, causing shampoo to be poured over family pictures and generally leaving the cell in disarray; (3) Threatened JD 12 if he continued with litigation; and (4) After JD 12 filed grievance, Defendant Beesley physically assaulted him, warning him to keep his name, and any other correctional officer’s names, out of the litigation.
ii. AMF DEFENDANTS DESCHAINE AND HEYRMAN After joining the litigation, JD 12 alleges that Deschaine and Heyrman told other prisoners and staff that he claimed he had been raped before, and mocked and taunted him with more abuse. Additionally, JD 12 claims that he received destructive cell searches, loss of legal property, denial of privileges, and threats from Deschaine and Heyrman about the litigation.
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iii. AMF DEFENDANT JACOBSON After joining the litigation, JD 12 alleges that Jacobson physically assaulted JD 12 and ordered him to strip, forcing him to expose himself while using the bathroom to other prisoners during a shakedown. In addition, JD 12 alleges that his cell was destroyed and that Jacobson told him to stop grieving D Beesley, stating “see what your lawyer is getting you into?”
iv. ICF DEFENDANT CONKLIN After joining the litigation, JD 12 alleges that he was gassed by Conklin and placed in hard restraints when he was scheduled for an attorney visit. JD 12 also alleges that Conklin taunted him about his status as a JD, and warned him about being involved in litigation.
v. ICF DEFENDANTS MARTENS AND STAMBAUGH After joining the litigation, JD 12 alleges that Martens and Stambaugh told him they knew he was a JD and a ‘butt boy,’ and made threatening statements regarding his filing a lawsuit against MDOC and getting staff in trouble.
b. EVIDENCE PRESENTED OF GRIEVANCES AND EXHAUSTION i. AMF-1506-1453-17B [33 AT 12-F]- AGAINST BEASLEY AND DESCHAINE
JD 12 alleges retaliatory conduct on the part of Beasley in response to meeting with his lawyer and participating in the lawsuit when they issued him a misconduct after he had not done anything wrong. It is admitted that this grievance
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was properly exhausted, but Defendants contend that it does not involve allegations in the complaint. However, the acts grieved can clearly be seen as threats and harassment in response to participating in the litigation as they were in response to meetings with his attorney, which was alleged in the complaint. Therefore, summary judgment is denied on this claim as to Beesley. Deschaine was not interviewed as a suspect in this allegation and therefore was not on notice for this claim and summary judgment is granted as to him on this claim.
ii. AMF-15-05-1225-17A [33 AT 12-A]- AGAINST DEFENDANT BEESLEY AND HEYRMAN
JD 12 alleged that Beesley, and co-workers Massey and others, arbitrarily denied him out-of-cell exercise in retaliation for filing grievances. Defendants admit this claim was exhausted to step III, but assert doesn’t seem to correspond to any allegations in complaint. However, the complaint references loss of privileges, which this covers. Therefore, summary judgment is denied on this grievance with respect to Beesley.
Plaintiff also insists that this grievance adequately exhausts as to Defendant Heyrman, despite spelling his name wrong. However, officer “Herman” is only identified as one of the officers with whom JD 12 attempted to resolve the problem with, and does not put Heyrman on notice of the allegations in the complaint. Therefore, this grievance is not exhausted as to claims against Heyrman and summary judgment is granted as to Heyrman.
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iii. AMF-1506-1301-17B [33 AT 12-D]- AGAINST DEFENDANT BEESLEY AND OTHER AMF DEFENDANTS
The grievance of JD 12 alleges retaliation for consulting with his attorney in the form of “flipping” his cell during an attorney visit. Defendants admit that JD 12 exhausted as to Beesley in this claim. Plaintiff asserts that it adequately covers all Defendants at AMF because the grievance refers to “staff in unit 2,” along with Beesley, also “co-workers” or “others,” which includes Defendants Deschaine, Heyrman and Jacobson. Defendants argue that the grievance response addressed only the merits as to Beesley and other named people.
In the step I response, it is mentioned that unit 2 staff were interviewed, and they denied leaving JD 12’s cell in disarray. Therefore the merits of allegations addressed the merits as to other Defendants at AMF, and any procedural default argument is waived. This grievance exhausts the claims as to all AMF Defendants related to this issue and summary judgment is denied. Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010).
iv. AMF-1506-1399-17B [33 AT 12-C]- AGAINST BEESLEY AND ALL OTHER AMF DEFENDANTS
The grievance alleges that Beesley verbally threatened and harassed JD 12 in retaliation for seeing attorney. JD 12 alleges that “co-workers” were invoked and that this exhausts as to all AMF Defendants. However, this argument is unpersuasive, as the grievance does not allege all co-workers, and the merits
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investigation only looked at Beesley and CO Coronado who is not a Defendant in this case. The investigation specifically involved only “named officers.” Defendants also challenge that the grievance doesn’t involve allegations in complaint. However, “verbal threats” are surely threats and thus the grievance exhausted the claim as to Beesley and summary judgment is denied as to Beesley. The other AMF Defendants were not placed on notice with this grievance, and therefore only claims relating to Beesley are exhausted and summary judgment is granted in regards to this grievance to all other AMF Defendants.
v. AMF-1506-1303-28A [33 AT 12-E]- AGAINST DEFENDANT BEESLEY
JD 12 alleges that Beesley engaged in retaliation by taking away yard privileges. JD 12 states during attempts to resolve the problem that Beesley stated “what he can’t do his co-workers will.” This claim was rejected as a duplicate at step I, but upon step II, investigation of the merits were addressed. This grievance was exhausted through step III. Defendants assert that the grievance doesn’t involve allegations in complaint. However, the grievance alleges “verbal threats” which are alleged in the complaint and thus the grievance is exhausted as to Beesley and summary judgment as to this grievance is denied.
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vi. GRIEVANCE AGAINST DEFENDANTS STAMBAUGH, CONKLIN AND MARTEN
JD 12 was placed on modified grievance access until September 21, 2015 on June 23, 2015. It was ultimately extended until March 31, 2016. JD 12 asserts that he attempted to submit grievances for retaliatory harassment, denial of due process rights, and retaliatory denial of showers by Stambaugh from August 15 through September 15, 2015, and retaliatory harassment against Stambaugh on October 4, 2015. JD 12 attempted to file grievances against Conklin for retaliatory harassment and excessive use of force on September 28, 2015. Finally JD 12 attempted to file grievance against Marten for retaliatory harassment and denial of shower on October 4, 2015.
In support of the allegations, JD 12 has submitted his written requests to file grievances [33 at Ex. 12-J]. He alleges the grievance coordinator either received no response or that the grievance was denied as untimely. Defendants argue that these requests were all denied as “untimely” per their evidence. [29-14, 1042-1052]. There is no evidence presented by Plaintiff that these requests were not untimely, therefore, summary judgment is granted as to the grievances against Defendants Stambaugh, Conklin and Marten.
CONCLUSION In conclusion, several of the claims should be subject to summary judgment for a failure to adequately exhaust while others have been fully and properly
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exhausted and summary judgment should be denied. Additionally, there are several
claims where summary judgment is denied but a question of fact remains. These
claims will be scheduled for a jury trial to resolve the questions of fact.
IT IS ORDERED that Defendant’s Motion for Summary Judgment [29] is
DENIED in part and GRANTED in part, as follows:
 JOHN DOE 1
o Summary judgment is GRANTED on claims against Defendants Coburn and McKee.
o Summary judgment on claim is DENIED against Defendants Arp and Coburn as related to the evidence presented in Plaintiff’s affidavit because a question of fact exists.
 JOHN DOE 2
o Summary judgment is GRANTED on all of John Doe 2’s claims against Defendants Marten, McLeod, Sherwood, Stambaugh, Rogers, Hoogewind and Schooley.
 JOHN DOE 3
o For grievance IBC-1410-3045-17C, summary judgment is GRANTED on claims against Hall and McKee.
o For grievance IBC-1505-1274-17B, summary judgment is GRANTED as to McKee and DENIED as to Hammer and Stump. No question of fact remains on exhaustion.
o For grievance IBC-1505-1312-17z, summary judgment is DENIED as to Stump because a question of fact exists.
o For grievance IBC-1510-2925-28e, summary judgment is DENIED as to claims against Pennell, Hall, Hammer and Stump. No question of fact remains on exhaustion.
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 JOHN DOE 4 o Summary judgment is GRANTED for claims against McKee. o Summary judgment is DENIED as to the claims against Gollnasst because questions of fact remain.
 JOHN DOE 5 o Summary judgment on is DENIED on all of Plaintiff’s claims against Defendants Anderson, Ross, Coburn, McKee and Arp because a question of fact exists.
 JOHN DOE 8 o Summary judgment is GRANTED on all of John Doe 8’s claims against Defendants Erway, Arp, Coburn, Walters and McKee.
 JOHN DOE 9 o Summary judgment on all of Plaintiff’s claims against Defendant Jeranek are DENIED because a question of fact exists.
 JOHN DOE 10 o For grievance JCF-1412-3044-17C, summary judgment is DENIED against Plaintiff’s claims against Ward. No questions of fact remain as to exhaustion. o For grievance IBC-1504-1060-17C, summary judgment is DENIED as to Coburn because a question of fact exists and GRANTED as to McKee. o For grievance IBC-1504-1069-17C, summary judgment is GRANTED as to McKee and DENIED as to Walters because a question of fact remains.
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o Summary judgment is GRANTED on all of John Doe 10’s claims against Defendants Schooley and Arp.
 JOHN DOE 12
o For grievance AMF-1506-1453-17B as against Defendant Beesley, summary judgment is DENIED. As to claims against Deschaine, summary judgment is GRANTED. No question of fact remains.
o For grievance AMF-15-05-1225-17A against Defendants Beesley and Heyrman, summary judgment is GRANTED as to claims against Heyrman and DENIED as to Defendant Beesley. There are no questions of fact remaining.
o For grievance AMF-1506-1301-17B against Defendants Beesley, Deschaine, Heyrman and Jacobson, summary judgment is DENIED and no questions of fact remain.
o For grievance AMF-1506-1399-17B, summary judgment is DENIED as to Defendant Beesley and no questions of fact remain. As to claims against all other AMP Defendants, summary judgment is GRANTED.
o For grievance AMF-1506-1303-28A as against Defendant Beesley, summary judgment is DENIED. No question of fact remain.
o For claims relating to grievance against Defendants Stambaugh, Conklin and Martens, summary judgment is GRANTED.
SO ORDERED.

Dated: October 18, 2017

s/Arthur J. Tarnow Arthur J. Tarnow Senior United States District Judge

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GLOSSARY OF INSTITUTIONS Bellamy Creek (IBC) Michigan Reformatory (RMI) Ionia correctional facility (ICF) St. Louis correctional facility (SLF) Macomb (MRF) Oaks (ECF) Cotton (JCF)
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 Case 2:15-cv-13852-AJT-MKM ECF No. 134 filed 11/01/17 PageID.3733 Page 1 of 32

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 8, JOHN DOE 9, JOHN DOE 10, and JOHN DOE 12,

Plaintiffs,

CIVIL ACTION NO. 15-cv-13852

v.

DISTRICT JUDGE ARTHUR J. TARNOW

DUSTIN ANDERSON et al.,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendants. _________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL [82], GRANTING IN PART AND DENYING IN
PART PLAINTIFFS’ MOTION TO COMPEL [88], GRANTING DEFENDANTS’ MOTION TO COMPEL [101], GRANTING PLAINTIFFS’ MOTION TO COMPEL [102], AND DENYING PLAINTIFFS’ MOTION TO ENFORCE SUBPOENA [103]
Plaintiffs John Does 1-5, 8-10, and 12, current and former prisoners of the Michigan
Department of Corrections (MDOC), initiated this prisoner civil rights action in November 2015,
against Defendants, Corrections Officers Dustin Anderson, Scott Arp, Noah Beesley, Adam
Coburn, Conklin, Deschaine, Jason Erway, Charles Gollnast, Michael Hall, Hammer, Francis
Heyrman, Tami Hoogewind, Erik Jacobson, Edward Juranek, Joseph Martens, McLeod, Cody
Pennell, Aimee Rogers, Ross, Sherwood, Ronald Stambaugh, Gretchen Walters, Scott Schooley,
Gary Stump, and Matthew Ward, Deputy Director Kenneth McKee, Director Heidi Washington,
and the MDOC pursuant to 42 U.S.C. § 1983, alleging violations of their First Amendment rights.1 (Docket nos. 1, 4, 22.) More specifically, Plaintiffs, who were housed in adult prisons

1 Several parties have since been dismissed, and some of those dismissed have since been reinstated in this matter. (See docket nos. 21, 84, 121, 130, 131.)

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while under the age of eighteen, allege that Defendants retaliated against them for exercising their First and Sixth Amendment rights to sue the MDOC and its employees for sexual abuse that they endured during their incarceration. (See docket no. 22.)
This matter is currently before the Court on five Motions: (1) Plaintiffs’ Motion to Compel Responses to Plaintiffs’ First Request for Production of Documents and Deposition Testimony and Motion for Protective Order (docket no. 82); (2) Plaintiffs’ Motion to Compel Complete Responses to Plaintiffs’ Interrogatories Regarding Trial Witnesses (docket no. 88); (3) Defendants’ Motion to Compel Certain Depositions and Preserve the Right to Take Others After Discovery Cut-Off as Needed (docket no. 101); (4) Plaintiffs’ Motion to Compel Complete Responses to Plaintiffs’ Second Request for Production of Documents (docket no. 102); and (5) Plaintiffs’ Motion to Enforce Subpoena to MDOC (docket no. 103). Plaintiffs did not respond to Defendants’ Motion to Compel; however, Defendants have filed responses to each of Plaintiffs’ Motions to Compel, and the MDOC responded to Plaintiffs’ Motion to Enforce Subpoena. (Docket nos. 90, 94, 106, 107.) Plaintiffs filed reply briefs to Defendants’ Response to Plaintiffs’ third Motion to Compel (docket no. 109) and to the MDOC’s Response to Plaintiffs’ Motion to Enforce Subpoena (docket no. 110). The parties have also filed Joint Statements of Resolved and Unresolved Issues with regard to Plaintiffs’ first two Motions to Compel. (Docket nos. 95, 97, 133.) Additionally, the parties and the MDOC have filed Supplemental Briefs with regard to Plaintiffs’ third Motion to Compel and Plaintiffs’ Motion to Enforce Subpoena. (Docket nos. 119, 120, 122, 123.) The Motions have been referred to the undersigned for consideration. (Docket nos. 85, 92, 108.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
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I. Discovery Standards The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite
broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery on any matter that is not privileged, is relevant to any party’s claim or defense, and is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Information need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). But the scope of discovery is not unlimited. “District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).
Rules 33 and 34 allow a party to serve interrogatories and requests for production of documents on an opposing party. Fed. R. Civ. P. 33, 34. A party receiving these types of discovery requests has thirty days to respond with answers or objections. Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). Rule 30 allows a party to conduct a deposition of any person without leave of court, subject to certain exceptions. Fed. R. Civ. P. 30(a)(1). If the party receiving discovery requests under Rules 33 or 34 fails to respond properly, or if the person whose deposition is sought under Rule 30 fails to properly comply with the rule, Rule 37 provides the party who sent the discovery or noticed the deposition the means to file a motion to compel. Fed. R. Civ. P. 37(a)(3)(B).
Federal Rule of Civil Procedure 45 governs subpoenas and provides that a non-party served with a subpoena may make written objections to the subpoena before the earlier of the
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time specified for compliance or 14 days after the subpoena is served. Fed. R. Civ. P. 45(d)(2)(B). “The filing of the objection suspends any duty to produce the subpoenaed documents, until the party serving the subpoena procures an order compelling production” from the issuing court. Matthias Jans & Assoc., Ltd. v. Dropic, No. 01-MC-26, 2001 WL 1661473, at *1 (W.D. Mich. Apr. 9, 2001); see also Fed. R. Civ. P. 45(d)(2)(B)(i). Any order compelling production, however, “must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii). This section of Rule 45 was added to protect non-parties “against significant expense resulting from involuntary assistance to the court.” Fed. R. Civ. P. 45 (Advisory Committee Notes, 1991 Amendment, Subdivision (c)). II. Motion to Compel Responses to Plaintiffs’ First Request for Production of
Documents and Deposition Testimony and Motion for Protective Order [82] Plaintiffs raise several issues in the instant Motion to Compel, some of which have been resolved, according to the parties’ Joint Statement of Resolved and Unresolved Issues. (Docket no. 95.) The Court will now address the unresolved issues in turn. A. Plaintiffs’ Request for Production (RFP) no. 1 Plaintiffs’ RFP no. 1 asks Defendants to: Please produce the full and complete files for the Plaintiffs, including the following files: a. Institutional and central office file; b. Medical file; c. Psychiatric and/or psychological treatment file[;] d. Grievance file; e. Counselor file; f. Any other file maintained at any institution where a Plaintiff was housed, for
each individual Plaintiff (Docket no. 82-2 at 4.) Plaintiffs assert that Defendants failed to produce the parole files for all Plaintiffs in response RFP no. 1. (Docket no. 82 at 14.) Plaintiffs also seek an order compelling
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Defendants to certify that they have made a complete production with regard to this RFP. (Id. at 15.)
Defendants argue that parole records do not fall within the categories of information requested in RFP no. 1, and if Plaintiffs want their parole files, they need to ask for them through a new request for production so that Defendants have an opportunity to respond and/or object as necessary. (Docket no. 90 at 6.) The Joint Statement of Resolved and Unresolved Issues indicates that Defendants have agreed to produced Plaintiffs’ parole files to the extent that they have not already been produced, but Defendants maintain their position that RFP no. 1 does not include a request for Plaintiffs’ parole files,. (Docket no. 95 at 2-3.) Accordingly, this issue is partially resolved.
With respect to Defendants’ assertion that Plaintiffs’ RFP no. 1 does not request Plaintiffs’ parole files, the Court disagrees with Defendants and holds that it does. The RFP seeks Plaintiffs’ full and complete files. By prefacing the enumerated list of specific files with the phrase “including the following,” Plaintiffs created a non-exhaustive list of specific files. Therefore, the absence of “parole files” from the list does not mean that they were excluded from the RFP. The Court finds that Plaintiffs’ broad request for production of “the full and complete files for the Plaintiffs” encompasses a request for parole files.
Plaintiffs’ request for an order directing Defendants to certify that they have made a complete production with respect to RFP no. 1 also remains unresolved. Defendants do not oppose this request in their Response to Plaintiffs’ Motion, and the Court does not find the request to be inappropriate or particularly burdensome. Accordingly, the Court will grant Plaintiffs’ Motion in this regard and order Defendants to amend their answer to Plaintiffs’ RFP no. 1 to certify that all responsive files (including Plaintiffs’ parole files) have been produced.
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B. Plaintiffs’ RFP nos. 22 and 27
Plaintiffs’ RFP nos. 22 and 27 ask Defendants to:
22. Please produce any and all photographs and/or video camera footage documenting or showing injury to each or any of the Plaintiffs during his incarceration in any MDOC facility, including any images that are stored in digital cameras, DVRs, tasers or other electronic control devices, or stored on a removable storage device, including but not limited to flash memory cards. If responsive documents no longer exist, please so indicate and provide the retention schedule and date of destruction.
27. Please produce any and all documents, photographs, video camera footage and audio recordings of the following locations on the specified dates, including any responsive information that is stored in digital cameras, DVR[s], tasers or other electronic control devices, or stored on a removable storage device, including but not limited to flash memory cards. If any responsive photograph, video camera footage and/or audio recording no longer exists, please so indicate[] and provide the retention schedule and date of destruction: [following the text of this RFP is an enumerated list of 23 locations and dates for which the above information is sought].
(Docket no. 82-2 at 13, 14-16 (emphasis added).) In their supplemental response to RFP no. 22,
Defendants stated that “[t]o the extent Defendants understand what Plaintiffs seek, any
documents or tangible things that may be responsive to this request have been produced in
response to Request[] No. 1, Request No. 27, or Request No. 28.” (Docket no. 82-4 at 21.) In
their supplemental response to RFP no. 27, Defendants stated, in relevant part:
To the extent Defendants understand what Plaintiffs seek, and to the extent documents responsive to Request no. 27 (g), (m), (p), (v), and (w) could be located and identified, it has been produced in the enclosed CD. . . . As for Request no. 27 (a)-(f), (h)-(k), (n)-(o), or (q)-(u), upon information and belief, a search has been conducted and no documents or tangible things have been identified.
(Id. at 24.)
Plaintiffs assert that Defendants have not answered the portions of RFP nos. 22 and 27
highlighted in bold above. (Docket no. 82 at 16.) Plaintiffs argue in this regard that (1) the
materials sought are central to their claims; (2) Defendants, who have legal interests adverse to
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those of Plaintiffs, have exclusive control over these materials; and (3) the materials should have been preserved. (Id.) They claim that they are entitled to learn whether the materials sought through these RFPs ever existed, and, if so, the circumstances under which the materials were destroyed. (Id.)
Defendants inform that Plaintiffs already possess the MDOC’s retention schedule, as it was provided to them in the state-court proceedings. (Docket no. 90 at 8 n.4.) Defendants then proceed to argue that Plaintiffs are asking them, in essence, “to answer an interrogatory in the context of a request for production and confirm that ‘destroyed’ information previously existed when Defendants do not know and cannot determine whether the information existed in the first instance.” (Id. at 8.) Defendants claim that this is an impossible task, and in the form of a rhetorical question, they assert that if they do not know whether Plaintiffs were captured on footage in the first instance, they cannot confirm either the existence of the footage or the destruction of the footage. (Id.)
Essentially, Defendants assert that they do not know and they are unable to determine whether any other documents or materials responsive to RFP nos. 22 and 27 previously existed and have since been destroyed. The Court cannot order Defendants to produce that which they do not have, and it will therefore deny Plaintiffs’ Motion to Compel in this regard. Nevertheless, because Defendants’ responses to RFP nos. 22 and 27 are wholly non-responsive to the portions of Plaintiffs’ RFPs at issue, the Court will order Defendants to amend their responses to clarify that the MDOC’s retention schedule has already been produced and that Defendants have no knowledge of any other previously-existing responsive documents or materials, or the destruction thereof.
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C. Plaintiffs’ RFP no. 25 Through RFP no. 25, Plaintiffs seek “any and all documents to which any named Defendant was a recipient which discusses and/or identifies Plaintiffs as victims of sexual abuse and/or participants in litigation and/or PREA [Prison Rape Elimination Act] investigations.” (Docket no. 82-2 at 14.) The relevant portion of Defendants’ supplemental response to this request states, “To the extent that Plaintiffs’ request seeks documents covered by attorney-client privilege, Defendants would object to producing.” (Docket no. 82-4 at 22.) Plaintiffs assert that Defendants have failed to produce a privilege log in accordance with Federal Rule of Civil Procedure 26(b)(5) for any documents responsive to this request that were withheld on the basis of privilege, and Plaintiffs therefore ask the Court to compel Defendants to produce one. (Docket no. 82 at 17.) Plaintiffs then advise that Defendants have informally indicated that they did not withhold documents responsive to RFP no. 25 on a claim of privilege. (Id.) If this is the case, Plaintiffs argue, “the assertion needs to be overruled or Defendants need to update their answers or provide a log.” (Id.) In response, Defendants assert that RFP no. 25 is so broadly worded that it could have been construed to seek privileged emails or other communications from defense counsel to Defendants. (Docket no. 90 at 9.) Defendants explain that because Rule 26 allows discovery of only non-privileged matters, they interpreted the RFP to not seek such privileged information. (Id.) As a result, Defendants assert, they did not withhold any privileged documents from their production responsive to RFP no. 25, and they therefore do not need to provide a privilege log. (Id. at 10.) Defendants assert that they provided the supplemental response cited above to preserve their objection of privilege in the event that their interpretation of RFP no. 25 was
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incorrect. (Id.) Defendants indicate that they will voluntarily amend their answer to make that
clear. (Id.)
Plaintiffs do not challenge Defendants’ interpretation of RFP no. 25. Accordingly, the
Court will deny Plaintiffs’ Motion to Compel Defendants to produce a privilege log, and it will
order Defendants to amend their response to RFP no. 25 to clarify that they did not withhold any
documents from their production on the basis of privilege.
D. Plaintiffs’ RFP nos. 6-9 and the Deposition of Marshaun Robinson
Plaintiffs’ RFP nos. 6-9 seek documents related to grievances:
6. Please produce all reports and/or data compilations detailing grievances filed together with all results, determinations, and responses for grievance categories 03, 05, 06, 07, 09, 11, 15, 17, 19, 22, 26, 27, 28 at the [Alger, Baraga, Bellamy Creek, Cotton, Ionia, Macomb, Michigan Reformatory, Oaks, and St. Louis Correctional Facilities] from 2010 to present[.]
7. Please produce copies of all grievances filed by all Plaintiffs against all named Defendants, together with all responses.
8. Please produce copies of all grievances filed against all named Defendants, together with all responses, from 2010 to present.
9. Please produce copies of all grievances filed for claims of retaliatory actions by staff at the [Alger, Baraga, Bellamy Creek, Cotton, Ionia, Macomb, Michigan Reformatory, Oaks, and St. Louis Correctional Facilities] from 2010 to present, together with all responses[.]
(Docket no. 82-2 at 5-7.) Defendants’ response to RFP no. 8 is relevant here:
As discussed during the meet and confer conference, grievances are tracked and kept by the name of the prisoner filing the grievance and not by the individuals who are being grieved. And, upon information and belief, no report or data compilation exists that could identify grievances filed based solely on the name of the individual being grieved. Therefore, to respond to this request would require that every grievance kept by the MDOC be reviewed by hand to determine whether the named Defendants were named in the grievance. Accordingly, Defendants object to the production of information responsive to this request because it is irrelevant, overly broad and unduly burdensome.
(Docket no. 82-4 at 11-12.)
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Plaintiffs later discovered through the deposition testimony of Marshaun Robinson, a grievance coordinator at the Bellamy Creek Correctional Facility, that Defendants’ representations in this regard were not entirely correct. (Docket no. 82 at 20-22.) Specifically, Mr. Robinson testified that he prepares a monthly report of the grievances filed at Bellamy Creek, which includes the names of the staff members grieved. (Id. at 20-21; docket no. 90 at 14-15.) He also testified that the Bellamy Creek Correctional Facility previously used the “ITS database” to store grievance information, but in 2015, it began using the MDOC’s grievance information database that is used by MDOC facilities statewide. (Docket no. 82 at 21; docket no. 82-6 at 11, 21; docket no. 90 at 14.) Mr. Robinson further testified that the MDOC’s statewide database has a field in which he can enter the name of the staff member being grieved. (Docket no. 82 at 21-22; docket no. 82-6 at 11.)
Plaintiffs assert that during a break at Mr. Robinson’s deposition, Defendants’ counsel confirmed that Defendants had not produced Mr. Robinson’s reports to Plaintiffs in response to RFP nos. 6-9, but he agreed to produce the reports and the databases referenced by Mr. Robinson, and he also agreed to allow Plaintiffs to re-depose Mr. Robinson regarding the forthcoming reports and databases if necessary. (Docket no. 82 at 21.) Plaintiffs explain that Defendants produced hard copies of Mr. Robinson’s 2015 and 2016 reports soon thereafter, but they complain that the documents produced are not completely responsive to Plaintiffs’ request at Mr. Robinson’s deposition or to Plaintiffs’ RFP no. 6. (Id. at 22.) Specifically, Plaintiffs assert that the production did not include the ITS database or the MDOC database and that the reports produced do not include a field for the name of the staff member being grieved. (Id.) Plaintiffs therefore ask the Court to compel Defendants to produce the databases identified by
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Mr. Robinson in their native form and permit Plaintiffs to re-depose Mr. Robinson once the databases have been produced. (Id. at 23.)
Defendants argue that the Court should not compel the production of the databases because they were not subject to production under the plain language of the subpoena duces tecum to Mr. Robinson. (Docket no. 90 at 16-17; docket no. 90-5.) They also argue that Plaintiffs did not specifically request the production of databases through RFP no. 6, and when it became apparent through conversations among counsel that Plaintiffs were indeed seeking databases, Defendants did not agree to their production. (Id. at 17; docket no. 90-3 at 2.) Defendants explain that Plaintiffs eventually agreed to limit the scope of RFP no. 6 to seek only reports reflecting grievances filed, and they argue that Plaintiffs’ request for the databases identified by Mr. Robinson is now beyond the scope of RFP no. 6 as modified. (Id. at 17 (citing docket no. 82-4 at 11).) Defendants further argue that they have consistently objected to the production of MDOC databases in the context of state and federal litigation for reasons such as overbreadth, relevance, burden, and security concerns. (Id. at 17-18.) Defendants assert that they therefore should not be compelled to produce the databases. (Id. at 18.)
The Court finds that while RFP no. 6 does not specifically contain the word “databases,” the phrase it does contain, “data compilations detailing grievances,” does encompass a request for databases. Nevertheless, the Court also finds that Defendants’ security concerns associated with producing databases in their native format to Plaintiffs are legitimate. The Court further finds that the sheer breadth of irrelevant, sensitive information that would be disseminated through the production of the databases is inappropriate and disproportionate to the needs of this case. The Court will therefore deny Plaintiffs’ Motion to Compel the production of the ITS database and the MDOC’s grievance database. To the extent that these databases are within
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Defendants’ possession, custody, or control, however, the Court will order Defendants to generate reports responsive to RFP nos. 6-9 from the databases and produce the reports to Plaintiffs. As an example, with regard to RFP no. 8, Defendants are ordered to generate a report listing all the grievances filed against the remaining named Defendants from 2010 to the present. Defendants are ordered to produce these reports within twenty-one (21) days of this Opinion and Order. If the databases are not within Defendants’ possession, custody, or control, Defendants must certify as such to Plaintiffs within twenty-one (21) days of this Opinion and Order. Plaintiffs may re-depose Marshaun Robinson at a mutually agreeable time and place within forty-five (45) days of this Opinion and Order regarding only (1) the hard copies of the 2015 and 2016 grievance reports that Mr. Robinson generated for the Bellamy Creek Correctional Facility; and (2) any reports generated from the grievance databases that Defendants produce in compliance with this Order.
E. Deposition of Christine Wakefield Plaintiffs assert that Defendants have failed to produce Grievance Administrator Christine Wakefield for a scheduled March 8, 2017 deposition despite previously agreeing to do so.2 (Docket no. 82 at 23, 24.) Plaintiffs argue that Defendants should be compelled to produce Ms. Wakefield because (1) she was involved in allegations in the instant Complaint regarding John Doe 5 and his prolonged placement in solitary confinement; (2) she is responsible for handling all PREA grievances, i.e., grievances in which a prisoner complains that he was sexually assaulted, which are purportedly a cause of the alleged retaliation in this matter, and grievances in which a prisoner asserts that he has been retaliated against for complaining about
2 Plaintiffs have not attached the Notice of Deposition for Christine Wakefield to their Motion as required by Eastern District of Michigan Local Rule 37.2.
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being sexually assaulted; and (3) she is responsible for ensuring that all prisoners are educated about their rights under MDOC Policy Directives and the PREA. (Id. at 23-24.)
Defendants explain that they did not initially object to Ms. Wakefield’s deposition, but after reviewing the pleadings, Plaintiffs’ prisoner files, and Marshaun Robinson’s deposition transcript, they later informed Plaintiffs that Ms. Wakefield’s deposition is not relevant to Plaintiffs’ retaliation claims in this matter because they do not involve allegations that Defendants violated the PREA, and Ms. Wakefield did not conduct any PREA investigations related to the allegations in the instant Complaint. (Docket no. 90 at 18.)
In response to Plaintiffs’ Motion, Defendants argue against producing Ms. Wakefield for a deposition by contesting Plaintiffs’ assertion that she was involved in John Doe 5’s placement in solitary confinement. (Id. at 18-19.) Specifically, Defendants argue that there are no claims or factual allegations against Ms. Wakefield in the Second Amended Complaint with regard to John Doe 5, and none of John Doe 5’s grievances involve Ms. Wakefield. (Id. at 19.) Defendants also argue that by seeking the deposition of Ms. Wakefield, “Plaintiffs are trying to shift the focus of this lawsuit (and the discovery) to the underlying claims of sexual or physical abuse, assault, or harassment that form the basis of the state-court litigation and the federal litigation before Judge Cleland.” (Id.) In this regard, Defendants argue that aside from possibly John Doe 1, Plaintiffs do not allege that Defendants retaliated against them for filing grievances related to the underlying claims of sexual assault. (Id.) Therefore, Defendants argue, questions concerning sexual misconduct and how PREA grievances are filed, investigated, and resolved, which appears to be Plaintiffs’ purpose for deposing Ms. Wakefield, are not relevant to this case. (Id. at 20.)
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The parties’ arguments reflect that Christine Wakefield may have some information relevant to the allegations in the instant Complaint, particularly with regard to John Doe 5’s solitary confinement and to grievances filed by John Doe 1. Accordingly, the Court will permit Plaintiffs to depose Ms. Wakefield regarding any non-privileged matter that is relevant to the parties’ claims or defenses and proportional to the needs of this case. See Fed. R. Civ. P. 26(b)(1). The Court will therefore order Plaintiffs to re-notice Ms. Wakefield’s deposition for a mutually agreeable time and place, and it will order the parties to complete her deposition within forty-five (45) days of this Opinion and Order
F. Plaintiffs’ Motion for a Protective Order Regarding Document Inspections Plaintiffs also move for a protective order governing Defendants’ production of documents for inspection. (Docket no. 82 at 25-30.) According to the Joint Statement of Resolved and Unresolved Issues, the parties have resolved their dispute regarding the locations at which the inspection of certain documents will take place, but they were unable to resolve the issue of whether Defendants’ counsel or their representatives may be present for the inspections. (Docket no. 95 at 3-4.) Plaintiffs explain that Defendants’ counsel was present during the inspections that have already occurred, and when Plaintiffs’ counsel copied or expressed an interest in a document, Defendants’ counsel then picked up the document and labeled it. (Docket no. 82 at 28.) Plaintiffs’ claim that this “watch-and-record process” utilized by Defendants breaches work-product confidentiality and forces Plaintiffs to make a Hobson’s choice – either copy the document knowing that Defendants will mark it, or forego copying the document. (Id. at 28-29.) Plaintiffs assert that any argument offered by Defendants suggesting that the value of any information derived from Plaintiffs’ selection of documents is nominal or speculative is belied by Defendants’ insistence on identifying and labeling each and every document copied by
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Plaintiffs’ counsel. (Id. at 30.) Plaintiffs therefore urge the Court to issue an order prohibiting Defendants’ counsel or their representatives from observing the inspections. (Id. at 28.)
Defendants explain that at the inspections, Defendants’ representatives, either an attorney or a paralegal, sat in the room at the table with Plaintiffs’ representative and worked on other projects. (Docket no. 90 at 23.) They further explain that when Plaintiffs’ representative copied a document, Defendants’ representative either set that document aside in a separate pile or marked it with a sticky note and placed it back in the same pile of documents. (Id.) Defendants then proceed to argue that Plaintiffs’ assertion of work product is without merit. (Id. at 27.) Specifically, Defendants argue that (1) a party or the party’s representative has a right to be present at an inspection to ensure the security of the documents produced; (2) there is nothing on the face of Defendants’ documents that reflect the mental impressions of Plaintiffs’ counsel; (3) thus far, Plaintiffs’ selection of documents to be copied has been made by a paralegal, not an attorney, and Plaintiffs do not explain how the attorney work-product privilege applies to the work of a paralegal; and (4) it is unclear how Plaintiffs’ selection of documents to be copied can constitute work product where Defendants could simply send Plaintiffs a request for production of those documents. (Id.)
Defendants are correct in one aspect – they are certainly entitled to be present at an inspection to ensure the security of the documents and other materials being inspected. Defendants’ other arguments, however, miss the mark. The original purpose of the work product doctrine, as articulated by the Supreme Court, was to allow an attorney to “assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference . . . to promote justice and to protect [his] clients’ interests.” United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006)
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(quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)). The current work product doctrine is set forth in Federal Rule of Civil Procedure 26(b)(3), and it protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Roxworthy, 457 F.3d at 593; Fed. R. Civ. P. 26(b)(3)).
Several courts have extended the reach of the work-product doctrine beyond documents prepared in anticipation of litigation to documents gathered and assembled by or for a party’s representative in anticipation of litigation, where the selection of particular documents could reveal the opposing attorney’s thought process, legal strategy, or theory of the case. See, e.g., Quicken Loans, Inc. v. Brooks, No. 07-13143, 2010 WL 11541991, at *4 (E.D. Mich. May 18, 2010) (documents gathered by non-attorney representatives at the request of attorney in anticipation of litigation protected by work-product doctrine); Stratienko v. ChattanoogaHamilton Cty. Hosp. Auth., No. 1:07-CV-258, 2008 WL 11342544, at *6 (E.D. Tenn. Nov. 4, 2008); Matter of Grand Jury Subpoenas Dated Oct. 22, 1991, & Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992) (“[W]here a request is made for documents already in the possession of the requesting party, with the precise goal of learning what the opposing attorney's thinking or strategy may be, even third-party documents may be protected.”); Am. Floral Servs., Inc. v. Florists Transworld Delivery Ass’n, 107 F.R.D. 258, 261 (N.D. Ill. 1985) (“There can be little doubt that forced disclosure of the selection made by [a] requesting party’s lawyer from among [certain] documents, necessarily reflect[s] his or her assessment of what is and is not important in the case, [and] would run afoul of (and would be precluded by) the Doctrine.”).
Here, Plaintiffs’ attorneys and/or their legal assistants are purportedly reviewing and inspecting thousands of documents in the presence of Defendants’ representatives, and they are
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then selecting and copying a relatively small number of those documents for further examination, after which Defendants’ representatives mark, label, or set aside those documents copied by Plaintiffs. Defendants have advanced no valid reason for marking or labeling these documents, and the Court conceives no other reason for doing so except to discern the legal thought process or strategy of Plaintiffs’ counsel. Under these circumstances, and in light of the precedent cited above, the Court finds that the selection of documents for scanning or copying performed by Plaintiffs’ attorneys or their legal assistants is protected by the work-product doctrine. The Court will therefore grant in part and deny in part Plaintiffs’ Motion for Protective Order by permitting Defendants’ representatives to be present at any future document inspections but prohibiting Defendants’ representatives from marking, labeling, setting aside, or otherwise identifying the documents selected for copying by Plaintiffs’ representatives. III. Motion to Compel Complete Responses to Plaintiffs’ Interrogatories Regarding
Trial Witnesses [88] The court entered a Scheduling Order on March 22, 2016, which required that the names of all witnesses, lay and expert, be exchanged by June 20, 2016. (Docket no. 30 at 1.) The parties filed their respective witness lists by the deadline (docket nos. 55, 56), and Plaintiffs, finding Defendants’ list to be inadequate in several respects, then served Defendants with Interrogatories Regarding Trial Witnesses on July 8, 2016 (docket no. 88 at 2-3; docket no. 883). The interrogatories asked Defendants to state the contact information, current employment information, and a description of the anticipated testimony for each witness on their Witness List. (Docket no. 88-3 at 3.) Defendants filed objections and answers to Plaintiffs’ Interrogatories on August 5, 2016, which, Plaintiffs’ claim, are also inadequate. (Docket no. 88 at 4; docket no. 88-4.) Defendants subsequently filed an Amended Witness List and served a supplemental response to Plaintiffs’ Interrogatories on August 23, 2016. (Docket nos. 59, 88-5,
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88-6.) According to Plaintiffs, these documents suffer from the same deficiencies as the original documents. (Docket no. 88 at 4.)
Plaintiffs therefore filed the instant Motion through which they seek a court order (1) striking any new witnesses named in Defendants’ Amended Witness List as untimely; (2) striking any witnesses for whom full identification and designation has not been provided; (3) compelling Defendants to provide full and complete answers to Plaintiffs’ Interrogatories Regarding Trial Witnesses; and (4) precluding the testimony of any witnesses for whom full interrogatory answers have not been provided. (Docket no. 88 at 5, 20.) Defendants responded to Plaintiffs’ Motion, and the parties subsequently filed a Joint Statement of Resolved and Unresolved Issues in which they indicated that nothing had been resolved. (Docket nos. 94, 97.) Defendants then filed a Second Supplemental Witness List along with a Second Supplemental Response to Plaintiffs’ Interrogatories. (Docket no. 98; docket no. 133-1.) In light of Defendants’ supplements, the Court recently ordered the parties to file another Joint Statement of Resolved and Unresolved Issues. Through the updated Joint Statement, the parties indicate that they have resolved all but three issues regarding Plaintiffs’ instant Motion to Compel, which the Court will now address in turn. (See docket no. 133.)
First, Plaintiffs assert that they will agree to Defendants’ withholding of contact information for current MDOC employees if: (1) those employees agree that Defendants’ counsel may accept service on their behalf; and (2) Defendants provide Plaintiffs with an employee’s contact information within fourteen days of the employee’s departure from employment with the MDOC. (Docket no. 133 at 3.) Defendants’ counsel agrees to accept service on behalf of current MDOC employees but does not agree to notify Plaintiffs if and when an employee leaves the MDOC’s employment, unless first prompted by Plaintiffs, e.g., in the
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form of a subpoena or a list of trial witnesses. (Id.) Defendants assert that it would be unduly burdensome to monitor the employment status of the more than four hundred MDOC employees on the parties’ witness lists. (Id.) The Court agrees; such a task is likely to result in the needless waste of resources, particularly where Plaintiffs’ need to subpoena all of those employees never arises. Plaintiffs’ suggestions that the burden could be cured by requesting periodic updates from the MDOC and notification from employees upon separation are insufficient, as they place the ball in the court of non-parties who do not have an interest in this litigation and who are not likely to report consistently or accurately. The Court will therefore grant in part and deny in part Plaintiffs’ Motion in this regard.
Next, Plaintiffs complain that Defendants filed two supplemental witness lists without leave of court after the June 20, 2016 deadline set forth for the exchange of final witnesses in the Scheduling Order. (Docket no. 133 at 4.) Plaintiffs oppose the submission of any additional witness lists without prior court approval. (Id.) Defendants disagree with Plaintiffs’ position in light of the fact that certain Plaintiffs, Defendants, and claims were recently reinstated in this matter. (Id.) The Court finds that Plaintiffs’ position is inconsistent with Federal Rule of Civil Procedure 26(a)(3) as well as the court’s Scheduling Order, which explicitly instructs the parties to file witness lists as part of the Joint Final Pretrial Order. (See docket no. 30 at 5.) Accordingly, the Court will deny Plaintiffs’ Motion with regard to this issue.
Lastly, Plaintiffs propose to withdraw the portion of their Motion to strike any witnesses added after the June 20, 2016 deadline and instead depose those witnesses if necessary. (Docket no. 133 at 4-5.) Defendants object to Plaintiffs taking any additional depositions on the bases that Plaintiffs could have deposed the newly-added witnesses at an earlier date over the last six months and that discovery should not be expanded in this matter beyond the recently reinstated
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Plaintiffs and Defendants. (Id. at 5.) Plaintiffs reply that they did not previously depose the witnesses at issue because they were the subject of this pending motion to strike. (Id.) The Court is aligned with Plaintiffs’ position in this instance and will therefore deny Plaintiffs’ Motion to strike the witnesses added by Defendants after June 20, 2016, and grant Plaintiffs’ Motion to depose those witnesses. Any depositions taken in this respect must be completed within forty-five (45) days of this Opinion and Order. IV. Defendants’ Motion to Compel Certain Depositions and Preserve the Right to Take
Others After Discovery Cut-Off As Needed [101] On June 2, 2017, the discovery motion deadline, Defendants filed the instant Motion for an order (1) compelling the depositions of John Does 3, 4, and 12 and permitting them to be taken after the June 16, 2017 discovery deadline on a date to be determined by the parties; and (2) to preserve Defendants’ right to take the depositions of John Does 2 and 8 after the discovery deadline if they are reinstated as parties in this case. (Docket no. 101 at 2, 4.) Defendants sought Plaintiffs’ concurrence in this Motion through a May 30, 2017 email, to which Plaintiffs responded as follows: We do not object to your ability to take the deps of 2 and 8 should they be reinstated. We also do not object to you taking the other deps beyond the current discovery deadline. (Docket no. 101 at 2; docket no. 101-1 at 2.) Defendants explain in their Motion that they sought but were unable to obtain available dates for the depositions of John Does 3 and 4 before the close of discovery. (Docket no. 101 at 12.) They also explain that the incarceration of John Doe 12 in the Wayne County Jail on separate felony charges has limited and complicated his availability for deposition. (Id.) In light of these facts, and the fact that some of John Does 2 and 8’s claims were reinstated on October 18, 2017, the Court will grant Defendants’ Motion. Accordingly, to the extent that the depositions of John Does 2, 3, 4, 8, and 12 have not yet been
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taken in this matter, the Court will order Defendants to re-notice their depositions for a mutually agreeable time and place, and it will order the parties to complete those depositions within fortyfive (45) days of this Opinion and Order. V. Plaintiffs’ Motion to Compel Complete Responses to Plaintiffs’ Second Request for
Production of Documents [102] Plaintiffs’ Second Request for Production of Documents consists of four RFPs, which seek (as summarized by Plaintiffs) “communications discussing Plaintiffs or the Doe litigation, information related to the placement and removal of class notices, and warden meeting minutes and documents discussing class notices, Doe communications, and the Doe litigation.” (Docket no. 102 at 2; docket no 102-2.) Defendants objected to these RFPs primarily on the bases that they are overly-broad and unduly burdensome in temporal and substantive scope and that they seek information not within Defendants’ possession, custody, or control; however, Defendants did produce some responsive documents. (Docket no. 106 at 7; docket no. 102-3.) The parties then proceeded to engage in discussions to resolve their dispute regarding these RFPs, and were able to do so with regard to several issues. (Docket no. 102 at 3.) Plaintiffs assert that despite an anticipated resolution of the other issues, the discovery motion deadline necessitated the filing of the instant Motion. (Id. at 3-4.) Therefore, in the Motion, Plaintiffs suggest that the Court stay its consideration of the Motion pending the parties’ efforts to resolve it. (Id. at 4.) The parties subsequently filed Supplemental Briefs to inform the Court of the result of those efforts. (Docket nos. 119, 122.) According to the parties, the only issue remaining with regard to Plaintiffs’ Second Request for Production of Documents relates to the scope of RFP no. 1, which asks Defendants to: Please produce any emails, text messages or other communications of any sort from August of 2013 to the present from or to any named defendant in which the Doe litigation or the plaintiffs’ status as plaintiffs in litigation against the MDOC
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was discussed. Such messages would include but not be limited to any messages containing the words: “Doe;” “John Doe;” any of the plaintiffs’ names; or any of the plaintiffs’ lawyers’ names. (Docket nos. 119, 122; docket no. 102-2 at 4.) The parties indicate that they have agreed upon a search term protocol to be used by Defendants in searching for responsive documents that limits the substantive scope of the request, but they continue to dispute the temporal scope of the request. Essentially, Defendants agree to produce (and have since produced) non-privileged, responsive documents dated from August, 1 2013 through November 2, 2015, the date that the instant Complaint was filed, but they object to producing documents responsive to RFP no. 1 generated after November 2, 2015, through the present date. In support of their position that Defendants should produce documents generated after November 2, 2015, Plaintiffs argue that “Defendants could have generated and received correspondence regarding the allegations after and/or in response to the Complaint itself being filed, including but not limited to inquiries by administration or coworkers regarding the veracity of the allegations and/or discussion amongst the Defendants about the fact of, and veracity of, the allegations.” (Docket no. 119 at 8.) Plaintiffs also argue that their claims are not limited to what occurred prior to November 2, 2015, because the Second Amended Complaint alleges that the retaliation and harassment is ongoing. (Id.) Plaintiffs further argue that they have agreed to apply the search protocol to documents generated after November 2, 2015, which will render it highly likely that the results of the search will yield relevant documents while reducing the number of documents that Defendants will have to review. (Id. at 9.) Finally, Plaintiffs argue that “Defendants have no basis on which to impose an artificial date after which they will refuse to produce documents – particularly, when such documents go to the core issues in this case,
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including what Defendants knew about Plaintiffs’ participation in the litigation and what they did in response.” (Id. at 10.)
Defendants argue that it is unlikely that there will be any information relevant to the issues in this case in documents generated after November 2, 2015, because Plaintiffs’ general allegation of ongoing retaliation asserted in the Second Amended Complaint has not been borne out in Plaintiffs’ deposition testimony. (Docket no. 122 at 8-12.) Defendants also argue that this is a garden-variety retaliation case that is limited in nature and not factually or legally complex, and it therefore does not require that hundreds of thousands of dollars be spent to conduct the large-scale document review project that would be required to fully respond to Plaintiffs’ Second Request for Production of Documents and Plaintiffs’ subpoena to the MDOC (discussed below). (Id. at 12.) Defendants explain that for documents generated between August 1, 2013 and November 2, 2015, the search term protocol rendered a grouping of 4,300 potentially responsive documents, and a review of those documents yielded only 400 responsive documents that were ultimately produced to Plaintiff. (Id. at 7, 13.) Defendants assert that if they are compelled to produce responsive documents dated November 3, 2015 to April 17, 2017 (the date of Defendants’ Response to Plaintiffs’ Second Request for Production), they would have to review an additional 8,000 documents for responsiveness, which review would take an estimated 160 reviewer hours and $20,000 to complete. (Id. at 7, 15-16.) Defendants argue that by asking the “Court to compel Defendants to review another 8,000 documents that hit on a search term after their lawsuit was filed solely because they think that it may lead to the discovery of relevant information in this case because they think someone might have talked about the lawsuit after it was filed,” Plaintiffs are engaging in a fishing expedition that contradicts the proportionality requirement of Rule 26. (Id. at 14 (emphasis in original).) Defendants ask the Court to deny
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Plaintiffs’ Motion in this regard or, if it is inclined to grant Plaintiffs’ Motion, to order cost shifting related to the additional document review and production. (Id. at 15.)
The Court finds Defendants’ argument that a search for documents responsive to RFP no. 1 generated after November 2, 2015 is unlikely to produce evidence of ongoing retaliation committed by Defendants to be persuasive, particularly in light of Plaintiffs’ deposition testimony. Nevertheless, the Court also finds that Defendants’ communications dated after November 2, 2015 could certainly contain relevant, non-privileged discussions regarding Plaintiffs and the veracity of the allegations in the instant Complaint. Any communications of this sort have the potential to be highly relevant to the parties’ claims and defenses in this matter. The Court therefore finds that the temporal scope of Plaintiffs’ request is proportional to the needs of this case and that the additional time and expense that Defendants will incur in reviewing documents generated after November 2, 2015 is outweighed by the potential benefit of the documents produced. The Court will therefore grant Plaintiffs’ Motion with regard to this final unresolved issue related to Plaintiffs’ Second Request for Production, and it will order Defendants to search for and produce within twenty-one (21) days of this Opinion and Order any documents responsive to the substantive scope of RFP no. 1, as limited by the parties, that are dated from November 3, 2015 through April 17, 2017, the date of Defendants’ Response to Plaintiffs’ Second Request for Production. The Court declines to order cost shifting as suggested by Defendants. VI. Plaintiffs’ Motion to Enforce Subpoena to MDOC [103]
The discovery requests and the underlying facts and procedural circumstances of Plaintiffs’ Motion to Enforce Subpoena to MDOC are similar to those of the previous Motion addressed immediately above. Plaintiffs’ subpoena duces tecum to the MDOC consists of four
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document requests, which Plaintiffs summarize as seeking “the production of communications to and from litigation coordinators regarding Plaintiffs; communications and documents related to the placement and removal of class notices; meeting minutes and other documents discussing Doe communications, class notices, Doe misconduct issues and the Doe litigation; as well as CAJ 278 forms and other documents regarding the receipt, refusal or denial of food, shower, yard or privileges for Plaintiffs.” (Docket no. 103 at 2-3; docket no. 103-2.) The MDOC objected to the requests primarily as overly broad and unduly burdensome in time and scope, but it did produce some documents responsive to the third and fourth requests. (Docket no. 107 at 8; docket no. 103-3.) Plaintiffs and the MDOC then engaged in discussions to resolve their disputes regarding the subpoena’s document requests, but they were unable to resolve them by the discovery motion deadline. (Docket no. 103 at 3.) Plaintiffs therefore filed the instant Motion, but they requested that the court stay its consideration of the Motion pending further efforts to resolve the outstanding issues. (Id. at 3-4.)
Plaintiffs and the MDOC filed Supplemental Briefs regarding the Motion approximately two months later, in which they advise that they were able to resolve a number of issues through their discussions, but some issues concerning Request nos. 1 and 3 remain. (Docket nos. 120, 123.) Plaintiffs’ Request no. 1 seeks:
Any and all communications to or from MDOC litigation coordinators to any named defendant or anyone within MDOC regarding the Doe litigation or any of the persons identified as John Does 1, 2, 3, 4, 5, 8, 9, 10 and 12 in Doe v. Anderson, E.D. Mich. Case No. 2:15-cv-13852, from August of 2013 to the present. (Docket no. 103-2 at 3.) Plaintiffs and the MDOC have agreed to apply the previously-discussed search-term protocol to this document request and further limit it to documents to or from the litigation coordinators at the MDOC facilities at dispute in this matter. (Docket no. 120 at 8;
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docket no. 123 at 8-9.) They have also agreed to exclude documents containing the MDOC’s attorneys’ names from review and to relieve the MDOC from producing a privilege log for those documents. (Docket no. 123 at 9-10.) These limitations have reduced the number of documents to be reviewed for responsiveness to 11,000. (Docket no. 123 at 10.) Nevertheless, Plaintiffs and the MDOC continue to dispute the proper temporal and substantive scope of this request.
Plaintiffs assert that they seek this information to “shed light on who within the MDOC (including Defendants) were notified of the Plaintiffs’ involvement with the Doe litigation, which persons were advised of matters such as Plaintiffs’ meetings with and phone calls to attorneys, and when such information was communicated.” (Docket no. 120 at 8.) Plaintiffs claim that these are all central issues in this case, and they are important in determining the chain of information that could support or rebut Defendants’ denials of knowledge of Plaintiffs’ participation in the litigation or their involvement with attorneys. (Id. at 8-9.) Also, Plaintiffs argue (as they did with respect to their previous Motion) that the MDOC has no basis on which to impose a cut-off date of November 2, 2015. (Id. at 9.) They further argue that the MDOC’s argument that the request is burdensome is a non-starter where there are constitutional issues involved and the MDOC is the custodian of nearly all relevant records. (Id. at 9-10.)
The MDOC argues that even as limited, the request is still overbroad and unduly burdensome, and it still seeks irrelevant information. For example, the MDOC argues that Defendants have already produced documents sent to or received by them that discuss the litigation or Plaintiffs’ status in the litigation; therefore, the instant request truly only seeks communications between the MDOC litigation coordinators and third parties, which have little to no relevance to Plaintiffs’ claims against Defendants. (Docket no. 123 at 11-12.) The MDOC also argues that the four-year temporal scope of the request is overbroad. (Id. at 13-14.) The
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MDOC further argues that, as a non-party, it is protected from the significant expense (an estimated $22,000) of responding to this subpoena under Federal Rule of Civil Procedure 45, and Plaintiffs should therefore bear the cost of production if Plaintiffs’ Motion is granted. (Id. at 1416.)
Plaintiffs’ Request no. 3 seeks: Any and all warden meeting minutes or other documents that involve or relate to or include facilities at which named defendants work and that describe or detail how communications with Plaintiffs in the Doe litigation should be handled; how class notices should be handled; how misconduct issues with Plaintiffs in the Doe litigation should be handled; or that discuss the Doe litigation in any respect. (Docket no. 103-2 at 3.) Plaintiffs assert that they seek these documents to discover what, if any, guidance, information, or instructions Defendants received from the MDOC on the subjects stated in the request. (Docket no. 120 at 11.) The MDOC indicates that any warden’s meeting minutes responsive to this request from the six MDOC facilities at issue in this matter have already been produced to Plaintiffs. (Docket no. 123 at 16 n.7.) With respect to the remainder of the request, Plaintiffs and the MDOC have agreed to limit the search for responsive documents to six types of supervisory employees at the facilities at issue, e.g, wardens, deputy wardens, litigation coordinators, etc., and to documents distributed facility-wide. (Id. at 17.) The MDOC explains that after applying this limitation, there are 102 employees remaining whose email would need to be searched for responsive information. (Id.) It further explains that when the search term protocol is applied to the email accounts of those 102 employees, more than 95,000 hits are returned, not including document families, which could double the number of documents to be reviewed. (Id. at 17-18.) The MDOC, therefore, continues to object to this request on the basis of burden, overbreadth, relevance, and duplicity. For example, the MDOC argues that this request is
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duplicative of other discovery already produced by the named Defendants – specifically, emails that discuss the John Doe litigation sent to or from the named Defendants from August of 2013 through November 2, 2015, as well as any information in their possession related to the posting of class notices. (Docket no. 123 at 18-19.) The MDOC asserts that essentially, Request no. 3 seeks any information in the possession of more than 100 non-party MDOC employees that was not sent to, received by, or in the possession of Defendants, and because Defendants were not aware of this other information, it cannot be relevant to Plaintiffs’ claims against Defendants in this matter. (Id.) The MDOC argues that it would have to review at least 95,000 documents at an estimated cost of $180,000 to identify documents responsive to this request, which is nothing more than a fishing expedition to see if any other non-party MDOC employee has discussed issues related to Plaintiffs. (Id. at 19-20, 21.) The MDOC further argues that where Plaintiffs’ garden-variety retaliation claims are not novel or complex, the factual allegations underlying the claims are limited in both time and scope, and the information sought in this request is not related to the contested issues in this case, Plaintiffs’ Motion should be denied. (Id. at 20-21.)
Plaintiffs assert that they need the information in Request nos. 1 and 3 to determine who within the MDOC (including Defendants) were notified of Plaintiffs’ involvement in the Doe litigation and to discover what guidance or instructions Defendants received from the MDOC regarding Plaintiffs. But Defendants have already produced documents responsive to these requests, and that production presumably satisfies Plaintiffs’ stated need for the information; any further production from non-party MDOC employees would be either duplicative or irrelevant. To the extent that Defendants’ production does not satisfy Plaintiffs’ need for the information, however, Plaintiffs fail to demonstrate how the additional information that they seek from hundreds of the MDOC’s non-party employees has sufficient relevance to their claims against
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Defendants to outweigh the burden to the MDOC of spending considerable time and expense in reviewing tens of thousands of documents. Plaintiffs’ requests, even when limited by further agreement, are not proportional to the needs of this case; their overbreadth is fatal to Plaintiffs’ Motion. The Court will therefore deny Plaintiffs’ Motion to Enforce Subpoena to MDOC.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel Responses to Plaintiffs’ First Request for Production of Documents and Deposition Testimony and Motion for Protective Order [82] is GRANTED IN PART and DENIED IN PART with regard to the unresolved issues as follows:
a. The Court holds that Plaintiffs’ RFP no. 1 encompasses a request for Plaintiffs’ parole files and orders Defendants to amend their answer to RFP no. 1 within twenty-one (21) days of this Opinion and Order to certify that all files responsive to the RFP (including Plaintiffs’ parole files) have been produced to Plaintiffs;
b. Defendants are ordered to amend their responses to RFP nos. 22 and 27 within twenty-one (21) days of this Opinion and Order to clarify that the MDOC’s retention schedule has already been produced and that Defendants have no knowledge of any other previously-existing responsive documents or materials, or the destruction thereof;
c. Plaintiffs’ Motion to Compel Defendants to produce a privilege log is DENIED; however, Defendants are ordered to amend their response to RFP no. 25 within twenty-one (21) days of this Opinion and Order to clarify that they did not withhold any documents from their production on the basis of privilege;
d. Plaintiffs’ Motion to Compel the production of the ITS database and the MDOC’s grievance database is DENIED. To the extent that these databases are within
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Defendants’ possession, custody, or control, however, Defendants are ordered to generate reports responsive to RFP nos. 6-9 from the databases and produce the reports to Plaintiffs within twenty-one (21) days of this Opinion and Order. If the databases are not within Defendants’ possession, custody, or control, Defendants must certify as such to Plaintiffs within twenty-one (21) days of this Opinion and Order. Plaintiffs may re-depose Marshaun Robinson at a mutually agreeable time and place within forty-five (45) days of this Opinion and Order regarding only (1) the hard copies of the 2015 and 2016 grievance reports that Mr. Robinson generated for the Bellamy Creek Correctional Facility; and (2) any reports generated from the grievance databases that Defendants produce in compliance with this Opinion and Order. e. Plaintiffs’ Motion to Compel the deposition of Christine Wakefield is GRANTED. Plaintiffs are ordered to re-notice Ms. Wakefield’s deposition for a mutually agreeable time and place, and the parties must complete her deposition within fortyfive (45) days of this Opinion and Order; and f. Plaintiffs’ Motion for Protective Order is GRANTED IN PART and DENIED IN PART. Defendants’ representatives may be present at any future document inspections, but they are prohibited from marking, labeling, setting aside, or otherwise identifying the documents selected for copying by Plaintiffs’ representatives. IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Complete Responses to Plaintiffs’ Interrogatories Regarding Trial Witnesses [88] is GRANTED IN PART and DENIED IN PART with regard to the unresolved issues as follows:
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a. Defendants may withhold from Plaintiffs the contact information of current MDOC employees, but Defendants’ counsel must accept service on behalf of those employees, and they must provide the contact information of any recently-separated or –terminated employee to Plaintiffs’ counsel when prompted to do so;
b. Plaintiffs’ Motion to prohibit the submission of any additional witness lists without prior court approval is DENIED; and
c. Plaintiffs’ Motion to strike any witnesses added by Defendants after June 20, 2016 is DENIED, and Plaintiffs’ Motion to depose those witnesses is GRANTED. Any depositions taken in this respect must be completed within forty-five (45) days of this Opinion and Order.
IT IS FURTHER ORDERED that Defendants’ Motion to Compel Certain Depositions and Preserve the Right to Take Others After Discovery Cut-Off as Needed [101] is GRANTED. To the extent that the depositions of John Does 2, 3, 4, 8, and 12 have not yet been taken in this matter, Defendants are ordered to re-notice their depositions for a mutually agreeable time and place, and the parties must complete those depositions within forty-five (45) days of this Opinion and Order.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Complete Responses to Plaintiffs’ Second Request for Production of Documents [102] is GRANTED with regard to the remaining unresolved issue. Defendants are ordered to search for and produce within twenty-one (21) days of this Opinion and Order any documents responsive to the substantive scope of RFP no. 1, as limited by the parties, dated from November 3, 2015 through April 17, 2017, the date of Defendants’ Response to Plaintiffs’ Second Request for Production.
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IT IS FURTHER ORDERED that Plaintiffs’ Motion to Enforce Subpoena to MDOC [103] is DENIED.
NOTICE TO THE PARTIES Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days from the date of this Order within which to file any written appeal to the District Judge as may be permissible under 28 U.S.C. § 636(b)(1).

Dated: November 1, 2017

s/ Mona K. Majzoub MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Opinion and Order was served upon counsel of record on this date.

Dated: November 1, 2017

s/ Leanne Hosking Case Manager Generalist

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 Case 2:15-cv-13852-AJT-MKM ECF No. 136 filed 11/03/17 PageID.3829 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE, ET AL.,

Case No. 15-13852

Plaintiffs, v.

SENIOR U.S. DISTRICT JUDGE ARTHUR J. TARNOW

ANDERSON, ET AL., Defendants.

U.S. MAGISTRATE JUDGE MONA K. MAJZOUB
/

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION/REHEARING AND/OR TO ALTER OR AMEND JUDGMENT [135]

On March 31, 2017, the Court entered an Order [84] granting in part and

denying in part Defendants’ Motion for Summary Judgment. Plaintiffs filed a

Motion for Reconsideration [91] of Order [84] on April 14, 2017. The Court did

not order Defendants to respond to Plaintiffs’ motion. On October 18, 2017, the

Court granted in part Plaintiffs’ Motion for Reconsideration. [Dkt. #131]. On

November 1, 2017, Defendants filed a Motion for Reconsideration/Rehearing

and/or to Alter or Amend Judgment [135] of the Court’s Order [131] granting in

part Plaintiffs’ Motion for Reconsideration.

Local Rule 7.1(h)(3), which governs motions for reconsideration, provides:

Generally, and without restricting the court’s discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and
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the parties and other persons entitled to be heard on the motion have been misled but also show that correcting the defect will result in a different disposition of the case. See also Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir. 2003) (A motion for reconsideration is granted only “. . . if the movant demonstrates that the district court and the parties have been misled by a palpable defect, and correcting the defect will result in a different disposition of the case.”). “The decision whether to grant reconsideration lies largely within the discretion of the court.” Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). Defendants’ Motion for Reconsideration [135] is, in essence, a response to Plaintiffs’ Motion for Reconsideration. Defendants submit that they were not given an opportunity to respond to Plaintiffs’ motion. [Dkt. #135 at 12]. However, pursuant to E.D. L.R. 7.1(h)(2), no response is permitted unless the Court orders otherwise. In this case, the Court concluded that a response to Plaintiffs’ Motion [91] was not necessary. Furthermore, Defendants did not seek leave to file a response in the six-month period during which Plaintiffs’ motion was pending before the Court. Instead, Defendants raise these arguments only after the Court has issued its ruling on Plaintiffs’ motion. “The purpose of a motion for reconsideration is not ‘to give an unhappy litigant one additional chance to sway the judge.’” United States
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v. One 2003 GMC Sierra 3500 Pickup Truck, VIN: 1GTJK33113F208636, No. 0574205, 2013 WL 27900, at *1 (E.D. Mich. Jan. 2, 2013) (citing Pakideh v. Ahadi, 99 F.Supp.2d 805, 809 (E.D. Mich. 2000)).
Accordingly, IT IS ORDERED that Defendants’ Motion for Reconsideration [135] is DENIED. SO ORDERED.

Dated: November 3, 2017

s/Arthur J. Tarnow Arthur J. Tarnow Senior United States District Judge

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