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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN DOE 5; JOHN DOE 6; and next friends of minors JOHN DOE 4 AND JOHN DOE 7, on behalf of themselves and a class of all others similarly situated,
Plaintiffs,
vs.

Case No. Hon.

CLASS ACTION

MICHIGAN DEPARTMENT OF CORRECTIONS (“MDOC”); RICK SNYDER, Governor of the State of Michigan; DANIEL H. HEYNS, Director, Michigan Department of Corrections; THOMAS FINCO, Deputy Director of MDOC Correctional Facilities Administration; DENNIS STRAUB, former Deputy Director of MDOC Correctional Facilities Administration; RANDY TREACHER, Chief Deputy Director of MDOC Correctional Facilities Administration; WILLIE SMITH, Warden of Carson City Correctional Facility; HEIDI WASHINGTON, Warden of Charles Egeler Reception and Guidance Center; MARY BERGHUIS, Warden of Earnest C. Brooks Correctional Facility; PAUL KLEE, Warden of Gus Harrison Correctional Facility; JOHN PRELESNIK, Warden of Richard A. Handlon Correctional Facility; CATHLEEN STODDARD, Warden of Richard A. Handlon Correctional Facility; CINDI S. CURTIN, Warden of Oaks Correctional Facility; DAVID BERGH, Warden of Thumb Correctional Facility; JEFFREY WOODS, Warden of Chippewa Correctional Facility; ROBERT NAPEL, Warden of Marquette Branch Prison; and KENNETH MCKEE, Warden of Bellamy Creek Correctional Facility, Jointly and severally,
Defendants.

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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

JENNIFER B. SALVATORE (P66640) NAKISHA CHANEY (P65066) EDWARD MACEY (P72939) NACHT, ROUMEL, SALVATORE, BLANCHARD & WALKER, P.C. Attorneys for Plaintiffs 101 N. Main Street, Ste. 555 Ann Arbor, Michigan 48104 (734) 663-7550 jsalvatore@nachtlaw.com nchaney@nachtlaw.com emacey@nachtlaw.com

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

COMPLAINT AND JURY DEMAND

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INTRODUCTORY STATEMENT 1. This proposed class action lawsuit seeks injunctive and declaratory relief and damages on behalf of children confined in adult prisons operated by the Michigan Department of Corrections (MDOC). During the last three years, at least 500 children ranging in age from 1417 (“youthful prisoners”) have been incarcerated in MDOC’s adult prisons for sentences of a year or more. 2. During their imprisonment, these youth have been housed in cells with adult prisoners, and have been forced to shower, eat, recreate and work with adult prisoners without adequate supervision to ensure their safety and without regard to their status as children. Male youthful prisoners incarcerated in the adult prisons are also subject to body searches and viewing by female staff while showering and performing basic bodily functions. 3. The MDOC and Defendants are and were on notice that incarcerating youth in adult prisons without regard to their vulnerable child status subjects youthful prisoners to heightened and substantial risk of physical and sexual violence and abuse and sexual harassment at the hands of adult prisoners and prison staff. 4. Placing children in adult prisons without regard to their youthful status and vulnerability has resulted in increased punishment and degrading treatment through the use of tasers, solitary confinement and deprivation of rehabilitative programming and educational services. 5. Defendants’ policy and practice of housing youthful and adult prisoners together without taking adequate steps to protect youth from a known harm constitutes deliberate indifference to their safety. 6. Congress enacted the Prison Rape Elimination Act (PREA) a decade ago after recognizing the harm to youth placed in adult facilities. PREA requires state prisons to keep any
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prisoners under the age of 18, who are housed in adult facilities, separate by sight and sound from adult prisoners.
7. As a result of Defendants’ policies and practices, the proposed class, including Plaintiffs, have suffered and are at an imminent risk of suffering irreparable harm, including but not limited to physical injuries, sexual violence and abuse, severe emotional distress and mental trauma, degrading treatment, lengthened periods of incarceration, solitary confinement and deprivation of basic educational and rehabilitative services.
JURISDICTION AND VENUE 8. This is a civil action brought pursuant to 42 U.S.C. § 1983 and 18 U.S.C. § 1595, seeking injunctive and declaratory relief together with monetary damages against Defendants for violations of the Eighth and Fourteenth Amendments of the United States Constitution, the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. §§ 1584, 1590, 1591, 1594 and 1595, together with violations of the conventions and treaties of which the United States is a signator and customary international law and standards. 9. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which authorizes federal courts to decide cases concerning federal questions; 28 U.S.C. § 1343(a)(3) and (4), which authorizes federal courts to hear civil rights cases; and 28 U.S.C. § 2201, the Declaratory Judgment Act. This Court has personal jurisdiction over the Defendants named herein as public officials of the State of Michigan sued in their official and individual capacities for violations of Plaintiffs’ statutory and constitutional rights. The amount in controversy exceeds Seventy-Five Thousand ($75,000.00) Dollars, excluding interest and costs. 10. Venue is proper in this Court as Defendants conduct their business across the State, including in the Eastern District of Michigan, and some of the named Plaintiffs are or were incarcerated in the Eastern District of Michigan during the relevant time periods.
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PARTIES A. PLAINTIFFS 11. Plaintiff representatives are citizens of the United States and at all relevant times were children imprisoned in facilities under the jurisdiction of the MDOC. Plaintiffs bring this action on behalf of themselves and a class of youthful prisoners who are, were, or will be confined in adult prisons in Michigan and who have been or will be subjected to sexual and physical assaults and abuse, sexual harassment, and degrading treatment from adult prisoners and staff as a result of incarceration in adult prisons without adequate supervision, separation from adult prisoners, or treatment consistent with their status as children. Two Plaintiffs currently under the age of 18 are represented by Anlyn Addis as their next friend pursuant to Federal Rule of Civil Procedure 17(c). Plaintiffs seek injunctive and declaratory relief and damages for themselves and for members of the class. B. DEFENDANTS 12. All individual defendants are sued in their individual and official capacities. 13. Defendant MDOC is a Department of the State of Michigan and with the Defendant Governor, is responsible for the care and custody of youthful prisoners incarcerated in prisons in the State of Michigan. Defendant MDOC and Defendant Governor have the responsibility, authority and ability to remedy current and future conditions at facilities housing youthful prisoners that have given rise to the sexual and physical abuse and assaults, degrading treatment and deprivation of rights as set forth in this complaint. 14. Defendant Rick Snyder is the Governor of the State of Michigan and is invested with executive power pursuant to Art. V, Section 1 of the Michigan Constitution. Defendant Snyder, with the management of the Michigan Department of Corrections, is responsible for the care and custody of youthful prisoners in the State of Michigan, and has the responsibility,
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authority and ability to remedy current and future conditions at facilities housing youthful prisoners that have given rise to and continue to pose a substantial risk of sexual and physical abuse and assaults, degrading treatment and deprivation of rights as set forth in this complaint.
15. Defendant Daniel H. Heyns, (“Heyns”) is the Director of the Michigan Department of Corrections. His duties and responsibilities include a responsibility for developing and implementing policies and procedures for the operation and management of the Michigan Department of Corrections and its employees. He is responsible for the care, custody and protection of prisoners under the jurisdiction of the Michigan Department of Corrections.
16. Defendant Thomas Finco (“Finco”) is the Deputy Director of the MDOC’s Correctional Facilities Administration (CFA), and has served in that capacity since October 1, 2011. Defendant Finco’s duties and responsibilities include the operation of all correctional institutions in the MDOC system, including promulgating and administering MDOC’s policies related to the placement and custody of individual prisoners at MDOC facilities.
17. Defendant Dennis Straub (“Straub”) was the Deputy Director of the CFA before October 1, 2011. His duties and responsibilities included the promulgation and administration of MDOC policies, including custodial placement and the custody and protection of youthful prisoners at their respective facilities during his tenure.
18. Defendant Randy Treacher (“Treacher”) is the Chief Deputy Director of the CFA. His duties and responsibilities include the supervision of Defendants Straub and Finco during their respective tenures.
19. Defendants MDOC, Governor Snyder, Heyns, Finco, Straub and Treacher are collectively referred to in this action as “Policymaker Defendants.”
20. The individual Warden Defendants were, at all relevant times, wardens at MDOC facilities where the named Plaintiffs have been housed with adult prisoners and have been
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subject to the harm and injuries set forth herein. At all relevant times the Warden Defendants were responsible for the training, assignment and supervision of staff at their respective facilities, as follows:
a. WILLIE SMITH, Warden of Carson City Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOE 5.
b. HEIDI WASHINGTON, Warden of Charles Egeler Reception and Guidance Center, was and is responsible for the unlawful treatment and conditions involving JOHN DOES 3, 6 and 7.
c. MARY BERGHUIS, Warden of Earnest C. Brooks Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOE 5.
d. PAUL KLEE, Warden of Gus Harrison Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOE 6.
e. JOHN PRELESNIK, Warden of Richard A. Handlon Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOES 1 and 6.
f. CATHLEEN STODDARD, Warden of Richard A. Handlon Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOES 1 and 6.
g. CINDI S. CURTIN, Warden of Oaks Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOE 2. 5

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h. DAVID BERGH, Warden of Thumb Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOES 2, 3, 4 and 5.
i. JEFFREY WOODS, Warden of Chippewa Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOES 3 and 5.
j. ROBERT NAPEL, Warden of Marquette Branch Prison, was and is responsible for the unlawful treatment and conditions involving JOHN DOE 6.
k. KENNETH MCKEE, Warden of Bellamy Creek Correctional Facility, was and is responsible for the unlawful treatment and conditions involving JOHN DOE 1.
21. The above-named wardens will be collectively referred to herein as the “Warden Defendants.”
22. In their capacity as wardens, Warden Defendants’ duties and responsibilities include the training, assignment, supervision, discipline and investigation of correctional officers and MDOC employees.
23. The Warden Defendants are also responsible for the custody, safety, protection, fair treatment and rehabilitation of the youthful prisoners in their facilities and for ensuring that the facilities housing youthful prisoners are operated according to proper correctional standards, statutes and/or laws to ensure the safety and protection of vulnerable populations, including Plaintiffs.
24. The Warden Defendants are also responsible for developing procedures and implementing policies to prevent the sexual abuse and degrading treatment of youthful prisoners
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and are also responsible for ensuring an adequate and effective mechanism for the safe and effective reporting of sexual and physical assaults and sexual harassment experienced by prisoners housed at their facilities.
25. The Warden Defendants are responsible for ensuring that youthful prisoners under their care and supervision are not deprived of rehabilitative or educational opportunities or subjected to retaliation and/or increased punishment due to their vulnerable status as youth.
CLASS ACTION ALLEGATIONS 26. This action is brought by the named Plaintiffs on behalf of youthful prisoners who, since October of 2010, have been, are now, or will be hereafter incarcerated in adult correctional facilities under the jurisdiction of the Michigan Department of Corrections and who have been subjected to physical and sexual abuse, assaults, harassment and/or other degrading treatment by adult prisoners and/or MDOC custodial staff. 27. The number of youth who have been subject to these violations of their rights while under the jurisdiction of the MDOC since 2010 exceeds one hundred children. The number of class members is sufficiently numerous to make class action status the most practical method for Plaintiffs to challenge the policies, procedures and practices of Defendants that are a proximate cause of their ongoing abuse. 28. There are questions of law and fact raised by the named Plaintiffs’ claims common to, and typical of, those raised by the Class they seek to represent. 29. Questions of law or fact common to the Class, without limitation, include:
a. Defendants’ failure to properly house youthful prisoners, failure to separate youthful prisoners from adult prisoners in MDOC facilities, and failure to provide adequate supervision to safeguard this vulnerable population resulting in sexual abuse and physical violence by adult prisoners; 7

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b. Defendants’ failure to properly supervise, train, monitor, discipline, and/or regulate prison staff and failure to properly house and protect this vulnerable population resulting in sexual abuse and physical violence by adult prisoners and prison staff;
c. Defendants’ ongoing failure to promulgate and implement proper policies and procedures to identify and house vulnerable youthful prisoners to safeguard their protection from harm from sexual abuse, solitary confinement and deprivation of rehabilitative opportunities;
d. Defendants’ failure to adequately protect youth from a known risk of sexual abuse from adult prisoners and properly supervise, train, and discipline prison staff in violation of Plaintiffs’ constitutional, common law, and statutory rights.
30. The violations of law and resulting harms alleged by the named Plaintiffs are typical of the legal violations and harms suffered by all Class members.
31. Plaintiff Class representatives will fairly and adequately protect the interests of the Plaintiff class members. Plaintiffs’ counsel know of no conflicts of interest between the class representatives and absent class members with respect to the matters at issue in this litigation; the class representatives will vigorously prosecute the suit on behalf of the Class; and the class representatives are represented by experienced counsel. Plaintiffs are represented by attorneys with substantial experience and expertise in complex and class action litigation involving issues of children, sexual assault, and/or prison conditions. Plaintiffs’ attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class.
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32. The maintenance of the action as a class action will be superior to other available methods of adjudication and will promote the convenient administration of justice. Moreover, the prosecution of separate actions by individual members of the Class could result in inconsistent or varying adjudications with respect to individual members of the Class and/or one or more of the Defendants.
33. Defendants have acted or failed to act on grounds generally applicable to all Plaintiffs, necessitating declaratory and injunctive relief for the Class.
STATEMENT OF GENERAL FACTS 34. The State of Michigan places children as young as fourteen years of age in adult prisons under the supervision of the MDOC. 35. The MDOC has failed to separate youth under the age of 18 from adult prisoners, despite their obvious and substantial vulnerability to harm from adult prisoners. The MDOC has maintained a policy and procedure of placing 17 year old youths directly in cells and housing units with adult prisoners, despite their obvious and substantial vulnerability to harm from adult prisoners.1 36. The MDOC has failed to adequately separate or supervise youth aged 14-17 incarcerated with adult prisoners despite the promulgation of standards under the Prison Rape Elimination Act (PREA) requiring site and sound separation of youth under the age of 18 from adults. 42 U.S.C. § 15601 et seq; 28 CFR 115.14. 37. PREA is a federal statute designed to address findings that youth are eight times more likely to be subjected to sexual violence and that youthful prisoners are five times more likely to be sexually assaulted in adult rather than juvenile facilities. PREA requires that any
1 Plaintiffs’ Counsel has learned that in the weeks preceding filing of this complaint, some MDOC facilities have started to separate 17-year-olds from the adult population in some settings. The extent and scope of these efforts throughout the MDOC system is unclear.
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youth under the age of 18 shall not be placed in a housing unit in which the youthful inmate will have sight, sound or physical contact with any adult prisoners or use of a shared day room or other common space, shower area, or sleeping quarters.
38. Independent of the requirements of PREA, Defendants have failed to adequately consider youth and their obvious vulnerability in determining the proper placement, transfer, supervision and treatment of youth under their supervision.
39. In contravention of PREA, MDOC’s own policies, and/or standard correctional practices, Defendants have placed vulnerable youth, including Plaintiffs, in adult prisons without separation by sight and sound from adult prisoners, without adequate supervision during contact with adults, and without procedures to protect youth, including Plaintiffs, from sexual victimization so as to ensure their safety and well-being.
40. Defendants’ practice of using solitary confinement for the placement of youth, including Plaintiffs, without ensuring humane treatment, has failed to adequately protect Plaintiffs and constitutes a punishment for their vulnerability and/or reporting of abuse.
41. Defendants, without adequate procedures, training or supervision, have subjected youth to cross-gender searches, pat-downs and viewings while showering and performing basic bodily functions without taking adequate steps to protect their safety, privacy and rights.
42. Defendants have created and continued policies that fail to separate youthful and adult prisoners in showers, yard, programming, or eating areas, and fail to provide them with adequate supervision to prevent sexual victimization and assault.
43. Defendants, despite their knowledge and the obvious and apparent risks of placing youth in adult prisons, have failed to implement and effectuate policies, procedures and mechanisms to deter sexual and physical abuse against Plaintiffs and other youth under their supervision.
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44. As a result of Defendants’ acts and omissions in failing to safeguard vulnerable youth, including Plaintiffs, the plaintiffs in this case have all experienced some combination of sexual and physical abuse, harassment, and/or related violence from adult prisoners and/or staff in MDOC facilities in the last three years.
45. Defendants have aided and abetted the sexual abuse and misconduct by adult prisoners and staff by failing to take adequate steps to prevent and deter the violations of Plaintiffs’ rights, by, among other acts and omissions, failing to adequately train, supervise, investigate and discipline staff who violated Plaintiffs’ rights. Defendants’ acts and omissions regarding screening, training, supervision, investigation and discipline surrounding the placement of youth in adult prisons and the sexual and physical abuse of these youths permitted and ratified the abusive behavior by adult male prisoners and by MDOC staff.
46. In addition to the widespread sexual abuse and violence against youthful prisoners, Defendants themselves and/or through their agents, have created a prison environment that facilitates a system of sexual trafficking of youth, from which some Defendants and their agents benefited. The facilitation and benefits of the system has taken different forms, including the following:
a. MDOC staff have failed to intervene in situations where they are aware of intended sexual assaults and have provided advice on how to perpetrate the assaults without detection.
b. MDOC staff are in total control of access to cells and prisoner placement and have allowed adult prisoners to have access to youthful prisoners for purposes of sexual abuse and assault. Corrections officers have received direct benefits from adult prisoners in exchange for this access.
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c. MDOC staff have facilitated adult prisoners’ sexual abuse and trade of youthful prisoners in exchange for direct benefits and favors.
47. Defendants also knew or should have known that their placement of children in adult prisons without adequate separation from adult prisoners or supervision together with a failure to properly train, regulate, supervise, monitor, discipline and adequately investigate complaints about MDOC staff would lead to sexual assaults, sexual harassment and violence against youthful prisoners, including Plaintiffs, housed in MDOC adult prisons.
48. Defendants’ mechanisms for addressing grievances through an administrative process are ineffective and futile for Plaintiffs’ claims as Defendants do not provide an adequate or available system for Plaintiffs to exhaust their claims administratively.
49. Plaintiffs are not allowed to file grievances challenging policies, procedures, placement, housing or custody, and Defendants do not provide an alternative administrative mechanism to exhaust the claims set forth in this Complaint.
50. A grievance cannot be instituted except through a written form and Defendants and their agents have consistently failed to ensure that Plaintiffs are provided grievance forms; Defendants and their agents have routinely refused to process grievances; and/or Defendants and their agents have regularly failed to ensure responses to grievances, rendering any administrative process for Plaintiffs unavailable or futile.
51. At all relevant times Plaintiffs were advised that a precondition to filing a grievance was consultation with the individual who was being grieved. Since complying with this requirement in the context of Plaintiffs grieving staff and adult prisoners’ criminal sexual conduct and abuse would place Plaintiffs in grave danger, Defendants’ requirements have rendered the grievance system unavailable to Plaintiffs.
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52. Defendants, by policy and practice, have created barriers to the grievance system rendering the administrative process effectively unavailable to youth, including Plaintiffs.
53. Moreover, Plaintiffs were and are routinely discouraged from using the grievance system as a mechanism for addressing individual assaults and mistreatments, by threats and intimidation by MDOC staff and other prisoners and by virtue of MDOC’s own policies regarding grievances. MDOC’s requirements for exhaustion are non-compliant with the Prison Rape Elimination Act and Defendants, and each of them, have been sufficiently on notice of the existence of sexual abuse, degrading treatment and retaliation against youth, including Plaintiffs, to allow Defendants the opportunity to take remedial actions prior to Plaintiffs filing this action.
54. Plaintiffs as a purported class of children, including non-prisoners and next friends, need not exhaust administrative remedies prior to bringing this action.
STATEMENT OF FACTS RELATIVE TO EACH NAMED PLAINTIFF AND CLASS REPRESENTATIVE
A. JOHN DOE 1 55. John Doe 1 is currently a prisoner at an adult prison under the jurisdiction of the
MDOC. 56. John Doe 1 was incarcerated in an adult MDOC prison in early 2012 at age 17.
Since that time, he has been housed in the Charles Egeler Reception and Guidance Center (“RGC”), the Richard A. Handlon Correctional Facility (“MTU”), and Bellamy Creek Correctional Facility (“IBC”).
57. MTU Warden Defendant and Policymaker Defendants failed to separate John Doe 1 from adult prisoners despite his obvious vulnerability or take adequate precautions to protect him from assault and abuse.
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58. In the spring and summer of 2012, while at the Handlon facility, John Doe 1, on threat of physical violence, was repeatedly anally raped and forced to engage in oral sex with adult male prisoners. The rapes occurred in his cell and in the shower.
59. Over an extended period, corrections officers witnessed men cycling in and out of John Doe 1’s cell, sexually assaulting him. Several of the officers knew that his cellmate was selling access to John Doe 1.
60. Adult prisoners exercised control over John Doe 1 by, among other things, forcing him to have sex with other adult prisoners.
61. The sexual abuse, forced sex, and trafficking abuse of John Doe 1 was open and obvious to MDOC staff and his attempts to get help were rejected.
62. John Doe 1 was also forced to provide sexual services to other prisoners in the showers, which were located next to the corrections officers’ desk.
63. John Doe 1 reported to a prison official that he was receiving threats, but he was refused protective custody.
64. John Doe 1 was transferred to IBC after the assaults at Handlon. There, he continued to face sexual threats and pressures from adult prisoners.
65. On August 8, 2012, John Doe 1 was placed in solitary confinement. John Doe 1 continued to be sexually harassed and threatened while in solitary confinement.
66. John Doe 1 continues to be kept in a cell by himself, where he is deprived by the MDOC of access to necessary rehabilitative and educational programming and adequate medical and mental health treatment. B. JOHN DOE 2
67. John Doe 2 is currently a prisoner at an adult prison under the jurisdiction of the MDOC.
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68. John Doe 2 was incarcerated in an adult MDOC prison in early 2011, when he was 16 years old. Since that time, he has been housed in various facilities, including the Charles Egeler Reception and Guidance Center (“RGC”), the Thumb Correctional Facility (“TCF”), and Oaks Correctional Facility (“ECF”).
69. TCF Warden Defendant and Policymaker Defendants failed to separate John Doe 2 from adult prisoners or take adequate precautions to protect John Doe 2 from assaults and abuse.
70. Shortly after his arrival at TCF in the Spring of 2012, John Doe 2 was brutally beaten and raped by his adult cellmate.
71. After the rape, John Doe 2 experienced rectal bleeding, which was noted by medical staff at TCF.
72. Despite the fact that MDOC prison officials at TCF knew or should have known of the rape and assault as evidenced by documented rectal bleeding, John Doe 2 was placed back in the same cell with his assailant.
73. A MDOC staff member at TCF facilitated the abuse and assault of John Doe 2 by opening John Doe 2’s cell to allow an adult prisoner in the cell to assault him.
74. Despite the obvious vulnerability and sexual abuse of John Doe 2 at TCF at age 17, John Doe 2 was transferred without any protection or safeguards to another adult facility – ECF -- and placed in a cell with an adult male prisoner.
75. ECF Warden Defendant and Policymaker Defendants failed to separate John Doe 2 from adult prisoners or take precautions to protect him from further assaults and abuse.
76. At ECF, John Doe 2’s adult cellmate sexually abused and harassed him by, among other actions, forcing John Doe 2 to shower while he watched him and masturbated.
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77. No precautions were taken by ECF staff to protect or ensure John Doe 2’s safety, despite his obvious vulnerability and child status.
78. In November of 2012, John Doe 2 was transferred to another cell in ECF and again placed with an adult prisoner without safeguards or supervision.
79. There, John Doe 2 was physically assaulted and sexually harassed and abused. ECF staff, upon becoming aware of the assault, failed to protect John Doe 2 and punished him for reporting the abuse by issuing him a misconduct ticket and sending him to solitary confinement.
80. Upon his release from solitary confinement, John Doe 2 was physically assaulted again with a blade, resulting in a scar across the face and marking him as a victim and as an ongoing target for other prisoners.
81. After this incident, John Doe 2 was again placed in solitary confinement. As a result of transfers and placements in solitary confinement, John Doe 2 has been deprived of rehabilitative and educational programming and suffered extreme mental and physical distress.
82. Defendants have also failed to provide adequate medical and mental health treatment to John Doe 2. C. JOHN DOE 3
83. John Doe 3 is currently a prisoner in an adult prison under the jurisdiction of the MDOC.
84. John Doe 3 was incarcerated in an adult MDOC prison early in the fall of 2010, when he was 16 years old. He has also been housed in RGC, TCF, and Chippewa Correctional Facility (“URF”).
85. During his initial stay at RGC, John Doe 3 was housed in a unit surrounded by adult prisoners, where he was sexually harassed and threatened with assault. The sexual
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harassment was open and obvious to MDOC staff, who failed to take any steps to prevent the ongoing abuse.
86. John Doe 3 was transferred to TCF without any safeguards to protect him from further abuse, despite his obvious vulnerability. TCF Warden Defendant and Policymaker Defendants failed to separate John Doe 3 from adult prisoners or take adequate precautions to protect him from assaults and abuse.
87. At TCF, John Doe 3 was not separated from adult prisoners and Defendants failed to take steps to ensure his safety. John Doe 3 was raped and sexually abused by adult male prisoners on at least three separate occasions at TCF.
88. The first assault occurred at TCF in or around the Winter of 2010/2011, when at the age of 16, adult prisoners came into John Doe 3’s room and raped him. John Doe 3 was sexually assaulted and abused throughout his stay at TCF in his cell and in the bathroom.
89. MDOC female staff members at TCF grabbed and pulled John Doe 3’s genitals and sexually abused and harassed John Doe 3 during body searches. They also sexually harassed him while he was showering and/or performing basic bodily functions.
90. MDOC staff at TCF repeatedly told John Doe 3 that he was going to get raped, and threatened to facilitate a rape as punishment for complaints.
91. At the age of 17, Defendants transferred John Doe 3 to the Chippewa Correctional Facility (“URF”), without any safeguards for his protection despite his prior abuse and obvious vulnerability.
92. URF Warden Defendant and Policymaker Defendants failed to separate John Doe 3 from adult prisoners or take adequate precautions to protect him from further assaults, abuse and harassment. While a prisoner at URF, John Doe 3 was routinely sexually and physically
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assaulted by correctional staff by having his genitals grabbed and pulled on during body searches.
93. John Doe 3 was subjected to intense threatening and humiliating verbal sexual abuse by adult prisoners in the presence of MDOC staff at URF. The MDOC staff witnessing these verbal assaults failed to take any steps to prevent the abuse and ratified the abuse by failing to punish the offenders.
94. Defendants’ failure to provide safe and secure housing to John Doe 3 and failure to provide adequate medical and mental health care has resulted in his loss of rehabilitative and educational programming, and severe emotional distress. D. JOHN DOE 4
95. John Doe 4 is currently a prisoner in an adult prison under the jurisdiction of the MDOC. As John Doe 4 is currently a minor, he is represented in this action by Anlyn Addis as his next friend.
96. John Doe 4 was 16 years old when he was incarcerated at TCF. TCF Warden Defendant and Policymaker Defendants failed to separate him from adult prisoners or take precautions to protect him from assaults or abuse or to protect his privacy.
97. John Doe 4 has been subjected to physical and sexual assaults and abuse by MDOC staff since his incarceration in an adult prison.
98. From late 2012 to early 2013, a female MDOC staff member repeatedly opened John Doe 4’s cell for purposes of engaging in coerced sexual intercourse with him.
99. The coerced sexual intercourse with John Doe 4 occurred in a cleaning closet in the Essex Unit of TCF.
100. Female MDOC staff members have also grabbed and pulled on John Doe 4’s genitals on multiple occasions.
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101. During his first year in prison, John Doe 4 was imprisoned in solitary confinement for over 130 days, at times on food and water restrictions and without adequate provisions for his youthful status.
102. Defendants have failed and refused to provide a safe, secure and humane custodial environment, resulting in John Doe 4 being retained in solitary confinement because he fears for his safety. He has been deprived of rehabilitative and educational programming and subjected to increased length of incarceration. E. JOHN DOE 5
103. John Doe 5 is currently a prisoner in an adult prison under the jurisdiction of the MDOC.
104. John Doe 5 was first incarcerated in an adult MDOC prison in September of 2011. Since that time, he has been housed in a number of facilities, including RGC, TCF, Earnest C. Brooks Correctional Facility (“LRF”), URF, and Carson City Correctional Facility (“DRF”). John Doe 5 was 16 years old when he was placed in an adult prison at TCF. The TCF Warden Defendant and Policymaker Defendants failed to separate John Doe 5 from adult prisoners or take precautions to protect him from assaults and abuse.
105. While incarcerated at TCF, John Doe 5 was sexually harassed, grabbed and had his buttocks and genitals slapped and groped by adult male prisoners.
106. John Doe 5 was placed in a cell with an adult prisoner at TCF. John Doe 5 was physically assaulted and anally raped by his adult cellmate.
107. John Doe 5 was also subjected to humiliating and extreme sexual harassment, comments and sexual touching and abuse by MDOC female staff at TCF.
108. A MDOC female staff member at TCF repeatedly performed body searches on John Doe 5 where she would grab his genitals in a sexual manner.
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109. John Doe 5, at age 17, was transferred to the LRF without any safeguards or protection from further abuse. The LRF Warden and Policymaker Defendants failed to separate him from adult prisoners or take precautions to protect him from assaults and abuse despite the prior abuse and obvious vulnerability.
110. In the fall/early winter of 2012, John Doe 5 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 discipline the offending adult prisoners or intervene to prevent the sexual trafficking of John Doe 5.
111. John Doe 5 requested protection at LRF but each request was ignored and/or denied.
112. John Doe 5 was transferred to another adult prison while he was still a child and without any safeguards or protection despite his pleas. While housed at URF, URF Warden Defendant and Policymaker Defendants again placed John Doe 5 in a cell with adult prisoners and failed to take adequate precautions to protect him from assaults and abuse.
113. John Doe 5 was repeatedly sexually abused and sexually harassed at URF and physically assaulted when he attempted to resist.
114. 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.
115. Defendants were aware of the vulnerability and abuse of John Doe 5, yet they transferred him to DRF with no safeguards or precautions in place to protect him from further abuse.
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116. At DRF, the DRF Warden and Policymaker Defendants failed to separate John Doe 5 from adult prisoners or take precautions to protect him from assaults and abuse.
117. 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.
118. MDOC staff at DRF knew of the assaults and took no action to discipline the offending prisoners to protect John Doe 5 or provide medical or mental health treatment to him. F. JOHN DOE 6
119. John Doe 6 is currently a prisoner in an adult prison under the jurisdiction of the MDOC.
120. John Doe 6 was incarcerated in an adult MDOC prison in September of 2012, at the age of 17. He has been housed in RGC, MTU, Gus Harrison Correctional Facility (“ARF”), and Marquette Branch Prison (“MBP”).
121. Despite John Doe 6’s obvious vulnerability and youth, the Warden and Policymaker Defendants at the various correctional facilities failed to separate John Doe 6 from adult prisoners or take precautions to protect him from assaults and abuse.
122. During his incarceration at RGC in the fall of 2012, John Doe 6 was repeatedly sexually harassed and threatened by adult male prisoners. The sexual harassment was open and obvious to MDOC staff.
123. Despite knowledge of the sexual harassment, threats and John Doe 6’s vulnerability, Defendants transferred John Doe 6 to MTU without any safeguards or protection. While at MTU, John Doe 6 repeatedly expressed concern to MDOC staff about sexual pressure and threats from other prisoners. He was then transferred to ARF.
124. Upon his transfer to ARF, John Doe 6 was placed in adult housing and in late winter of 2013, was raped by an adult male prisoner in the laundry room at ARF.
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125. After he was transferred to MBP in the spring of 2013, John Doe 6 reported the rape occurring at ARF to MDOC officials.
126. MDOC staff failed to provide adequate protection, mental health and medical treatment to John Doe 6 and failed to take steps to provide a safe and humane environment despite their knowledge of his abuse.
127. At MBP, John Doe 6 has been housed for over five months in solitary confinement, where he continues to be sexually harassed, threatened, and told that he will be sold for sex on the yard. John Doe 6 has refused to go back to the general population out of fear of additional rapes and has been punished with misconduct tickets for refusing to leave his solitary cell and return to general population.
128. Defendants’ failure to provide safe and secure housing to John Doe 6 has resulted in loss of rehabilitative and educational programming, severe emotional distress, and increased length of incarceration. G. JOHN DOE 7
129. John Doe 7 is currently a prisoner in an adult prison under the jurisdiction of the MDOC. As John Doe 7 is currently a minor, he is represented in this action by Anlyn Addis, as his next friend.
130. John Doe 7 was first incarcerated in an adult MDOC prison in the summer of 2013.
131. John Doe 7 was 17 years old when he was incarcerated at RGC, where he was housed with adult male prisoners. The RGC Warden and Policymaker Defendants failed to separate John Doe 7 from adult prisoners or take precautions to protect him from assaults and abuse.
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132. MDOC staff members acknowledged their awareness of his vulnerability and substantial risk of sexual assaults and abuse and yet took no steps to protect him or ensure his safety.
133. In July of 2013, an adult male prisoner entered John Doe 7’s cell at RGC and sexually harassed and assaulted John Doe 7. When John Doe 7 called the RGC staff for help, he was further physically assaulted by the male prisoner.
134. John Doe 7 was so fearful of future sexual and physical assaults that he confined himself to his cell, resulting in loss of rehabilitative programming and severe emotional distress.
CLAIMS FOR RELIEF COUNT I
Section 1983 – 8th Amendment (Against All Policymaker Defendants and Specific Warden Defendants Responsible for
The Unlawful Conditions at Applicable Correctional Facilities)
135. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
136. Warden Defendants knew or should have known that vulnerable youth, including the Plaintiffs, were and are at substantial risk of sexual and physical abuse, privacy violations and degrading treatment in adult prisons, and failed to adequately protect them.
137. Warden and Policymaker Defendants’ placement of vulnerable youth, including Plaintiffs, in adult prisons without separation from adult prisoners or adequate supervision and protection violates the prohibition against cruel and unusual punishment as guaranteed by the Eighth Amendment of the United States Constitution. Defendants’ action deprived Plaintiffs and all similarly-situated prisoners of the equal protection of laws under the Fourteenth Amendment of the United States Constitution.
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138. The deprivation of constitutional rights alleged in this complaint are the direct result of official policy, custom and practices of Defendants and each of them.
139. Policymaker and Warden Defendants’ failure to adequately train, supervise and/or institute and implement adequate policies and procedures for placement and protection of vulnerable youth constitutes deliberate indifference to Plaintiffs’ safety and bodily integrity in violation of their rights under the Eighth Amendment.
140. Warden Defendants are individually liable for the unconstitutional conditions at their correctional facilities because they and/or their agents: 1) participated in creating and carrying out the unconstitutional polices that caused the harm to each John Doe; 2) failed to take necessary steps to ensure the safety of Plaintiffs; and 3) implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of offending MDOC staff.
141. Policymaker Defendants also had sufficient knowledge, including through the statutes and regulations established in PREA and through MDOC’s internal policies and correctional knowledge, to know that youthful prisoners, including Plaintiffs, were and are at substantial risk of harm in adult prisons, and failed to adequately protect them.
142. Warden Defendants’ unconstitutional policy and practice of placing Plaintiffs in solitary confinement and failing to provide alternative safe and secure housing free of sexual and physical violence constitutes cruel and unusual punishment.
143. Warden and Policymaker Defendants’ policy and practice of housing youthful prisoners in adult prisons with adult prisoners and failing to prevent and remedy the resulting sexual abuse, violence and degrading treatment experienced by Plaintiffs constitutes deliberate indifference to and the unnecessary and wanton infliction of pain and suffering, and degradation and psychological injury on the Plaintiffs, without penological justification.
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COUNT II Section 1983 – 4th and 14th Amendment Due Process and Privacy Violations (Against All Policy-Maker Defendants and Specific Warden Defendants Responsible for
the Unlawful Conditions at the Applicable Correctional Facilities) 144. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. Policymaker and Warden Defendants by their unconstitutional policies have violated and continue to violate Plaintiffs’ rights under the Fourth and Fourteenth Amendments by failing to separate youthful prisoners from adult prisoners where there is significant risk of sexual and other violence. 145. The Policymaker Defendants are individually liable for the unconstitutional conditions at the correctional facilities and are responsible for establishing the unconstitutional polices that caused the harm to each Plaintiff. 146. The individual Warden Defendants are individually liable for the unconstitutional conditions at their respective correctional facilities and are responsible for establishing the unconstitutional polices that caused the harm to each John Doe housed in their facility. 147. Policymaker Defendants had sufficient knowledge, including through the statutes and regulations established in PREA and through MDOC’s own internal policies and correctional knowledge, to know that youthful prisoners, including Plaintiffs, were and are at substantial risk of harm, and failed to adequately protect them. 148. Warden Defendants had actual knowledge that Plaintiffs were and are at high risk, and failed to adequately protect them. 149. Policymaker and Warden Defendants' unconstitutional policy of housing youthful prisoners with adult prisoners facilitated and encouraged the sexual assaults, harassment, degrading treatment and privacy violations of the youthful prisoners by employees of MDOC and adult prisoners. This official policy, custom, pattern or practice has deprived Plaintiffs of
25

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their constitutional right to bodily integrity and right to privacy without due process of law in violation of the Fourth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983.
150. Warden Defendants’ unconstitutional policy of placement of Plaintiffs in solitary confinement and failure to provide alternative safe and secure housing without being subject to sexual and physical violence also constitutes a violation of due process.
151. The deprivation of constitutional rights and the injuries and harm to Plaintiffs alleged in this Complaint are the direct result of official policy, custom and practices of Policymaker and Warden Defendants.
COUNT III Section 1983-14th Amendment Equal Protection – (Against All Policymaker Defendants and Specific Warden Defendants Responsible for the Unlawful Conditions at the Applicable Correctional Facilities) 152. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 153. Defendants’ failure to separate youthful and adult prisoners and the resulting sexual abuse and violence experienced by Plaintiffs constitutes a violation of Plaintiffs’ and members of Plaintiff Classes’ right to equal protection under the Fourteenth Amendment of the United States Constitution. Defendants’ policies in this regard are not substantially related to an important and legitimate governmental interest. 154. Defendants' failure to prevent and remedy the sexual abuse, harassment, degrading treatment, retaliation and ongoing violations of Plaintiffs' privacy violates Plaintiffs' rights to equal protection of the law under the Fourteenth Amendment of the United States Constitution, 42 U.S.C. § 1983 and customary international law standards.
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155. Defendants’ placement of children in adult facilities, their failure to remedy the resultant sexual assaults and sexual harassment of youthful prisoners, and their ratification of the hostile conditions and treatment of youthful prisoners constitutes discrimination based on age. This inferior treatment is not substantially related to an important and legitimate governmental interest and violates Plaintiffs' rights to equal protection under the law and 42 U.S.C. § 1983.
156. The placement of seventeen year old Plaintiffs in cells with adult prisoners and Defendants’ failure to treat these youth consistent with their status as minor children deprived them of their right to equal protection under the law in violation of the Fourteenth Amendment of the United States Constitution.
157. The denial to Plaintiffs, and to those similarly situated, of the right to equal opportunity for rehabilitation and the subjection of the Plaintiffs and those similarly situated to a hostile prison environment constitutes prohibited discrimination based on their age in violation of the Fifth and Fourteenth Amendments to the United States Constitution and customary international law standards.
158. At all times relevant to this action, Defendants and each of them were acting under color of law and, in doing so, deprived Plaintiffs and all similarly-situated prisoners of the equal protection of the law under the Fifth and Fourteenth Amendments of the United States Constitution, and under customary international law.
COUNT IV Sex Trafficking of Children Under 18 or by Force, Fraud or Coercion
18 U.S.C. § § 1591 and 1594 (Against Warden Defendants Prelesnik, Stoddard and Berghuis for damages and against
all Defendants for Injunctive Relief) 159. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
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160. During all relevant time periods, Warden Defendants Prelesnik and Stoddard acted as Wardens at Handlon Correctional Facility.
161. During all relevant time periods, Warden Defendant Berghuis acted as Warden at Earnest C. Brooks Correctional Facility.
162. Plaintiffs John Doe 1 and John Doe 5 seek damages against Warden Defendants Prelesnik, Berghuis and Stoddard because they and/or their agents facilitated and participated in creating an environment that resulted in the unlawful sex trafficking of vulnerable children, including Plaintiffs.
163. All Plaintiffs and Class Members seek broad injunctive relief against all Defendants to enjoin them from maintaining a prison system whereby vulnerable prisoners, including Plaintiffs, can be used in sex trafficking activities like those occurring at MTU and LRF within Michigan’s prisons.
164. Human trafficking, which includes sex trafficking and involuntary servitude, is a modern form of slavery in violation of 22 U.S.C. § 7101(b)(1).
165. Consistent with its commitment to end human trafficking (which encompasses, among other things, the sale or trade of children for sex), in 2000 Congress passed the Trafficking Victims Protection Reauthorization Act (TVPA), 22 U.S.C. § 7101, et seq.
166. The United States has also signed and ratified (with reservations) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Pursuant to Article 6 of the Protocol, the United States agreed that it would protect to the extent possible the privacy and identity of trafficking victims; take into account the age of trafficking victims, in particular the special needs of children with respect to housing, education and care; endeavor to provide for the physical safety of trafficking victims; and ensure that its domestic legal system
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contains measures that offer trafficking victims the possibility of obtaining compensation for damages suffered.
167. Youthful prisoners, including Plaintiffs, have been trafficked, threatened with trafficking or are potential targets for sex trafficking within the MDOC system where youthful and adult prisoners are housed together, in violation of 22 U.S.C. § 7102(9) and (10).
168. Warden Defendants Prelesnik, Stoddard and Berghuis and/or their agents knew or should have known of Plaintiffs’ victimization, threatened victimization and risk of victimization through sex trafficking.
169. Warden Defendants Prelesnik, Stoddard and Berghuis and/or their agents knew or should have known that vulnerable prisoners are trafficked as part of a larger, institution-wide barter system that involves, among other things, the exchange of contraband property, privileges and/or benefits for sex with child prisoners.
170. Warden Defendants Prelesnik Stoddard and Berghuis and/or their agents facilitated the prison bartering and sex trafficking of youth, including Plaintiffs John Doe 1 and John Doe 5, through a variety of means, including, but not limited to:
a. exploiting and supporting a prison hierarchy to increase institutional control; b. housing vulnerable prisoners and victims with adult prisoners and known
offenders; c. failing to investigate and remedy reported and/or obvious abuses; d. punishing victims who defend themselves, resist being trafficked or assaulted,
or insist upon remaining in protective conditions with misconduct tickets, solitary confinement, gassings and other punitive measures; e. depriving victims of meaningful, non-punitive redress;
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f. failing to investigate suspected or known staff misconduct or involvement in the prison barter system, which includes the commercial sex trade of youthful and other vulnerable prisoners;
g. moving youthful prisoners away from their home communities and depriving them of their support systems; and
h. permitting a physical and cultural environment that supports and permits sex trafficking of vulnerable persons.
171. Warden Defendants Prelesnik, Stoddard and Berghuis and/or their agents and coconspirators receive value from the prison bartering and sex trafficking system by among other things:
a. increased institutional control over prisoners by, among other means, allowing prisoner groups to establish and maintain a controlled system of sex in the institution, using implicit and explicit threats of exposing John Doe 1 and John Doe 5 and potentially other Class Members to situations in which they might get raped as a means of encouraging compliance;
b. cost savings through the failure to implement or take preventative measures, investigate reports, and provide rehabilitative services to victims; and
c. direct financial benefits to individual guards through receiving kickbacks and favors for taking no steps to prevent or intervene in the trafficking of youth including Plaintiff John Doe 1 and John Doe 5.
172. Adult male prisoners harbored, recruited, transported, obtained and/or provided youth prisoners, including John Doe 1 and John Doe 5, to other adult male prisoners for rape and commercial sexual services within Michigan’s prisons.
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173. Prison rape has a recognized significant effect on interstate commerce. 42 U.S.C. § 15601(15).
174. The harboring, recruiting, transporting, obtaining, raping and/or providing youthful prisoners, including Plaintiffs John Doe 1 and John Doe 5, was in or affected interstate or foreign commerce.
175. Warden Defendants Prelesnik, Stoddard and Berghuis and/or their agents directed, assisted, conspired and acted in concert with the offending prisoners to create and enforce a system of sex trafficking in violation of 18 U.S.C. §§ 1591 and 1594.
176. Warden Defendants Prelesnik, Stoddard and Berghuis and/or their agents benefitted and received value from participation in a venture that engaged in sex trafficking with knowledge, or in reckless disregard of the fact that force, fraud or coercion were used to compel the victim to perform a commercial sex act, or with knowledge that the victim was under the age of 18, in violation of 18 U.S.C. § 1591.
177. Warden Defendants Prelesnik, Stoddard and Berghuis and/or their agents knowingly benefitted and received value from participation in a venture that Defendants and/or their agents and co-conspirators knew or should have known engaged in sex trafficking within the meaning of 18 U.S.C. § 1595.
COUNT V TREATIES & CUSTOMARY INTERNATIONAL LAW
(Against Defendants Governor and MDOC) 178. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 179. MDOC’s placement of children in adult prisons violates Arts. VII and XXV of the American Declaration of the Rights and Duties of Man, which the United States as a member of the Organization of American States, is bound by.
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180. Incarcerating children with adults and the placement of children in solitary confinement also violates Art. 37(c) of the Convention on the Rights of the Child and Articles 4, 7, 8, 10, 14, 24 and 26 of the International Covenant on Civil and Political Rights (ICCPR), a treaty signed and ratified by the United States.
181. MDOC’s current and continuing failure to afford youth, including Plaintiffs, a safe and secure custodial environment without resorting to solitary confinement and without regard to their status as children, constitutes punishment with no legitimate penological justification, and as such constitutes cruel, inhuman or degrading treatment or punishment in violation of customary international law as reflected inter alia in the Universal Declaration on Human Rights, the ICCPR and the U.N. Convention on the Rights of the Child, which extend special measures of protection to children and prohibit the placement of children in adult prisons and solitary confinement and other forms of cruel, inhuman or degrading treatment or punishment.
182. Defendants are bound by the treaties of the United States and customary international law, which are actionable pursuant to 42 U.S.C. § 1983 in that customary international law has been held, since the Constitution’s adoption, to be part of the laws of the United States.
183. Defendants are individually liable for all of the injuries and damages sustained by Plaintiffs and Class members arising out of the housing of youthful and adult prisoners together in violation of Arts. VII and XXV of the American Declaration of the Rights and Duties of Man and Art. 37(c) of the Convention on the Rights of the Child and Articles 4, 7, 8, 10, 14, 24 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
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DAMAGES 184. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 185. The acts, omissions and policies of Defendants constituting violations of Plaintiffs’ and Plaintiff class members’ constitutional, statutory and common law rights were and are a proximate cause of Plaintiffs’ damages. 186. As a result of Defendants’ acts, omissions and policies, the Plaintiff class representatives and the Plaintiff class members, individually and as a class, have suffered severe emotional and psychological injuries, physical injuries and damages, loss of freedom and loss of education, employment and rehabilitation opportunities and privileges and income. 187. The physical and emotional injuries inflicted upon Plaintiffs and the class were willful, wanton, cruel and the result of intentional or deliberately indifferent conduct entitling Plaintiffs and the Class to punitive damages.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court:
a. Assert jurisdiction over this action; b. Certify this case as a class action pursuant to Rule 23 of the Federal Rules of
Civil Procedure on behalf of the proposed Plaintiff classes and designate the harmed Plaintiffs as representatives of the classes and their counsel of record as Class Counsel; c. Issue a Permanent Injunction prohibiting Defendants from subjecting Plaintiffs to policies and practices that violate their constitutional, statutory rights, and common law rights;
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d. Order appropriate relief to remediate prison conditions such that youthful prisoners sentenced to terms of imprisonment in Michigan prisons are housed in a safe environment free of sexual assaults, sexual harassment and physical violence perpetrated by adult prisoners and/or staff;
e. Provide adequate medical and mental health treatment to remediate the ongoing harm to the Plaintiffs and the Plaintiff class;
f. Order appropriate relief to effectuate compliance with Arts. VII and XXV of the American Declaration of the Rights and Duties of Man and Art. 37(c) of the Convention on the Rights of the Child and Articles 4, 7, 8, 10, 14, 24 and 26 of the International Covenant on Civil and Political Rights (ICCPR);
g. Order appropriate relief to effectuate compliance with 18 U.S.C. §§ 1584, 1590 and 1594;
h. Order appropriate relief to effectuate compliance with 22 U.S.C. § 7101, et seq.
i. Declare unconstitutional Defendants’ housing of youthful prisoners with adult prisoners;
j. Declare unconstitutional the housing of youth in solitary confinement; k. Award damages to Plaintiffs and Class Members for harm caused by
Defendants’ unconstitutional policies, unconstitutional acts and violations of law, including punitive damages where appropriate; l. Award damages to youth including Plaintiffs John Doe 1 and John Doe 5 against Warden Defendants Prelesnik, Stoddard and Berghuis for facilitating and participating in sex trafficking in violation of 18 U.S.C. § § 1591 and
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m. Award the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees and costs; and
n. Grant such other and further declaratory and equitable relief as the Court deems appropriate, just and proper to protect Plaintiffs from further harm.
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DEMAND FOR TRIAL BY JURY
NOW COME Plaintiffs by and through their counsel and hereby demand a trial by jury as
to all those issues so triable as of right.
Respectfully submitted,
/S/DEBORAH LaBELLE _________ DEBORAH LaBELLE (P31595) ANLYN ADDIS (P76568) 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 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) EDWARD MACEY (P72939) NACHT, ROUMEL, SALVATORE, BLANCHARD & WALKER, P.C. Attorneys for Plaintiffs 101 N. Main Street, Ste. 555 Ann Arbor, Michigan 48104 (734) 663-7550 jsalvatore@nachtlaw.com nchaney@nachtlaw.com emacey@nachtlaw.com
36

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, et al.,

Plaintiffs,

v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. /

ORDER DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION TO DISMISS

On August 4, 2014, the court held an off-the-record telephonic status conference.

The parties discussed engaging in limited discovery, and the court anticipates that they

will jointly submit a stipulated order in the coming days. The parties further agreed that

the issues in Defendants’ pending motion to dismiss will be better presented at a later

date. Accordingly,

IT IS ORDERED that Defendants’ motion to dismiss (Dkt. # 87) is DENIED

WITHOUT PREJUDICE.

Dated: August 5, 2014

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, August 5, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522
S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356.DOE.DenialMotDismissWOPrej.jac.wpd
2

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN DOE 5; JOHN DOE 6; and next friends of minors JOHN DOE 4 and JOHN DOE 7, on behalf of themselves and a class of all others similarly situated,
Plaintiffs, v.

Civil Action No. 13-14356 HON. ROBERT H. CLELAND MAG. JUDGE R. STEVEN WHALEN

MICHIGAN DEPARTMENT OF CORRECTIONS (MDOC), et al.,

Defendants. _____________________________________/

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

The Plaintiff prisoners in this case are seven individuals under the age of 18 who allege

that they were sexually assaulted and/or harassed by adult prisoners and guards while confined in

adult correctional institutions run by the Michigan Department of Corrections (“MDOC”). The

United States respectfully submits this Statement of Interest in response to Defendants’ Partial

Motion for Summary Judgment as to Plaintiffs’ Claim for Prospective Injunctive Relief (ECF

No. 47), to bring the Court’s attention to the scope and applicability of the Prison Rape

Elimination Act of 2004 (“PREA”), 42 U.S.C. § 15601 et seq., to juveniles confined in adult

facilities.

Interest of the United States

The United States files this Statement of Interest pursuant to 28 U.S.C. § 517, which

authorizes the Attorney General to attend to the interests of the United States in any case pending

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in federal court.1 Plaintiffs in this case allege, among other things, that 1) the MDOC places
youth in adult prisons without separating them from adult prisoners or providing adequate
supervision, and 2) this practice subjects the youth to harm in violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment. Compl. at ¶ 137 (ECF No. 1).
The United States, acting through the Civil Rights Division of the U.S. Department of
Justice, has an interest in this case because it implicates the application of the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997a (“CRIPA”). CRIPA authorizes the Attorney
General to investigate conditions of confinement in correctional facilities and bring a civil action
against a State or local government that, pursuant to a “pattern or practice” of conduct, “is
subjecting persons residing in or confined to an institution . . . to egregious or flagrant conditions
which deprive such persons of any rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States.” 42 U.S.C. § 1997(a).
The United States has a broad interest in ensuring that conditions of confinement in state
and local correctional facilities are consistent with the Constitution and federal law. The
Division has previously exercised the United States’ authority under CRIPA to address issues
similar to those present in this case, including sexual abuse in confinement facilities and the treatment of juveniles in adult prisons and jails.2
1 The full text of 28 U.S.C. § 517 is as follows: “The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 2 See generally Letter from Jocelyn Samuels, Acting Assistant Attorney General, to Robert Bentley, Governor of Alabama, Jan. 17, 2014, available at http://www.justice.gov/crt/about/spl/documents/tutwiler_findings_1-17-14.pdf (concluding that administrators at the Julia Tutwiler Prison for Women failed to keep women prisoners safe from harm due to sexual abuse and harassment from correctional staff); Letter from Thomas E. Perez, Assistant Attorney General, to Samuel Brownback, Governor of Kansas, Sept. 6, 2012, available at http://www.justice.gov/crt/about/spl/documents/topeka_findings_9-6-12.pdf (concluding that administrators at the Topeka Correctional Facility fail to protect women prisoners from harm due to sexual abuse and misconduct); Letter from Thomas E. Perez, Assistant Attorney General, to Andrew J. Spano, Westchester Cnty. Exec., Nov. 19, 2009, http://www.justice.gov/crt/about/spl/documents/Westchester_findlet_11-19-09.pdf (finding that inmates at the Westchester County Jail are not adequately protected from harm, and that juveniles incarcerated in the jail are not
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The Department of Justice also has an interest in ensuring that all correctional facilities comply with PREA regulations. Congress enacted PREA to address the high incidence of sexual assault occurring in prisons and jails across the country. Congress found that the prevalence of sexual abuse “involves actual and potential violations of the United States Constitution,” and concluded that national standards were necessary to prevent, detect, and respond to such abuse. See 42 U.S.C. § 15601(13). The PREA statute conferred authority on the Department of Justice to promulgate those standards. Id. at § 15607. The final standards, published in the Federal Register in June of 2012, reflect the work of a cross-section of Department of Justice officials, including representatives from the Civil Rights Division, the Federal Bureau of Prisons, the Executive Office of United States Attorneys, and the Office of Justice Programs, among others. See Final Rule, National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed. Reg. 37106, 37111 (June 2012). The Department of Justice, therefore, has a heightened interest in any matter involving the interpretation of PREA and its implementing regulations.
Accordingly, the United States submits this Statement of Interest to clarify the scope and applicability of PREA.3 In particular, the United States wishes to respond to two statements made by Defendants in their Partial Motion for Summary Judgment as to Plaintiffs’ Claim for Prospective Injunctive Relief and Motion to Dismiss as to Plaintiffs’ Claims Under International Law (ECF No. 47) (“Defendants’ Motion”): 1) that PREA does not apply to state-run correctional institutions, and 2) that changed facts involving Michigan’s self-reported
adequately separated from adult offenders); see also Order Approving Consent Judgment and Certifying Class Settlement Class, Jones v. Gusman, No. 12-cv-859, June 6, 2013 (ECF No. 465) (approving remedies to benefit New Orleans Parish jail inmates, including juveniles awaiting trial on adult charges, in a facility plagued by violence, including sexual violence, inadequate medical and mental healthcare, and deplorable physical surroundings). 3 The United States also has an interest in other allegations raised in the Complaint, but does not address those now because they are not raised in Defendants’ current Motion for Summary Judgment. This interest includes allegations of inappropriate use of isolation on juveniles to either keep them safe from further abuse or to punish them for reporting abuse.
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compliance with one PREA requirement -- sight and sound separation -- moots Plaintiffs’ claims for prospective injunctive relief. The United States does not take a position on the truth of Plaintiffs’ allegations or Defendants’ factual assertions in their pleadings, but rather submits this Statement to clarify the reach of PREA and its implementing regulations and to refute Defendants’ apparent misinterpretations of federal law.
Factual and Procedural Background On October 15, 2013, seven plaintiffs, proceeding under “John Doe” pseudonyms, filed a federal complaint4 against MDOC on behalf of themselves and a proposed class consisting of “youthful prisoners who are, were, or will be confined in adult prisons in Michigan and who have been or will be subjected to sexual and physical assaults and abuse, sexual harassment, and degrading treatment from adult prisoners and staff as a result of incarceration without adequate supervision, separation from adult prisoners, or treatment consistent with the status as children.” Compl. ¶ 11. The complaint alleges that the seven John Does each experienced sexual assault and harassment at the hands of prisoners and/or MDOC staff during their confinement in MDOC facilities. More specifically, the complaint alleges that MDOC was aware of the risk each youthful prisoner faced, yet still failed to separate them from adult prisoners and otherwise take steps to protect them from assault and abuse. See generally Id. ¶¶ 57-134. The complaint also alleges that John Does 1, 2, 4, 6, and 7 were subjected to prolonged periods of solitary confinement, either as punishment for reporting sexual abuse or to keep them safe from future assaults.5 Id. ¶¶ 65-66, 79, 81, 101, 127, and 134.
4 Plaintiffs also filed a complaint in state court, based on the same set of facts, alleging violations of state civil rights law. See Compl., Doe v. MDOC, et al., No. 13-1196-CZ (Washtenaw Cir. Ct. 2013). 5 As noted above in Footnote 3, Defendants’ Motion does not address Plaintiffs’ allegations regarding prolonged solitary confinement. Accordingly, the United States will not comment on these allegations in this Statement of
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Defendants’ answer asserts that youthful offenders in adult facilities “do not perceive themselves to be at imminent risk of physical and sexual assault,” Answer at ¶ 7 (ECF No. 36); that youthful offenders are currently housed separately from adult offenders, id. at ¶ 34; and that “[w]hile sight and sound are recommendations under PREA such separation is not required in order to prevent physical contact between prisoners of different age groups,” id. at ¶ 6. Defendants’ current motion (ECF No. 47) argues, inter alia, that MDOC’s self-reported compliance with PREA’s sight and sound separation requirement moots Plaintiffs’ prayer for injunctive relief that juveniles imprisoned in MDOC facilities be “housed in a safe environment free of sexual assaults, sexual harassment, and physical violence perpetrated by adult prisoners and/or staff.” See Defendants’ Motion at 31 (citing Compl. at 36, ¶ (d)).
Discussion State correctional facilities, like those operated by Defendants, are subject to both the Constitution and the PREA standards to protect prisoners from harm, including sexual abuse. Noncompliance with the PREA standards puts a State at risk of loss of certain federal funds. Plaintiffs in this case allege that they were and are placed at an unconstitutional risk of harm due to Defendants’ failure to keep them safe from adult prisoners and MDOC correctional officers. In response, Defendants argue: 1) that PREA does not apply to states in the first place, Defendants’ Motion at 14, but 2) the “alleged risk” of harm to youthful offenders “was rendered moot when the MDOC adjusted its housing practice regarding youthful prisoners” in line with PREA to keep youthful offenders separate from adults. Defendants’ Motion at 31. Despite MDOC’s assertion that “PREA is a federal statute that applies to federal prisoners,” Defendants’ Motion at 14, PREA and its implementing regulations apply to all state-
Interest, except with regards to the obligations imposed on Defendants under PREA to keep youth separate from adults without using isolation, unless as a last resort.
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operated confinement facilities such that failure to comply with them puts a state at risk of losing certain federal funds. The PREA regulations are clear: “The standards contained in this final rule apply to facilities operated by, or on behalf of, State and local governments and the Department of Justice.”See 77 Fed. Reg. at 37107. See 42 U.S.C. § 15607(c); 77 Fed. Reg. at 37107.
Notably, compliance with the PREA standards does not equal compliance with the Constitution. See 77 Fed. Reg. 37107 (“The standards are not intended to define the contours of constitutionally required conditions of confinement. Accordingly, compliance with the standards does not establish a safe harbor with regard to otherwise constitutionally deficient conditions involving inmate sexual abuse.”). Although compliance with the PREA standards may assist prison officials in meeting their constitutional obligation to keep prisoners safe and free from violence, compliance with the standards does not guarantee that such obligations are met in full. Sight and sound separation may be just one necessary piece in the larger puzzle of deciding how to keep youthful offenders safe when incarcerated in adult facilities. To meet the State’s constitutional obligations, many more additional steps may be necessary.
Defendants’ argument about the effect of its unverified, self-reported compliance with PREA standards is unclear. Defendants state that “MDOC’s pre-lawsuit policy change relative to the housing of its youthful prisoners so that it is in compliance with PREA standards substantially altered the facts” such that the “appropriate inquiry, therefore, is whether the changes in factual circumstances have mooted the Plaintiffs’ claims for prospective injunctive relief.” Defendants’ Motion at 31. The United States takes no position regarding whether Defendants have modified any of their practices to meet the PREA regulations’ sight and sound separation requirements or any other PREA standards. As a matter of law, however, if
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Defendants are arguing that compliance with any or all of the PREA standards moots a constitutional claim, that is incorrect. Compliance with PREA’s sight and sound separation requirement – or with any or all PREA requirements, for that matter – does not render moot constitutional claims for failure to reasonably protect prisoners from sexual assault and other serious harm. As noted above, the PREA regulations do not constitute the constitutional floor, and compliance with the standards does not absolve jurisdictions of liability for any claim of unconstitutional conditions. Rather, the regulations are aimed at 1) preventing, detecting, and responding to incidents of sexual abuse in confinement facilities, and 2) fostering a cultural change within such facilities, by promoting policies and procedures that focus on combating sexual abuse. 77 Fed. Reg. at 37106-37107. Accordingly, states have dual obligations of providing constitutional conditions of confinement and of complying with PREA standards (if they do not wish to risk loss of federal funds).
Finally, it is worth noting that Plaintiffs’ prayer for relief does not merely request sight and sound separation between youthful offenders and adults. Even if the Defendants currently provide separation in line with PREA (according to pleadings in both the federal and state actions, it remains in dispute whether or not this is the case), Plaintiffs’ prayer for relief is much broader than mere compliance with PREA. Plaintiffs request this Court to “remediate prison conditions,” broadly stated, so that youth confined in MDOC facilities are “housed in a safe environment free of sexual assaults, sexual harassment, and physical violence perpetrated by adult prisoners and/or staff.” Compl. at 36, ¶ (d). Although sight and sound separation may be an important part of that, additional changes to MDOC policy and procedure may be needed, if Defendants are found liable on Plaintiffs’ constitutional claims.
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Conclusion The allegations raised in the complaint suggest serious deficiencies in how MDOC provides for the safety and security of juveniles in its care. Although the United States does not take a position on the validity of those claims, it is in the interest of the United States to ensure that federal law is properly interpreted and applied to federal cases. For that reason, the United States submits this Statement of Interest to clarify for the Court that the PREA regulations unequivocally apply to state-operated correctional facilities as a predicate for eligibility for certain federal grants, and that state-operated correctional facilities retain a separate and additional obligation to comply with constitutional standards regarding protection from sexual assault and other harm.

Date: March 20, 2014

Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
ROY L. AUSTIN, JR. Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Civil Rights Division Special Litigation Section
LAURA L. COON Special Litigation Counsel Civil Rights Division
_________/s/__________________ SHARON BRETT Trial Attorney
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2:13-cv-14356-RHC-RSW Doc # 56 Filed 03/20/14 Pg 9 of 10 Pg ID 774
Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 353-1091 E-mail: Sharon.Brett@usdoj.gov BARBARA L. McQUADE United States Attorney _________/s/___________________ SUSAN K. DeCLERCQ (P60545) Assistant U.S. Attorney Eastern District of Michigan 211 West Fort Street, Ste. 2001 Detroit, Michigan 48226 (313) 226-9149 Attorneys for the United States
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CERTIFICATION OF SERVICE I hereby certify that on March 20, 2014, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all counsel of record.
I further certify that I have mailed by U.S. mail the paper to the following non-ECF participants:
None. /s/ Susan K. DeClercq SUSAN K. DeCLERCQ Assistant U.S. Attorney 211 W. Fort St., Ste. 2001 Detroit, MI 48226 Phone: (313) 226-9149 E-mail: susan.declercq@usdoj.gov (P 60545)
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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, et al.,

Plaintiffs,

v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. /

OPINION AND ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ PARTIAL MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS, (2) GRANTING PLAINTIFFS’ RENEWED MOTION FOR A PROTECTIVE
ORDER, AND (3) DENYING DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT

I. INTRODUCTION

Plaintiffs John Does 1–7 filed the instant action alleging that while they were

juveniles in Michigan’s correctional system, Defendants improperly housed them with

adult inmates. As a result, Plaintiffs claim that adult inmates physically and sexually

harassed and assaulted them. Plaintiffs also allege that correctional officers allowed

this abuse to occur, and sometimes participated in the sexual abuse and harassment of

juvenile prisoners. Following their answer to Plaintiffs’ complaint, but before any

discovery commenced, Defendants moved for summary judgment and to dismiss Count

V of Plaintiffs’ complaint, as well as for a more definite statement of Plaintiffs’

allegations. Plaintiffs in turn moved for a protective order allowing them to proceed

pseudonymously. These matters are fully briefed, and no hearing is needed. See E.D.

Mich. LR 7.1(f)(2). For the following reasons, Defendants’ motion for summary

judgment will be denied, their motion to dismiss will be granted, and their motion for a more definite statement will be denied. Plaintiffs’ motion for a protective order will be granted.
Before the court addresses the merits of this case, a few comments are in order concerning the behavior of counsel for both parties.
II. CONDUCT OF COUNSEL “An attorney's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms.” – Preamble, Civility Principles, United States District Court for the Eastern District of Michigan. The court has held several on and off-the-record status conferences, in which the court has endeavored to encourage reasonable agreement between the parties on threshold issues. Counsel for both parties, however, seem unable (or unwilling) to communicate with each other in good faith. This has led to the court striking several motions from the docket for failure to comply with E.D. Mich. Local R. 7.1(a), a rule that is designed to encourage counsel to meet, confer, and reach reasonable agreements on issues that will expedite the case. Counsel on both sides are, in the court’s view, excessively adversarial, and have sadly neglected “personal courtesy and professional integrity in the fullest sense of those terms.” This attitude of counsel is longstanding, and most recently illustrated in the briefing surrounding Defendants’ motion for a more definite statement. In this briefing, Defendants argue that “Plaintiffs’ counsels’ arrogance bordered on contempt for the Court;” and Plaintiffs reply that this statement “border[s] on defamation.” Such juvenile hyperbole serves only to cast both sides in a poor light, tarnish the appearance of professional competence, and cloud, rather than
2

illuminate, the issues. It is sad to contemplate counsel thinking that this judge might be impressed or swayed by statements such as these.
This case presents serious allegations against Defendants; the central contentions are inflammatory, or at least potentially so, and the implications important. The court nevertheless expects counsel to live up to the oath they each took as a condition of being admitted to practice before this bench, and to behave in a professional and rational manner. Continuing unprofessional behavior, including unreasonable withholding of consent, may result in the imposition of appropriate sanctions.
III. BACKGROUND Plaintiffs allege that, prior to reaching the age of majority, they were improperly housed with adult prisoners in the Michigan Correctional System. Plaintiffs claim that they were cell mates with adult prisoners, and were forced to eat, shower, recreate, and work with adult prisoners. These encounters placed Plaintiffs at an increased risk for sexual harassment and assault, including from Michigan Department of Corrections (“MDOC”) officers who often turned a blind eye to the harassment and assaults. Plaintiffs also allege that Defendants’ policy of housing youthful prisoners with adults “created a prison environment that facilitates a system of sexual trafficking of youth.” (Dkt. # 1, Pg. ID 13.) As a result of Defendants’ alleged policy, Plaintiffs suffered physical injuries, sexual violence and abuse, and severe emotional and mental trauma. Currently, there are seven named “John Doe” Plaintiffs, whom the court has thus far allowed to proceed pseudonymously due to concerns regarding their safety in the Michigan Correctional System. Each of their individual allegations are summarized
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below. At the age of 17, Doe 1 entered Michigan’s Richard A. Handlon Correctional
Facility, where he was housed with an adult prisoner. Throughout the spring and summer of 2012, he alleges that he was repeatedly anally and orally raped by numerous adult male prisoners, including his adult cell mate who Doe 1 claims engaged in selling “access” to him to other adult prisoners. Doe 1 further alleges that MDOC staff were aware of his cell mate’s activities, and all of his attempts to get help were rejected by MDOC personnel. Following the alleged assaults, MDOC transferred Doe 1 to a new correctional facility, where he was placed in solitary confinement. (Id. at Pg. ID 15–16.)
Doe 2 has been incarcerated in an adult correctional facility since he was 16 years old. Shortly after he arrived at the Thumb Correctional Facility, he claims that he was brutally beaten and raped by his adult cell mate. Despite being treated by MDOC personnel for rectal bleeding, Doe 2 claims he was placed back in the same cell as his assailant. Doe 2 also alleges that MDOC personnel opened Doe 2's cell so that an adult prisoner could assault him. When he was transferred to the Oaks Correctional Facility, MDOC placed him with another adult prisoner who subjected him to further inappropriate physical conduct. As a result of reporting the incident, he claims he issued a misconduct ticket and sent to solitary confinement. Since his release from solitary confinement, Doe 2 claims he has been physically assaulted and marked on his face with a blade, which the complaint alleges makes him a target for other prisoners. (Id., at Pg. ID 17–18.)
Doe 3 has also been incarcerated since he was 16 years old, and MDOC initially 4

housed him in a facility surrounded by adult prisoners, who allegedly sexually harassed and threatened him. When Doe 3 was transferred to the Thumb Correctional Facility, he claims adult prisoners raped and sexually abused him on at least three occasions. Additionally, Doe 3 alleges that female MDOC staff members grabbed and pulled on his genitals, sexually harassing him during body searches and while he was showering and using the bathroom. According to Doe 3, MDOC personnel told him that he was going to be raped, and that they would facilitate rape as punishment for any complaints. (Id. at Pg. ID 18–20.)
Doe 4 also claims that he was abused by female MDOC staff members. He has been incarcerated at the Thumb Correctional Facility since he was 16, and claims that from late 2012 to early 2013, a female MDOC staff member repeatedly opened his cell for the purpose of raping him and that she also coerced sexual intercourse with him in a cleaning closet. Doe 4 repeats similar allegations as Doe 3 concerning sexual harassment and tugging on his genitals by female MDOC personnel. (Id. at Pg. ID 20–21.)
The Thumb Correctional Facility female staff also harassed and groped Doe 5. He claims that his adult cell mate physically assaulted and anally raped him, as well as sold him to other adult male prisoners for sexual encounters. The complaint further states that MDOC staff were aware of this sexual trafficking, but failed to discipline the adult offenders, intervene with protective custody, or separate him from the adult prisoners. When Doe 5 was transferred to the Carson City Correctional Facility, he claims that other adult inmates sexually abused, assaulted, and raped him in a shower. (Id., Pg. ID 21–23.)
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Doe 6 alleges that he was also housed with adult inmates. He claims that he was repeatedly sexually harassed, and despite reporting his fears to MDOC, he was transferred to the Gus Harrison Correctional Facility where an adult prisoner raped him in the laundry room. Following Doe 6’s report to prison authorities, he alleges that he was transferred to another correctional facility where he has been housed for over five months in solitary confinement. He claims that the harassment has not stopped, and that he is threatened and told that he will be sold for sex on the prison yard. Doe 6 refuses to leave solitary confinement because of his fear of additional rapes. (Id., Pg. ID 23–24.)
Doe 7 was incarcerated as a minor throughout the summer of 2013. Despite acknowledging that he was vulnerable to sexual assaults, the complaint alleges that MDOC staff took no action to protect him. Doe 7 claims that an adult male prisoner subsequently entered Doe 7’s cell and assaulted him. (Id., Pg. ID 24–25.)
Defendants deny almost all of Plaintiffs’ claims. They state that under-age prisoners are not housed with adults, and that adult housing is physically separate from prisoners who are under 18 years of age. Regarding the individual Doe Plaintiffs’ allegations, Defendants state that they can neither admit or deny the allegations because the identity of each Doe Plaintiff has not yet been revealed. Defendants also deny having any knowledge that youthful prisoners are subjected to a heightened and substantial risk of physical and sexual violence, stating instead that “a prisoner’s vulnerability to another prisoner is more a function of the prisoner’s attitude and deportment and behavior, than it is strictly of age.” (Dkt. # 36, Pg. ID 252.)
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IV. STANDARD Defendants ask that the court grant them summary judgment on Plaintiffs’ claim for prospective injunctive relief and that it dismiss Plaintiffs’ international law claim. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant, who must put forth enough evidence to show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citation omitted). The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita v. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment, therefore, is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). In contrast, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint’s allegations. The court views the complaint in the light most favorable to the plaintiff and takes all well-pleaded factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009).
V. DISCUSSION
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A. Plaintiffs’ Claims for Prospective Injunctive Relief Defendants seek summary judgment on Plaintiffs’ claims for prospective injunctive relief, arguing that Plaintiffs lack standing and that Defendants have already changed their policy in accordance with the injunctive relief Plaintiffs seek, rendering Plaintiffs’ claims moot. 1. Standing Defendants argue that because all Plaintiffs have now reached the age of majority, none of them currently have standing to challenge MDOC’s practices for housing youthful prisoners. Defendants rely on City of Los Angeles v. Lyons, 461 U.S. 95 (1983), for this argument. In Lyons, the plaintiff sought injunctive relief against Los Angeles after four police officers pulled him over and placed him in a chokehold, allegedly without provocation. Id. at 97–98. The Supreme Court found that the plaintiff lacked standing to seek an injunction barring Los Angeles from using chokeholds, reasoning that it was “surely no more than speculation to assert either that [the plaintiff] himself will again be involved in one of these unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold.” Id. at 108. Because the Lyons plaintiff failed to demonstrate a sufficient likelihood that he would again be injured by the Los Angeles police, he was not entitled to pursue equitable relief. Id. at 111. In the instant case, Defendants argue that, like the plaintiff in Lyons, Plaintiffs are unable to show any likelihood of future injury resulting from being youth improperly housed with adult prisoners because Plaintiffs are now adults, and are thus properly housed in the adult correctional system.
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As Plaintiffs respond, Defendants’ argument is misplaced. “Standing to bring suit
must be determined at the time the complaint is filed,” Smith v. Jefferson Cnty. Bd. of
Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011), and “the presence of one party with
standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld
v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006). Defendants
do not present any evidence contesting Plaintiffs’ allegations that John Doe 4 and 7
were minors at the time Plaintiffs filed this action. (Dkt. # 1, Pg. ID 20, 24.) Further, the
Sixth Circuit has declined to apply Lyons in situations where, as here, a plaintiff class
alleges a realistic and non-speculative threat of future injury. See Ramirez v. Webb,
787 F.2d 592, 592 (6th Cir. 1986) (per curiam). Defendants presumably agree, given
that they make no attempt to distinguish this authority in their reply. Plaintiffs have
standing to seek injunctive relief.
2. Mootness
Defendants argue that summary judgment should be granted in their favor on
Plaintiffs’ claim for injunctive relief in the form of an order mandating the separation of
under-age and adult prisoners.1 Defendants assert that because they no longer house
1 There appears to be some confusion regarding whether Defendants also moved for summary judgment on all of Plaintiffs’ claims for injunctive relief, or whether they only moved for summary judgment on Plaintiffs’ claim for an injunction mandating prisoner separation. Plaintiffs (and the United States, through a Statement of Interest) correctly note that Plaintiffs’ requests for injunctive relief are not limited to an order mandating the separation of juvenile prisoners from adults. Rather, they also seek injunctive relief barring defendants from further constitutional, statutory, and common law violations, as well as mandating “adequate medical and mental health treatment to remediate the ongoing harm” to Plaintiffs.
Although Defendants originally argued that a decision in their favor on the request for injunctive relief mandating juvenile/adult separation would mandate dismissal of all of Plaintiffs’ injunctive relief claims, (Dkt. # 47, Pg. ID 379) they change
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juvenile prisoners with adults, Plaintiffs’ request for injunctive relief is moot. “A case is moot when the issues presented are no longer live or when the parties lack a legally cognizable interest [personal stake] in the outcome.” Banas v. Dempsey, 742 F.2d 277, 281 (6th Cir. 1984) (citation omitted, brackets in original).
Congress enacted the Prison Rape Elimination Act of 2003, (“PREA”), in order to address the high incidence of sexual assault within prisons. As part of the PREA, Congress found that “at least 13 percent of the inmates in the United States have been sexually assaulted in prison,” with juveniles being more than five times as likely as adults to be sexually assaulted in adult facilities. 42 U.S.C. § 15601(2), (4). Congress directed the Department of Justice to publish a “final rule adopting national standard for the detection, prevention, reduction, and punishment of prison rape.” Id. at § 15607(a)(1). The PREA further states that if a state fails to certify that it has adopted the national standard, its federal funding will be reduced by five percent per year. Id. at § 15607(e)(2).
Pursuant to this directive, the Department of Justice promulgated the following rule:
(a) A youthf ul inmate shall not be placed in a housing unit in which the youthful inmate will have sight, sound, or phys ical contact with any adult inmate through use of a shared dayr oom or other common spac e, shower area, or sleeping quarters. (b) In areas outside of housing united, agencies shall either:
course in their reply and clarify that “[insofar] as the Plaintiffs seek other forms of injunctive relief, the Defendants will address those issues in subsequent motions.” (Dkt. # 76, Pg. ID 1251.) Given this change in position, the court will only address whether Plaintiff’s request for an injunction mandating juvenile/adult prisoner separation is moot.
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(1) Maintain s ight and sound separation between youthful inmates and adult inmates, or
(2) Provide direct staff supervision when youthful inmates and adult inmates have sight, sound, or physical contact.
(c) Agencies shall make best efforts to avoid placing youthful inmates in isolation to comply with this provis ion. Absent exigent circumstances, agencies shall not deny youthful inmates daily large-muscle exercise and any legally required special education servic es to comply with this provision. Youthful inmates shall also have access to other programs and work opportunities to the extent possible.
28 C.F.R. § 115.14. For the purposes of this rule, “youthful inmate” “means any person
under the age of 18 who is under adult court supervision and incarcerated or detained in
a prison or jail.” Id. at § 115.5.
Defendants argue that given their change in housing policy to comply with the
PREA, Plaintiffs’ request for an injunction mandating separate housing for juvenile and
adult offenders is moot. Defendants assert that the PREA only applies to federal
prisons, but that Michigan “has elected to voluntarily emulate the PREA national
standards.” (Dkt. # 47, Pg. ID 361.) Prior to the PREA’s effective date, Defendants
claim that Michigan housed all its prisoners who were under 17-years-old with prisoners
of the same age. Juvenile prisoners who were 17-years-old were housed with adult
prisoners, pursuant to Michigan law. Mich. Comp. Laws § 750.139.
Defendants claim that as of August 15, 2013, there are only three correctional
facilities in Michigan where juvenile prisoners are held, and juvenile prisoners are no
longer housed with adults in any of the facilities. The correctional facilities which house
juvenile prisoners are: the Egeler Reception and Guidance Center in Jackson (“RGC”);
the Thumb Correctional Facility in Lapeer (“TCF”); and the Woodland Center
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Correctional Facility in Whitmore Lake (“WCC”). TCF is the primary correctional facility where juvenile prisoners are housed. Defendants argue that all juvenile prisoners at TCF are housed in a separate housing unit from the other correctional units, that the juvenile prisoners do not have any physical contact with adult prisoners, and that the only proximity they have with adult prisoners occurs “while walking to school, afternoon or evening meals, recreation activities, religious services, visits, health care, or the library,” but that while these movements are occurring, the juvenile inmates are under direct staff supervision at all times. (Dkt. # 47-5, Pg. ID 413; Dkt. # 47-4, Pg. ID 407.) RGC is used as an intake institution where juvenile prisoners are placed in quarantine once they are sentenced so that prison officials can conduct a physical and mental examination, review the individual prisoner’s criminal history, education and risk profile, and place them within the MDOC system. (Dkt. # 47-3, Pg. ID 397.) Juvenile prisoners are also processed through the RGC, although their stay is usually expedited to only one week and there is a meshed fence with a locked gate separating the four cells used for juveniles at RGC from the rest of the adult population. (Id. at Pg. ID 398.) Juvenile prisoners are rarely placed in WCC, which is the MDOC facility used for short-term mental health crisis stabilization. (Dkt. 47-6, Pg. ID 418.) When juvenile prisoners require short-term mental health treatment, they are placed in their own cell, and whenever they are moved from their cell, they are under direct staff supervision. (Id. at Pg. ID 419–20.)
Plaintiffs argue that Defendants’ voluntary change of their prison housing practices does not moot Plaintiffs’ request for injunctive relief. As the Sixth Circuit explains:
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‘A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice t o m oot a case .’ Instead, the defendant bears ‘the formidable burden of showing that it isabsolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’
Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir. 2012) (quoting
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,
174, 190 (2000)) (internal citations omitted). Plaintiffs point out that in their motion for
summary judgment, Defendants characterize their compliance with the PREA as
“voluntary,”2 and further argue that the PREA only applies to federal prisoners. (See
Dkt. # 47, Pg ID 361.) By these assertions, Defendants’ continued compliance is
discretionary and subject to change.
Defendants change course in their reply, conceding that although their
compliance with the PREA is voluntary, and therefore generally insufficient to moot
Plaintiffs’ claim for injunctive relief, as government officials they are entitled to “more
solicitude” than private parties are. See League of Women Voters of Ohio v. Brunner,
548 F.3d 463, 473–74 (6th Cir. 2008). This may be true, but Defendants have still not
met their “formidable burden” of demonstrating that Plaintiffs’ claim is moot. Michigan
2 The United States filed a Statement of Interest clarifying that the PREA applies with equal force to both state and federal prisons, and disputing Defendants’ characterization of Plaintiffs’ request for injunctive relief as moot. Although the United States is correct that the PREA standards apply to state correctional systems, nowhere does it appear that state compliance is mandatory. Rather, states may choose whether to certify their full compliance with the PREA’s national standards, or assure the government that it is using 5% of the federal funds it receives to achieve full compliance. 42 U.S.C. § 15607(e)(2). A failure to adopt either course of action reduces a state’s funding for prison purposes by 5% for each fiscal year it is non-compliant. Id. Although the court has no doubt that a 5% reduction in federal funding has bite, states appear free to choose whether to comply with the PREA and receive this funding, or ignore it and face cuts in their budgets. Thus, Michigan appears to be correct in characterizing its compliance with the PREA as “voluntary.”
13

law still allows 17-year-old prisoners to be housed with adults, which if carried out would
be in conflict with the PREA. Compare Mich. Comp. Laws § 750.139 with 28 C.F.R.
§§ 115.5, 115.14. Although Defendants argue that such a practice has been
abandoned, the fact remains that it is still permissible pursuant to state law, and, as
such, subject to change. Accordingly, the court cannot find that Plaintiffs’ have met the
heavy burden of proving moot Plaintiffs’ request for an order mandating the separation
of juvenile and adult prisoners.
B. Plaintiffs’ International Law Claim (Count V)
Defendants move to dismiss Plaintiffs’ claim that Defendants’ conduct violated
their rights under various treaties, including the American Declaration of the Rights and
Duties of Man (“the American Declaration), the International Covenant on Civil and
Political Rights (“ICCPR”), and the United Nations Convention on the Rights of the Child
(“CRC”), and that Defendants’ conduct also violated “customary international law.”
Defendants argue that alleged violations of these treaties and customs are not
cognizable under 42 U.S.C. § 1983.3
3 Defendants’ citations to Wikipedia in support of various arguments are numerous but less than convincing. Federal courts across the nation have continually recognized that Wikipedia’s reliability is doubtful, given that by its own statement, “Anyone with Internet access can write and make changes to Wikipedia articles.” About Wikipedia, Wikipedia, (May 13, 2014, 5:54 PM), http://en.wikipedia.org/wiki/Wikipedia:About. See, e.g., United States v. Lawson, 677 F.3d 629, 650–51 (4th Cir. 2012); Bing Shun Li v. Holder, 400 F. App’x 854, 857–58 (5th Cir. 2010); Badasa v. Mukasey, 540 F.3d 909, 910–11 (8th Cir. 2008); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 976 n.19 (C.D. Cal. 2010); Kole v. Astrue, No. CV 08-0411, 2010 WL 1338092, at *7 n.3 (D. Idaho Mar. 31, 2010) (“Wikipedia is not a reliable source at this level of discourse.”); Baldanzi v. WFC Holdings Corp., No. 07-CV-9551, 2010 WL 125999, at *3 n.1 (S.D.N.Y. Jan. 13, 2010); Campbell ex rel. Campbell v. Secretary of Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006). This skepticism is unsurprising given that Wikipedia articles may be written and
14

Section 1983 allows individuals who have been injured by officials acting under
color of state law to seek redress for their injuries for deprivations of “any rights,
privileges, or immunities secured by the Constitution and laws” of the United States. Id.
However, “while treaties may comprise international commitments[,] they are not
domestic law unless Congress has either enacted implementing statutes or the treaty
itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.”
Medellin v. Texas, 552 U.S. 491, 505 (2008) (quotation marks omitted). In contrast,
“[c]ustomary international law results from a general and consistent practice of states
followed by them from a sense of legal obligations.” Buell v. Mitchell, 274 F.3d 337, 372
(6th Cir. 2001) (citing Restatement (Third) of Foreign Relations Law § 102 (1987)).
“Some customary norms of international law reach a ‘higher status,’ in which they ‘are
recognized by the international community of states as peremptory [norms], permitting
no derogation.’ These peremptory norms are also referred to as jus cogens.” Id. at
372–73.
Turning first to the ICCPR, the Supreme Court rejected the argument that the
United States’s ratification of the ICCPR creates individual rights: “although the
[ICCPR] does bind the United States as a matter of international law, the United States
edited anonymously, are composed “largely by amateurs,” and are “not subject to any peer review.” About Wikipedia. Although Wikipedia articles may be entertaining, or even thought-provoking, and might point an interested person in a certain direction for further reading, the court does not advise including it as a source in further filings in court—this one or any others. “Say what you might about citing as authority a source that once, for a brief time, credited the U’wa people of Venezuela and Colombia with the invention of puff pastry, but there are definite advantages to being able to cite an authority that you can always rewrite to suit your current needs.” Élise Hendrick, Wikipedia The New Consensual Reality, 11 Green Bag 2d 187, 188 (2008).
15

ratified the [ICCPR] on the express understanding that it was not self-executing and so
did not itself create obligations enforceable in the federal courts.” Sosa v. Alvarez-
Machain, 542 U.S. 692, 735 (2004); see also Buell, 274 F.3d at 372. Plaintiffs’ claim
under the American Declaration also fails as the United States has not ratified the
American Declaration, which means that it is not domestic law and therefore provides
individuals with no independent rights in federal court. Garza v. Lappin, 253 F.3d 918,
923 (7th Cir. 2001) (“the American Declaration on the Rights and Duties of Man . . . is
merely an aspirational document that, in itself, creates no directly enforceable rights.”).
Similarly, because the United States has not ratified the CRC, it also creates no
independently enforceable rights for Plaintiffs. See Roper v. Simmons, 543 U.S. 551,
576 (2005); Taveras v. Taveraz, 477 F.3d 767, 780 (6th Cir. 2007); Olivia v. United
States Dept. of Justice, 433 F.3d 229, 232–33 (2d Cir. 2005). For these reasons,
Plaintiffs’ claim for violations of the above-mentioned treaties fails.
Plaintiffs also argue that, irrespective of their rights under international treaties,
the separation of youth from adults in correctional institutions is an established
peremptory norm of international law, therefore constituting binding law in the United
States. A similar argument was considered and flatly rejected some years ago by
another judge of this district:
Plaintiffs note that customary international law is recognized as forming part of federal common law. See generally Sosa v. Alvarez-Machain, 541 U.S. 692, 729 (2004) (“For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations.”). However, it is a logical leap to suggest that a violation of customary international law gives rise to a private cause of action and remedy. Although Plaintiffs argue that a private cause of action should be inferred, they do not cite a case in which a court has actually done so. See Buell v. Mitchell , 274 F.3d 337, 374 (6th Cir. 2001) (“Courts that have deet rmined that private rights of actions exist under
16

customary norms of international law have done so where acts were

committed on a foreign citizen or acts were committ

ed by a foreign

government or governmental official . . . ‘[w]hile s ome language in several

decisions of courts of appeal states that U.S. courts have recognized the

concept of jus cogens as part of U.S. law, not a single case has been

decided on that basis alone wit hout having been overturned.’”) (citations

omitted). This court is not inclined to create a cause of action based upon

customary international law where the legal authority in suppor t of such a

claim is vir tually nonexistent and Plai ntiffs’ avenue of redress, if any, is

derived from the United States Constitution.

Hill v. Snyder, No. 10-14568, 2011 WL 2788205, at *6 (E.D. Mich. July 15, 2011)

(O’Meara, J.). Further, “the determination of what international obligations the United

States chooses to recognize or enforce is an area that has been recognized as

entrusted principally to the Legislative and Executive branches of the federal

government.” Buell, 274 F.3d at 337. Although the court recognizes its power to

“recognize new private causes of action for certain torts in violation of the law of

nations,” the Supreme Court urged caution in this regard, warning: “We have no

congressional mandate to seek out and define new and debatable violations of the law

of nations, and modern indications of congressional understanding of the judicial role in

the field have not affirmatively encouraged greater judicial creativity.” Sosa, 542 U.S. at

724, 728. This admonishment against “judicial creativity” is particularly relevant in a

context where, as here, Congress has either not ratified the international authority on

which Plaintiffs rely, or, where it has done so (as in the case of the ICCPR), it has

expressly stated that its ratification does not create individually enforceable obligations.

Sosa, 542 U.S. at 735. Section 1983 is not a vehicle with which to inject Plaintiffs’

customary international law claims into federal law. Plaintiffs’ international law claim is

baseless. Accordingly, the court grants Defendants’ motion to dismiss.

17

C. Plaintiffs’ Motion for a Protective Order and Defendants’ Motion for a More Definite Statement Plaintiffs move for a protective order allowing them to proceed pseudonymously, and Defendants move for a more definite statement from Plaintiffs, specifying: “(i) a description of the alleged sexual assaults; (ii) the dates on which the sexual assaults occurred; (iii) the names of each and every individual who participated and who aided and abetted in the sexual assaults; (iv) the location where the sexual assaults occurred; and (v) the nexus between the sexual assaults and the alleged violation by specifically identified Defendants of Plaintiffs’ constitutional rights.” (Dkt. # 59, Pg. ID 801.) Addressing first Plaintiffs’ request that they be allowed to proceed pseudonymously, the federal rules require that the title of a complaint must generally name all of the parties to an action. Fed. R. Civ. P. 10(a). However, the court may excuse Plaintiffs from identifying themselves if it determines that Plaintiffs’ privacy interests substantially outweigh the presumption of open judicial proceedings. The Sixth Circuit identified four factors for the court to consider: (1) whether the plaintiffs s eeking anonymity are suing to challenge governmental activity; (2) whether pro secution of the suit will compel the plaintiffs to disclose information of the utmost intimacy; (3) whether the litigation compels plaintiffs to disclosean intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). Plaintiffs argue that they meet all four factors. First, they are undoubtedly challenging governmental activity in that they claim Michigan improperly housed juvenile prisoners with adults. They also allege that certain MDOC correctional officers participated in sexual and physical abuse and allowed sex trafficking to occur. Second, they allege sexual harassment and abuse, which is clearly
18

a matter of “the utmost intimacy.” See Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997). Although the complaint does not allege an intent to violate the law, Plaintiffs reasonably argue that discovery in this matter may reveal “extraordinary means they have taken to protect themselves, some of which may be violation of [] MDOC policy” which could expose them to punishment from prison authorities. (Dkt. # 63, Pg. ID 962.) Lastly, Plaintiffs allege that Defendants’ illegal conduct occurred while they were still children, thus satisfying the fourth factor.
Although Defendants oppose Plaintiffs’ request to proceed pseudonymously, they do not present any reason why Plaintiffs’ request should not be granted, aside from asserting that Plaintiffs’ actual identities should be disclosed to Defendants’ counsel in order to allow counsel to respond to the claims, a point that Plaintiffs do not oppose. With the above in mind, it is baffling why the parties could not agree on a protective order for Plaintiffs’ identities. The court therefore grants Plaintiffs’ motion for a protective order allowing them to proceed pseudonymously, with greater specificity provided below.
Defendants move for a more definite statement from Plaintiffs, arguing that they are unable to prepare a proper response to Plaintiffs’ claims as the complaint does not reveal the identities of Plaintiffs, the adult prisoners who assaulted Plaintiffs, the MDOC personnel who allegedly aided and abetted sexual assaults, or the date, time, and location of the alleged assaults.
The federal rules allow parties to move for a more definite statement of a pleading to which a responsive pleading is allowed:
A party may move for a more definite statement of a pleading to which a 19

responsive pleading is allowed but which is so vague or ambiguous that he party cannot reasonably prepare a res ponse. The motion must be made before filing a responsive pleadingand must point outhte defects complained of and the details desired. Fed. R. Civ. P. 12(e) (emphasis added). On December 20, 2013, Defendants first moved for a more definite statement. On December 31, 2013, the court struck Defendants’ motion4 for failing to comply with E.D. Mich. Local R. 7.1(a), which requires parties to confer and seek concurrence in their requested relief prior to filing any motion before the court, and, failing the ability of the parties to agree, that the moving party include a statement explaining that there was a conference between the attorneys and that concurrence was denied. Defendants’ motion for a more definite statement contained no such statement. In its order, the court directed the parties to confer with each other and file a joint statement explaining their efforts to resolve the issues in the terminated motions by January 17, 2014. (Dkt. # 34, Pg. ID 247–48.) Defendants filed their answer to Plaintiffs’ complaint on January 3, 2014, without seeking an extension of the time to respond, and without renewing their motion for a more definite statement in compliance with Local Rule 7.1(a). On March 28, 2014, Defendants renewed their motion for a more definite statement. The plain language of Rule 12(e) requires a motion for a more definite statement to be made before filing a responsive pleading. A motion for a more definite statement “is designed to strike at unintelligibility rather than want of detail and . . . allegations that are unclear due to a lack of specificity are more appropriately clarified by discovery rather than by an order for a more definite statement.” In re European Rail Pass
4 The court also struck a motion by Plaintiffs for the same reason. 20

Antitrust Litig., 166 F. Supp. 2d 836, 844 (S.D.N.Y. 2001) (citation omitted). Such a motion “should not be granted unless the complaint is so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it.” Id. (citation omitted).
In the instant case, Plaintiffs’ complaint provided sufficient detail to allow Defendants to answer it. And, there is nothing conjectural about this observation: Defendants did, in fact, answer the complaint. The court did not terminate Defendants’ original motion on the merits; rather, it directed Defendants to comply with Local Rule 7.1(a) before filing any motion with the court and to confer with opposing counsel as required by this rule. Now that Plaintiffs’ complaint has been answered, Defendants will be free to seek answers to their questions through the normal discovery process, subject to a protective order that the court will issue at a later date. Accordingly, Defendants’ motion for a more definite statement is denied as moot.
VI. CONCLUSION IT IS ORDERED that Defendants’ Motion for Summary Judgment and Motion to Dismiss [Dkt. # 47] is GRANTED in part and DENIED in part. Defendants are denied summary judgment on Plaintiffs’ claim for prospective injunctive relief. However, Count V of Plaintiffs’ complaint is DISMISSED WITH PREJUDICE.5 IT IS FURTHER ORDERED that Defendants’ Motion for More Definite Statement is DENIED as moot.
5 See Wikipedia, (May 27, 2014, 5:54 PM), http://en.wikipedia.org/wiki/Prejudice_(legal_procedure)
21

IT IS FURTHER ORDERED that Plaintiffs’ “Renewed Motion for a Protective Order to Proceed Anonymously” [Dkt. # 63] is GRANTED. A Plaintiff will be allowed to proceed pseudonymously provided that he disclose his actual identity to the court under seal not later than June 3, 2014. Defendants shall be provided a copy of each such disclosure. Neither party is permitted to disclose a Plaintiff’s identity to anyone, including Defendants’ clients and Plaintiffs’ other clients, without or until further order of the court.

Dated: May 28, 2014

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, May 28, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356.DOE.MotSJMotMoreDefiniteStatement.jac2.wpd
22

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, et al.,

Plaintiffs,

v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. /

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE BASIS
OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND SCHEDULING A TELEPHONE CONFERENCE

Pending before the court is Defendants’ Motion for Summary Judgment on the

Basis of Plaintiffs’ Failure to Exhaust Administrative Remedies. (Dkt. # 133.) Plaintiffs,

John Does 1-7, have proposed a class seeking injunctive and declaratory relief and

damages arising from their treatment in Michigan Department of Corrections (“MDOC”)

facilities while under the age of eighteen. Defendants argue that the Prison Litigation

Reform Act (“PLRA”), 42 U.S.C. § 1997(e), bars Plaintiffs’ claims because they failed to

exhaust available administrative remedies before filing this action, as required by the

PLRA. Plaintiffs have filed an opposition, (Dkt. # 144), to which Defendants have

replied, (Dkt. # 150), thus the matter is fully briefed. A hearing was held on September

21, 2015, at which all parties were represented and heard. For the reasons stated

below, the court will grant in part and deny in part Defendants’ motion for summary

judgment.

I. BACKGROUND Plaintiffs are former youthful prisoners, i.e. prisoners under the age of eighteen, who were imprisoned alongside adults in MDOC facilities. Though MDOC no longer houses youths with adults (Defs.’ Mot. at 1 n. 1.), at the time of the conduct alleged in the complaint prisoners as young as sixteen ate, washed, recreated, worked, and bunked with adults. Plaintiffs allege that as a result of their placement among adults, they and similarly situated youthful prisoners suffered an increased risk of sexual harassment and assault, including from MDOC officers who participated in or turned a blind eye to the harmful conduct. As a result of the MDOC housing policy, Plaintiffs assert that they have suffered physical injuries, sexual violence and abuse, and physiological trauma. The court has allowed the seven current “John Doe” Plaintiffs to proceed pseudonymously due to concerns about their safety in the MDOC prisons in which they currently reside. The court will limit itself to a recitation of the facts pertinent to the exhaustion analysis at issue. In its previous opinion at Dkt. # 91, the court summarized some of the details of the particular assaults and incidents of harassment. The facts viewed in the light most favorable to Plaintiffs are as follows:
A. John Doe 1 Doe 1 was incarcerated in 2012 at the age of seventeen. (Dkt. # 1, Pg. ID 15-16.) He has been housed in Charles E. Egeler Reception and Guidance Center (“RGC”), Richard A. Handlon Correctional Facility (“MTU”), and Bellamy Creek Correctional Facility (“IBC”). (Id.) According to Doe 1, he suffered harassment and a number of
2

sexual and physical assaults at the hands of his adult cellmates and other prisoners. (Id.) He reported these incidents orally to corrections officers, his emotions therapy teacher, and participated in a meeting with a deputy warden and other prison administrators where he described, in basic terms, some of the sexual assaults he had suffered. (Dkt. # 144-4, Pg. ID 3247, 3249.) Plaintiffs have not asserted that Doe 1 attempted to formally grieve any of the incidents at issue in this litigation.
B. John Doe 2 Doe 2 was incarcerated in 2011 at the age of sixteen. (Dkt. # 1, Pg. ID 17-18.) He has been housed at RGC, Thumb Correctional Facility (“TCF”), and Oaks Correctional Facility (“ECF”), (Id.). Doe 2 alleges that he suffered physical and sexual assaults by other prisoners and believes that a corrections officer facilitated some of those physical assaults by opening his cell door to his attackers. (Dkt. # 144-5, Pg. ID 3255-59.) He reported some of these incidents to health professionals at the prison, though he later recanted. (Id. at Pg. ID 3263-65.) He also orally reported some of the incidents to corrections officers. (Id. at 3264.) In 2014, Doe 2 was threatened with sexual assault, which he claims he reported by sending written correspondence to the warden, but received no response. (Dkt. # 144-5, Pg. ID 3262). That incident and report occurred after Doe 2 reached the age of eighteen. Plaintiffs have not asserted that Doe 2 attempted to formally grieve any of the incidents at issue in this litigation.
C. John Doe 3 3

Doe 3 was incarcerated in 2010 at the age of sixteen. He has been housed at RGC, TCF, and Chippewa Correctional Facility (“URF”). (Dkt. # 1, Pg. ID 18-20.) Doe 3 claims he suffered a number of physical and sexual assaults at the hands of other prisoners, some of which occurred within the sight of corrections officers who ignored the conduct. (Dkt. # 144-6, Pg. ID 3280.) He was also searched by corrections officers who, as he describes, grabbed his genitalia until he felt pain. (Id. at Pg. ID 3279). Doe 3 filed a grievance against a corrections officer when he failed to respond to Doe 3's report of a physical assault. (Dkt. # 144-6, Pg. ID 3281.) He never received a response to the grievance and did not file a Step II grievance because, as he stated, “I didn’t know how long you had to take before the grievance came back. Then after so long . . . I feel like it was too late.” (Id.) Doe 3 also stated in deposition that “there’s some grievances that I wrote that I know that they ripped up because they ripped them up in front of my face.” (Dkt. # 133-8, Pg. ID 2831).
D. John Doe 4 Doe 4 was incarcerated at the age of sixteen. (Dkt. # 1, Pg. ID 20-21.) He has been housed only at TCF. (Id.) He asserts that he was sexually assaulted by a female corrections officer but never reported the incident to anybody because he feared he would not be believed or would be accused of misconduct. (Dkt. # 144-7, Pg. ID 3286, 3289). Plaintiffs have not asserted that Doe 4 attempted to formally grieve any of the incidents at issue in this litigation.
E. John Doe 5
4

Doe 5 was incarcerated in 2010 at the age of sixteen. (Dkt. # 144-8, Pg. ID 3292.) He has been housed at RGC, TCF, Earnest C. Brooks Correctional Facility (“LRF”), URF, and Carson City Correctional Facility (“DRF”). (Dkt. # 1, Pg. ID 21-23.) He contends that he suffered a number of prisoner on prisoner sexual assaults, and was also subjected to inappropriate pat-downs by female corrections officers. (Id. at Pg. ID 3295.) Doe 5 orally reported to an assistant resident unit supervisor and a corrections officer that he was being pressured for sex and money by other prisoners, after which the prison conducted an investigation. (Dkt. # 144-8, Pg. ID 3293-94, 3303.) He also reported some of the sexual assault activity to other prisoners, but did not report that activity to any prison officials. (Dkt. # 144-8, Pg. ID 3299, 3302.) Plaintiffs have not asserted that Doe 5 attempted to formally grieve any of the incidents at issue in this litigation.
F. John Doe 6 Doe 6 was incarcerated at the age of seventeen. (Dkt. # 1, Pg. ID 23-24.) He has been housed at RGC, MTU, Gus Harrison Correctional Facility (“ARF”), and Marquette Branch Prison (“MBP”). (Id.) Before being imprisoned he was placed in special education classes based on learning disabilities that affected his reading and spelling. (Dkt. # 144-9, Pg. ID 3307.) While in prison, other prisoners have sexually harassed and assaulted Doe 6. (Id. at Pg. ID 3311.) He requested medical assistance in writing after he was moved from one prison to another. (Id. at Pg. ID 3312.) Shortly after the medical appointment, a prison investigator interviewed Doe 6 about the incident. (Id.) Plaintiffs have not asserted that Doe 6 attempted to formally grieve any of the incidents at issue in this litigation.
5

G. John Doe 7 Doe 7 was incarcerated at the age of seventeen. (Dkt. # 1, Pg. ID 24-25.) He has been housed only in RGC and TCF. (Id.; Dkt. # 144-10, Pg. ID 3319.) He claims he was the victim of an attempted sexual assault. (Id. at Pg. ID 3318-19.) He orally complained to a corrections officer and obtained grievance forms, but never filled them out because he didn’t know how to fill them out and stated, “I felt like they wasn’t going to help me anyway.” (Id. at Pg. ID 3319.) Plaintiffs have not asserted that Doe 6 formally grieved any of the incidents at issue in this litigation.
II. STANDARD A court will enter summary judgment only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-movant, who must put forth enough evidence to show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citation omitted). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita v. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Additionally, the court’s role is not to weigh the evidence and rule on the truth of the matter, but to determine whether there is a genuine issue to be considered at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
6

(1986). Summary judgment, therefore, is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Id. at 251–52 (1986).
III. DISCUSSION The pending motion for summary judgment presents two questions. First, have Plaintiffs properly exhausted MDOC’s administrative remedies? And second, if Plaintiffs have failed to exhaust, is there some reason the court should, nonetheless, allow the claims to proceed? That is, is there any indication that the facts of this case might provide grounds for the exhaustion requirement to be excused or relaxed? The court will take these issues in turn. A. Whether Plaintiffs Have Exhausted MDOC’s Administrative Remedies The parties disagree over what constitutes proper exhaustion. Accordingly, the court will first determine what is required for a prisoner to properly exhaust his claims, and then analyze whether any Plaintiff has properly exhausted.
1. The Exhaustion Requirement Under the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correction facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA itself does not provide the method of exhaustion, rather, “it is the prison’s requirements . . . that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal quotation marks omitted). “Compliance with prison grievance procedures . . . is all that is required by the PLRA to properly exhaust.” Id.
7

Looking to MDOC’s procedures, Policy Directive (“PD”) 03.02.130 (eff. 07/09/07) requires a prisoner to participate in a multi-step grievance process, explained in brief here, in order to properly exhaust his claim under the PLRA. ¶ B. First, within two days of discovering a problem, prisoners are directed to attempt to informally resolve their problem with the staff member involved. Id. at ¶ P. If that fails, the prisoner must file a Step 1 grievance within five days of the attempted resolution. Id. If the prisoner is dissatisfied with the response, or if the prisoner does not receive a timely response, he can file a Step II grievance within ten days. Id. at ¶ BB. Similarly, if a prisoner receives an unsatisfactory response or no response at Step II, he can file a Step III grievance within ten days. Id. at ¶ FF. Complaints filed by prisoners “serve to exhaust a prisoner’s remedies only when filed as a grievance through all three steps of the grievance process.” ¶ B.
Plaintiffs argue that “administrative remedies for sexual assaults are not limited to the grievance procedure.” Def.’s Opp. at 18. Specifically, they claim that MDOC PD 03.03.140, concerning sexual misconduct, “establishe[s] multiple avenues of administrative exhaustion of remedies in cases of sexual misconduct” and “[u]se of any of these various administrative processes satisfies the exhaustion requirement.” Id. at 19. For the reasons explained below, the court rejects this contention and finds that the formal grievance process is the only method of exhaustion that MDOC has made available to Plaintiffs.
The clear text of MDOC PDs 03.03.140 and 03.02.120 belie Plaintiffs’ assertion that any other method of raising concerns to prison staff serves to exhaust a claim. PD 03.03.140 states, “[c]omplaints filed by a prisoner regarding conduct prohibited by this
8

policy shall serve to exhaust a prisoner’s administrative remedies only when filed as a grievance through all steps of the grievance process in compliance with PD 03.02.130 “Prisoner/Parolee Grievances.” ¶ R (eff. 12/29/10) (emphasis added). Also, PD 03.02.130, governing the grievance process, has reciprocal language requiring complaints of sexual misconduct to be exhausted through the grievance process. “Complaints . . . serve to exhaust a prisoner’s administrative remedies only when filed as a grievance . . . . This includes but is not limited to complaints of conduct in violation of PD 03.03.140 ‘Prohibited Sexual Conduct Involving Prisoners.’” PD03.02.130 ¶ B.
While MDOC has devised ways to address prisoner complaints, including sexual assault complaints, through methods less formal than the grievance process, there is no reason to believe these other methods serve to exhaust claims under the PLRA. “[I]t is the prison’s requirements . . . that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal quotation marks omitted). Plaintiffs are mistaken in assuming that just because a prison provides informal mechanisms for addressing problems, that such mechanism must also serves to exhaust claims under the PLRA.
The sexual misconduct policy states that complaints may be reported to certain compliance administrators, any Department employee, or through the sexual assault hotline. PD 03.03.140 ¶ O. In general, “allegations may be reported verbally or in writing, including through the grievance process.” Id. (emphasis added). This last phrase shows that MDOC, sensibly, has created a number of reporting mechanisms, some within the grievance process and some outside of it. Thus, while sexual misconduct may be reported with a grievance that starts the path to exhaustion, this
9

does not make every other method of reporting sexual misconduct an alternative path to exhaustion. For example, a prisoner may call the sexual assault hotline, but there is no indication in the policy that a call to the hotline exhausts a claim or even begins the exhaustion process.
This conclusion is supported by the purpose of the PLRA as articulated by the Supreme Court. “The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to ‘afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.’” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Proper exhaustion allows the prison a full and fair opportunity to address complaints by requiring the prisoner to escalate the matter to such a level and in such a manner as to allows decisionmakers the chance to respond. “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. Quicker, less formal methods of raising a complaint offer prisoners easier access to fast solutions, but do not necessarily constitute proper exhaustion. It is not surprising that MDOC has created both a formal multi-step grievance process for the purpose of PLRA exhaustion, and other faster, informal reporting processes that allow for rapid responses to emerging issues.
With the understanding that only the formal grievance process laid out in PD 03.02.130 can exhaust a prisoner’s remedies under the PLRA, the court will now consider whether any of the John Does have properly exhausted their claims.
2. Application to John Doe 1-7 10

Given that proper exhaustion requires a prisoner to advance through all three levels of the grievance process, it is indisputable that no Plaintiff has properly exhausted. Defendants have carried their burden at this stage by showing that no John Does, except John Doe 3, filed a grievance about the issues in this litigation. John Doe 3 filed one grievance at the Step 1 level, but when he received no response he failed to file a Step 2 grievance. As explained above, when a prisoner receives no response or an untimely response, he is able to advance to the next step in the grievance process. PD 03.02.130 ¶ BB. Failure to do so means that the prisoner has not complied with the full process and has failed to exhaust. Thus, this court will find that, even viewing the evidence in the light most favorable to Plaintiffs, no John Doe properly exhausted his claims.
B. Whether Plaintiffs are Excused From Exhaustion or Subject to a Relaxed Exhaustion Requirement
Given that Plaintiffs’ claims are not properly exhausted, the court must next look to see if Plaintiffs could establish any reason they should be excused from the exhaustion requirement. Plaintiffs advance four theories on which they argue the court could excuse or relax the exhaustion requirement : 1) the exhaustion requirement should be relaxed or excused because of the John Does’ status as minors, 2) MDOC does not allow prisoners to grieve the type of complaints advanced in this litigation, 3) as to some John Does, developmental and learning disabilities rendered the grievance process unavailable to them, and 4) prison employees thwarted Plaintiffs’ efforts to submit grievances so that administrative remedies were not reasonably available. The court addresses each argument seriatim.
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1. Plaintiffs’ Juvenile Status Plaintiffs argue that because of their status as juveniles, they should be afforded some level of flexibility in meeting the PLRA’s exhaustion requirement. Plaintiffs cite J.P. v. Taft, 439 F. Supp. 2d 793, 826 (S.D. Ohio 2006), a case in which a district court found juvenile status to be “an integral element to its exhaustion analysis.” This court has previously noted, in its Order Regarding Scope of Discovery (Dkt. # 130), the possible import of juvenile status. Upon fuller examination, however, the court will not relax or create an exception to the PLRA’s exhaustion requirement based on a prisoner’s status as a youth. The sole question is whether, under the PLRA, youthful inmates are treated differently than adult inmates. This is a pure question of statutory interpretation, and the court, as always, begins with the text of the statute. Lamie v. United States Trustee, 540 U.S. 526, 534 (2004). “It is well established that ‘when the statute’s language is plain, the sole function of the court . . . is to enforce it according to its terms.’” Id. (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000). Additionally, “[a]s a general matter, courts should be loath to announce equitable exceptions to legislative requirements or prohibitions that are unqualified by the statutory text.” Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365, 376 (1990). “[T]he simple fact is that, as a policy matter, whether an exception should be created is a question for legislative rather than judicial judgment. United Metal Products Corp. v. National Bank of Detroit, 811 F.2d 297, 300 (1987) (citing United States v. Rutherford, 442 U.S. 544, 559 (1979)). “Only when a literal construction of a statute
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yields results so manifestly unreasonable that they could not fairly be attributed to congressional design will an exception to statutory language be judicially implied.” Id.
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). That section defines a “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law . . . .” Id. at § 1997e(h) (emphasis added). The statutory language “adjudicated delinquent” shows that Congress specifically contemplated juveniles when writing the law. See Lewis v. Gagne, 281 F. Supp. 2d 429, 433 (N.D.N.Y. 2003) (“The plain meaning of [§ 1997e(h)’s] language clearly includes juveniles.”).
While the word delinquent has other meanings in other contexts, such as “past due”, Delinquent, BLACK’S LAW DICTIONARY (10th ed. 2014), the PLRA uses the term to refer to juveniles. The statute’s definitions section makes clear that the PLRA is concerned with juveniles who are adjudicated delinquent and not individuals who, for example, are behind on their taxes. That section defines “institution” to include a facility “in which reside juveniles who are adjudicated delinquent.” 42 U.S.C. § 1997(1)(B)(iv)(III).
Other statutes use similar language to bring juveniles within reach. For example, the Sex Offender Registration and Notification Act (“SORNA”), defines the term “convicted” to include cases in which an individual is “adjudicated delinquent as a juvenile for that offense.” 42 U.S.C. § 16911(8). Additionally, SORNA, unlike the PLRA,
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does make distinctions based on an individual’s status as a minor. Section 16915 of SORNA allows for a reduction in the registration period for a tier III offender (the highest offender level) who was “adjudicated delinquent for the offense which required registration” if he maintains a clean record for twenty-five years. 42 U.S.C. § 16915(3)(B). The statute has no such provision for tier III offenders convicted as adults. Thus, Congress is capable of making distinctions between adult and youthful offenders when it wishes to. Congress chose to do so in SORNA and has not done so in the PLRA. The court will decline the opportunity to read into the PLRA an exception that is wholly unsupported by the text.
Nor does the court believe this result to be manifestly unreasonable or such an absurd result as to justify a judicially implied exception. See United Metal Products Corp., 811 F.2d at 300. The PLRA was passed “in the wake of a sharp rise in prisoner litigation in federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The statute’s purpose is to both decrease the quantity and increase the quality of prisoner suits. Porter v. Nussel, 534 U.S. 516, 528 (2002). The centerpiece of the legislation is the exhaustion requirement, which applies in any suit challenging prison conditions, not just suits under § 1983. Woodford, 548 U.S. at 84. Given the wide reach of the PLRA, and Congress’ desire to stem the flood of prisoner litigation, it is not surprising that Congress would choose to address all prisoner litigation, including litigation brought by juvenile inmates. Accordingly, this court will not second guess the reasonable policy decisions Congress made in passing the PLRA.
While the question at hand is resolved by the text of the PLRA, the court will also address Plaintiff’s contention that J.P. v. Taft, 439 F. Supp. 2d 793 (S.D. Ohio 2006),
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supports finding an exception in this case. J.P. relied heavily on the Sixth Circuit’s decision in Thomas v. Woolum, 337 F.3d 720, 726-27 (6th Cir. 2003), which established that a plaintiff’s procedural error in filing his grievance is not fatal to his claims so long as the grievance provides “fair notice” to the defendant. 439 F. Supp. at 821. Accordingly, the district court in J.P. analyzed whether the procedurally faulty grievance at issue provided “fair notice” to the prison system. Id. at 825 (“Under Thomas, then, the pivotal inquiry in assessing the adequacy of prisoner’s PLRA claim is whether prison officials had ‘fair notice’ of that claim.”). Finding that the grievance did provide fair notice, the court allowed the claims to proceed. Id. at 826.
Thomas, however, was explicitly abrogated by the Supreme Court in Woodford v. Ngo, 548 U.S. 81, 87 (2006). See also Ellis v. Vadlamudi, 568 F. Supp. 2d 778 (E.D. Mich. 2008) (noting Thomas’ abrogation). Woodford rejected the Sixth and Ninth Circuits’ more relaxed “fair notice” approach to exhaustion. 548 U.S. at 87. Instead, the Supreme Court required “proper exhaustion,” that is, exhaustion in compliance with all administrative rules and procedures. Id. at 90-91,93. Even assuming, arguendo, that juvenile status was important to the “fair notice” analysis before Woodford, that consideration has no bearing on this court’s exhaustion analysis after Woodford. The court, therefore, is not persuaded to deviate from the clear text of the PLRA, which addresses juvenile and adult prisoners equally.
2. Whether Defendants Provided A Path For Exhausting Policy Complaints Generally, to hold a prisoner to the exhaustion requirement, a prison must offer
some route to a grievance tribunal that has authority to take some responsive action. Churner v. Booth, 532 U.S. 731, 736 n. 4 (2001). This is because the inmate has
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nothing to exhaust if administrative authorities cannot act on the subject of the complaint. Id. Thus, the Sixth Circuit has held that “[s]o long as the prison system has an administrative process that will review a prisoner’s complaint . . . the prisoner must exhaust his prison remedies.” Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (quoting Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir. 1999)). On the other hand, where a prison “has a flat rule declining jurisdiction,” exhaustion is not required. Id.
At issue is whether MDOC has such a rule declining jurisdiction that applies to Plaintiffs’ claims. Plaintiffs make two arguments in the affirmative. First, they argue that joint or class grievances are not permitted under PD03.02.130, citing Figel v. Bochard, 89 Fed. App’x 970, 971 (6th Cir. 2004). Pls.’ Opp. at 17. Figel concerned conduct that occured in the early 2000s, when an earlier version of MDOC PD 03.02.130 was in effect. That version of the Policy made non-grievable “[i]ssues which affect the entire prisoner population or significant numbers of prisoners.” MDOC PD 03.02.130 ¶ F.4. (eff. 11/01/00). Accordingly, in that case, the prison rejected a grievance concerning heating and ventilation because it was a “group issue.” Figel, 89 F. App’x at 971. Plaintiffs argue that their claims are also group or class issues and so cannot be grieved. Pls.’ Opp. at 17.
The “group issue” ban, however, was removed from the next iteration of PD 03.01.130 (eff. 04/28/03) and is not in the version currently effective as of March 5, 2007. Today, issues affecting a large number of prisoners may be grieved by any
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affected individual.1 Thus Figel is inapposite, and the court will reject this rationale for excusing exhaustion.
Second, Plaintiffs argue that their claims fall within the rule provided in PD 03.02.130 ¶ F.1, such that this court should excuse Plaintiffs’ failure to exhaust. That subsection states that “[a] grievant may not grieve the content of policy or procedure except as it was specifically applied to the grievant.” Id. (emphasis in original).
Plaintiffs argue their claims fall within the rule because it is the official housing policy and the official policy of “subjecting youth to solitary confinement, tasers and other treatment inconsistent with their youthful status” that they challenge. Id. Defendants, in turn, argue that Plaintiffs’ claims either arise out of specific applications of policy to prisoners or are not related to the policy at all, so that they are all grievable. Defs.’ Reply at 8. Specifically, Youthful prisoners’ placement among adults and the failure to separate youths and adults by sight and sound are both policies that were “specifically applied” to the John Does, and thus can be grieved. Id. at 8-9. The other claims concerning the use of segregation, cross gender searches and other inappropriate staff conduct, failure to protect, and inadequate supervision are all claims, Defendants argue, involving violations of policy, not policy content, and are thus grievable. Id.
1 The current version of PD 03.02.130 (eff. 07/09/07) states that “[t]wo or more prisoners and/or parolees may not jointly file a single grievance regarding an issue of mutual impact or submit identical individual grievances regarding a given issue as an organized protest.” This is not a rule declining jurisdiction over all issues affecting a class of prisoners, instead, it is a procedural rule prohibiting class grievances.
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In two cases, as Plaintiffs point out, judges of this district have considered the same or similar MDOC bans on policy-based grievances and refused to dismiss or grant summary judgment for failure to exhaust administrative remedies.
In Mitchell v. Caruso prisoners complained that a prison’s policy of prohibiting possession of certain legal materials concerning the Uniform Commercial Code violated their First Amendment rights. No. 06-11567, 2006 WL 3825077 (E.D. Mich. Dec. 26, 2006). One plaintiff’s Step I grievance complained that the policy was overbroad and vague and violated his First Amendment rights. The plaintiff received the following response: “grievance is rejected in accordance with PD 03.02.130. You cannot grieve the content of policy and procedure.” Id. at *2. The court in Mitchell wrote that “Plaintiffs clearly challenge the content of [the policy]” and excused exhaustion. Id.
In Murphy v. Martin a prisoner brought a claim based on his exclusion from MDOC’s Technical Rules Violation (“TRV”) program. 343 F. Supp. 2d 603 (E.D. Mich. 2004). That program might have allowed for his release from prison, but the prisoner was excluded from the program based on mental disabilities for which he was medicated. The PD at issue excluded any prisoner who has “a physical or mental condition not consistent with the rigorous demands of the Program offered at the TRV center, as determined from the Offender Health Questionnaire (CFJ-129).” Id. at 608. The prisoner argued that the prison policy excluded, per se, all those with mental disabilities from the TRV program in violation of the Equal Protection Clause and various federal laws protecting the disabled. The Murphy court stated that “Plaintiff clearly takes issue with the content of a MDOC Policy Directive which on its face excludes [prisoners with mental conditions]” and excused exhaustion. Id.
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As a preliminary matter, Mitchell fails to support Plaintiffs’ argument because that case presents a factual scenario substantially different than the instant case. In Mitchell, the prisoner presented a grievance that clearly attacked the face of the policy as overbroad and vague, and MDOC explicitly rejected it based on the policy-grievance ban. Plaintiffs in this case offer no evidence that MDOC rejected their grievances (or would have rejected their grievances, had they been filed) on that ground.
Additionally, this court is not bound by the decisions of another district court, see Michigan Elec. Employees Pension Fund v. Encompass Elec. & Data, Inc., 556 F. Supp. 2d 746, 761-62 (E.D. Mich. 2008), and, for the following reasons, the opinions are not instructive in any event. Both Murphy and Mitchell were dismissed on other grounds and simply did not fully address the question posed by the operative language, “except as [the policy] was specifically applied to the grievant,” that is at issue here. Murphy, 343 F. Supp. 2d at 605 (excusing exhaustion, but ordering dismissal because “Plaintiff’s claims necessarily imply the invalidity of his conviction and should be dismissed”); Mitchell, 2006 WL 3825077 **4, 5 (excusing exhaustion, but ordering dismissal based on mootness and qualified immunity). Those courts did not consider whether the specific application of the policies to plaintiffs made their complaints grievable, and instead, in dicta, excused exhaustion and moved onto other dispositive issues. Courts give little weight to dictum when more complete analysis indicates the dictum is incorrect. See Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351,1368 (2013).
Indeed, when considering the “specifically applied” exception, other courts in this district have reached the opposite conclusion regarding the interpretation of MDOC’s ban on policy-based grievances. See Hudson v. Caruso, 2011 WL 1042296 at *7 (E.D.
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Mich. Jan. 24, 2011); Melton v. Vasbinder, 2009 WL 928861 *3 (E.D. Mich. March 30, 2009). Those courts read the language of PD 03.02.130 F.1. to create a requirement that prisoners grieve only policies that they believe have negatively impacted them. Instead of being allowed to grieve policies they merely disagree with, those courts held that prisoners may only grieve policies that were applied to them and that they allege injured them in some way.
The Hudson and Melton cases have the better of the argument. Interpreting the MDOC policy as a sweeping exception to the grievance process would allow prisoners to simply skip the PLRA’s exhaustion requirement for any complaint arising from the enforcement of any MDOC policy. A prisoner could do so through clever pleading, casting his complaint as one attacking the policy facially.
It is more sensible to understand the PD as requiring something akin to standing. Like Article III’s standing requirement, the MDOC policy is sensible because it preserves scarce prison resources by preventing a flood of grievances brought by prisoners who have only an ideological gripe with the policy. Cf. United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring) (explaining that the standing requirement prevents the Supreme Court from becoming “an open forum for the resolution of political or ideological disputes”). It also improves the quality of decisions from the grievance panel by ensuring that there is a specific controversy and set of facts before the panel on which to make a decision.
Plaintiffs’ claims arise from the specific application of prison policies to each John Doe, and, as such, are grievable claims. Thus, the court will not excuse the exhaustion requirement based on PD 03.02.130's ban on policy-based grievances.
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3. Developmental and Learning Disabilities Plaintiffs argue that there is a dispute of material fact as to whether the grievance process was available to John Does 3, 4, 5, and 6 because of their “learning disabilities and limited education.” Pls. Opp. at 24. The Sixth Circuit has held that “[t]he plain meaning of the term ‘available’ is that a prisoner is required to exhaust only those procedures that he is reasonably capable of exhausting.” Braswell v. Corrections Corp. of America, 41 F. App’x 622 (6th Cir. 2011). Thus, one person’s physical or mental incapacities could render administrative remedies unavailable. Id. at 625-26 (citing Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003) (prisoner’s broken arm that prevented him from filling out the grievance form could be grounds for excuse); Johnson-Ester v. Elyea, No. 07-4190, 2009 WL 632250, at *6 (N.D. Ill. Mar. 9, 2009) (disabling mental illness may render administrative remedies unavailable)). Plaintiffs argue, “[i]n this case, several Plaintiffs has severe learning disabilities and limited education including Does 3, 4, 5, and 6 . . . . Thus, their inability to formally invoke and follow the procedural steps required for a grievance should be excused.” Pls. Opp. at 24. When considering a motion for summary judgment, “[t]he court need consider only the cited material, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). Plaintiffs have failed to cite to any evidence in the record in support of their argument. Defendants, on the other hand, have provided exhibits to the court showing that John Does 3, 5, and 6 have all successfully submitted grievances with respect to unrelated matters. (John Doe 3: Dkt. # 133-22, Pg. ID 2959-88; John Doe 5: Dkt. # 133-24, Pg. ID 2992-3039; John Doe 6: Dkt # 133-25, Pg. ID 3042-45). As to John Doe 4, while there is no evidence that he has submitted other grievances, the
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court finds no record evidence that he is illiterate or has any mental incapacity that would render the grievance system unavailable to him. The court has, despite Plaintiffs failure to cite record evidence, reviewed the material available and found that there is no dispute of fact as to this matter.
Additionally, when a prisoner alleges that illiteracy or mental impairment has hindered his ability to file a grievance, other courts have required that the prisoner seek help and that the prison reject that request before excusing exhaustion. Peterson v. Hall, No. 11-15154, 2012 WL 3111632 at *8 (E.D. Mich. July 2, 2012) (citing Ramos v. Smith, 187 F. App’x 152, 154 (3d Cir. 2006) (“With respect to his illiteracy, the District Court correctly noted that the warden is required to give an illiterate inmate the assistance required to prepare and file an appeal. 28 C.F.R. § 542.16(b). Ramos does not claim that he asked for and was refused assistance in filing his administrative appeal. We agree with the District Court that this will not excuse his failure to exhaust.”) Indeed, MDOC PD 03.02.130 provides for situations in which prisoners have difficulty filing grievances. “Wardens and FOA Area Managers shall ensure prisoners and parolees are provided assistance in completing a grievance form, if needed. In such cases, assistance shall be provided by a staff member who is not involved in the grievance.” Id. at ¶ M. Plaintiffs have cited no evidence, and the court finds no evidence in the record, that suggests that any John Doe ever requested help in filing a grievance or that such a request was rejected. The court will therefore find that there is no dispute of material fact as to this issue.
4. Unavailability of Remedies
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A prisoner’s failure to exhaust may be excused if administrative remedies are not reasonably available, but the Sixth Circuit requires a prisoner to make “affirmative efforts to comply with the administrative procedures before analyzing whether the facility rendered these remedies unavailable.” Napier v. Laurel County, 636 F.3d 218, 223 (CA6 2011) (internal quotations and citations omitted). The Sixth Circuit has “consistently analyzed whether an inmate’s efforts to exhaust were sufficient under the circumstances, but in each case the prisoner did something.” Id. at 224. Additionally, a prisoner’s subjective belief that the procedure is ineffective or futile is not enough to excuse exhaustion. Pack v. Martin, 174 F. App’x 256, 262 (6th Cir. 2006).
Plaintiffs argue that every John Doe “‘did something’ to bring issues of sexual misconduct to Defendant’s attention.” Pls.’ Opp. at 22. This contention misses the mark, however. Exhaustion is not a protean concept, as Plaintiffs perceive it to be; it is a well defined and specific process. The question is not whether the Does did anything at all, it’s whether they did something to try to comply with the grievance procedure. In cases where the Sixth Circuit has analyzed whether a prisoner’s exhaustion efforts, though not complete, were sufficient, the prisoner has at least tried to file a grievance. See e.g., Bruce v. Corr. Med. Serv., Inc., 389 F. App’x 462, 467 (6th Cir. 2010) (noting that the prisoner tried to file a grievance but “was told Policy 501.01 wouldn’t allow it”); Rancher v. Franklin Cty., 122 F. App’x 240, 242 (6th Cir. 2005) (prisoner filed a grievance with the jail, contacted prison personnel, an submitted documents from other prisoners stating that the jail refused to accept medical grievances). No Plaintiff, except Doe 3, submitted even a Step I grievance, and thus they cannot claim that exhaustion would
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have been futile.2 As the Sixth Circuit stated, ‘the only way to determine if the process
was available, or futile, was to try.” Napier, 636 F.3d at 224.
Plaintiffs also allege that prisoner complaints of sexual harassment were “not
processed as grievances and therefore the prisoner [could not] exhaust that process.”
Def.’s Opp. at 14. Instead, they claim, prisoners were informed that the issues “will be
handled administratively” and that the investigations were conducted and closed by
PREA investigators. Id. As such, “Defendants did not utilize the grievance process to
resolve the sexual misconduct grievances and the response of the MDOC did not allow
for any appeal to step 2 or 3 of the grievance process.” Id.
Given MDOC’s grievance procedure, Plaintiffs cannot be correct that responses
of this nature would “not allow for any appeal to step 2 or step 3.” MDOC PD 03.02.130
provides that a prisoner may file a Step II grievance if he “is dissatisfied with the
response received at Step I or if [he] did not receive a timely response.” ¶ BB. The
same goes for Step III. ¶ FF. If a prisoner is dissatisfied because his grievance has
2 Additionally, the court notes that this finding—that Plaintiffs’ failure to attempt to comply with the grievance process precludes their argument that exhaustion was futile—also resolves their contention that summary judgment would be premature. Federal Rule of Civil Procedure Rule 56(d), formerly Rule 56(f), allows a nonmoving party to submit an affidavit stating that he is unable to present facts essential to his opposition and should be afforded more discovery. “It is up to the party opposing the motion to state why more discovery is needed.” Wallin v. Norman, 317 F.3d 558, 564 (6th Cir. 2003). At this point, the only evidence that would be essential, or even material, to Plaintiffs’ opposition is evidence that the John Does tried to comply with the grievance process. Plaintiffs, in their affidavit, Pls.’ Mot. at Ex. 10, and in their motion make no representation that they seek or hope to discover such material. They merely request additional discovery on the alleged assaults and various John Does’ attempts to raise their concerns outside of the grievance process. New evidence of this type is not essential to their opposition to a motion for summary judgment for failure to exhaust, and summary judgment is not premature.
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been investigated and resolved by PREA investigators or “handled administratively,” a prisoner would always have the option of filing a grievance at the next level. By doing so he would exhaust the prison’s administrative process and gain access to the federal courts.
Moreover, it is undisputed that John Does 1, 2, 4, 5, 6, and 7 never tried to file a grievance concerning the issues in this case. Thus, these plaintiffs cannot argue that their grievances were processed incorrectly. Given that this and all of Plaintiffs’ above arguments concerning exhaustion have failed, and there are no remaining disputes as to any material facts concerning John Does 1, 2, 4, 5, 6 and 7, summary judgment is proper as to these Plaintiffs.
John Doe 3 did file one Step I grievance but received no response from the prison. Plaintiffs argue that a prison’s untimely response or failure to respond to a grievance excuses exhaustion, citing Boyd v. Corr. Corp. of America, 380 F.3d 989 (6th Cir. 2004). Pls.’ Opp. at 23. Boyd does not support Plaintiffs proposition, however, because there are important factual distinctions between that case and the instant case. Critical to the Sixth Circuit’s decision in Boyd was the fact that Boyd “was required to wait for a grievance officer to make a decision regarding his formal grievance before he could appeal to the warden.” 380 F.3d at 996. Thus, by not responding, the prison rendered the rest of the grievance process unavailable to the prisoner. That is not so here. MDOC allows appeal to the next grievance step even when the prisoner has received no response or an untimely response. Thus, Doe 3 was free to appeal to the next step once the prison’s response time expired. The administrative remedy was still available to him.
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Plaintiffs however raise one factual issue that Defendants have made no effort to refute with regards to Doe 3. Doe 3 stated in deposition that “there’s some grievances that I wrote that I know that they ripped up because they ripped them up in front of my face.” (Dkt. # 133-8, Pg. ID 2831). Thus, Plaintiffs argue that prison officials thwarted Doe 3's efforts to grieve and that this factual issue precludes summary judgment.
The Sixth Circuit’s decision in Surles v. Andison, 678 F.3d 452, 457 (6th Cir. 2012) is instructive. In Surles, a prisoner alleged that when he “attempted to file a grievance . . . [a prison official] refuse [sic] to file or process these grievances.” Reversing the district court’s grant of summary judgment, the Sixth Circuit held that MDOC did not adequately show that its employees did not interfere with the prisoner’s ability to use the grievance process. Id. at 457-58. The circuit noted, “if the plaintiff contends that he was prevented from exhausting his remedies [the defendant] must . . . present evidence showing that the plaintiff’s ability to exhaust was not hindered.” Id. at 457 n. 10. Here too, Plaintiffs have presented some evidence in the form of testimony that Doe 3, who did file one grievance, may have been thwarted in his efforts to file others. This creates a triable issue of fact as to Doe 3, making a grant of summary judgment as to him inappropriate.
The Sixth Circuit has also, however, recently held that “disputed issues of fact regarding exhaustion under the PLRA . . . could be decided in a bench trial.” Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015). Willey condoned a district court judge’s decision to hear and weigh evidence on the matter of exhaustion before allowing the merits of a case to be tried before a jury. That procedure is appropriate here. Exhaustion is a threshold issue of judicial administration that this court “must address to
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determine whether litigation is being conducted in the right forum at the right time.” Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). Accordingly, the court will conduct a bench trial to resolve this final factual issue with respect to Doe 3 and his claim that his ability to exhaust was hindered.
IV. CONCLUSION IT IS ORDERED that Defendants’ Motion for Summary Judgment [Dkt. # 133] is GRANTED in part and DENIED in part. Summary judgment is GRANTED as to the claims of John Does 1, 2, 4, 5, 6, and 7 and DENIED as to the claims of John Doe 3. IT IS FURTHER ORDERED that the parties shall APPEAR by telephone for a status conference concerning the bench trial on exhaustion issues on February 18, 2016 at 11:00am. (The Court will initiate the call)

Dated: February 8, 2016

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, February 8, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356. DOE.msj.smq.V3.wpd

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22:1:133-c-cvv-1-144335566-R-RHHCC-R-RSSWW DDoocc##116632-1 FFileiledd0033/1/115/1/166 PPgg11oof f44 PPggIDID33770654

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, et al.,

Plaintiffs,

v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. /

ORDER (1) GRANTING PLAINTIFFS’ MOTION TO AMEND THE COMPLAINT; (2) TERMINATING AS MOOT PLAINTIFFS’ MOTIONS FOR LEAVE TO FILE
ADDITIONAL EXHIBITS AND DEFENDANTS’ MOTION TO HOLD THE MOTION TO AMEND IN ABEYANCE; AND (3) DIRECTING THE PARTIES TO SUBMIT A PROPOSED SCHEDULING ORDER

Plaintiffs filed the instant “Motion for Leave to File First Amended Complaint,”

seeking to add five new John Doe plaintiffs, John Does 8-12. (Dkt. # 132.) Defendants

opposed that motion, (Dkt. # 135), and moved the court to hold the motion to amend in

abeyance, (Dkt. #139). Plaintiffs filed a reply, (Dkt. # 140), and also filed two motions for

leave to file additional exhibits in support of the Motion for Leave to File First Amended

Complaint, (Dkt. ## 149, 154.) On March 8, 2016 the court held a hearing on the motion

to amend and orally granted that motion. At the hearing, the court also established that

the time for filing further amendments to the complaint is now closed. Finally, the court

directed the parties to submit a proposed scheduling order establishing a discovery

period and briefing schedule with regards to the exhaustion issue as it pertains to the

new John Does. Counsel for both parties represented that such a proposed order could

be submitted by Monday, March 14, 2016.

22:1:133-c-cvv-1-144335566-R-RHHCC-R-RSSWW DDoocc##116632-1 FFileiledd0033/1/115/1/166 PPgg22oof f44 PPggIDID33770665
For the reasons stated below and on the record at the hearing, the court grants Plaintiffs’ Motion for Leave to File First Amended Complaint, and terminates as moot the motion to hold the motion to amend in abeyance and the two motions for leave to file additional exhibits.
Leave to amend is “freely given when justice so requires.” Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). Denial may be appropriate, however, where there is “undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). As Plaintiffs point out, “[t]he court has not established a discovery cut-off deadline, trial date or date for filing a motion for class certification.” (Dkt. # 132, Pg. ID 2686.) Nor has the court, before this order, established a deadline for amendments to the complaint.
Defendants argue, in part, that the amendment would be futile because the new Doe plaintiffs have not shown that they fully exhausted their administrative remedies, and thus are subject to a Rule 56 summary judgment challenge. This argument, however, misapprehends the standard for futility in the Sixth Circuit. “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). The possibility that the proposed plaintiffs may not overcome a summary judgment challenge is not relevant to the court’s inquiry today.
Because Rule 15 “plainly embraces a liberal amendment policy,” Demings v. Nationwide Life Ins. Co., 593 F.3d 486, 493 (6th Cir. 2010) (quoting Morse v.

22:1:133-c-cvv-1-144335566-R-RHHCC-R-RSSWW DDoocc##116632-1 FFileiledd0033/1/115/1/166 PPgg33oof f44 PPggIDID33770676

McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)), and because Defendants have not

identified any “undue delay, bad faith, or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of

the amendment,” Foman, 371 U.S. at 182, Plaintiffs’ motion is granted. The court is,

however, wary that continual amendments adding new Does could allow Plaintiffs to

repeatedly escape dismissal for failure to exhaust administrative remedies, so the court

also now closes the period during which Plaintiffs may amend their complaint.

Accordingly, IT IS ORDERED that Plaintiff’s Motion for Leave to File First

Amended Complaint, (Dkt. # 132), is GRANTED, and Plaintiffs’ motions for leave to file

additional exhibits, (Dkt. ## 149, 154), and Defendants’ motion to hold in abeyance,

(Dkt. #139) are TERMINATED as moot.

IT IS FURTHER ORDERED that Plaintiffs will, forthwith, file the Amended

Complaint (devoid of any bolding to indicate amended material) and that no further

amendments to the complaint shall be allowed, except for good cause. Defendants shall

file an Answer in accordance with Federal Rule of Civil Procedure 12.

IT IS FURTHER ORDERED that the parties are DIRECTED to jointly submit a

proposed scheduling order no later than March 18, 2016, establishing a discovery

period and briefing schedule addressing the exhaustion issue as it pertains to John

Does 8-12.

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

Dated: March 11, 2016

22:1:133-c-cvv-1-144335566-R-RHHCC-R-RSSWW DDoocc##116632-1 FFileiledd0033/1/115/1/166 PPgg44oof f44 PPggIDID33770687 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, March 11, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522
S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356. DOE.grantamend.V2.smq.wpd

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION _________________________________________________________________

JOHN DOES 1-12,

Plaintiffs,

v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendant. /

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS JOHN DOE 8, 9, AND 10, AND DENYING
SUMMARY JUDGMENT AGAINST PLAINTIFF JOHN DOE 12

Pending before the court is Defendants’ Motion for Summary Judgment against

Plaintiffs John Does 8, 9, 10, and 12. (Dkt. #193.) Plaintiffs have filed a response, (Dkt.

#198), and Defendants have filed a reply, (Dkt. #202). After reviewing the briefs, the

court concludes that no hearing necessary. See E.D. Mich. LR 7.1(f)(2). For the

following reasons, the court will grant in part and deny in part Defendants’ motion.

I. BACKGROUND

Plaintiffs are several former juvenile prisoners who had been imprisoned

alongside adults in Defendant Michigan Department of Corrections (“MDOC”) facilities.

Plaintiffs allege that they suffered physical injuries and sexual abuse as a result of this

policy by MDOC. Plaintiffs have filed their action under 42 U.S.C. § 1983 as well as 18

U.S.C. §§ 1591 and 1594. This court granted summary judgment against John Does 1,

2, 4, 5, 6, and 7 on February 8, 2016, for failure to exhaust administrative remedies,

reserving for bench trial the question of whether Doe 3's failure to exhaust may have

been excused by efforts to thwart his filing of grievances. (Dkt. #156.) Thereafter the court granted Plaintiffs leave to amend their complaint to add five new John Does as Plaintiffs, John Does 8-12. (Dkt. #162.) The court then denied a motion by Plaintiffs to reconsider its earlier partial grant of summary judgment, (Dkt. #188), and Defendants filed the instant motion seeking summary judgment against Does 8, 9, 10, and 12 (“Does”) on the basis that they, too, failed to exhaust their administrative remedies. (Dkt. #193.)
Thereafter the court denied Plaintiffs’ request for extended discovery into the questions of alternative exhaustion methods and a supposed policy prohibiting transferred prisoners from pursuing the grievance process related to their incarceration at the prior facility. (Dkt. #194.) The court deemed the former question irrelevant in light of its holding on the prior summary judgment motion that no alternative methods of satisfying the exhaustion requirement existed, and it deemed the latter question to be unsupported in light of the MDOC Operating Procedure which outlines a process for pursuing exactly those kinds of grievances. Three months after the instant motion was filed, Plaintiffs still had not submitted any response brief in opposition. The court ordered submission of such a brief, (Dkt. #196), and Plaintiffs complied, (Dkt. #198).
Defendants argue that the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that cases brought under federal law challenging prison conditions require that Plaintiffs first exhaust their available administrative remedies. They claim that Does were aware of the MDOC grievance policy and did not avail themselves of it prior to filing suit. Specifically, they argue that Does 8 and 9 admitted in their discovery responses and affidavit that they did not file grievances in connection with the incidents
2

which are the subject of this suit, and their requests for protection are not sufficient to substitute for properly exhausting the grievance process. They also argue that although John Doe 10 filed several grievances, they were all either rejected, denied, or resolved without appeal through all three appellate steps prior to suit as required under the MDOC policy and the PLRA. Defendants claim that the same is true of John Doe 12 and that his grievances do not relate to the incidents which are the subject of this suit with the exception that one grievance filed while John Doe 12 was an adult,1 alleged sexual harassment by older prisoners, was denied, and was unsuccessfully appealed through all three steps. However, Defendants contend that even that grievance does not satisfy the exhaustion requirements because it failed to name several of the Defendants to this action and thus did not provide them notice and an opportunity to resolve the problem, and that it is irrelevant to the subject matter of the instant suit involving a policy of housing minors with adults.
Plaintiffs respond that their constitutional challenges to the MDOC policy are not subject to an exhaustion requirement, that the factual record supports an interpretation that the Plaintiffs did attempt to satisfy the exhaustion requirement even though they were not permitted access to extended discovery, and that unique barriers to satisfying the exhaustion requirement exist for victims of sexual assaults, which justifies a relaxed standard. They argue that the MDOC policy allows prisoners to submit reports of sexual
1Defendants’ brief claims that Plaintiff was 19 years old when he filed the grievance, (Dkt. #193, Pg. ID 4209), then later states that he was 21 years old at the time, (Id., Pg. ID 4230). This inconsistency is immaterial; in either case, he was not a minor.
3

misconduct through verbal or written reports to any staff member or the MDOC sexual abuse hotline in addition to the normal grievance process.
Plaintiffs argue that each John Doe has met the requirement under this expanded and relaxed matrix. They claim that John Doe 8 verbally reported sexual harassment to corrections officers but was punished; then he reported misconduct to a resident unit supervisor and was told nothing could be done; and ultimately submitted a grievance against a corrections officer after his transfer to another prison but was subject to retaliation and encouraged to dismiss the grievance. According to Plaintiffs, John Doe 9 reported sexual assaults to staff on three occasions but was ignored, told to “get used to it” or accused of lying and placed in segregation. They claim that John Doe 10 was retaliated against by corrections officers after reporting harassment to a sergeant, denied access to grievance forms when he requested them, or disciplined for filing grievances. Finally, they argue that John Doe 12 reported his assault to prison staff but was threatened with transfer to a facility away from his family.
Plaintiffs also argue that the claims alleged here regarding the MDOC policy were not grievable under the MDOC grievance rules, which prohibited grievances which involve a significant number of prisoners or which attack the content of a policy of procedure as these claims plainly do. Since they cannot be grieved in the first place, the argument goes, these claims are not subject to the formal grievance exhaustion requirement. Additionally, Plaintiffs claim that the grievance procedure is not mandatory in cases involving sexual misconduct.
Finally, Plaintiffs argue that the PLRA only requires that Plaintiffs exhaust those administrative remedies which are truly available to the inmate. They claim that threats
4

of retaliation by other inmates and staff, efforts to thwart Plaintiffs’ ability to submit formal grievances, and Plaintiffs’ lack of knowledge or understanding about the grievance process all excuse a lack of strict compliance with the formal exhaustion procedure. They claim that Plaintiffs exhausted their administrative remedies to the extent that any were truly available to them.
Defendants reply that Plaintiffs’ arguments miss the mark because the court’s prior order on summary judgment determined that no alternative avenues satisfied the PLRA exhaustion requirement. They continue that, in any case, the Defendants to the instant suit did not themselves engage in any misconduct nor are they identified in the original grievances or complaints. Defendants also assert that the claims at issue are grievable, because they are based on specific instances of MDOC housing policy and the conduct of staff; it would not be appropriate for the court to permit Plaintiffs to sidestep the exhaustion requirement merely by styling their complaint as a putative class action. They argue that the theory that MDOC policy is not grievable has already been rejected by this court, and that Plaintiffs’ authority holding that sexual misconduct is not subject to the exhaustion requirement is mistaken. Finally, they argue that failure to exhaust was not excused as Defendants have not been identified as attempting to thwart the grievance process, John Does 8, 10, and 12 all actively filed grievances against staff on other grounds, that Plaintiffs received training on the grievance process, that any fears of retaliation do not meet the “serious threat of substantial retaliation” standard required to excuse exhaustion, and that allegations that Plaintiffs did not understand the grievance procedure lacked factual support.
5

II. STANDARD Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]hat burden may be discharged by showing . . . that there is an absence of evidence to support the nonmoving party’s case.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (internal quotation marks omitted). The burden then shifts to the nonmovant, who must put forth enough evidence to show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citation omitted). Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). In evaluating a summary judgment motion, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial . . . credibility judgments and weighing of the evidence are prohibited.” Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015) (internal quotation marks and citations omitted).
III. DISCUSSION A. Questions Addressed in Prior Summary Judgment Opinion
6

This court has already had occasion to rule on several of the arguments presented by Plaintiffs. Among these are Plaintiffs’ argument that “because of their status as juveniles, they should be afforded some level of flexibility in meeting the PLRA’s exhaustion requirement.” (Dkt. #156, Pg. ID 3600.) Though this court dedicated nearly four full pages of its earlier opinion to addressing this “pure question of statutory interpretation,” (Id., Pg. ID 3600-3603), Plaintiffs have simply repeated verbatim the corresponding portion of the response brief to the earlier motion in their new brief in response to the instant motion, (Compare Dkt. #144, Pg. ID 3190; with Dkt. #198, Pg. ID 5056-57). Thus, for the reasons stated in the previous opinion, the court once again rejects Plaintiffs’ argument and finds that for the purposes of exhaustion, the PLRA “addresses juvenile and adult prisoners equally.” (Dkt. #156, Pg. ID 3603.)
Similarly copied directly from their previous brief without alteration is Plaintiffs’ extended argument that the exhaustion requirement does not apply to the claims asserted in this case because they are not grievable. (Compare Dkt. #144, Pg. ID 318284; with Dkt. #198, Pg. ID 5033-35.) This court’s earlier opinion rejected Plaintiff’s view following a five-page examination, finding that “Plaintiffs’ claims arise from the specific application of prison policies to each John Doe, and as such, are grievable claims.” (Dkt. #156, Pg. ID 3603-08.) As Plaintiffs have carried over their argument verbatim, this court has been given no reason to revisit its earlier reasoning and thus finds that the claims are grievable for the reasons articulated in its earlier opinion.
This court has also disposed of the argument that the exhaustion requirement does not apply to allegations of sexual wrongdoing. “The PLRA requires exhaustion for all actions under section 1983 ‘or any other federal law.’” (Dkt. #188, Pg. ID 4102.) Here
7

as well, Plaintiffs’ claims sound in federal law, and thus are subject to the PLRA’s exhaustion requirement.
Finally, this court has also already addressed the question of what constitutes proper exhaustion in this case. In response to Plaintiffs’ argument that administrative processes other than the normal three-step grievance procedure could satisfy the PLRA’s exhaustion requirement, this court “reject[ed] this contention and [found] that the formal grievance process is the only method of exhaustion that MDOC has made available to Plaintiffs.” (Dkt. #156, Pg. ID 3596.) The court reiterated that finding when it denied Plaintiffs’ request to take deposition testimony on alternative methods of exhaustion, stating that “Plaintiffs have apparently not digested the court’s holding in its [earlier order.] There, the court held that alternative methods for reporting and handling sexual assault issues do not create alternative methods of exhaustion under the Prisoner Litigation Reform Act.” (Dkt. #194, Pg. ID 5006.) Evidently seeking a third bite at the apple, Plaintiffs once again contend that informal methods of reporting sexual harassment and abuse satisfy the exhaustion requirement of the PLRA without having given the court any reason to depart from its earlier unequivocal determination that they do not. Thus having disposed of Plaintiff’s recycled threshold arguments, the court shall again, “[w]ith the understanding that only the formal grievance process laid out in 03.02.130 can exhaust a prisoner’s remedies under the PLRA, . . . consider whether any of the John Does have properly exhausted their claims.” (Dkt. #156, Pg. ID 3598.)
B. Whether Plaintiffs Exhausted or Exhaustion is Excused In its earlier opinion this court described the applicable, formal grievance procedure in detail:
8

First, within two days of discovering a problem, prisoners are directed to attempt to informally resolve their problem with the staff member involved. If that fails, the prisoner must file a Step 1 grievance within five days of the attempted resolution. If the prisoner is dissatisfied with the response, or if the prisoner does not receive a timely response, he can file a Step II grievance within ten days. Similarly, if a prisoner receives an unsatisfactory response or no response at Step II, he can file a Step III grievance within ten days. Complaints filed by prisoners “serve to exhaust a prisoner’s remedies only when filed as a grievance through all three steps of the grievance process.”
(Dkt. #156, Pg. ID 3596.) However, a prisoner’s failure to exhaust may be excused if the
administrative remedies are not reasonably available so long as the prisoner has made
“affirmative efforts to comply with the administrative procedures before analyzing
whether the facility rendered these remedies unavailable.” Napier v. Laurel County, 636
F.3d 218, 223 (6th Cir. 2011) (internal quotations and citations omitted). The Sixth
Circuit has “consistently analyzed whether an inmate’s efforts to exhaust were sufficient
under the circumstances, but in each case the prisoner did something.” Id. at 224.
Additionally, a prisoner’s mere subjective belief that the procedure is ineffective or futile
does not excuse exhaustion. Pack. v. Martin, 174 F. App’x 256, 262 (6th Cir. 2006). For
the reasons discussed above, the court will evaluate whether Plaintiffs have followed
the required procedure, or if, alternatively, failure to strictly comply with this procedure is
excused.
1. John Doe 8
John Doe 8 was born in June of 1994 and entered an MDOC facility at age 17 in
January 2012. Defendants point to the discovery responses and affidavits of John Doe
8 to argue that he admits to having failed to file any grievance regarding the two
incidents of alleged sexual harassment or assault that allegedly occurred while he was
9

incarcerated and before he was 18 years old.2 (Dkt. #193-8, Pg. IDs 4508-30.) Plaintiffs do not dispute that no formal grievance was filed but contend that John Doe 8 was unaware of the grievance process at the time, thought that complaining about sexual harassment would be futile, and reported the incidents informally. As discussed above, the informal reporting steps John Doe 8 took are not sufficient to satisfy the exhaustion requirement. Defendants have produced evidence that John Doe 8 received early training on grievance procedure in the form of a document signed by John Doe 8 and dated February 16, 2012, listing a topic heading of “Grievance Procedure/Disciplinary Process” as having been included in the orientation. (Dkt. #193-5, Pg. IDs 4992, 4494.) The claims that Plaintiff was not aware of the grievance procedure or thought it would be futile are supported only by John Doe 8's own self-serving affidavit. “It is well established, however, that such conclusory and self-serving affidavits without factual support in the record, do not create a triable issue of fact.” Kelly Aerospace Thermal Sys., LLC v. ABF Freight Sys., Inc., No. 15-12227, 2016 WL 3197561, at *3 (E.D. Mich. June 9, 2016) (citations omitted). As such, no triable issue of fact remains; John Doe 8 did not exhaust his administrative remedies, and he has no viable excuse for the failure.
2. John Doe 9 John Doe 9 was born in January of 1994 and entered prison in September of 2011 at age 17. As with John Doe 8, this court will concern itself only with those instances of harassment or assault alleged to have occurred prior to January 2012
2Only some of the alleged attacks occurred while Plaintiffs were underage. As this case relates to the policy of MDOC housing minors with adults, the court will ignore as irrelevant alleged sexual misconduct that occurred after John Does reached 18, the age of majority.
10

when John Doe 9 reached the age of majority. Defendants argue that, like John Doe 8, he admits to having filed no formal grievance regarding any sexual misconduct that allegedly occurred while he was underage. (Dkt. #193-9, Pg. IDs 4534-58.) Plaintiffs do not dispute that John Doe 9 did not follow the formal grievance procedure, though they argue that several other steps were taken to inform prison staff of the misconduct. As discussed above, informal reporting mechanisms which deviate from the formal grievance procedure are not sufficient.
Since no triable issue exists as to whether John Doe 9 properly exhausted his administrative remedies, the only remaining issue is whether this failure was excused. Like John Doe 8, John Doe 9 claims that he was not trained and thus unaware of the grievance process during the time the relevant attacks occurred and cites only to his own affidavit. (Dkt. #198-10, Pg. ID 5128.) However, Defendants have identified contrary evidence that such training did take place identical to that offered on John Doe 8's orientation training with the exception that it contains John Doe 9's signature and a date of October 11, 2011. (Dkt. #193-5, Pg. IDs 4992, 4495.) Therefore the court similarly finds that, on this record, lack of training cannot excuse John Doe 9's failure to exhaust his administrative remedies.
Nor does Plaintiff provide any evidence that the grievance procedure would have been futile or that he had been retaliated against by prison staff for reporting misconduct that occurred while he was underage. Without citation to the record, Plaintiffs argue that staff informed John Doe 9 that he “had to get used to” sexual harassment, but was then placed in protective custody. In another instance staff offered to send him to “security classification 4.” Following another instance staff investigated abuse and apparently
11

transferred him to another facility, where he was first informed by staff that attempted sexual intimidation by other inmates “comes with” being imprisoned before once again being placed under protective segregation. Setting aside the glaring omissions of citation to the factual record as to the arguably discouraging statements made by staff, no reasonable jury would conclude that these statements–especially coupled with efforts to place him in protective custody–would have deterred “a person of ordinary firmness from continuing with the grievance process.” Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 578 (6th Cir. 2014), aff'd and remanded sub nom. Simmons v. Himmelreich, 136 S. Ct. 1843, 195 L. Ed. 2d 106 (2016); see also Threatt v. WilliamsWard, No. 15-12585, 2016 WL 6653013, at *5 (E.D. Mich. July 13, 2016), report and recommendation adopted sub nom. Threatt v. Williams, No. 15-12585, 2016 WL 4607639 (E.D. Mich. Sept. 6, 2016) (failure to exhaust not excused where officer “threatened [the prisoner] by calling him names and . . . intimidated him by staring at him and rolling his eyes”). Therefore, no triable issue remains; John Doe 9's failure to exhaust his administrative remedies was not excused.
3. John Doe 10 John Doe 10 was born in April of 1994 and entered prison in December of 2010 at 16 years of age. Defendants argue that John Doe 10 has also admitted to having not filed any grievance related to the alleged sexual misconduct that occurred while he was underage. (Dkt. #193-10, Pg. IDs 4571-4588). Like the other Plaintiffs, he does not dispute this but instead contends that he was not aware of the grievance policy through citation to his own affidavit. (Dkt. #198-16, Pg. ID 5148.) However, this claim is belied by the fact that he filed a grievance on October 14, 2011 regarding his television. (Dkt.
12

#193-10, Pg. ID 4567-70.) This is around the time of the abuse that John Doe 10 claims occurred. In light of evidence to the contrary and citing only to his own affidavit, Plaintiff has not raised a triable issue as to whether he was aware of the grievance procedure.
However, John Doe 10 also alleges that he was denied grievance forms by prison staff after March 2012. Unfortunately, this is not enough to survive summary judgment either. “This court has held that it is insufficient to allege that grievance forms were denied in order to excuse the exhaustion of administrative remedies; a prisoner must attempt to file a grievance without a form.” Anderson v. Meeks, 79 F. App'x 113, 114 (6th Cir. 2003) (citing Jones v. Smith, 266 F.3d 399 (6th Cir. 2001)). John Doe 10 does not claim to have attempted to file a grievance without a form. Thus, with respect to conduct alleged to have occurred while he was underage, John Doe 10's failure to exhaust is not excused by the denial of grievance forms.
John Doe 10 claims that prison staff made jokes about sexual predators at the facilities, again citing only to his own affidavit. Even assuming arguendo that this is true, it would not have deterred a person of ordinary firmness from pursuing the grievance process. In Williams v. Newell, the district court upheld a finding by a Magistrate Judge that a threat from a prison nurse to deny medical treatment if plaintiff filed a grievance would not have met this standard because the nurse “was but a single member of a medical staff at a large correctional facility” and plaintiff had filed many other grievances. No. 99-10251, 2002 WL 1559762, at *3 (E.D. Mich. July 15, 2002). Similarly here, jokes from individual members of prison staff would not have prevented a prisoner of ordinary firmness from pursuing grievances.
13

Finally, John Doe 10 also alleges without citation to any evidence that he had an 8th grade education at the time he entered prison. Though this might have hindered his ability to follow the formal grievance procedure, the fact that he successfully filed a grievance related to his television suggests otherwise. As discussed in this court’s earlier opinion, when a prisoner alleges that illiteracy or mental impairment has hindered his ability to file a grievance, other courts have required that the prisoner seek help and that the prison reject that request before excusing exhaustion. Peterson v. Hall, No. 1115154, 2012 WL 3111632 at *8 (E.D. Mich. July 2, 2012) (citing Ramos v. Smith, 187 F. App’x 152, 154 (3rd Cir. 2006). Nowhere does John Doe 10 allege or provide evidence which suggests that he sought help and was denied. Therefore, no triable issue exists to suggest that his limited education prevented him from exhausting his administrative remedies. The court finds that Plaintiffs have not provided sufficient evidence to create a triable issue as to whether John Doe 10's failure to exhaust his administrative remedies was excused.
4. John Doe 12 John Doe 12 was born in May of 1993 and entered prison in October of 2010 at 17 years old. Defendants argue that although John Doe filed several grievances over the course of his time in prison, he did not file any formal grievances regarding sexual misconduct that occurred while he was underage. Plaintiffs do not contest this. The court therefore finds that John Doe 12 did not exhaust his administrative remedies. As to whether this failure was excused, John Doe 12 alleges that, following a particularly disturbing sexual assault by several adult prisoners while he was still underage, he attempted to report the incident to prison staff, who told him that he “must
14

have agreed to it” and sent him to the medical unit. Later, after John Doe 12 informed another staff member that he wanted to file a formal grievance, the staff member threatened to have him transferred to another facility where he would be less likely to receive visitation from his family, which induced him not to pursue his request to file a grievance. If supported by evidence, this would likely support a finding that the exhaustion requirement was excused, as, resolving all questions of fact in favor of the Plaintiffs, a reasonable jury could find even a person of ordinary firmness would have been dissuaded from continuing down the path of formal grievance by such threats. However, Plaintiff once more relies only on his own self-serving affidavit.
The Sixth Circuit has held that “if the plaintiff contends that he was prevented from exhausting his remedies [the defendant] must . . . present evidence showing that the plaintiff’s ability to exhaust was not hindered.” Surles v. Andison, 678 F.3d 452, 457 n. 10 (6th Cir. 2012). Unlike the defendants in Surles, who only showed that the plaintiff had managed to file other grievances, Defendants have supplied some evidence that what they claim to be the only two staff members that could have been the source of the threat did not actually make the statements Plaintiffs allege. (Dkt. #193-19, Pg. ID 49985000; Dkt. #193-20, Pg. ID 5002-5004.) This evidence consists of two nearly identical affidavits averring to having no recollection of having spoken to John Doe 12 as alleged. Defendants do not cite to any factual record for the claim that no other officer could possibly have matched the description of the threatening officer. Resolving this ambiguity in favor of Plaintiffs, the court concludes that a triable issue of fact exists as to whether John Doe 12's failure to exhaust his administrative remedies was excused in virtue of these alleged threats.
15

Just as this court found in its prior order that a bench trial would be appropriate to resolve the exhaustion question as to John Doe 3, (Dkt. #156, Pg. Ids 3614-15), the court shall convene a bench trial on the same question with respect to John Doe 12 for the same reasons described in that opinion. Also, since the court will grant summary judgment on John Does 8, 9, and 10 but finds that exhaustion may be excused for John Doe 12, the court does not need to address Defendants’ argument that Plaintiffs failed to include certain named Defendants within the content of their grievances. As before, the grant of summary judgment is to be treated as a dismissal without prejudice. (Dkt. #188, Pg. ID 4100.)
IV. CONCLUSION IT IS ORDERED that Defendants’ Motion for Summary Judgment (Dkt. #193) is GRANTED in part and DENIED in part. Summary judgment is GRANTED as to the claims of John Does 8, 9, and 10 and DENIED as to the claims of John Doe 12. IT IS FURTHER ORDERED that the parties shall APPEAR by telephone for a status conference concerning the bench trial on exhaustion issues on April 3, 2017 at 10:30 a.m.

Dated: March 14, 2017

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, March 14, 2017, by electronic and/or ordinary mail.

s/Shawna C. Burns Case Manager Generalist (810) 292-6522

16

 
 2:13-cv-14356-RHC-RSW Doc # 215 Filed 02/21/18 Pg 1 of 6 Pg ID 5578

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES 1–12,

Plaintiffs,

v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. /

OPINION AND ORDER RESOLVING NOT TO APPLY IMPUTED EXHAUSTION AT THIS TIME

Before the court is Plaintiffs’ “Memorandum in Support of Application of Vicarious

Exhaustion of Administrative Remedies.” (Dkt. #207.) Defendants have filed a response

(Dkt. #212), and Plaintiffs a reply (Dkt. #214). The court has determined that a hearing

is unnecessary. E.D. Mich. LR 7.1(f)(2). For the following reasons, the court will deny

the requested relief.

I. BACKGROUND

The court held a telephonic status conference with counsel on April 3, 2017. The

parties discussed arrangements for the most efficient method for progressing the

litigation in light of this court’s opinion granting summary judgment as to some Plaintiffs.

(Dkt. #204.) Rather than proceed directly to a bench trial on the question of exhaustion

for Plaintiffs John Doe 3 and John Doe 12, the parties concluded that another path

might be more expeditious. Plaintiffs indicated that they may argue that John Doe 11,

whose failure to exhaust is excused because he is no longer incarcerated, can

2:13-cv-14356-RHC-RSW Doc # 215 Filed 02/21/18 Pg 2 of 6 Pg ID 5579
represent the class and his satisfaction—or the excuse thereof—of the exhaustion prerequisite to Article III standing can be imputed to those purported class members who are still incarcerated. The parties believed that should the court concur with Plaintiffs’ view on this question, there would be no need for a bench trial on exhaustion as to John Doe 3 or John Doe 12. Thus, the parties agreed to suspend motion practice and delay progress toward class certification or a bench trial until this question was resolved. On May 8, 2017, this court entered an order consolidating the instant case with Does v. MDOC, et al., No. 16-13765, which involves nearly identical claims brought by Plaintiffs previously dismissed from this action without prejudice for failure to exhaust administrative remedies. (Dkt. #208.)
Before proceeding, the court pauses momentarily to lay out the field of this case as it currently stands. Plaintiffs initially filed this case on behalf of John Does 1–7. (Dkt. #1.) The court granted Defendants’ motion for summary judgment as to all Plaintiffs except John Doe 3. (Dkt. #156.) The court determined that, with the exception of John Doe 3, none of the John Doe Plaintiffs had exhausted their administrative remedies as required by the PRLA. But there was a question of fact as to whether John Doe 3 was excused from the exhaustion requirement. The court indicated that the fact issues pertaining to John Doe 3 would be scheduled for an evidentiary hearing.
Plaintiffs then amended their complaint to add John Does 8–12. (Dkt. #163.) Following Defendants’ motion for summary judgment as to John Does 8, 9, 10, and 12 for their purported failure to exhaust, the court granted the motion as to John Does 8–10 but held that issues of fact remained as to whether John Doe 12 was excused from the exhaustion requirement. (Dkt. #204.) Remaining, then, were John Does 3, 11, and 12.
2

2:13-cv-14356-RHC-RSW Doc # 215 Filed 02/21/18 Pg 3 of 6 Pg ID 5580
John Does 3 and 12 were to be scheduled for evidentiary hearings. John Doe 11, who is no longer incarcerated, was indisputably not subject to the exhaustion requirement.
After the amended complaint was filed in this case, John Does 1, 2, 4, 5, 6, and 7 refiled their claims in a new case, No. 16-13765. Defendants filed a motion for summary judgment in that case as to all Plaintiffs except John Doe 7, who had been released from incarceration when the subsequent complaint was filed. As noted above, that case was consolidated with the present action in May 2017, and briefing on the summary judgment motion has been suspended.
This consolidated action thus has two Plaintiffs not subject to pending dispositive motions: John Doe 7 and John Doe 11. The status of John Does 3 and 12 is unresolved as they are still subject to evidentiary hearings. John Does 1, 2, 4, 5, and 6 are subject to the suspended summary judgment motion. Relatedly, Plaintiffs have also refiled the claims of John Does 8, 9, and 10 in a separate action, No. 17-11181. Those Plaintiffs are similarly subject to a pending motion for summary judgment, though that motion has not been suspended.
II. DISCUSSION Plaintiffs argue that the court should rule that the applicable administrative exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”), is deemed satisfied for all purported class members because the administrative exhaustion by one of the Plaintiffs can be imputed across the entire purported class.1 Conceding that the Sixth Circuit has not addressed this issue,
1 The parties are in apparent agreement that failure to exhaust does not operate as a bar for John Doe 7 and John Doe 11, who were no longer incarcerated at the time the relevant complaints were filed.
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2:13-cv-14356-RHC-RSW Doc # 215 Filed 02/21/18 Pg 4 of 6 Pg ID 5581
Plaintiffs point to a number of decisions from other circuits which held that exhaustion by one plaintiff can be imputed across the entire class. According to Plaintiffs, the single instance of exhaustion put officials on notice about the need to rectify problems common to the class without the demanding administrative burden of processing identical grievances by scores of potential class plaintiffs. Plaintiffs also analogize to Title VII employment cases, where the Sixth Circuit has found imputation of exhaustion of administrative remedies to be a sensible policy so long as the claims of the class members arise at approximately the same time as the exhausted ones.
Plaintiffs note that the court denied Defendants’ dispositive motions as to John Doe 3 and John Doe 12 on the basis that a question of fact remained as to whether they were excused from their failure to exhaust. They also point to John Does 1, 2, 4, 5, and 6 as possible candidates whose exhaustion may be imputed across the class. Notably, they do not argue that John Doe 7’s or John Doe 11’s status as exempt from the administrative exhaustion requirement can be imputed to the entire class. Rather, they argue that John Does 7 and 11 can represent those members of the class who were not incarcerated when the complaint was filed. John Does 3 and 12, they say, should be able to represent the remaining class plaintiffs if this court finds that John Does 3 and 12 were exempt from the exhaustion requirement. In the alternative, John Does 3 and 12 can represent plaintiffs who similarly had their ability to exhaust impeded by Defendants.
In response Defendants argue that Plaintiffs have not identified any named Plaintiff who has actually satisfied the exhaustion requirement. John Does 3 and 12, they claim, only survived dismissal because they were possibly excused from having to
4

2:13-cv-14356-RHC-RSW Doc # 215 Filed 02/21/18 Pg 5 of 6 Pg ID 5582
exhaust due to futility. Even if John Does 3 and 12 are found by the court to have had the administrative exhaustion requirement excused, Defendants say, their excusal from that requirement cannot be imputed to the entire class. John Does 1, 2, 4, 5, and 6, meanwhile, are the subject of a now-suspended motion for summary judgment arguing in part that their efforts to exhaust administrative remedies subsequent to their dismissal were still insufficient to satisfy the requirements of the PLRA. (Dkt. #211.)
The court agrees with Defendants that now is not an appropriate time to determine whether one Plaintiff’s administrative exhaustion can be imputed to the entire class. As the court noted when Plaintiffs initially raised imputation over three years ago (see Dkt. #127 Pg. ID 2512): “This argument is premature. Plaintiffs have not yet shown that any class representative has exhausted. Only if this showing has been made would the court consider argument on this issue.” (Dkt. #130 Pg. ID 2680.)
To date, still no Plaintiff has demonstrably met the exhaustion requirement. Whether John Does 7 and 11 can represent class plaintiffs not subject to the exhaustion requirement is inapposite. The question Plaintiffs sought to put before the court was whether John Doe 11 or some other Plaintiff could have his exhaustion imputed to the entire class. John Doe 11 (as with John Doe 7) has not exhausted because he is not required to do so. And Defendants contest whether the remaining Plaintiffs have exhausted at all. Unless and until such time as one Plaintiff has been found to have exhausted under the PLRA, the court finds that deciding the question of imputation of exhaustion of remedies is inappropriate.
Defendants, then, should proceed on their motion for summary judgment in this case as to John Does 1, 2, 4, 5, and 6. Given the amount of time that has lapsed
5

2:13-cv-14356-RHC-RSW Doc # 215 Filed 02/21/18 Pg 6 of 6 Pg ID 5583

between Defendants’ motion and this order, the court will deny Defendants’ currentlydocketed motion without prejudice to give them time to refresh their papers as they deem appropriate. Accordingly,
IT IS ORDERED that Plaintiffs’ motion to apply vicarious exhaustion of administrative remedies (Dkt. #207) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ motion for partial summary judgment (Dkt. #211) is DENIED WITHOUT PREJUDICE. Defendants may refile their motion no later than March 2, 2018. Plaintiffs’ response is due no later than March 27, 2018. Defendants’ optional reply is due no later than April 13, 2018. Unless otherwise ordered, no hearing will be scheduled. See E.D. Mich. LR 7.1(f)(2).

Dated: February 21, 2018

s/Robert H. Cleland

/

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, February 21, 2018, by electronic and/or ordinary mail.

S:\Cleland\KNP\Civil\13-14356.DOES.deny.imputed.exhaustion.KNP.docx

s/Lisa Wagner

/

Case Manager and Deputy Clerk

(810) 292-6522

6

 
 Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6116 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOES 1–12,

Plaintiffs,

v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. /

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND
TO DISMISS CERTAIN CLAIMS

Plaintiffs are former juvenile prisoners who were imprisoned with adults in

Michigan Department of Corrections (“MDOC”) facilities. They allege that MDOC, by

incarcerating them with adults before they had reached the age of 18, acted without

regard for Plaintiffs’ youthful—and vulnerable—status, resulting in their brutalization by

fellow prisoners and MDOC staff. Now before the court is Defendants’ Motion for Partial

Summary Judgment and to Dismiss Certain Claims. (Dkt. #216.) Plaintiffs have filed a

response (Dkt. #220) and Defendants a reply (Dkt. #223). The court has determined

that a hearing is unnecessary. E.D. Mich. L.R. 7.1(f)(2). For the following reasons,

Defendants’ motion will be granted in part and denied in part.

I. PROCEDURAL HISTORY

Given the complicated procedural nature of this case, the court will begin by

laying out the field as it currently stands. Plaintiffs first filed this case on behalf of John

Does 1–7. (Dkt. #1.) The court granted Defendants’ motion for summary judgment as to

Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6117 Page 2 of 26
all Plaintiffs, save John Doe 3. (Dkt. #156.) The court determined that none of the John Doe Plaintiffs had exhausted administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, and—with the possible exception of John Doe 3—had no legal excuse for the failure. But the court also identified a question of fact as to whether John Doe 3 was excused from the exhaustion requirement, and resolved to hold an evidentiary hearing on the issue. Due to further record development and motion practice from the parties, that hearing has yet to be scheduled.
Following the court’s grant of summary judgment without prejudice as to all Plaintiffs save John Doe 3, Plaintiffs amended their complaint to add John Does 8–12. (Dkt. #163.) Defendants moved for summary judgment as to John Does 8, 9, 10, and 12 on the basis of their purported failure to exhaust. The court granted the motion as to John Does 8–10, but held that issues of fact remained as to whether John Doe 12—like John Doe 3—was excused from the exhaustion requirement. (Dkt. #204.) Remaining, then, were (and are) John Does 3, 11, and 12. John Does 3 and 12 are to be scheduled for evidentiary hearings. John Doe 11, who is no longer incarcerated, is indisputably not subject to the exhaustion requirement.
After the amended complaint was filed here, John Does 1, 2, 4, 5, 6, and 7 refiled their claims in a new case, No. 16-13765 (the “2016 case”), purporting to have now exhausted their claims. Defendants filed a motion for summary judgment in that case as to all Plaintiffs save John Doe 7—by the time the second case was filed, John Doe 7 had been released from incarceration. Before the motion for summary judgment was decided, the court entered a stipulated order consolidating the two cases. (Dkt. #208.)
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Shortly before this and the 2016 case were consolidated, Plaintiffs refiled the claims of John Does 8, 9, and 10 in a separate action, No. 17-11181 (the “2017 case”). That case proceeded as a standalone case, and Defendants moved for summary judgment on the basis of John Does 8, 9, and 10’s failure to exhaust. The court granted the motion. (See 17-11181, Dkt. #33.) In that case, the court held that Plaintiffs’ new attempt to exhaust their administrative remedies under regulations of the Prison Rape Elimination Act (“PREA”) was insufficient to exhaust under the PLRA; specifically, the court determined that the relevant PREA regulations did not have retroactive effect and could not, therefore, serve to revive Plaintiffs’ otherwise untimely attempts to exhaust. That case is now on appeal.
This consolidated action thus has two Plaintiffs indisputably not subject to the administrative exhaustion requirement: John Doe 7 and John Doe 11, who are no longer incarcerated. The status of John Does 3 and 12 is unresolved—they still require evidentiary hearings to address whether they are excused from the exhaustion requirement. John Does 1, 2, 4, 5, and 6 are subject to the pending motion for summary judgment for failure to exhaust. The claims of all remaining John Does (1–7, 11, 12) in Count IV (for Sex Trafficking of Children Under 18, 18 U.S.C. §§ 1591, 1594) and Count V (for Violation of Treaties and Customary International Law) are subject to Defendants’ current motion to dismiss. And Defendants now move for the dismissal of Defendant MDOC on the basis of sovereign immunity.
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II. BACKGROUND Plaintiffs are current or former inmates in MDOC facilities that were, before they reached the age of 18, imprisoned with adults—a practice MDOC no longer employs. They ate, washed, worked, spent free time, and shared cells with adult prisoners. Plaintiffs allege that while they were housed with adult prisoners, they were subject to an unreasonable and unconstitutional risk of sexual harassment, sexual assault, battery, and other forms of abuse. As a result, Plaintiffs endured sexual violence and abuse, physical injuries, and trauma. Because they are currently imprisoned, Plaintiffs are subject to the PLRA. That statute requires that “a prisoner confined in any jail, prison, or other correctional facility” may not bring suit under federal law until he has exhausted the administrative remedies afforded him by his correctional institution. Relevant here are the administrative remedies prescribed by MDOC—specifically, MDOC’s formal grievance process, memorialized in Policy Directive (“PD”) 03.02.130. PD 03.02.130 requires that inmates participate in a multi-step grievance process to their claims. First, within two days of discovering a problem, inmates must attempt to informally resolve their issue with the staff member involved. If the parties cannot resolve the issue informally, the inmate must file a Step I grievance within five days of the attempt. If an inmate is dissatisfied with the response at Step I or does not receive a timely response, he must file a Step II grievance within ten days. The same goes for a Step II grievance—if a prisoner is unsatisfied or fails to receive a timely response at Step II, he must file a Step III grievance within ten days. Inmate complaints “serve to
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Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6120 Page 5 of 26
exhaust a prisoner’s remedies only when filed as a grievance through all three steps of the grievance process.” (PD 03.02.130, Dkt. #220-2, Pg. ID 5937.)
Plaintiffs first filed this case in 2013. The court ruled that John Does 1, 2, 4, 5, 6, and 7 were required to use this procedure to administratively exhaust their claims, and it determined that they indisputably had not done so. (See Dkt. #156.) Plaintiffs were therefore dismissed in February 2016.
Running parallel to Plaintiffs’ case was the enactment of new standards under the Prison Rape Elimination Act, 34 U.S.C. §§30301–09 (“PREA”). In 2012, the Department of Justice adopted various standards “for the detection, prevention, reduction, and punishment of prison rape” as required by PREA, 34 U.S.C. § 30307(a)(1). One such regulation, 28 C.F.R. § 115.52(b)(1)1, provided that prisons “shall not impose a time limit on when an inmate may submit a grievance regarding an allegation of sexual abuse.” The regulation had an effective date of August 20, 2012 and “appl[ied] to the Federal Bureau of Prisons immediately upon adoption.” § 30307(b). The same was not true for state facilities, however—states receiving federal funding for prisons were required to certify, within two years of the adoption of the rule, that the state was in compliance with the national standard or that it was using federal funds to achieve compliance. § 30307(e)(2)(A), (e)(7)(A). Failure to certify compliance or intent to comply would result in a five percent reduction in “any amount that a State would otherwise receive for prison purposes” from certain federal grants. § 30307(e)(2)(A). In
1 In its order granting summary judgment in the 17-11181 case, the court inadvertently referred to 28 C.F.R. § 115.51(b)(1) instead of § 115.52(b)(1); the typographical error was an oversight, and in no way disturbs the court’s conclusion.
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Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6121 Page 6 of 26
2014, the State of Michigan certified that it was using federal funds to achieve compliance. (Dkt. #216-11.)
In April 2016, MDOC issued Director’s Office Memorandum (“DOM”) 2016-29 establishing a two-step “PREA grievance process.”2 Under this process, an inmate “may file a PREA grievance at any time by submitting a completed PREA Prisoner Grievance Form.” No informal steps are required before filing a PREA grievance. After filing at Step I, the PREA coordinator or inspector must provide a written response within 60 days unless an extension is granted. An inmate may file a Step II appeal if he does not receive a timely response at Step I or is unsatisfied with the response received. “Any grievance containing issues other than sexual abuse shall be returned to the prisoner with instructions to process the prisoner’s non-PREA issues in accordance with PD 03.02.130 ‘Prisoner/Parolee Grievances.’” An inmate’s administrative remedies are exhausted through the PREA grievance process when filed through both steps of the process. The PREA grievance process was implemented “effective immediately.”
The parties have provided detailed accounts of John Does 1, 2, 4, 5, and 6’s attempts to exhaust their claims since summary judgment was granted against them in this case. The court briefly recounts them here.
John Doe 1. On May 16, 2016, John Doe 1 filed a grievance alleging that Defendants here failed to protect him from sexual assault and abuse. (See Dkt. #22013.) On June 2, he was informed that his claim had been converted to a PREA grievance and would not be processed under PD 03.02.130. (See Dkt. #220-4.) Just
2 Available at http://www.michigan.gov/documents/corrections/DOM_201629_PREA_Grievance_Process_523169_7.pdf.
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Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6122 Page 7 of 26
over a month later, he received notice that the investigation of his grievance returned “insufficient evidence” to support the alleged conduct. (See Dkt. #220-14.) Still later, on July 11, John Doe 1 received a “Memorandum” informing him that “the investigation that was conducting concerning an allegation that you made . . . has been completed.” (Dkt. #220-15.) The Memorandum went on to conclude that “the evidence produced in this investigation did not substantiate any work rule violations or policy/procedure violations and this matter is now considered closed.” (Id.)
John Doe 1, apparently concerned that this July 11 Memo constituted his Step I response, requested a Step II appeal form. (See Dkt. #220-16.) Though it does not appear in the record, John Doe 1 was evidently successful in submitting a Step II appeal, though Plaintiffs aver that it took continued requests for Defendants to supply the form. (See Dkt. #220, Pg. ID 5913.) He received a “PREA Prisoner Grievance Appeal (Step II) Decision” on September 27, 2016—the appeal was denied. (See Dkt. #220-18.) Curiously, John Doe 1 also received a “Step II PREA Grievance Appeal Response” sometime after September 13. (See Dkt. #220-19.) This “Response” denied his appeal on the basis that it was too late—a basis not included in the Step II “Decision” John Doe 1 received.
John Doe 2. On March 27, 2016, John Doe 2 submitted a grievance alleging that he had endured sexual assaults and abuse that Defendants failed to prevent. (See Dkt. #220-20.) His grievance was denied on the basis that it was “untimely, vague” and included “multiple issues.” (Id.) John Doe 2 also received a formal rejection letter informing him that the grievance was rejected because he “exceeded [his] time limits in filing a grievance.” (See Dkt. #220-21.) Apparently unable to obtain a Step II appeal
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Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6123 Page 8 of 26
form, John Doe 2 mailed an appeal directly to Step III. (See Dkt. #220-22.) The appeal was rejected by a decision dated June 29, 2016 for failure to include a Step II response. (See Dkt. #220-23.)
Undeterred, John Doe 2 received a Step II form and resubmitted his appeal. (See Dkt. #220-24.) Plaintiffs say that he received no Step II response, so John Doe 2 appealed again to Step III. He received a Step III decision that the “rejection [was] upheld.” (See Dkt. #220-25.) At this point, though, John Doe’s claims were also diverted to the PREA process: the Step III decision explained that “your allegation of sexual abuse has been referred to the facility PREA coordinator. . . . [S]taff will notify you once a determination is made.” (Id.) If a decision was made through the PREA process, it does not appear in the record.
John Doe 4. On March 11, 2016, John Doe 4 submitted a grievance alleging that Defendants failed to protect him from sexual abuse he endured at the hands of fellow inmates. (See Dkt. #220-26.) He also alleged that he was sexually abused by a corrections officer. (Id.) Plaintiffs allege that after he failed to receive a response, John Doe 4 filed a Step II grievance in early April. Because he was unable to obtain a form as requested, however, he was unable to keep a carbon copy—Plaintiffs, without the benefit of discovery, have not been able to determine whether a copy exists.
John Doe 4, however, did receive a document dated May 4 stating that his allegations about the corrections officer “ha[d] been investigated and determined to be Insufficient Evidence.” (See Dkt. #220-27.) The document concluded: “This matter is now considered closed and no further action will be taken.” (Id.) He also received a “Notification of Sexual Abuse and Sexual Harassment Investigative Findings and
8

Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6124 Page 9 of 26
Action,” similarly dated May 4, informing him that there was insufficient evidence to support his allegations. (See Dkt. #220-28.)
On May 12, 2016, John Doe 4 finally received a response to his initial grievance. (See Dkt. #220-26.) The response noted that “[a]fter following all applicable PREA requirements and referrals relevant to your allegation of staff sexual misconduct, it was found that the allegations are unsubstantiated, false and lack credibility.” (Id.) It concluded: “Your grievance was investigated and handled in accordance to all policies and procedures related.” (Id.) John Doe 4 submitted appeals to Step III—sent on his behalf by counsel, see Dkt. #220-29—to the MDOC Office of Legal Affairs and the PREA Administrator, both in Lansing, Michigan. (See Dkt. #220-30.)
In their Motion for Summary Judgment, Defendants aver that John Doe 4 never appealed past the denial of his initial grievance—which was eventually responded to on May 12, see Dkt. #220-26—and thus John Doe 4 failed to exhaust by virtue of his decision not to appeal to Steps II and III. Their reply brief, however, changes tack dramatically: Defendants acknowledge receiving John Doe 4’s handwritten appeals to the Office of Legal Affairs and the PREA Administrator. (See Dkt. #223, Pg. ID 6082.) They aver that “Defendants’ counsel were not aware of these handwritten appeals until receiving Plaintiffs’ response brief, which lead [sic] to discovery of the appeal documents.” (Id.)
Defendants acknowledge yet another error with respect to John Doe 4: his initial grievance “should have been rejected as untimely, with the staff sexual misconduct claims, and only those claims, referred for an internal investigation.” (Id. at Pg. ID 6081.) But while the “sexual misconduct claims were referred for investigation, the grievance,
9

Case 2:13-cv-14356-RHC-RSW ECF No. 224 filed 11/05/18 PageID.6125 Page 10 of 26
technically, was not rejected.” (Id. at Pg. ID 6081–82.) John Doe 4’s handwritten appeal to the PREA Administrator, however, was denied—by letter attached for the first time to Defendants’ reply brief—on the basis that it “was not timely filed.” (Dkt. #223-2.) Defendants allege, without citation to the record, that “JD 4’s ‘Step III’ appeal was not responded to in light of the Step II PREA response.” (Dkt. #223, Pg. ID 6082.)
John Doe 5. On March 25, 2016, John Doe 5 filed his grievance alleging that Defendants failed to protect him from assault and sexual abuse he endured at the hands of fellow inmates. (See Dkt. #220-31.) He also alleged that he was sexually abused and subjected to excessive force by female prison staff. (Id.)
He did not receive a response for some weeks, until receiving a notice—dated May 18, 2016—that his grievance was being referred to a PREA investigator. (See Dkt. #220-5.) On May 26, he received a response to his converted PREA grievance; it concluded that “[t]he investigation found INSUFFICIENT EVIDENCE to support that the alleged conduct occurred.” (See Dkt. #220-35.)
On August 9, John Doe 5 received a notice, referencing his March 2016 grievance, informing him that “[y]our complaint from March 2016 regarding multiple employees has been thoroughly investigated and found to lack sufficient information, or evidence, to support your allegation(s).” (See Dkt. #220-33.) On August 31, John Doe 5 submitted an appeal. (See Dkt. #220-34.) Plaintiffs aver that he never received a response. John Doe 5 did, however, receive five separate documents (dated between May and July 2016) purporting to be the results of various PREA investigations. (See Dkt. #220-35.)
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John Doe 6. On May 21, 2016, John Doe 6 submitted a grievance alleging that Defendants had failed to protect him from sexual harassment and abuse by adult prisoners. (See Dkt. #220-36.) Two days later, he was advised that his grievance would be processed as a PREA grievance. (See Dkt. #220-6.) Some weeks went by before John Doe 6 received a PREA finding letter, dated August 31, informing him that there was insufficient evidence to support his allegations. (See Dkt. #220-37.) He filed a PREA appeal on September 23. (See Dkt. #220-38.)
All told, Plaintiffs submit that all but John Doe 2’s claims were processed as PREA grievances, and were pursued sufficiently to exhaust their administrative remedies. (See Dkt. #220, Pg. ID 5908 (“All but JD 2’s grievances were processed without time limits and as PREA grievances.”).)
II. STANDARD Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant, who must put forth enough evidence to show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citation omitted). It is the parties’ responsibility to support their factual assertions by
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citation to the record; the court is under no obligation to search for materials in the record uncited by the parties. Fed. R. Civ. P. 56(c).
Pleading matters, in contrast to summary judgment, are governed by Federal Rule of Civil Procedure 8. Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint must demonstrate more than just a possibility of wrongdoing; rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679. The court views the complaint in the light most favorable to the plaintiff, and it accepts all well-pleaded factual allegations as true. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009). The court need not, however, “accept as true legal conclusions or unwarranted factual inferences.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
IV. DISCUSSION Because the legal and factual issues in this matter are largely duplicative of the issues in the court’s order granting summary judgment in the 2017 case, the court draws heavily on that opinion in coming to its decision here. Defendants contend that, in line with the court’s order granting summary judgment in the related case, they are entitled to summary judgment here because John Does 1, 2, 4, 5, and 6 have failed to exhaust their administrative remedies.
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Plaintiffs, in response, argue that they properly satisfied the requirements for exhaustion through the PREA grievance process. And even if the court were to deem some part of Plaintiffs’ exhaustion procedures lacking, they say, Defendants’ policies and practices are so convoluted that they effectively prevent Plaintiffs from being able to adequately exhaust. If that is the case, according to Plaintiffs, they should be excused from the exhaustion requirement.
A. Summary Judgment as to John Does 1, 2, 4, 5, and 6 for Failure to Exhaust Defendants move for partial summary judgment; they claim that John Does 1, 2,
4, 5, and 6 have not properly exhausted their administrative remedies such that they can bring suit under federal law.
i. The Administrative Exhaustion Requirement Under the PLRA, inmates may not bring federal actions challenging prison conditions without first exhausting “such administrative remedies as are available.” 42 U.S.C. § 1997e(a). Failure to exhaust is an affirmative defense that must be raised and proved by a defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). The prison’s requirements define the boundaries of proper exhaustion—not the PLRA. Id. at 218. Thus “[p]roper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Defendants argue that Plaintiffs have still failed to exhaust their administrative remedies as required under PD 03.02.130. They point to this court’s earlier determination that the only procedure that could properly exhaust Plaintiffs’ claims was the formal grievance process of PD 03.02.130. (Dkt. #156, Pg. ID 3596; Dkt. #204, Pg.
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ID 5221.) They also note the court’s later conclusion that “most of the Does are likely now time barred from exhausting their claims.” (Dkt. #188, Pg. ID 4101.)
Plaintiffs do not attempt to persuade the court that their grievances were timely or properly submitted through the formal grievance procedure in PD 03.02.130. Instead, as noted above, Plaintiffs argue that “[t]he PREA grievance process is a two-step process that John Does 1, 4, 5 and 6 exhausted by appealing through Step II, despite the barriers placed by Defendants’ refusal to provide appeal forms or comply with their own procedures.” (Dkt. #220, Pg. ID 5904.) As to John Doe 2, they argue, Defendants improperly foreclosed his grievance from PREA review, so he should be deemed to have administratively exhausted by virtue of Defendants’ failure to abide by their own policies. (Id. at Pg. ID 5905.) Plaintiffs’ arguments fail for the reasons set forth below, and summary judgment will be granted as to John Does 1, 2, 5, and 6. But in light of Defendants’ disclosures as to John Doe 4, for the first time in reply, summary judgment will be denied without prejudice as to him.
ii. Retroactivity of PREA Grievance Procedures MDOC did not adopt its PREA grievance process until April of 2016. John Doe 1 alleges that he was subjected to physical violence and raped in 2012. (See 16-13765, Dkt. #1, Pg. ID 20–22.) John Doe 2 alleges that he was sexually assaulted, sexually harassed, and raped in 2012. (See id. at Pg. ID 22–24.) John Doe 4 alleges that he was physically and sexually assaulted and coerced into sexual intercourse in 2012 and 2013. (See id. at Pg. ID 24–25.) John Doe 5 alleges that he was sexually harassed, sexually assaulted, and raped in 2011 and 2012. (See id. at Pg. ID 26–28.) John Doe 6
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alleges that he was sexually harassed and raped between 2012 and 2013. (See id. at Pg. ID 28–30.)
Plaintiffs’ claimed injuries occurred long before the implementation of a PREA grievance process. Plaintiffs’ claims could be properly exhausted through that process, therefore, only if the regulation mandating the new procedure and eliminating the deadline to file sexual assault grievances—28 C.F.R. § 115.51(b)(1)—had retroactive effect once adopted by the state institution.
The court is guided by two principles, inherently in tension, when it examines intervening changes in the law. Though generally “a court must apply the law in effect at the time it renders its decision,” the court “should not construe congressional enactments and administrative rules to have retroactive effect unless their language requires this result.” BellSouth Telecomms., Inc. v. Se. Tel., Inc., 462 F.3d 650, 657 (6th Cir. 2006) (internal quotation marks omitted) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 263–64 (1994)). All told, “courts should apply the law in effect at the time that they decide a case unless that law would have an impermissible retroactive effect as that concept is defined by the Supreme Court.” Id. (emphasis original).
Congress may enact laws that apply retroactively; the court therefore looks to the text of a statute “to determine whether Congress has expressly prescribed the statute’s proper reach.” Landgraf, 511 U.S. at 280. If the statute explicitly provides for retroactive effect, the court’s inquiry is complete. But in the absence of such an “express command,” the court must determine whether the law would impose impermissible retroactive effect if permitted to reach conduct occurring before its enactment. Id.
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A law is impermissibly retroactive if “the new provision attaches new legal consequences to events completed before its enactment.” Id. at 270. The court looks to whether the statute “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 280. Courts take “sound guidance from familiar considerations of fair notice, reasonable reliance, and settled expectations.” BellSouth, 462 F.3d at 658 (internal quotations omitted). If the court determines that the statute would operate retroactively, “our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” Landgraf, 511 U.S. at 280. Procedural rules, on the other hand—rules that regulate secondary rather than primary conduct—may appropriately be applied in cases arising before their enactment. Id. at 275.
As it did in the 2017 case, the court finds that § 115.52(b)(1) and the resulting PREA grievance process would have an impermissible retroactive effect if applied to this case. The court has identified nothing in the statutory language, nothing in the text of the regulation, and nothing in the PREA grieving process itself that would indicate the regulation carried an “express command” of retroactive effect. States were not required to certify compliance with the rule until two years after the rule was promulgated, see 34 U.S.C. § 30307(e)(2)(A), (e)(7)(A), a delay that is significant in showing that the enactment did not reach conduct occurring before it became effective. See Siding & Insulation Co. v. Alco Vending, Inc., 822 F.3d 886, 892 (6th Cir. 2016) (finding that a FCC regulation with an effective date 90 days after promulgation was intended to give parties time to come into compliance); Campbell v. Nationstar Mortg., 611 F. App’x 288,
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297 (6th Cir. 2015) (finding that a CFPB regulation with an effective date a year after promulgation was not intended to apply retroactively).
The court similarly has no doubt that retroactive application of § 115.52(b)(1) to Defendants would “increase [their] liability for past conduct.” Landgraf, 511 U.S. at 280. If Plaintiffs were allowed to use the new PREA process to exhaust claims previously foreclosed by Plaintiffs’ failure to properly exhaust in the first instance, Defendants would be exposed to potentially massive liability on stale or unexhausted claims. The court cannot properly impose such new liabilities on Defendants in the absence of a clear congressional expression that the rule should reach that far.
And, as the court said before, this conclusion is in line with “familiar considerations of fair notice, reasonable reliance, and settled expectations.” BellSouth, 462 F.3d at 658 (internal quotations omitted). Plaintiffs having failed to exhaust using MDOC’s formal grievance procedures (and, indeed, being dismissed on that basis from this case), Defendants could reasonably have assumed that they were no longer subject to the claims Plaintiffs raise here.
Plaintiffs’ claims arose before MDOC’s adopting of a PREA grieving process. Because § 115.52(b)(1) and the resulting process do not apply retroactively, Plaintiffs were not permitted to use the PREA grieving process to exhaust claims arising before its enactment.
Plaintiffs resist this conclusion; they argue that the regulation barring deadlines on grievances alleging sexual abuse had an “Effective Date” of August 20, 2012. Regardless of when MDOC finally approved its PREA grievance procedures, Plaintiffs say, the regulation itself eliminated the deadlines for sex-abuse related grievances,
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making any grievance submitted by Plaintiffs timely if filed for allegations occurring after
August 20, 2012. But in focusing on the text of the regulation, Plaintiffs miss the relevant
provisions of the statute dictating regulatory compliance. States were 1) given time to
come into compliance with PREA regulations, see 34 U.S.C. § 30307(e)(2)(A), (e)(7)(A),
and 2) not actually required to adopt the regulations at all. Failure to certify compliance
or intent to comply would result in a five percent reduction in “any amount that a State
would otherwise receive for prison purposes” from certain federal grants.
§ 30307(e)(2)(A). As this court noted in this case over four years ago:
Although the United States is correct that the PREA standards apply to state correctional systems, nowhere does it appear that state compliance is mandatory. Rather, states may choose whether to certify their full compliance with the PREA’s national standards, or assure the government that it is using 5% of the federal funds it receives to achieve full compliance. 42 U.S.C. § 15607(e)(2). A failure to adopt either course of action reduces a state’s funding for prison purposes by 5% for each fiscal year it is non-compliant. Id. Although the court has no doubt that a 5% reduction in federal funding has bite, states appear free to choose whether to comply with the PREA and receive this funding, or ignore it and face cuts in their budgets. Thus, Michigan appears to be correct in characterizing its compliance with the PREA as “voluntary.”
(Dkt. #91, Pg. ID 1619.) As to other parties subject to the regulation, on the other hand,
Congress imposed different compliance standards. For the Federal Bureau of Prisons,
for example, the national standards were to apply “immediately upon adoption of the
final rule.” § 30307(b). Plaintiffs miss they mark when they conclude that the effective
date of the regulation is controlling on MDOC; Congress contemplated that the
regulation, regardless of its effective date, would go into effect as to certain entities at
different times.
The institutions’ administrative exhaustion procedures control for the purposes of
the PLRA. Woodford v. Ngo, 548 U.S. 81, 90 (2006). MDOC did not adopt a set of
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PREA grievance procedures until April 2016. Before those policies were effective, then, MDOC’s formal grievance procedure applied. Plaintiffs do not attempt to persuade the court that they have now managed to exhaust their administrative remedies under those formal procedures.
iii. Processing Untimely Grievances on the Merits Plaintiffs are correct, however, that prison officials may forfeit any ability to challenge the timeliness of grievances if they process those grievances on the merits. See Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (“When prison officials decline to enforce their own procedural requirements and opt to consider otherwisedefaulted claims on the merits, so as a general rule will we.”). It seems, then, that Plaintiffs had no choice but to hope that MDOC would process their grievances through the formal three-step process on the merits, without rejecting them for timeliness. In their response to the motion for summary judgment, Plaintiffs do not argue that any one of the John Does had his grievance processed on the merits through the formal process in PD 03.02.130. But that may be in large part due to the fact that Defendants apparently had not yet marshalled some of the material facts in this case until the reply was filed. In their reply brief, Defendants assert for the first time that a mistake was made with respect to John Doe 4’s grievance filed March 11, 2016. They say now that “[t]his grievance should have been rejected as untimely, with the staff sexual misconduct claims, and only those claims, referred for an internal investigation.” (Dkt. #223, Pg. ID 6081.) But while the sexual misconduct claims went through the appropriate procedure, Defendants aver, “the grievance, technically, was not rejected.” (Id. at Pg. ID 6082.)
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And, as explained above, Defendants only now seem to have realized that John Doe 4 filed handwritten appeals to both the grievance section of the Office of Legal Affairs and the PREA Administrator. They say, without citation to the record or other supporting evidence, that “JD 4’s ‘Step III’ appeal”—that is, his appeal through the normal grievance process—“was not responded to in light of the Step II PREA response.” (Id. at Pg. ID 6082.)
Defendants go on to argue that, even assuming John Doe 4’s claim was processed as a general grievance through the formal grievance procedures, his original grievance was not specific enough to deem his claims properly exhausted here. See Bell v. Konteh, 450 F.3d 651, 652 (6th Cir. 2006) (noting that to properly exhaust, the prisoner’s grievance must identify each defendant individually sued and allege “mistreatment or misconduct” on the part of each defendant). They say, once more without citation to the record or other supporting evidence, that “the generalized allegations of failure to protect or provide services and programming against the named Defendants were not investigated on the merits during the course of the sexual misconduct investigation,” meaning that John Doe 4 could not have properly exhausted those claims. (Dkt. #223, Pg. ID 6084.)
Defendants reach too far. By concluding that § 115.52(b)(1) and the resulting PREA grievance process do not apply retroactively, the court has, in essence, determined that Plaintiffs’ claims could properly be grieved only if Defendants decided to process Plaintiffs’ renewed grievances on the merits—thereby forfeiting a claim that such grievance was untimely. Defendants, as the parties moving for summary judgment, bear the burden to establish that there are no genuine issues of material fact
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such that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). It is not enough, at this stage, for Defendants to say, without supporting evidence, that John Doe 4’s grievance was not processed on the merits—especially in light of the fact that Defendants seem to be learning facts related to this case from the summary judgment briefing itself.
Defendant’s motion will therefore be denied without prejudice as to John Doe 4. More facts—supported by record evidence—are needed before the court can determine that John Doe 4’s grievance was not processed on the merits.
B. Defendants’ Motion to Dismiss Count V as to All Plaintiffs Defendants move for dismissal of Count V of Plaintiffs’ renewed complaint (1613765, Dkt. #1), which purports to include claims brought under 42 U.S.C. § 1983 for violations of customary and international law. Defendants point out that the court has already dismissed these claims with prejudice. (See Dkt. #91, Pg. ID (“Count V of Plaintiffs’ complaint is DISMISSED WITH PREJUDICE.”)) Plaintiffs apparently re-added this claim to their complaint before refiling in the 2016 case. Plaintiffs, for their part, “agree to the dismissal of Plaintiffs’ claims set forth in the original complaint as to Plaintiffs’ § 1983 claim set forth in Count V.” (Dkt. #22, Pg. ID 5932.) Count V is—and remains—dismissed. C. Defendants’ Motion to Dismiss the Michigan Department of Corrections Defendants move to dismiss the Michigan Department of Corrections on the basis of sovereign immunity. As pled, Plaintiffs’ complaint brings claims against MDOC in Count V (already dismissed) and Count IV, which seeks injunctive relief against “all
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Defendants” for sex trafficking of children under eighteen by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591, 1594.
A suit against a State is “barred by the Eleventh Amendment, unless [the State] has consented to the filing of such a suit,” or Congress has abrogated the State’s Eleventh Amendment immunity. Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013) (alteration original) (quoting Alabama v. Pugh, 438 U.S. 781, 782 (1978)). The Eleventh Amendment extends to suits where “the state is the real, substantial party in interest,” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (quotation omitted).
Congress did not abrogate the States’ Eleventh Amendment immunity for the purposes of § 1983 suits. Harrison, 722 F.3d at 771 (“It is well established that § 1983 does not abrogate the Eleventh Amendment . . . .”). And Michigan has not consented to suit under § 1983. Id. Nor does the court see anything to suggest that 18 U.S.C. §§ 1591, 1594 abrogated the State’s sovereign immunity.
Under these longstanding principles, the claims against MDOC must be dismissed on the basis of sovereign immunity. Plaintiffs acknowledge that dismissal is appropriate. They concede in their response to the motion to dismiss that “[t]o the extent Defendants’ request is limited only to Defendant MDOC as to Count IV, Plaintiffs do not oppose this Defendants’ [sic] dismissal.” (Dkt. #220, Pg. ID 5931.)
D. Defendants’ Motion to Dismiss Count IV as to All Plaintiffs Finally, Defendants move to dismiss Plaintiffs’ claims in Count IV for sex trafficking of children under eighteen in violation of 18 U.S.C. §§ 1591, 1594. Plaintiffs bring this claim under the “civil remedy” afforded to individuals in § 1595: “An individual
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who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits . . . in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.” Specifically, Plaintiffs claim that John Does 1 and 5 are entitled to damages against individual Defendants Prelesnik, Berghuis, and Stoddard “because they and/or their agents facilitated and participated in creating an environment that resulted in the unlawful sex trafficking of vulnerable children, including Plaintiffs.” (16-13765, Dkt. #1, Pg. ID 38.) They also seek injunctive relief on behalf of “[a]ll Plaintiffs and Class Members” which would enjoin all Defendants from “maintaining a prison system whereby vulnerable prisoners, including Plaintiffs, can be used in sex trafficking activities.” (Id.) Defendants argue that Count IV does not state a claim for sex trafficking.
The court will withhold ruling on this issue until it is definitively settled that the remaining Plaintiffs are properly before the court. Having now decided that Defendants are entitled to summary judgment against John Does 1, 2, 5, and 6 on the basis of their failure to exhaust, remaining as Plaintiffs in this matter are: John Doe 3, who will be subject to an evidentiary hearing to determine whether or not he was excused from the exhaustion requirement; John Doe 4, whose fate—as the court has now determined— cannot be determined without more evidence regarding how his grievance was processed; John Doe 7, who is indisputably not subject to the exhaustion requirement because he is no longer incarcerated; John Doe 11, who is similarly not subject to the exhaustion requirement because he is no longer incarcerated; and John Doe 12, who— like John Doe 3—will be subject to an evidentiary hearing to determine whether or not he was excused from the exhaustion requirement.
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Plaintiffs, in other words, no longer have a claim for damages in Count IV because the two Plaintiffs claiming damages—John Does 1 and 5—will be dismissed from this matter. Whether the three Plaintiffs who are still incarcerated—John Does 3, 4, and 12—have properly exhausted remains to be determined. And the court is doubtful that the two Plaintiffs who are not subject to the exhaustion requirement—John Does 7 and 11—can carry forward a claim for injunctive relief meant to enjoin Defendants from “maintaining a prison system whereby vulnerable prisoners, including Plaintiffs, can be used in sex trafficking activities” when they themselves are not incarcerated.
The court will deny Defendants’ motion to dismiss Count IV without prejudice. The court is wary of deciding whether Plaintiffs have plausibly alleged a violation of 18 U.S.C. §§ 1591, 1594 under Iqbal and Twombly when it remains to be seen whether the still-pending, still-incarcerated Plaintiffs have properly exhausted (as with John Doe 4) or are excused from the requirement (as with John Does 3 and 12) such that they—and their factual allegations—will continue to be a part of this case. The denial is without prejudice to Defendants’ ability to raise the issue again after it becomes apparent which Plaintiffs will continue on in this case and have standing to assert a claim for injunctive relief on behalf of all Plaintiffs and the purported class.
V. CONCLUSION As to John Does 1, 2, 5, and 6, Plaintiffs have still failed to exhaust their claims as required by the PLRA, and summary judgment as to them is once more appropriate. But John Doe 4’s fate is not yet certain. On stipulation of the parties, the court will dismiss Count V and Defendant MDOC. Defendants’ motion to dismiss Count IV,
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however, must wait until this case progresses to greater certainty as to the status of the Plaintiffs in this matter.
It is now time to hold evidentiary hearings and decide whether John Does 3 and 12 were excused from the administrative exhaustion requirement. In light of the breadth of issues addressed in this order, and the now-exceedingly complicated procedural posture of this case, the court will conduct a telephone conference with the parties to determine next steps. Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment and to Dismiss Certain Claims (Dkt. #216) is GRANTED IN PART and DENIED IN PART. Summary judgment is GRANTED as to the claims of John Does 1, 2, 5, and 6, and DENIED as to the claims of John Doe 4. It is further DENIED WITHOUT PREJUDICE as to Count IV of Plaintiffs’ complaint.
IT IS FURTHER ORDERED that Count V of Plaintiffs’ complaint is, and remains, DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendant Michigan Department of Corrections is DISMISSED from this matter.
IT IS FURTHER ORDERED that the parties shall APPEAR by telephone for a status conference on Tuesday, November 20, 2018 at 10:00 am.

Dated: November 5, 2018

s/Robert H. Cleland

/

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

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I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, November 5, 2018, by electronic and/or ordinary mail.

s/Lisa Wagner

/

Case Manager and Deputy Clerk

(810) 292-6522

S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356.DOES.PartialSJ.FailuretoExhaust.KNP.docx

26

 
 CLOSED,APPEAL
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:13−cv−14356−RHC−RSW

DOE 1 et al v. Michigan Department of Corrections et al Assigned to: District Judge Robert H. Cleland Referred to: Magistrate Judge R. Steven Whalen Demand: $75,000

Case in other court:

U.S. Court of Appeals − Sixth Circuit, 14−02116

Cause: 42:1983 Civil Rights Act

Plaintiff

Date Filed: 10/15/2013 Date Terminated: 03/20/2020 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

JOHN DOE 1

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 LEAD ATTORNEY 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

Edward A. Macey International Union, UAW 8000 East Jefferson Avenue Detroit, MI 48214 313−926−5216 Email: emacey@uaw.net TERMINATED: 06/05/2015 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

Michael L. Pitt Pitt, McGehee,

Plaintiff JOHN DOE 2

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 ATTORNEY TO BE NOTICED
Peggy G. Pitt Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: ppitt@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
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Edward A. Macey (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Nakisha N. Chaney (See above for address) ATTORNEY TO BE NOTICED
Peggy G. Pitt

Plaintiff JOHN DOE 3
Plaintiff JOHN DOE 4

(See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Edward A. Macey (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Nakisha N. Chaney (See above for address) ATTORNEY TO BE NOTICED
Peggy G. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Edward A. Macey (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED

Plaintiff JOHN DOE 5
Plaintiff JOHN DOE 6

Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Nakisha N. Chaney (See above for address) ATTORNEY TO BE NOTICED
Peggy G. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Edward A. Macey (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Nakisha N. Chaney (See above for address) ATTORNEY TO BE NOTICED
Peggy G. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY

Plaintiff JOHN DOE 7

ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Edward A. Macey (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Nakisha N. Chaney (See above for address) ATTORNEY TO BE NOTICED
Peggy G. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Edward A. Macey (See above for address) TERMINATED: 06/05/2015 ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Nakisha N. Chaney (See above for address)

Plaintiff John Doe 8 TERMINATED: 03/14/2017
Plaintiff John Doe 9 TERMINATED: 03/14/2017
Plaintiff John Doe 10 TERMINATED: 03/14/2017
Plaintiff

ATTORNEY TO BE NOTICED
Peggy G. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

John Doe 11
Plaintiff John Doe 12
Plaintiff John Doe 1 B consolidated from 16−13765

represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) LEAD ATTORNEY 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address)

Plaintiff John Doe 2 B consolidated from 16−13765
Plaintiff John Doe 4 B consolidated from 16−13765

ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Prescott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Prescott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address)

Plaintiff John Doe 5 B consolidated from 16−13765
Plaintiff John Doe 6 B consolidated from 16−13765

ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Prescott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Prescott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address)

Plaintiff John Doe 7 B
V. Defendant Michigan Department of Corrections TERMINATED: 11/05/2018

ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by Anlyn Marie Ellen Addis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Prescott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED
Jennifer B. Salvatore (See above for address) ATTORNEY TO BE NOTICED
Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED
represented by A. Peter Govorchin Michigan Department of Attorney General 525 West Ottawa Street Suite 4th Floor, G. Mennen Williams Building P.O. Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: AG−Complex@michigan.gov TERMINATED: 07/30/2014 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

ATTORNEY TO BE NOTICED
Clifton B. Schneider MI Dept of Licensing and Regulatory Affairs Attn:HO Schneider, Cotton Correctional Facility 3500 N Elm Ave Jackson, MI 49201 517−780−6388 Email: schneiderc1@michigan.gov TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman Michigan Department of Attorney General MDOC Division 525 West Ottawa PO Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: barkmanc@michigan.gov TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast MI Dept of Attorney General Appellate Division P.O. Box 30736 Lansing, MI 48909 517−335−7659 Email: meingasth@michigan.gov ATTORNEY TO BE NOTICED
James T. Farrell Michigan Department of Attorney General MDOC Division P.O. Box 30217 525 W. Ottawa St. Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: farrellj@michigan.gov TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber MI Dept of Atty Gen MDOC Division P.O. Box 30217 525 W. Ottawa St. Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: thurberj@michigan.gov TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson Michigan Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, MI 48909

Defendant Rick Snyder

517−335−3055 Email: nelsonm23@michigan.gov TERMINATED: 04/18/2019 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: 06/12/2019 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 TERMINATED: 03/16/2020 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
Lisa M. Geminick State of Michigan − Dept of Attorney General MDOC Division P.O. Box 30217 525 W. Ottawa St. Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: geminickl@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider

Defendant Daniel H. Heyns

(See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh Michigan Department of Attorney General MDOC Division P.O. Box 30758 Lansing, MI 48933 517−335−7603 Fax: 517−335−1152 Email: vandenberght@michigan.gov TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant THOMAS FINCO

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant Dennis Straub

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant RANDY TREACHER

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant WILLIE SMITH

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant HEIDI WASHINGTON

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant MARY BERGHUIS

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant PAUL KLEE

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant JOHN PRELESNIK

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant CATHLEEN STODDARD

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant CINDI S CURTIN

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant DAVID BERGH

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED

Defendant JEFFREY WOODS

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED

Defendant ROBERT NAPEL

Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED

Defendant KENNETH MCKEE

Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED

Defendant United States of America
Defendant Catherine Bauman

Clifton B. Schneider (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
James T. Farrell (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) TERMINATED: 07/30/2014 ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED

Defendant Mitch Perry

Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED

Defendant Shane Place
Defendant Thomas Mackie

represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly

Defendant Duncan MacLaren
Defendant Carmen Palmer

(See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Thomas Winn
Defendant Raymond Booker

Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
represented by

Kevin J. O'Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Geminick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Grossi (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Margaret A. Nelson (See above for address) TERMINATED: 04/18/2019 ATTORNEY TO BE NOTICED
Mark E. Donnelly (See above for address) TERMINATED: 06/12/2019 ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED
Tracy E. Van den Bergh (See above for address) TERMINATED: 03/16/2020 ATTORNEY TO BE NOTICED

Date Filed 10/15/2013
10/16/2013 10/16/2013
10/17/2013 10/17/2013 10/17/2013 10/17/2013

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−4334128 − Fee: &#036 400. County of 1st Plaintiff: OAKLAND − County Where Action Arose: MULTI − County of 1st Defendant: WASHTENAW. [Previously dismissed case: No] [Possible companion case(s): None] (LaBelle, Deborah) (Entered: 10/15/2013)
2 SUMMONS Issued for * All Defendants * (TMcg) (Entered: 10/16/2013)
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 (TMcg) (Entered: 10/16/2013)
3 ATTORNEY APPEARANCE: Jennifer B. Salvatore appearing on behalf of All Plaintiffs (Salvatore, Jennifer) (Entered: 10/17/2013)
4 ATTORNEY APPEARANCE: Nakisha N. Chaney appearing on behalf of All Plaintiffs (Chaney, Nakisha) (Entered: 10/17/2013)
5 ATTORNEY APPEARANCE: Michael L. Pitt appearing on behalf of All Plaintiffs (Pitt, Michael) (Entered: 10/17/2013)
6 ATTORNEY APPEARANCE: Edward A. Macey appearing on behalf of All Plaintiffs (Macey, Edward) (Entered: 10/17/2013)

10/17/2013 10/17/2013 11/08/2013 11/08/2013 11/08/2013 11/08/2013 11/08/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013 11/19/2013 12/11/2013
12/11/2013
12/16/2013

7 ATTORNEY APPEARANCE: Cary S. McGehee appearing on behalf of All Plaintiffs (McGehee, Cary) (Entered: 10/17/2013)
8 ATTORNEY APPEARANCE: Peggy G. Pitt appearing on behalf of All Plaintiffs (Pitt, Peggy) (Entered: 10/17/2013)
9 WAIVER OF SERVICE Returned Executed. DAVID BERGH waiver sent on 11/4/2013, answer due 1/3/2014. (LaBelle, Deborah) (Entered: 11/08/2013)
10 WAIVER OF SERVICE Returned Executed. THOMAS FINCO waiver sent on 11/1/2013, answer due 12/31/2013. (LaBelle, Deborah) (Entered: 11/08/2013)
11 WAIVER OF SERVICE Returned Executed. PAUL KLEE waiver sent on 11/4/2013, answer due 1/3/2014. (LaBelle, Deborah)[DOCUMENT IS SIGNED BY VIRGIL B WEBB] Modified on 11/15/2013 (TMcg). (Entered: 11/08/2013)
12 WAIVER OF SERVICE Returned Executed. Dennis Straub waiver sent on 11/1/2013, answer due 12/31/2013. (LaBelle, Deborah) (Entered: 11/08/2013)
13 WAIVER OF SERVICE Returned Executed. RANDY TREACHER waiver sent on 11/1/2013, answer due 12/31/2013. (LaBelle, Deborah) (Entered: 11/08/2013)
14 WAIVER OF SERVICE Returned Executed. WILLIE SMITH waiver sent on 11/4/2013, answer due 1/3/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
15 WAIVER OF SERVICE Returned Executed. Michigan Department of Corrections waiver sent on 11/1/2013, answer due 12/31/2013. (LaBelle, Deborah) (Entered: 11/19/2013)
16 WAIVER OF SERVICE Returned Executed. Daniel H. Heyns waiver sent on 11/1/2013, answer due 12/31/2013. (LaBelle, Deborah) (Entered: 11/19/2013)
17 WAIVER OF SERVICE Returned Executed. CATHLEEN STODDARD waiver sent on 11/4/2013, answer due 1/3/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
18 WAIVER OF SERVICE Returned Executed. KENNETH MCKEE waiver sent on 11/4/2013, answer due 1/3/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
19 WAIVER OF SERVICE Returned Executed. MARY BERGHUIS waiver sent on 11/6/2013, answer due 1/6/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
20 WAIVER OF SERVICE Returned Executed. JEFFREY WOODS waiver sent on 11/4/2013, answer due 1/3/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
21 WAIVER OF SERVICE Returned Executed. CINDI S CURTIN waiver sent on 11/6/2013, answer due 1/6/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
22 WAIVER OF SERVICE Returned Executed. ROBERT NAPEL waiver sent on 11/5/2013, answer due 1/6/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
23 WAIVER OF SERVICE Returned Executed. HEIDI WASHINGTON waiver sent on 11/4/2013, answer due 1/3/2014. (LaBelle, Deborah) (Entered: 11/19/2013)
24 ATTORNEY APPEARANCE: A. Peter Govorchin appearing on behalf of DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Govorchin, A.) (Entered: 12/11/2013)
25 ATTORNEY APPEARANCE: James T. Farrell appearing on behalf of DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Farrell, James) (Entered: 12/11/2013)
26 WAIVER OF SERVICE Returned Executed. Rick Snyder waiver sent on 11/1/2013, answer due 12/31/2013. (LaBelle, Deborah) (Entered: 12/16/2013)

12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/23/2013 12/23/2013 12/31/2013
12/31/2013
12/31/2013
01/02/2014 01/03/2014 01/10/2014 01/10/2014 01/10/2014 01/17/2014
01/23/2014 02/10/2014 02/20/2014

27 MOTION for Protective Order by All Plaintiffs. (Salvatore, Jennifer)[DOCKET ERROR−DID NOT FILE EXHIBITS WILL REFILE CORRECTLY] Modified on 12/20/2013 (TMcg). (Entered: 12/20/2013)
28 MOTION for Protective Order by All Plaintiffs. (Attachments: # 1 Exhibit Complaint) (Salvatore, Jennifer) (Entered: 12/20/2013)
29 ATTORNEY APPEARANCE: A. Peter Govorchin appearing on behalf of JOHN PRELESNIK (Govorchin, A.) (Entered: 12/20/2013)
30 ATTORNEY APPEARANCE: James T. Farrell appearing on behalf of JOHN PRELESNIK (Farrell, James) (Entered: 12/20/2013)
31 MOTION to Dismiss or, in the Alternative, Motion for More Definite Statement by All Defendants. (Attachments: # 1 Exhibit A) (Govorchin, A.) (Entered: 12/20/2013)
32 NOTICE OF HEARING on 31 MOTION to Dismiss or, in the Alternative, Motion for More Definite Statement. Motion Hearing set for 2/12/2014 02:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 12/23/2013)
33 NOTICE of Joinder/Concurrence in 28 MOTION for Protective Order filed by JOHN DOE 2, JOHN DOE 6, JOHN DOE 1, JOHN DOE 5, JOHN DOE 4, JOHN DOE 7, JOHN DOE 3 by All Plaintiffs (Macey, Edward) (Entered: 12/23/2013)
TEXT−ONLY ORDER DENYING 28 MOTION for Protective Order filed by JOHN DOES 1−7, for not explaining how concurrence was sought and whether it was obtained required by Local Rule 7/1(a)(2). Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/31/2013)
TEXT−ONLY ORDER DENYING 31 MOTION to Dismiss or, in the Alternative, Motion for More Definite Statement filed by Defendants' for not explaining how concurrence was sought and whether is was obtained, which is required by Local Rule 7.1(a)(2). Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/31/2013)
34 ORDER Requiring Parties to meet and confer by 1/10/2014 and file a joint statement by 1/17/2014 explaining their efforts to resolve the issues implicated by the now−terminated motions. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/31/2013)
35 CERTIFICATE of Service/Summons Returned Executed. JOHN PRELESNIK served on 12/12/2013, answer due 1/2/2014. (LaBelle, Deborah) (Entered: 01/02/2014)
36 ANSWER to Complaint with Affirmative Defenses with Jury Demand by All Defendants. (Govorchin, A.) (Entered: 01/03/2014)
37 ATTORNEY APPEARANCE: Cori E. Barkman appearing on behalf of All Defendants (Barkman, Cori) (Entered: 01/10/2014)
38 ATTORNEY APPEARANCE: Clifton B. Schneider appearing on behalf of All Defendants (Schneider, Clifton) (Entered: 01/10/2014)
39 ATTORNEY APPEARANCE: John L. Thurber appearing on behalf of All Defendants (Thurber, John) (Entered: 01/10/2014)
40 PARTIES' JOINT STATEMENT CONCERNING MEET AND CONFER ORDER DATED, DECEMBER 31, 2013 REPORT by Defendants and by All Plaintiffs (Attachments: # 1 Exhibit Plaintiffs' Proposed Protective Order, # 2 Exhibit Stipulation to Resolve Plaintiffs' Motion for Protective Order (DKT.27) and Defendants' Motion to Dismiss or in the Alternative Motion for More Definite Statement (DKT. 31)) (McGehee, Cary) (Entered: 01/17/2014)
41 NOTICE TO APPEAR: Status Conference set for 2/10/2014 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 01/23/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Status Conference held on 2/10/2014 Disposition: Parties are to submit their Joint Rule 26(f) Statement by February 18, 2014. (LWag) (Entered: 02/10/2014)
42 STATEMENT of Plaintiffs' Proposed Protective Order Setting Forth the Parameters for Conducting Investigative Interviews and Discovery by All Plaintiffs (Attachments:

02/21/2014 02/26/2014 02/28/2014 02/28/2014 02/28/2014 03/03/2014 03/04/2014 03/05/2014 03/06/2014 03/06/2014 03/06/2014
03/07/2014 03/10/2014
03/13/2014
03/14/2014
03/20/2014 03/25/2014

# 1 Exhibit 1 − Protective Order) (McGehee, Cary) (Entered: 02/20/2014)
43 RESPONSE to 42 Statement by All Defendants. (Schneider, Clifton) (Entered: 02/21/2014)
44 REPLY to Response re 28 MOTION for Protective Order filed by All Plaintiffs. (McGehee, Cary) (Entered: 02/26/2014)
45 MOTION for Leave to File Excess Pages by All Defendants. (Govorchin, A.) (Entered: 02/28/2014)
46 MOTION to Seal by All Defendants. (Govorchin, A.) (Entered: 02/28/2014)
47 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) (Govorchin, A.) (Entered: 02/28/2014)
48 NOTICE OF HEARING on 47 MOTION for Summary Judgment . Motion Hearing set for 5/14/2014 at 2:00 PM before District Judge Robert H. Cleland. (Ciesla, C) (Entered: 03/03/2014)
49 MOTION for Status Conference by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Govorchin, A.) (Entered: 03/04/2014)
50 ORDER granting 46 Motion to Seal Documents. Signed by District Judge Robert H. Cleland. (Ciesla, C) (Entered: 03/05/2014)
51 SEALED EXHIBIT F, Youthful Prisoner Affidavits re 47 MOTION for Summary Judgment by All Defendants. (Farrell, James) (Entered: 03/06/2014)
52 CERTIFICATE OF SERVICE re 51 Sealed Exhibit by All Defendants (Farrell, James) (Entered: 03/06/2014)
TEXT−ONLY ORDER GRANTING 45 MOTION for Leave to File Excess Pages filed by KENNETH MCKEE, JEFFREY WOODS, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Daniel H. Heyns, ROBERT NAPEL, RANDY TREACHER, PAUL KLEE, Rick Snyder, Michigan Department of Corrections, HEIDI WASHINGTON, THOMAS FINCO, Dennis Straub, MARY BERGHUIS, DAVID BERGH, CINDI S CURTIN. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/06/2014)
53 MOTION to Strike 49 MOTION for Status Conference PLAINTIFFS' by All Plaintiffs. (McGehee, Cary) (Entered: 03/07/2014)
54 ORDER granting 49 Defendants' Motion for Status Conference and Setting Status Conference for 3/13/2014 at 9:30 am and Directing Counsel for each side to appoint one lead counsel prepared to represent their respective position.. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/10/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Telephonic Status Conference held on 3/13/2014, and Extending time for deadline to file a response as to 47 MOTION for Summary Judgment :( Response due by 4/4/2014) Disposition: Order to be entered (LWag) (Entered: 03/13/2014)
55 ORDER Setting Motions Deadline − Plaintiffs' Motion for a Protective Order to be filed by 3/28/2014, Defendants' response due by 4/4/2014, Defendants' Motion for a More Definite Statement due by 3/28/2014 and Plaintiffs' response due by 4/4/2014. Signed by District Judge Robert H. Cleland. (LWag) Modified on 3/18/2014 (LWag). (Entered: 03/14/2014)
56 STATEMENT of INTEREST OF THE UNITED STATES OF AMERICA by United States of America (DeClercq, Susan) (Entered: 03/20/2014)
57 MOTION to Compel Plaintiffs' Counsel to Return Attorney Work Product Inadvertently Produced by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER,

03/26/2014 03/28/2014
03/28/2014 03/28/2014
03/31/2014 04/04/2014 04/04/2014 04/04/2014 04/04/2014 04/04/2014
04/04/2014

HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Farrell, James) (Entered: 03/25/2014)
58 NOTICE TO APPEAR BY TELEPHONE: Status Conference Re: Defendants' Motion to Compel set for 4/10/2014 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 03/26/2014)
59 MOTION for More Definite Statement by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A) (Govorchin, A.) (Entered: 03/28/2014)
60 MOTION to Seal DOCUMENTS by All Plaintiffs. (McGehee, Cary) (Entered: 03/28/2014)
61 MOTION for Protective Order Establishing Parameters for Defendant to Conduct Interviews and Discovery of Incarcerated and Putative Class Member and Non−Party Witnesses by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Class Action Complaint, # 3 Exhibit Letter to Defendants' Counsel from Plaintiffs' Counsel Dated November 27, 2013, # 4 Exhibit Defendants' Response Letter dated December 6, 2013, # 5 Exhibit Youthful Inmate Affidavit − Submitted Under Seal, # 6 Exhibit Youthful Inmate Affidavit − Submitted Under Seal, # 7 Exhibit Youthful Inmate Affidavit − Submitted Under Seal, # 8 Exhibit Youthful Inmate − Submitted Under Seal, # 9 Exhibit State Court Protective Order Dated December 9, 2013, # 10 Exhibit State Court Protective Order Dated February 20, 2014, # 11 Exhibit Plaintiffs' Proposed Protective Order Setting Parameters for Defendants to Conduct Interviews and Discovery of Incarcerated and Putative Class Members and Non−Party Witnesses, # 12 Exhibit Youthful Inmate Affidavit − Submitted Under Seal, # 13 Exhibit Youthful Inmate Affidavit − Submitted Under Seal, # 14 Exhibit State Court Order Denying Defendant MDOC's Motion to Dissolve December 9, 2013 Protective Order) (McGehee, Cary) (Entered: 03/28/2014)
62 RESPONSE to 57 MOTION to Compel Plaintiffs' Counsel to Return Attorney Work Product Inadvertently Produced filed by All Plaintiffs. (LaBelle, Deborah) (Entered: 03/31/2014)
63 Renewed MOTION for Protective Order to Proceed Anonymously by All Plaintiffs. (McGehee, Cary) (Entered: 04/04/2014)
64 MOTION to Seal Documents by All Plaintiffs. (McGehee, Cary) (Entered: 04/04/2014)
65 RESPONSE to 59 MOTION for More Definite Statement filed by All Plaintiffs. (McGehee, Cary) (Entered: 04/04/2014)
66 RESPONSE to 47 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (LaBelle, Deborah) (Entered: 04/04/2014)
67 REPLY to Response re 57 MOTION to Compel Plaintiffs' Counsel to Return Attorney Work Product Inadvertently Produced filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Govorchin, A.) (Entered: 04/04/2014)
68 RESPONSE to 61 MOTION for Protective Order Establishing Parameters for Defendant to Conduct Interviews and Discovery of Incarcerated and Putative Class Member and Non−Party Witnesses filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis

04/07/2014 04/09/2014
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Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (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, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P) (Govorchin, A.) (Entered: 04/04/2014)
69 EXHIBIT A re 67 Reply to Response to Motion,, by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Govorchin, A.) (Entered: 04/07/2014)
70 ERRATA Sheet re: 57 MOTION to Compel Plaintiffs' Counsel to Return Attorney Work Product Inadvertently Produced filed by KENNETH MCKEE, JEFFREY WOODS, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Daniel H. Heyns, ROBERT NAPEL, RANDY TREACHER, PAUL KLEE, Rick Snyder, Michigan Department of Corrections, HEIDI WASHINGTON, THOMAS FINCO, Dennis Straub, MARY BERGHUIS, DAVID BERGH, CINDI S CURTIN. by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Govorchin, A.) (Entered: 04/09/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Telephonic Motion Hearing held on 4/10/2014 re 57 MOTION to Compel Plaintiffs' Counsel to Return Attorney Work Product Inadvertently Produced filed by Defendants Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Christin Russell) (LWag) (Entered: 04/10/2014)
71 EXHIBIT D re 67 Reply to Response to Motion,, by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Govorchin, A.) (Entered: 04/14/2014)
72 CERTIFICATE OF SERVICE re 71 Exhibit, by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Govorchin, A.) (Entered: 04/14/2014)
73 ORDER denying 57 Motion to Compel and PROTECTIVE ORDER Governing Exhibit F to Defendants' Motion for Partial Summary Judgment.. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/18/2014)
74 REPLY to Response re 59 MOTION for More Definite Statement filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Govorchin, A.) (Entered: 04/18/2014)
75 TRANSCRIPT of Telephonic Motion Hearing held on 4/10/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 22) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 5/12/2014. Redacted Transcript Deadline set for 5/22/2014. Release of Transcript Restriction set for 7/21/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 04/21/2014)

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76 REPLY to Response re 47 MOTION for Summary Judgment filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Govorchin, A.) (Entered: 04/21/2014)
77 MOTION Leave to file Supplemental Affidavits in Support of Response to Defendants' Motion for Partial Summary Judgment re 66 Response to Motion by All Plaintiffs. (LaBelle, Deborah) (Entered: 04/25/2014)
78 MOTION to Seal 77 MOTION Leave to file Supplemental Affidavits in Support of Response to Defendants' Motion for Partial Summary Judgment re 66 Response to Motion by All Plaintiffs. (LaBelle, Deborah) (Entered: 04/25/2014)
79 ORDER granting Plaintiffs' 60 Motion to Seal; granting 64 Motion to Seal; granting 77 Motion for Leave to File Supplemental Affidavits; granting 78 Motion to Seal. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/29/2014)
80 SEALED EXHIBIT 4 re 78 MOTION to Seal 77 MOTION Leave to file Supplemental Affidavits in Support of Response to Defendants' Motion for Partial Summary Judgment re 66 Response to Motion , 66 Response to Motion, 79 Order on Motion to Seal,, Order on Motion − Free, by All Plaintiffs. (LaBelle, Deborah) (Entered: 05/01/2014)
81 CERTIFICATE OF SERVICE re 80 Sealed Exhibit, by All Plaintiffs (LaBelle, Deborah) (Entered: 05/01/2014)
82 MOTION to Seal Exhibits by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Govorchin, A.) (Entered: 05/08/2014)
Reset Hearing as to 47 MOTION for Summary Judgment . Motion Hearing re−set for 5/21/2014 10:30 AM before District Judge Robert H. Cleland (LWag) (Entered: 05/08/2014)
83 MOTION for Summary Judgment by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (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, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P) (Govorchin, A.) (Entered: 05/08/2014)
84 MOTION to Amend/Correct 83 MOTION for Summary Judgment by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Govorchin, A.) (Entered: 05/08/2014)
TEXT−ONLY ORDER − Further briefing for Dkt ## 82, 83, 84 is HELD IN AEBYANCE pending further order of the court. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/14/2014)
85 ORDER CONVERTING MAY 21, 2014 HEARING TO A TELEPHONE CONFERENCE. Signed by District Judge Robert H. Cleland. (ATee) (Entered: 05/15/2014)
86 NOTICE of Appearance by Beth M. Rivers on behalf of All Plaintiffs. (Rivers, Beth) (Entered: 05/16/2014)

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87 MOTION to Dismiss Counts II and III of Plaintiff's Complaint by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Govorchin, A.) (Entered: 05/19/2014)
88 REPLY to Response re 47 MOTION for Summary Judgment filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Govorchin, A.) (Entered: 05/20/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Telephonic Status Conference held on 5/21/2014 Disposition: Re: Scheduling an Evidentiary Hearing on Plaintiff's Motion for a Protective order(Court Reporter Christin Russell) (LWag) (Entered: 05/21/2014)
89 ORDER denying Defendants' 82 Motion to Seal Exhibits; denying 83 Motion for Summary Judgment; denying 84 Motion to Amend/Correct Summary Judgment. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/21/2014)
90 ORDER Setting Evidentiary Hearing, Suspending Briefing on Defendants' Motion to Dismiss and Directing Counsel to Cease Filing Motions until such time the court issues a scheduling order., ( Evidentiary Hearing set for 6/4/2014 08:30 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/27/2014)
91 OPINION AND ORDER granting in part and denying in part 47 Defendants' Partial Motion for Summary Judgment; denying as moot 59 Motion for More Definite Statement; granting 63 Plaintiffs' Renewed Motion for Protective Order. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/28/2014)
92 WITNESS LIST by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Govorchin, A.) (Entered: 05/28/2014)
93 WITNESS LIST by All Plaintiffs (McGehee, Cary) (Entered: 05/28/2014)
94 TRANSCRIPT of Telephonic Status Conference held on 5/21/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 22) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 6/19/2014. Redacted Transcript Deadline set for 6/30/2014. Release of Transcript Restriction set for 8/27/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 05/29/2014)
100 SEALED Plaintiffs' Actual Identities by All Plaintiffs. (Salvatore, Jennifer) (Entered: 06/03/2014)
101 MEMORANDUM by All Plaintiffs (LaBelle, Deborah) (Entered: 06/03/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Evidentiary Hearing held on 6/4/2014, Set Hearings:( Evidentiary Hearing continued set for 6/5/2014 08:30 AM before District Judge Robert H. Cleland) Disposition: Held, Testimony Taken and Continued(Court Reporter Carol Sapala) (LWag) (Entered: 06/04/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Evidentiary Hearing held on 6/5/2014 Disposition: TAKEN UNDER ADVISEMENT (Court Reporter Christin Russell) (LWag) (Entered: 06/05/2014)

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102 TRANSCRIPT of Evidentiary Hearing held on 6/4/2014. (Court Reporter/Transcriber: Carol S. Sapala, 313−671−7945) (Number of Pages: 251) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 7/2/2014. Redacted Transcript Deadline set for 7/14/2014. Release of Transcript Restriction set for 9/9/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Sapala, C) (Entered: 06/11/2014)
103 TRANSCRIPT of Evidentiary Hearing, Volume II held on 6/5/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 269) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 7/7/2014. Redacted Transcript Deadline set for 7/14/2014. Release of Transcript Restriction set for 9/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 06/13/2014)
104 ORDER Setting Briefing Schedule and Closing Argument as to 61 MOTION for Protective Order Establishing Parameters for Defendant to Conduct Interviews and Discovery of Incarcerated and Putative Class Member and Non−Party Witnesses :( Plaintiffs' brief due by 7/9/2014, Defendants' response due by 7/16/2014, Closing Arguments set for 7/23/2014 02:00 PM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/27/2014)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 7/9/2014 11:00 AM before District Judge Robert H. Cleland THE COURT WILL INITIATE THE CALL (LWag) (Entered: 07/07/2014)
TEXT−ONLY NOTICE: Telephone Conference set for 7/9/14 is Cancelled (Conference set on incorrect case) (LWag) (Entered: 07/07/2014)
105 NOTICE by All Plaintiffs re 104 Order, Set Motion and R&R Deadlines/Hearings,,,, Notice of Stipulated List of Most Pertinent Exhibits (Pitt, Michael) (Entered: 07/08/2014)
106 NOTICE by All Plaintiffs re 104 Order, Set Motion and R&R Deadlines/Hearings,,,, Revised Notice of Stipulated Exhibits (Pitt, Michael) (Entered: 07/08/2014)
107 MEMORANDUM re 104 Order, Set Motion and R&R Deadlines/Hearings,,,, PLAINTIFFS' POST EVIDENTIARY HEARING BRIEF by All Plaintiffs (McGehee, Cary) (Entered: 07/09/2014)
108 RESPONSE to 104 Order, Set Motion and R&R Deadlines/Hearings,,,, Defendants' Post Evidentiary Hearing Brief by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Govorchin, A.) (Entered: 07/16/2014)
Set Deadlines/Hearings: TIME CHANGE ONLY − Evidentiary Hearing set for 7/23/2014 02:30 PM before District Judge Robert H. Cleland (LWag) (Entered: 07/17/2014)
109 EXHIBIT B re 83 MOTION for Summary Judgment by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Barkman, Cori) (Entered: 07/22/2014)
110 EXHIBIT G re 83 MOTION for Summary Judgment by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE,

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KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Barkman, Cori) (Entered: 07/22/2014)
111 CERTIFICATE OF SERVICE re 110 Exhibit, 109 Exhibit, by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Barkman, Cori) (Entered: 07/22/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Evidentiary Hearing held on 7/23/2014, ( TELEPHONIC Status Conference set for 8/4/2014 11:00 AM before District Judge Robert H. Cleland) THE COURT WILL INTIATE THE CALL Disposition: TAKEN UNDER ADVISEMENT, Telephone Conference with Principal counsel ONLY to be set; Scheduling Order to be Issued(Court Reporter Christin Russell) (LWag) (Entered: 07/23/2014)
112 ATTORNEY APPEARANCE: Mark E. Donnelly appearing on behalf of DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Donnelly, Mark) (Entered: 07/25/2014)
113 ATTORNEY APPEARANCE: Heather S. Meingast appearing on behalf of DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Meingast, Heather) (Entered: 07/25/2014)
114 TRANSCRIPT of Evidentiary Hearing, Volume III held on 7/23/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 66) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/18/2014. Redacted Transcript Deadline set for 8/26/2014. Release of Transcript Restriction set for 10/24/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 07/26/2014)
115 NOTICE of Appearance by Michael F. Murphy on behalf of All Defendants. (Murphy, Michael) Modified on 7/28/2014 (DWor). [ATTORNEY DOES NOT REPRESENT UNITED STATES OF AMERICA] (Entered: 07/28/2014)
116 NOTICE of Appearance by Christina M. Grossi on behalf of DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Grossi, Christina) (Entered: 07/28/2014)
117 STIPULATED ORDER of Attorney Substitution adding Mark Donnelly, Michael Murphy, Christina Grossi and Heather Meingast for State Defendants in place and stead of A. Peter Gorvorchin, Cori Barkman, John Thruber, James Farrell and Clifton Schneider. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 07/30/2014)
118 OPINION AND ORDER denying 61 Plaintiffs' Motion for Protective Order. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/01/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Telephonic Status Conference held on 8/4/2014 (LWag) (Entered: 08/05/2014)

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119 ORDER denying without prejudice 87 Defendants' Motion to Dismiss. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/05/2014)
120 ORDER Allowing Targeted Discovery Contemplated by the Neutral Position Statement ( Discovery due by 11/7/2014) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/12/2014)
121 NOTICE TO APPEAR: Status Conference set for 11/7/2014 02:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 08/12/2014)
122 APPEAL OF MAGISTRATE JUDGE DECISION by All Plaintiffs re 118 Order on Motion for Protective Order. (McGehee, Cary)[DOCKET ERROR−WRONG EVENT − USED WILL REFILE] Modified on 8/28/2014 (TMcg). (Entered: 08/28/2014)
123 NOTICE OF APPEAL by All Plaintiffs re 118 Order on Motion for Protective Order. Receipt No: 0645−4792718 − Fee: $ 505 − Fee Status: Fee Paid. (McGehee, Cary) (Entered: 08/28/2014)
124 Certificate of Service re 123 Notice of Appeal. (KKra) (Entered: 08/28/2014)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 10/7/2014 09:30 AM before District Judge Robert H. Cleland (LWag) (Entered: 10/06/2014)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 10/7/2014, ( TELEPHONIC Status Conference reset for 10/17/2014 03:30 PM before District Judge Robert H. Cleland) Disposition: Joint statement to be submitted seeking ruling, Parties to stipulate to pending resolution of applicability of PLRA exhaustion requirement, Conference to be continued. (LWag) (Entered: 10/07/2014)
Set Deadlines/Hearings: AT REQUEST OF COUNSEL − − TELEPHONIC Status Conference RE−set for 10/20/2014 04:15 PM before District Judge Robert H. Cleland (LWag) (Entered: 10/17/2014)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 10/20/2014 (LWag) (Entered: 10/24/2014)
125 ORDER Directing Submission of Position Statements. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 10/31/2014)
TEXT−ONLY NOTICE: Hearing on 11/7/2014 is Cancelled re 121 Notice to Appear (LWag) (Entered: 10/31/2014)
126 STIPULATED ORDER Suspending Discovery Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/10/2014)
127 STATEMENT of Plaintiffs' Position Statement by All Plaintiffs (Attachments: # 1 Exhibit 1 − MDOC PREA Manual, # 2 Exhibit 2 − PREA Exhaustion Regulation) (Rivers, Beth) (Entered: 11/14/2014)
128 STATEMENT of Defendants' PLRA Position Statement by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (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, # 11 Exhibit 10, # 12 Exhibit 11) (Donnelly, Mark) (Entered: 12/01/2014)
129 ORDER from U.S. Court of Appeals − Sixth Circuit re 123 Notice of Appeal filed by JOHN DOE 2, JOHN DOE 6, JOHN DOE 1, JOHN DOE 5, JOHN DOE 4, JOHN DOE 7, JOHN DOE 3 [Appeal Case Number 14−2116] (SSch) (Entered: 12/31/2014)
130 ORDER REGARDING Scope of Discovery and Setting a( TELEPHONIC Status Conference for 4/23/2015 11:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/09/2015)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 4/23/2015, Set Deadlines/Hearings:( TELEPHONIC Status Conference re−set for 5/4/2015 03:30 PM before District Judge Robert H.

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Cleland) (THE COURT WILL INITIATE THE CALL) Disposition: Follow−up Telephone Conference to be set. (LWag) (Entered: 04/23/2015)
131 ATTORNEY APPEARANCE: Margaret A. Nelson appearing on behalf of DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Nelson, Margaret) (Entered: 04/23/2015)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 5/4/2015 Disposition: The Court anticipates defendant to file a dispositive motion focused on the exhaustion issue on or before 5/26/2015.(Court Reporter Christin Russell) (LWag) (Entered: 05/05/2015)
132 MOTION for Leave to File First Amended Complaint and Jury Demand by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Proposed First Amended Complaint and Jury Demand) (McGehee, Cary) (Entered: 05/13/2015)
133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Grievance Policy, # 3 Exhibit 2. Operating Procedure, # 4 Exhibit 3. JD 1 Dep Extracts, # 5 Exhibit 4. JD 2 Dep Extracts, # 6 Exhibit 5. JD 2 Dep Extracts, # 7 Exhibit 6. JD 3 Dep Extracts, # 8 Exhibit 7. JD 3 Dep Extracts, # 9 Exhibit 8. JD 4 Dep Extracts, # 10 Exhibit 9. JD 4 Dep Extracts, # 11 Exhibit 10. JD 5 Dep Extracts, # 12 Exhibit 11. JD 5 Dep Extracts, # 13 Exhibit 12. JD 6 Dep Extracts, # 14 Exhibit 13. JD 6 Dep Extracts, # 15 Exhibit 14. JD 7 Dep Extracts, # 16 Exhibit 15. JD 7 Dep Extracts, # 17 Exhibit 16. Bills Affidavit, # 18 Exhibit 17. Does 4 & 5 Orientation Statements, # 19 Exhibit 18. Whitney Affidavit, # 20 Exhibit 19. JD 1 Grievances, # 21 Exhibit 20. JD 2 Grievances, # 22 Exhibit 21. JD 3 Grievances, # 23 Exhibit 22. JD 4 Grievances, # 24 Exhibit 23. JD 5 Grievances, # 25 Exhibit 24. JD 6 Grievances, # 26 Exhibit 25. JD 7 Grievances, # 27 Exhibit 26. Huizar Affidavit, # 28 Exhibit 27. Russell Certification) (Donnelly, Mark) (Entered: 05/26/2015)
134 ERRATA Sheet re: 133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies filed by KENNETH MCKEE, JEFFREY WOODS, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Daniel H. Heyns, ROBERT NAPEL, RANDY TREACHER, PAUL KLEE, Rick Snyder, Michigan Department of Corrections, HEIDI WASHINGTON, THOMAS FINCO, Dennis Straub, MARY BERGHUIS, DAVID BERGH, CINDI S CURTIN. by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Donnelly, Mark) (Entered: 05/27/2015)
135 RESPONSE to 132 MOTION for Leave to File First Amended Complaint and Jury Demand filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1) (Nelson, Margaret) (Entered: 05/27/2015)
136 NOTICE OF HEARING on 133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies. Motion Hearing set for 8/19/2015 02:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 06/01/2015)
137 NOTICE by All Plaintiffs Withdrawal of Attorney of Record Edward A. Macey (Salvatore, Jennifer) (Entered: 06/02/2015)

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138 ORDER of Attorney Withdrawal of Edward Macey as counsel for Plaintiffs. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/05/2015)
139 MOTION Hold in Abeyance re 132 MOTION for Leave to File First Amended Complaint and Jury Demand by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Nelson, Margaret) (Entered: 06/05/2015)
140 REPLY to Response re 132 MOTION for Leave to File First Amended Complaint and Jury Demand filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit 1 − Affidavit of John Doe 12, # 3 Exhibit 2 − Affidavit of John Doe 9, # 4 Exhibit 3 − Affidavit of John Doe 10) (Pitt, Michael) (Entered: 06/08/2015)
141 SEALED EXHIBIT 1 and 2 re 140 Reply to Response to Motion, by All Plaintiffs. (Attachments: # 1 Exhibit Affidavits of John Doe 12 and 9) (Pitt, Michael) (Entered: 06/08/2015)
142 STIPULATION AND ORDER Extending Time to Respond to Defendants' 133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies :( Response due by 6/30/2015) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/15/2015)
143 RESPONSE to 139 MOTION Hold in Abeyance re 132 MOTION for Leave to File First Amended Complaint and Jury Demand filed by All Plaintiffs. (Rivers, Beth) (Entered: 06/22/2015)
144 RESPONSE to 133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit 1 − Complaint and Jury Demand, # 3 Exhibit 2 − Letter of Defendant regarding discovery, # 4 Exhibit 3 − Deposition Excerpts of Doe 1, # 5 Exhibit 4 − Deposition Excerpts of Doe 2, # 6 Exhibit 5 − Deposition Excerpts of Doe 3, # 7 Exhibit 6 − Deposition Excerpts of Doe 4, # 8 Exhibit 7 − Deposition Excerpts of Doe 5, # 9 Exhibit 8 − Deposition Excerpts of Doe 6, # 10 Exhibit 9 − Deposition Excerpts of Doe 7, # 11 Exhibit 10 − Declaration of Beth Rivers, # 12 Exhibit 11 − Email re; grievance response, # 13 Exhibit 12 − Prisoner Grievance Form, # 14 Exhibit 13 − Prisoner Grievance Form, # 15 Exhibit 14 − Grievance Category Codes, # 16 Exhibit 15 − Affidavit of Richard Stapleton with Exhibits, # 17 Exhibit 16 − PREA Manual, # 18 Exhibit 18 − Affidavit of Michael Pitt) (Rivers, Beth) (Entered: 06/30/2015)
145 SEALED EXHIBIT re 144 Response to Motion,,,, by All Plaintiffs. (Rivers, Beth) (Entered: 06/30/2015)
146 ERRATA Sheet re: 144 Response to Motion,,,, filed by JOHN DOE 2, JOHN DOE 6, JOHN DOE 1, JOHN DOE 5, JOHN DOE 4, JOHN DOE 7, JOHN DOE 3. by All Plaintiffs (Rivers, Beth) (Entered: 07/01/2015)
147 REPLY to Response re 139 MOTION Hold in Abeyance re 132 MOTION for Leave to File First Amended Complaint and Jury Demand filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1) (Nelson, Margaret) (Entered: 07/02/2015)
148 EXHIBIT −Amended Exhibit 1 re 147 Reply to Response to Motion,, by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS (Nelson, Margaret) (Entered: 07/06/2015)
149 MOTION for Leave to File Additional Exhibits in Support of Motion for Leave to File First Amended Complaint by All Plaintiffs. (Attachments: # 1 Index of Exhibits List of

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Exhibits, # 2 Index of Exhibits 1 − Affidavit of Does) (Rivers, Beth) (Entered: 07/15/2015)
150 REPLY to Response re 133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6) (Nelson, Margaret) (Entered: 07/17/2015)
151 Ex Parte MOTION for Leave to File Excess Pages by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Nelson, Margaret) (Entered: 07/17/2015)
152 RE−NOTICE OF HEARING on 133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies, 139 MOTION Hold in Abeyance re 132 MOTION for Leave to File First Amended Complaint and Jury Demand . Motion Hearing re−set for 9/21/2015 02:45 PM before District Judge Robert H. Cleland (LWag) (Entered: 07/28/2015)
153 REPLY to 149 MOTION for Leave to File Additional Exhibits in Support of Motion for Leave to File First Amended Complaint, 132 MOTION for Leave to File First Amended Complaint and Jury Demand by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Nelson, Margaret) (Entered: 07/29/2015)
TEXT−ONLY ORDER GRANTING 151 Ex Parte MOTION for Leave to File Excess Pages filed by KENNETH MCKEE, JEFFREY WOODS, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Daniel H. Heyns, ROBERT NAPEL, RANDY TREACHER, PAUL KLEE, Rick Snyder, Michigan Department of Corrections, HEIDI WASHINGTON, THOMAS FINCO, Dennis Straub, MARY BERGHUIS, DAVID BERGH, CINDI S CURTIN. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/03/2015)
Minute Entry for proceedings before District Judge Robert H. Cleland: Motion Hearing held on 9/21/2015 re 133 MOTION for Summary Judgment on the Basis of Plaintiffs' Failure to Exhaust Administrative Remedies filed by Defendants and 132 MOTION for Leave to File First Amended Complaint and Jury Demand filed by Plaintiffs Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Christin Russell) (LWag) Modified on 9/22/2015 (LWag). (Entered: 09/22/2015)
154 MOTION for Leave to File Supplemental Exhibits in Support of Motion for Leave to File First Amended Complaint by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Michigan Parole Board Order for Parole, # 2 Exhibit 2 − Cell Usage History of Doe 11) (Rivers, Beth) (Entered: 09/30/2015)
155 RESPONSE to 154 MOTION for Leave to File Supplemental Exhibits in Support of Motion for Leave to File First Amended Complaint filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Nelson, Margaret) (Entered: 10/14/2015)
156 OPINION AND ORDER granting in part and denying in part 133 Motion for Summary Judgment on the Basis of Failure to Exhaust Administrative Remedies and Scheduling a Telephone Conference. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/08/2016)

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Set Deadlines/Hearings: TELEPHONIC Status Conference set for 2/18/2016 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 02/08/2016)
RESET − Hearings: TELEPHONIC Status Conference RESET for 2/11/2016 10:15 AM before District Judge Robert H. Cleland (THE COURT WILL INITIATE THE CALL) (LWag) (Entered: 02/09/2016)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 2/11/2016, Disposition: The parties have agreed that Defendant will serve interrogatories to Plaintiffs regarding the exhaustion matter to be addressed at the upcoming evidentiary hearing. Once Plaintiffs have responded, the court anticipates being updated as to whether further discovery will be needed before the hearing on March 8, 2016. ( Evidentiary Hearing set for 3/8/2016 09:00 AM before District Judge Robert H. Cleland) (LWag) (Entered: 02/12/2016)
157 MOTION for Reconsideration re 156 Order on Motion for Summary Judgment by All Plaintiffs. (LaBelle, Deborah) (Entered: 02/19/2016)
158 TRANSCRIPT of Motion Hearing held on 9/21/2015. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 67) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 3/21/2016. Redacted Transcript Deadline set for 3/31/2016. Release of Transcript Restriction set for 5/31/2016. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 02/29/2016)
159 NOTICE OF HEARING on 132 MOTION for Leave to File First Amended Complaint and Jury Demand, 139 MOTION Hold in Abeyance re 132 MOTION for Leave to File First Amended Complaint and Jury Demand . Motion Hearing set for 3/8/2016 09:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 03/01/2016)
160 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)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 3/2/2016,( Hearing on Motion to Amend set for 3/8/16 at 9:00 a.m. and the Evidentiary Hearing is re−set for 4/26/2016 09:00 AM before District Judge Robert H. Cleland) (Court Reporter: Christin Russell) (LWag) (Entered: 03/03/2016)
161 ORDER granting Attorney Substitution OF Jennifer Salvatore of the Law Firm of Salvatore Prescott, PLLC in the place of Nacht, Roumel & Salvatore, PC as co−counsel for Plaintiffs. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/08/2016)
Minute Entry for proceedings before District Judge Robert H. Cleland: Motion Hearing held on 3/8/2016 re 132 MOTION for Leave to File First Amended Complaint and Jury Demand filed by JOHN DOE 2, JOHN DOE 6, JOHN DOE 1, JOHN DOE 5, JOHN DOE 4, JOHN DOE 7, JOHN DOE 3 Disposition: Motion granted (Court Reporter: Christin Russell) (LWag) (Entered: 03/08/2016)
162 ORDER granting 132 Plaintiffs' Motion for leave to file an amended complaint; terminating as moot 139 Defendants' Motion to hold in abeyance ; 149 Plaintiffs' Motion for leave to file additional exhibits and 154 Plaintiffs' Motion for leave to file additional exhibits. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/11/2016)
163 AMENDED COMPLAINT with Jury Demand First Amended filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Attachments: # 1 Order Granting Plaintiffs' Motion to Amend the Complaint) (McGehee, Cary) (Entered: 03/15/2016)
REQUEST for SUMMONS for Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Carmen Palmer, Mitch Perry, Shane Place, Thomas Winn. (McGehee, Cary) (Entered: 03/15/2016)

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164 SUMMONS Issued for *Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Carmen Palmer, Mitch Perry, Shane Place, Thomas Winn* (DAll) (Entered: 03/15/2016)
TEXT−ONLY ORDER Setting Deadline as to 157 MOTION for Reconsideration re 156 Order on Motion for Summary Judgment :( Defendants' Response due by 4/1/2016) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/24/2016)
165 ORDER Establishing Discovery Period and Briefing Schedule Addressing Exhaustion as to John Does 8−12 and setting ( TELEPHONIC Status Conference for 5/9/2016 11:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/25/2016)
166 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Donnelly, Mark) (Entered: 03/31/2016)
167 RESPONSE to 157 MOTION for Reconsideration re 156 Order on Motion for Summary Judgment filed by DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Meingast, Heather) (Entered: 04/01/2016)
168 CERTIFICATE of Service/Summons Returned Executed. Catherine Bauman served on 3/28/2016, answer due 4/18/2016. (McGehee, Cary) (Entered: 04/04/2016)
169 CERTIFICATE of Service/Summons Returned Executed. Raymond Booker served on 3/23/2016, answer due 4/13/2016. (McGehee, Cary) (Entered: 04/04/2016)
170 CERTIFICATE of Service/Summons Returned Executed. Mitch Perry served on 3/28/2016, answer due 4/18/2016. (McGehee, Cary) (Entered: 04/04/2016)
171 CERTIFICATE of Service/Summons Returned Executed. Shane Place served on 3/28/2016, answer due 4/18/2016. (McGehee, Cary) (Entered: 04/04/2016)
172 Waiver of Service Returned Unexecuted as to Shane Place. (SSch) (Entered: 04/06/2016)
173 CERTIFICATE of Service/Summons Returned Executed. Thomas Winn served on 3/24/2016, answer due 4/14/2016. (McGehee, Cary) (Entered: 04/07/2016)
174 CERTIFICATE of Service/Summons Returned Executed. Duncan MacLaren served on 3/24/2016, answer due 4/14/2016. (McGehee, Cary) (Entered: 04/07/2016)
175 CERTIFICATE of Service/Summons Returned Executed. Thomas Mackie served on 3/24/2016, answer due 4/14/2016. (McGehee, Cary) (Entered: 04/07/2016)
176 ATTORNEY APPEARANCE: Mark E. Donnelly appearing on behalf of Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Mitch Perry, Shane Place, Thomas Winn (Donnelly, Mark) (Entered: 04/13/2016)
177 ATTORNEY APPEARANCE: Christina M. Grossi appearing on behalf of Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Mitch Perry, Shane Place, Thomas Winn (Grossi, Christina) (Entered: 04/13/2016)
178 ATTORNEY APPEARANCE: Heather S. Meingast appearing on behalf of Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Mitch Perry, Shane Place, Thomas Winn (Meingast, Heather) (Entered: 04/13/2016)
179 ATTORNEY APPEARANCE: Margaret A. Nelson appearing on behalf of Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Mitch Perry, Shane Place, Thomas Winn (Nelson, Margaret) (Entered: 04/13/2016)

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180 ATTORNEY APPEARANCE: Michael F. Murphy appearing on behalf of Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Mitch Perry, Shane Place, Thomas Winn (Murphy, Michael) (Entered: 04/13/2016)
181 CERTIFICATE of Service/Summons Returned Executed. Shane Place served on 4/13/2016, answer due 5/4/2016. (McGehee, Cary) (Entered: 04/14/2016)
182 ATTORNEY APPEARANCE: Christina M. Grossi appearing on behalf of Carmen Palmer (Grossi, Christina) (Entered: 04/27/2016)
183 ATTORNEY APPEARANCE: Heather S. Meingast appearing on behalf of Carmen Palmer (Meingast, Heather) (Entered: 04/27/2016)
184 ATTORNEY APPEARANCE: Mark E. Donnelly appearing on behalf of Carmen Palmer (Donnelly, Mark) (Entered: 04/27/2016)
185 ATTORNEY APPEARANCE: Michael F. Murphy appearing on behalf of Carmen Palmer (Murphy, Michael) (Entered: 04/27/2016)
186 ATTORNEY APPEARANCE: Margaret A. Nelson appearing on behalf of Carmen Palmer (Nelson, Margaret) (Entered: 04/27/2016)
187 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by Catherine Bauman, Raymond Booker, Duncan MacLaren, Thomas Mackie, Carmen Palmer, Mitch Perry, Shane Place, Thomas Winn. (Donnelly, Mark) (Entered: 04/29/2016)
188 ORDER denying 157 Plaintiffs' Motion for Reconsideration. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/05/2016)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 5/9/2016. The parties informed the court that Plaintiffs plan to submit a supplemental response to Defendants' discovery requests by May 27, 2016. Thereafter, no later than June 3, 2016, the parties will meet and confer to discuss what, if any, further written or deposition discovery is necessary. The court will hold another status conference on June 6, 2016 at 11:00 a.m. to hear a report from the parties and consider the need for additional discovery. Set Hearings:( TELEPHONIC Status Conference set for 6/6/2016 11:00 AM before District Judge Robert H. Cleland) (LWag) (Entered: 05/11/2016)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 6/6/2016. The parties informed the court that they have largely completed discovery but raised a few lingering issues. While it appears the majority of those issues can be resolved by agreement without the court's assistance, one issue, Plaintiffs' request to depose certain grievance coordinators, may require a determination by the court. Plaintiffs will attempt to obtain the desired information by written request or stipulation, and if that effort fails, then they may submit a motion no later than June 13, 2016 requesting permission to extend discovery in order to take those depositions. (LWag) (Entered: 06/07/2016)
Set Deadlines as to Dispositive Motions on Amended Complaint − Dispositive Motion due by 7/5/2016; Response due by 7/25/2016 Reply due by 8/8/2016 (LWag) (Entered: 06/07/2016)
189 NOTICE of Appearance by Deborah A. LaBelle on behalf of All Plaintiffs. (LaBelle, Deborah)[APPEARANCE BY ANLYN ADDIS] Modified on 6/10/2016 (DPer). (Entered: 06/10/2016)
190 MOTION TO EXTEND Discovery by All Plaintiffs. (Attachments: # 1 Exhibit 1) (McGehee, Cary) (Entered: 06/13/2016)
191 RESPONSE to 190 MOTION TO EXTEND Discovery filed by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Email chain, # 3 Exhibit 2 − Operating Procedure, # 4

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Exhibit 3 − Policy Directive, # 5 Exhibit 4 − Supplemental Admissions) (Donnelly, Mark) (Entered: 06/15/2016)
192 MOTION for Leave to File Excess Pages in Brief in Support of Motion for Summary Judgment by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Donnelly, Mark) (Entered: 07/05/2016)
193 MOTION for Summary Judgment on the Basis of Plaintiffs John Doe 8, 9, 10, and 12's Failure to Exhaust Administrative Remedies by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex. 1 − MDOC Grievance Policy, # 3 Exhibit Ex. 2− MDOC Operating Procedure − Grievance, # 4 Exhibit Ex. 3− Certification of Richard Russell, # 5 Exhibit Ex. 4− Affidavit of Edward Whitney, # 6 Exhibit Ex. 5− Affidavit of Donnie Huizar, # 7 Exhibit Ex. 6− Affidavit of Daniel Bills, # 8 Exhibit Ex. 7− John Doe #8 Documents, # 9 Exhibit Ex. 8− John Doe #9 Documents, # 10 Exhibit Ex. 9− John Doe #10 Documents, # 11 Document Continuation Ex. 9 − continued, # 12 Exhibit Ex. 10 − John Doe #12 Documents, # 13 Document Continuation Ex. 10 − continued, # 14 Document Continuation Ex. 10 − continued, # 15 Document Continuation Ex. 10 − continued, # 16 Document Continuation Ex. 10 − continued, # 17 Exhibit Ex. 11− Jackson v. Huss 2015 U.S. Dist. LEXUS 130392, # 18 Exhibit Ex. 12− Affidavit of Russell Vittitow, # 19 Exhibit Ex. 13− Affidavit of Rhonda Chandler, # 20 Exhibit Ex. 14− Affidavit of Cassandra Chandler) (Donnelly, Mark) (Entered: 07/05/2016)
TEXT−ONLY ORDER GRANTING 192 MOTION for Leave to File Excess Pages in Brief in Support of Motion for Summary Judgment filed by Defendants Signed by District Judge Robert H. Cleland. (LWag) (Entered: 07/06/2016)
194 ORDER Denying Plaintiffs' 190 Motion to Extend Discovery. Signed by District Judge Robert H. Cleland. (HMon) (Entered: 07/15/2016)
195 STIPULATION AND ORDER Extending the time for plaintiffs' to file the response as to 193 MOTION for Summary Judgment on the Basis of Plaintiffs John Doe 8, 9, 10, and 12's Failure to Exhaust Administrative Remedies :( Response due by 8/24/2016) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 07/22/2016)
196 ORDER Governing Motion for Summary Judgement. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 10/07/2016)
197 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (Rivers, Beth) (Entered: 10/12/2016)
198 RESPONSE to 193 MOTION for Summary Judgment on the Basis of Plaintiffs John Doe 8, 9, 10, and 12's Failure to Exhaust Administrative Remedies filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19) (Rivers, Beth) (Entered: 10/12/2016)
199 NOTICE of Appearance by Anlyn Marie Ellen Addis on behalf of All Plaintiffs. (Addis, Anlyn) (Entered: 10/31/2016)
200 STIPULATED ORDER Extending time for Defendants' to file their Reply brief as to 193 MOTION for Summary Judgment on the Basis of Plaintiffs John Doe 8, 9, 10, and 12's Failure to Exhaust Administrative Remedies :( Reply due by 11/7/2016) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/01/2016)

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TEXT−ONLY ORDER GRANTING 197 Ex Parte MOTION for Leave to File Excess Pages filed by JOHN DOE 2, JOHN DOE 6, JOHN DOE 1, JOHN DOE 5, JOHN DOE 4, JOHN DOE 7, JOHN DOE 3. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/01/2016)
201 STIPULATED ORDER Extending time for Defendant HSBC Bank USA< NA to respond to the complaint, ( Response due by 11/18/2016) Signed by District Judge Robert H. Cleland. (LWag) Modified on 1/10/2017 (LWag). ENTRY PLACED ON WRONG DOCKET. (Entered: 11/01/2016)
202 REPLY to Response re 193 MOTION for Summary Judgment on the Basis of Plaintiffs John Doe 8, 9, 10, and 12's Failure to Exhaust Administrative Remedies filed by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit 15− Policy Directive 03.03.140, # 3 Exhibit 16− Affidavit of M. Vroman, # 4 Exhibit 17− JD #8 Grievances, # 5 Exhibit 18− JD #9 Documents) (Nelson, Margaret) (Entered: 11/07/2016)
203 NOTICE of Correction re 201 Stipulation and Order, (LWag) (Entered: 01/10/2017)
204 OPINION and ORDER Granting Defendants' 193 MOTION for Summary Judgment Against Plaintiffs John Doe 8, 9, and 10, and Denying Summary Judgment Against Plaintiff John Doe 12. (TELEPHONIC Status Conference set for 4/3/2017 at 10:30 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (SBur) (Entered: 03/15/2017)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 4/3/2017 (LWag) (Entered: 04/03/2017)
205 MOTION to Consolidate Cases by All Plaintiffs. (LaBelle, Deborah) (Entered: 04/18/2017)
206 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 4/21/2017 10:45 AM before District Judge Robert H. Cleland THE COURT WILL INITATE THE CALL (LWag) (Entered: 04/20/2017)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference on Motion to Consolidate Cases ( Dkt. # 205 and Dkt. #47, 16−13765) held off the record on April 21, 2017, attended by counsel. The court noted Plaintiffs' insufficient explanation of attempts to seek concurrence. The parties are directed to make every effort to comply in good faith with the requirements of E.D. Mich. LR 7.1(a), and to actually explain their attempt to seek concurrence pursuant to the Rule. The court directs Defendants to promptly initiate renewed discussions to determine whether concurrence in some form may be warranted. Absent an agreement, the court expects Defendants to file a short response including the points raised by Defendants during the conference. No reply brief will be permitted without leave of the court. ( (LWag) (Entered: 04/21/2017)
207 [DOCKET ERROR − WRONG EVENT USED − DOCUMENT IS A PLAINTIFFS MEMORANDUM IN SUPPORT OF APPLICATION OF VICARIOUS EXHAUSTION OF ADMINISTRATIVE REMEDIES] MOTION FOR APPLICATION OF VICARIOUS EXHAUSTION OF ADMINISTRATIVE REMEDIES by All Plaintiffs. (Rivers, Beth) Modified on 5/2/2017 (LGra). (Entered: 05/01/2017)
208 STIPULATED ORDER ON PLAINTIFFS MOTION TO CONSOLIDATE Signed by District Judge Robert H. Cleland. (SSch) (Entered: 05/08/2017)
209 Notice to Parties Regarding Consolidated Case: Order of consolidation entered on *5/8/17*. Designated lead case number is *13−14356*. (SSch) (Entered: 05/08/2017)
210 Ex Parte MOTION for Leave to File Excess Pages for Dispositive Motion by All Defendants. (Donnelly, Mark) (Entered: 05/15/2017)

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211 MOTION for Summary Judgment (partial) and to Dismiss Certain Claims and Brief in Support by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Opinion & Order (3−8−16), # 3 Exhibit 2 − Opinion & Order (5−28−14), # 4 Exhibit 3 − Order (5−5−16), # 5 Exhibit 4 − JD 1 Grievance, # 6 Exhibit 5 − JD 2 Grievance, # 7 Exhibit 6 − JD 4 Grievance, # 8 Exhibit 7 − JD 5 Grievance, # 9 Exhibit 8 − JD 6 Grievance, # 10 Exhibit 9 − MDOC P.D. 03.02.130, # 11 Exhibit 10 − MDOC P.D. 03.03.140, # 12 Exhibit 11 − JD 1 Deposition Transcript, # 13 Exhibit 12 − Affidavit − E. Whitney, # 14 Exhibit 13 − Affidavit − D. Huizar, # 15 Exhibit 14 − JD 2 Deposition Transcript, # 16 Exhibit 15 − Affidavit − D. Bills, # 17 Exhibit 16 − JD 4 Orientation Form, # 18 Exhibit 17 − JD 5 Orientation Form, # 19 Exhibit 18 − R. Russell Certification, # 20 Exhibit 19 − St. Louis v. Periltz) (Donnelly, Mark) (Entered: 05/15/2017)
212 MEMORANDUM re 207 MOTION FOR APPLICATION OF VICARIOUS EXHAUSTION OF ADMINISTRATIVE REMEDIES MEMORANDUM IN OPPPOSITION by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Rumsey v. MDOC, et al., # 3 Exhibit 2 − Turner v. Grant Co. Detention Center, # 4 Exhibit 3 − Rahim v. Sheahan) (Donnelly, Mark) (Entered: 05/15/2017)
213 NOTICE OF HEARING on 211 MOTION for Summary Judgment (partial) and to Dismiss Certain Claims and Brief in Support. Motion Hearing set for 7/12/2017 02:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 05/16/2017)
TEXT−ONLY ORDER GRANTING 210 Ex Parte MOTION for Leave to File Excess Pages for Dispositive Motion filed by Defendants Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/16/2017)
214 REPLY to Response re 207 MOTION FOR APPLICATION OF VICARIOUS EXHAUSTION OF ADMINISTRATIVE REMEDIES filed by All Plaintiffs. (Rivers, Beth) (Entered: 05/22/2017)
TEXT−ONLY NOTICE: Hearing on 7/12/17 is Cancelled re 211 MOTION for Summary Judgment (partial) and to Dismiss Certain Claims and Brief in Support (LWag) (Entered: 05/23/2017)
215 OPINION AND ORDER Resolving not to apply imputed exhaustion and denying without prejudice 211 Motion for summary judgment and denying without prejudice 207 Motion to apply vicarious exhaustion of administrative remedies. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/21/2018)
216 MOTION for Summary Judgment (Partial, Revised) and to Dismiss Certain Claims by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − 3.8.16 Opinion & Order, # 3 Exhibit 2 − 5.28.14 Opinion & Order, # 4 Exhibit 3 − 5.5.16 Order, # 5 Exhibit 4 − JD 1 Step I Grievance, # 6 Exhibit 5 − JD 2 Step I Grievance, # 7 Exhibit 6 − JD 4 Step I Grievance, # 8 Exhibit 7 − JD 5 Step I Grievance, # 9 Exhibit 8 − JD 6 Step I Grievance, # 10 Exhibit 9 − MDOC PD 03.02.130, # 11 Exhibit 10 − Governor PREA Assurance Letter 05.2014, # 12 Exhibit 11 − MDOC PD 03.03.140, # 13 Exhibit 12 − Director's Office Memo 2016−29, # 14 Exhibit 13 − Order 2.23.18, # 15 Exhibit 14 − JD 1 6.23.14 Dep Transcript Excerpt, # 16 Exhibit 15 − Affidavit of Edward Whitney, # 17 Exhibit 16 − Affidavit of Donnie Huizar, # 18 Exhibit 17 − JD 2 Dep Transcript Excerpt, # 19 Exhibit 18 − Affidavit of Daniel Bills, # 20 Exhibit 19 − JD 4 Orientation Form, # 21 Exhibit 20 − JD 5 Orientation Form, # 22 Exhibit 21 − Russell Certification of Grievances, # 23 Exhibit 22 − St. Louis v. Periltz, # 24 Exhibit 23 − JD 5 Dep Transcript Excerpt) (Donnelly, Mark) (Entered: 03/02/2018)

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217 MOTION for Leave to File Excess Pages for Brief in Support of Motion for Partial Summary Judgment and to Dismiss Certain Claims by All Defendants. (Donnelly, Mark) (Entered: 03/02/2018)
TEXT−ONLY ORDER GRANTING 217 MOTION for Leave to File Excess Pages for Brief in Support of Motion for Partial Summary Judgment and to Dismiss Certain Claims filed by Defendants. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/06/2018)
218 MOTION for Extension of Time to File Response/Reply as to 216 MOTION for Summary Judgment (Partial, Revised) and to Dismiss Certain Claims by All Plaintiffs. (Rivers, Beth) (Entered: 03/23/2018)
219 RESPONSE to 218 MOTION for Extension of Time to File Response/Reply as to 216 MOTION for Summary Judgment (Partial, Revised) and to Dismiss Certain Claims filed by All Defendants. (Donnelly, Mark) (Entered: 03/27/2018)
TEXT−ONLY ORDER GRANTING 218 Plaintiffs' MOTION for Extension of Time to File Response as to 216 MOTION for Summary Judgment (Partial, Revised) and to Dismiss Certain Claims: font color=red> Plaintiffs' Response due by 4/26/2018, Defendants' Reply due by 5/17/2018) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/28/2018)
220 RESPONSE to 216 MOTION for Summary Judgment (Partial, Revised) and to Dismiss Certain Claims filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37) (LaBelle, Deborah) (Entered: 04/19/2018)
221 MOTION for Leave to File Excess Pages by All Plaintiffs. (LaBelle, Deborah) (Entered: 04/19/2018)
TEXT−ONLY ORDER GRANTING 221 MOTION for Leave to File Excess Pages filed by Plaintiffs. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/20/2018)
222 MOTION for Leave to File Excess Pages in reply to Plaintiffs' response in opposition to Defendants' revised partial motion for summary judgment and to dismiss certain claims by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Donnelly, Mark) (Entered: 05/17/2018)
223 REPLY to Response re 216 MOTION for Summary Judgment (Partial, Revised) and to Dismiss Certain Claims filed by DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, Michigan Department of Corrections, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − JD Step II PREA Response, # 3 Exhibit 2 − Email Exchange, # 4 Exhibit 3 − Wakeley v. Giroux) (Donnelly, Mark) (Entered: 05/17/2018)
TEXT−ONLY ORDER GRANTING 222 MOTION for Leave to File Excess Pages in reply to Plaintiffs' response in opposition to Defendants' revised partial motion for summary judgment and to dismiss certain claims filed by JEFFREY WOODS, Duncan MacLaren, JOHN PRELESNIK, WILLIE SMITH, CATHLEEN STODDARD, Daniel H. Heyns, ROBERT NAPEL, RANDY TREACHER, PAUL KLEE, Michigan Department of Corrections, HEIDI WASHINGTON, Carmen Palmer, THOMAS

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FINCO, Catherine Bauman, DAVID BERGH, MARY BERGHUIS, CINDI S CURTIN, KENNETH MCKEE, Shane Place, Thomas Mackie, Thomas Winn, Raymond Booker, Rick Snyder, Dennis Straub, Mitch Perry. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/21/2018)
224 OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 216 Defendants' MOTION for Partial Summary Judgment (Partial, Revised) and to Dismiss Certain Claims; DISMISSING Defendant Michigan Department of Corrections; and setting a ( TELEPHONIC Status Conference for 11/20/2018 10:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/05/2018)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 11/20/2018, Set Deadlines/Hearings:( TELEPHONIC Status Conference re−set for 12/18/2018 11:00 AM before District Judge Robert H. Cleland) (LWag) (Entered: 11/20/2018)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 12/18/2018, Set Deadlines/Hearings:( TELEPHONIC Status Conference re−set for 2/21/2019 10:00 AM before District Judge Robert H. Cleland) (The court will initiate the call) (LWag) (Entered: 12/19/2018)
225 ORDER POSTPONING STATUS CONFERENCE., ( TELEPHONIC Status Conference re−set for 3/21/2019 10:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/20/2019)
Set Deadlines/Hearings: TELEPHONIC Status Conference re−set for 4/18/2019 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 03/18/2019)
TEXT−ONLY NOTICE: Telephone Conference on 4/18/2018 is Cancelled (LWag) (Entered: 04/18/2019)
226 NOTICE TO APPEAR BY TELEPHONE: Status Conference re−set for 5/30/2019 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 04/18/2019)
Set Deadlines/Hearings: TELEPHONIC Status Conference re−set for 6/27/2019 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 05/29/2019)
227 ORDER of Attorney Substitution Attorney Kevin J. O'Dowd for Defendants and withdrawing Mark Donnelly from the case Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/12/2019)
228 NOTICE of Appearance by Tracy E. Van den Bergh on behalf of DAVID BERGH, MARY BERGHUIS, Catherine Bauman, Raymond Booker, CINDI S CURTIN, THOMAS FINCO, Daniel H. Heyns, PAUL KLEE, KENNETH MCKEE, Duncan MacLaren, Thomas Mackie, ROBERT NAPEL, JOHN PRELESNIK, Carmen Palmer, Mitch Perry, Shane Place, WILLIE SMITH, CATHLEEN STODDARD, Rick Snyder, Dennis Straub, RANDY TREACHER, HEIDI WASHINGTON, JEFFREY WOODS, Thomas Winn. (Van den Bergh, Tracy) (Entered: 06/13/2019)
Set Deadlines/Hearings: TELEPHONIC Status Conference reset for 7/25/2019 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 06/19/2019)
Set Deadlines/Hearings: TELEPHONIC Status Conference RE−set for 8/29/2019 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 07/24/2019)
Set Deadlines/Hearings: TELEPHONIC Status Conference RE−set for 10/10/2019 11:00 AM before District Judge Robert H. Cleland (Plaintiff to notify the court if the Appeals Court Decision was entered, or if an adjournment is necessary) (LWag) (Entered: 08/29/2019)
Set Deadlines/Hearings: TELEPHONIC Status Conference re−set for 11/14/2019 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 10/08/2019)
Set Deadlines/Hearings: TELEPHONIC Status Conference re−set for 1/16/2020 11:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 11/13/2019)
229 STIPULATED ORDER for Stay of Proceedings and, ( TELEPHONIC Status Conference re−set for 2/13/2020 11:00 AM before District Judge Robert H.

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Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 01/03/2020)
Set Deadlines/Hearings: TELEPHONIC Status Conference re−set for 3/19/2020 11:00 AM before District Judge Robert H. Cleland (THE COURT WILL INITIATE THE CALL) (LWag) (Entered: 02/11/2020)
230 ORDER of Attorney Substitution of Attorney Lisa M. Geminick for State of Michigan Defendants Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/16/2020)
Minute Entry for proceedings before District Judge Robert H. Cleland: Telephonic Status Conference held on 3/19/2020 (LWag) (Entered: 03/20/2020)
231 ORDER TERMINATING and DISMISSING CASE WITHOUT PREJUDICE Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/20/2020)