UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

David St. Ann, 

Plaintiff, 

v. 

Todd McLean, Dean Polita, Sam 

Morgan, Thomas Haynes, and 

Kelly Buczek, 

Defendants. 

________________________________/ 

Case No. 15-11770 

Judith E. Levy 

United States District Judge 

Mag. Judge Anthony P. Patti 

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION 

FOR PARTIAL SUMMARY JUDGMENT AND DENYING 

DEFENDANTS’ MOTION TO PRECLUDE TESTIMONY OF 

CHRISTIN HARRIS [98] 

 On September 5, 2019, pursuant to the Court’s order (ECF No. 97, 

PageID.2149–50), Defendants submitted a supplemental summary 

judgment brief on whether Plaintiff’s intentional infliction of emotional 

distress claim (“IIED”) should be permitted to go to trial, and whether 

Plaintiff’s witness Christin Harris should be permitted to testify as a fact 

witness. (ECF No. 99.) Plaintiff responded. (ECF No. 97, PageID.2150.) 

The Court has carefully considered the issues and orders as follows. 

A. Factual Background 
2 

 Plaintiff alleges that on January 27, 2014, during his period of 

imprisonment in the Saginaw Correctional Facility (“SRF”), he received 

a misconduct ticket for disobeying a direct order to return to his cell. 

(ECF No. 99, PageID.2165, 2787.) On January 28, 2014, Warden Obell 

Winn approved Plaintiff to be placed under a “W05-Investigation,” which 

increased Plaintiff’s security level and housing unit to Level IV—a 

maximum security and disciplinary unit. (Id. at PageID.2192.) Plaintiff 

alleges that he did not receive notice of the nature of the W05-

investigation and also alleges that the W05-investigation and security 

classification change were pretexts to punish Plaintiff for filing 

grievances against prison staff. (Id.) 

 Plaintiff argues that he was wrongfully held in Level IV for a total 

of eighteen months, during which time he alleges he was verbally 

harassed and psychologically abused by prison staff Defendants Todd 

McLean, Dean Potila, Samuel Morgan, and Thomas Haynes. (Id.) He 

alleges that Defendants told other inmates that Plaintiff was a “baby 

raper, child molester, rat, and was writing snitch-kites1 on inmates.” (Id. 

 1 The Michigan Legislative Council Ombudsman’s website defines a kite as 

“note or letter, usually one that a prisoner sends to a MDOC official.” 

https://council.legislature.mi.gov/Ombudsman/PrisonTerminology. 
3 

at PageID.2177.) Plaintiff alleges that Defendants’ scheme to spread 

these rumors to other inmates resulted in Plaintiff being “extorted, 

harmed, and/or even sexually assaulted by STG2 gang members” while in 

Level IV. (Id.) He alleges that Defendants’ position as prison staff gave 

them “the power of life and death” over Plaintiff and that their “evil 

motive and intent and recklessness” was to retaliate against Plaintiff for 

filing grievances and to intentionally inflict emotional distress. (Id. at 

2177–2188.) 

 Plaintiff alleges that in June 2016, he suffered from a “panic attack, 

chest pains, difficulty breathing, numbness and loss of feeling on left side 

of his body” as a result of Defendants’ harassment, other inmates’ 

extortion, and the STG members’ sexual assault. (Id. at PageID.2174.) 

Plaintiff alleges that he continues to receive counseling and psychiatric 

treatment for PTSD, nightmares, anxiety, and depression and has been 

prescribed psychotropic medication. (Id. at PageID.2175.) Finally, he 

 

2 MDOC policy directive 04.04.113 defines security threat group (“STG”) as “a 

group of prisoners designated by the Director as possessing common characteristics, 

which distinguish themselves from other prisoners or groups of prisoners and which, 

as an entity, pose a threat to staff or other prisoners or to the custody, safety and 

security of the facility.” 

https://www.michigan.gov/documents/corrections/04_04_113_482417_7.pdf. 
4 

argues that if the Court were to dismiss his IIED claim, this would allow 

“criminal, inhumane, sadistic behavior to flourish in prisons.” (Id. at 

PageID.2180.) 

B. Legal Standard 

Summary judgment is proper when “the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may 

not grant summary judgment if “the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the evidence, all 

facts, and any inferences that may be drawn from the facts in the light 

most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. 

Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing Skousen v. 

Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)). 

C. Applicable Law 

To prevail on a claim for intentional infliction of emotional distress 

under Michigan law, Plaintiff must demonstrate the following elements: 

“‘(1) extreme and outrageous conduct; (2) intent or recklessness; (3) 

causation; and (4) severe emotional distress.’” Roberts v. Auto-Owners 
5 

Inc., Co., 422 Mich. 594, 602 (1985). “The outrageous conduct 

requirement is satisfied only by conduct that is so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds 

of decency, and to be regarded as atrocious, and utterly intolerable in a 

civilized community. Liability arises, moreover, only where the distress 

inflicted is so severe that no reasonable man could be expected to endure 

it.” Andrews v. Prudential Secs., Inc., 160 F.3d 304, 309 (6th Cir. 1998) 

(internal citations and quotations omitted). Tortious, intentional, and 

even criminal conduct is not sufficient to meet this standard; instead, the 

test has been described as whether “the recitation of the facts to an 

average member of the community would arouse his resentment against 

the actor, and lead him to exclaim, ‘Outrageous!’ ” Roberts 422 Mich. at 

603. 

D. Analysis 

 1. Intentional Infliction of Emotional Distress 

 Defendants deny that they intentionally caused Plaintiff emotional 

distress. (ECF No.98, PageID.2158.) In support of their position, they rely 

on affidavits of Defendants Buczek, Potila, Morgan, McLean, and Haynes 

filed in support of their original motion for summary judgment, which 
6 

sets forth that each individual “always acted in good faith without 

harassing Plaintiff in any way.” (ECF Nos. 48-7, 48-5, 48-4, 48-3, and 48-

2.) They also argue that there is no evidence that Plaintiff suffered 

“severe emotional distress,” and that any symptoms Plaintiff suffered or 

suffers could be caused by being imprisoned for over a decade. (ECF No. 

98, PageID.2159.) 

 For his part, Plaintiff appears to set forth two arguments regarding 

IIED. First, he argues that Defendants actions directly caused him 

emotional distress. Second, he argues that Defendants acted in a manner 

that they knew would lead other inmates to harass and injure him, which 

caused Plaintiff emotional distress. 

 With regard to the first argument—that Defendants’ actions 

directly caused Plaintiff emotional distress through their harassment—

Plaintiff argues that Defendants’ outrageous conduct included the 

following: 

 (1) Moving Plaintiff to a new cell in the middle of the night, 

allegedly unnecessarily, for the purpose of harassing him. 

Plaintiff submitted a declaration dated March 14, 2014 from 

another inmate, Antwan Officer, who witnessed the incident 

and stated he believed officers gave a false reason for moving 

Plaintiff. (ECF No.99, PageID.2215–17.) 
7 

(2) Barring Plaintiff from using the law library. As evidence 

of this, Plaintiff submitted two April 24, 2014 letters from 

inmates Antwan Officer and Donaven Hollingsworth, 

indicating that an unnamed officer told them he was not 

permitting Plaintiff to use the prison law library due to 

Plaintiff’s “top-lock” classification. (ECF No.99, PageID.2221, 

2224.) 

(3) Issuing an April 2014 weapons misconduct ticket, which 

Plaintiff appears to argue was a false pretense to keep him in 

Level IV and subject to Defendants’ continued harassment. In 

support of this, he submitted a copy of the misconduct report 

and an unclear photograph of the weapon he was accused of 

possessing, which he argues was not a weapon and was not 

his. (ECF No. 99, PageID.2226–2228, 2234.) 

(4) Subjecting Plaintiff to more officer scrutiny than other 

inmates. In support of this argument, Plaintiff submitted 

three affidavits from inmate Roscoe Gallmore, dated July 13, 

2015, May 21, 2015, and April 10, 2015, which indicate in sum 

that Plaintiff’s cell was frequently searched, that Plaintiff was 

frequently taken away for strip searches of his body cavities, 

that on one occasion staff refused to give Plaintiff Band-Aids 

when he injured his finger, and that Plaintiff asked Gallmore 

to hold Plaintiff’s legal documents because he was fearful they 

would “mysteriously disappear.” (Id. at PageID.2240–41; 

2243–44; and 2246–47.) Plaintiff also submitted a letter from 

inmate Dion Armstead dated August 7, 2015, indicating that 

he witnessed Officer Glynn using obscenities and other 

offensive language. Armstead also indicates that he witnessed 

Plaintiff crying with his head in his lap and considering 

committing suicide because he could not “handle the pressure 

of officers and staff retaliating against him.” (Id. at 2249–51.) 

(5) Questioning Plaintiff regarding an ombudsman inquiry. 

As evidence of this argument, Plaintiff submits his own 

August 12, 2015 declaration indicating that he was called to 

Defendant Haynes’ office and questioned about an 

ombudsman investigation regarding St. Ann’s Level IV 
8 

placement. According to this affidavit, Haynes stated, “if I get 

in trouble behind this shit-you think your ass is feeling the 

heat right now-you haven’t seen anything!” (ECF No. 99-1, 

PageID.2263.) Plaintiff declared that this statement made 

him feel shocked, degraded, and afraid for his safety and life. 

(Id.) 

 Although these allegations are appalling, the evidence set forth 

above, either on its own or in combination, does not give rise to a colorable 

claim for IIED under Michigan law. For the reasons set forth below, 

Plaintiff’s factual arguments do not establish the level of “extreme and 

outrageous” conduct that went “beyond all possible bounds of decency 

such that they could be regarded as atrocious, and utterly intolerable in 

a civilized community.” See Sperle v. Mich. Dept. of Corr., 297 F.3d 483, 

496 (6th Cir. 2002). 

 As to item one above, Mr. Officer’s letter—asserting that he 

believed staff gave a false reason for moving Plaintiff to a new cell in the 

middle of the night—is not enough to create a genuine issue of material 

fact that could rise to the level of atrocious behavior, and the ill-intent he 

assigns to unnamed officers is speculative. As to item two above, Mr. 

Officer’s and Mr. Hollingsworth’s letters regarding unnamed officers 

preventing Plaintiff’s use of the law library does not rise to the level of 

intent required for an IIED claim, and it does not identify the actors, 
9 

both of which are necessary for this claim to survive. Item three does not 

provide evidence of ill-intent other than Plaintiff’s speculative belief, nor 

is it linked to emotional distress. As to item four, Mr. Gallmore’s 

affidavits are similarly unavailing, particularly because he does not 

name any of the officers involved, and there is no link between his belief 

that Plaintiff was subject to more scrutiny than others by Defendants. As 

to Mr. Armstead’s letter regarding Officer Glynn, Glynn was terminated 

from the case and allegations regarding Glynn are not relevant to 

Plaintiff’s IIED claim against the named Defendants. Item five does not 

rise to the level of outrageous conduct required to maintain an IIED claim 

against Defendants. 

 With regard to Plaintiff’s second argument—that Defendants’ 

actions caused other inmates to treat Plaintiff in a manner that caused 

him emotional distress—Plaintiff provides two arguments and evidence 

in support as set forth below: 

(1) Plaintiff argues that on February 15, 2015 Defendant 

Morgan stated in a loud voice to other officers, “Hey, look 

guys, there’s St. Ann the baby raper!” and that 

Defendant Morgan also stated, “Hey, St. Ann, did you 

write any snitch-kites on anybody lately?” He argues 

that other officers and inmates who heard these 

remarks laughed at Plaintiff. (Id. at PageID.2258–60.) 
10 

In support of these allegations, Plaintiff submits a 

February 25, 2015 affidavit from inmate Roscoe 

Gallmore. (See id.) Gallmore’s affidavit states that 

Defendant Morgan spoke loudly and that he overheard 

these comments “while headed to chow hall while 

walking past the officer’s desk.” (Id.) He indicates that 

“several inmates and correctional officers were laughing 

at inmate St. Ann.” (Id.) 

(2) Plaintiff’s October 1, 2019 declaration that he was 

called disrespectful and harassing names by Defendant 

Morgan and Officer Glynn, which caused him to be 

shunned and a target at the prison. He alleges that 

“they” also began extorting money from Plaintiff’s 

mother, though it is unclear if Plaintiff is alleging that 

other inmates were the extortionists or if the prison staff 

did so. Plaintiff describes being sexually assaulted in the 

Level IV shower on or around May 30, 2015, and a 

second assault in the shower on June 19, 2015. He states 

that he was afraid to report the assault while in Level 

IV because he was “afraid of being retaliated against” by 

Defendants and Officer Glynn. He states that he was 

ashamed, embarrassed, and humiliated, which stripped 

him of his dignity and manhood and has resulted in 

nightmares, depression, recurring thoughts, and 

difficulty coping. (Id. at PageID.2237–39.) 

 Although these allegations are appalling, Plaintiff’s second theory 

of IIED liability is too attenuated under Michigan law to be submitted to 

a jury. In Michigan, generally a defendant cannot be liable for the acts of 

third parties. For example, in the case Sperle v. Mich. Dept. of Corr., 297 
11 

F.3d 483 (6th Cir. 2002), Tammy Sperle, deceased, worked as a prison 

storekeeper and was murdered by inmate Clarence Herndon. Her estate 

sued MDOC and various prison staff for IIED for their failure to prevent 

her murder. Specifically, her estate alleged that the defendants had 

actual knowledge that an injury was certain to occur and willfully 

disregarded that knowledge when the guards left her alone in the prison 

store and failed to check on her during her shift, which provided an 

opportunity for Herndon to enter the store and kill her. Id. at 487, 496. 

The Sixth Circuit found that MDOC staff lacked direct evidence of intent, 

and, while defendants “might have acted negligently,” their conduct was 

not “extreme and outrageous.” The Court also stated, “most importantly, 

the defendants did not murder Tammy Sperle. Instead, Herndon, acting 

on his own, committed the crime.” Id. at 497. Accordingly, the plaintiff 

failed to establish a claim for IIED. 

 Similarly, in Estate of Fahner ex rel Fahner v. Cty. of Wayne, 797 F. 

Supp.2d 816 (E.D. Mich. 2011) (overturned on other grounds), prisoner 

John Fahner was murdered in a “savage” and “unprovoked” attack by his 

cell mate Sean Pollard fifteen minutes after Pollard entered the cell 

immediately after intake by jail staff. Id. at 823. Pollard had an 
12 

“extensive” history of incarceration, mental health conditions for which 

he was prescribed medication, and past instances of assaultive conduct 

toward other inmates and jail staff. Id. Furthermore, witnesses testified 

that when Pollard first arrived in the cell, “he didn’t appear normal.” Id. 

at 825. Fahner’s estate sued the county and individual jail officers for 

IIED. They argued that prison staff acted in an outrageous manner when 

they failed to identify Pollard as a risk during intake procedures and they 

failed to protect the safety of Fahner when they placed Pollard in the 

same cell. Id. at 844–45. The district court rejected this claim, finding 

that defendants’ conduct was not “beyond all bounds of possible decency, 

that must be regarded as atrocious,” and found that, “[a]s in Sperle, 

Defendants did not kill the decedent,” id. at 845, explaining that, “it 

cannot be said that any of the alleged actions by Defendants were 

calculated to cause Fahner’s death or to subject him to emotional 

distress.” Id. at 846 (emphasis added). Accordingly, the plaintiff’s IIED 

claim failed. 

 Here, Plaintiff’s allegation is that other inmates’ behavior caused 

him emotional distress. But the Defendants themselves are not accused 

of committing the sexual assault or extorting Plaintiff’s family for money. 
13 

Accordingly, as a matter of law, Plaintiff’s second theory of IIED liability 

also fails. 

 Since Plaintiff’s IIED claim cannot go forward, the Court need not 

address Plaintiff’s additional arguments and evidence, such as medical 

records, in support of his claim for emotional distress damages. 

Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s 

IIED claim is granted. 

 2. Christin Harris’ Testimony 

 Next, the Court ordered the parties to submit briefs regarding 

whether Plaintiff’s proposed witness, Christin Harris, should be 

permitted to testify as a fact witness at trial. Plaintiff states that Christin 

Harris worked at the Legislative Corrections Ombudsman’s office and 

was authorized by law to investigate Plaintiff’s claims of Defendants’ 

retaliation. (ECF No. 99, PageID.2181.) He argues that Harris 

corresponded with MDOC staff AA Rosek for thirteen months while 

investigating Plaintiff’s claim that he was improperly held in Level IV 

and he attaches emails between them. (ECF No.99-1, PageID.2308–

2310.) The emails attached to Plaintiff’s brief indicate that Harris 

inquired about Plaintiff’s Level IV status in June 2014, January 2015, 
14 

and July 2015. (Id.) Plaintiff also claims that Harris visited Plaintiff 

while he was in Level IV. (ECF No. 99, PageID.2182.) He also believes 

that Harris is “the ultimate cause forcing the Defendants to place 

Plaintiff St. Ann back in his true/correct security level, level II.” (Id.) 

 Defendants’ argue that Harris’s testimony would be impermissible 

hearsay. (ECF No.98, PageID.2160.) They argue that the Court has 

already ruled that certain letters from Harris constitute hearsay and 

cannot be admitted for the truth of the matter asserted. (Id.) However, a 

review of the Final Pretrial Order indicates that Defendants did not 

object to the admission of Harris’s letters, and no such rulings have been 

issued as to documents related to Harris, though a letter to A’Keydra 

Abrams in the Ombudsman’s office has been excluded as hearsay. (ECF 

No. 97, PageID.2134, 2141.) 

 Under Federal Rule of Evidence 401, Harris’s testimony may be 

relevant based on the fact that she conducted an investigation into the 

reasons that Defendants maintained Plaintiff in Level IV at the time 

relevant to his case. While Defendants are correct that certain testimony 

from Harris could constitute inadmissible hearsay under Federal Rule of 

Evidence 802, Defendants have not demonstrated that all of her 
15 

testimony would be excludible on this basis, and it is conceivable that 

Harris could testify in a manner that does not constitute hearsay. 

Accordingly, Harris’s testimony will be permitted only to the extent it is 

based on her personal knowledge, and not speculation, consistent with 

Federal Rule of Evidence 602.3 

 Plaintiff has requested that the Court permit him to “allow Harris 

to only read her portion of the emails that were sent to AA Rosek and 

also answer the questions posed by Plaintiff in Appendix T1.” Plaintiff’s 

request that Harris read aloud from the emails contained in his exhibit 

K1 to his brief is denied. (ECF No.99-1, PageID.2308–2310.) Reading the 

emails aloud would constitute inadmissible hearsay if the emails were 

offered to prove the truth of the matter asserted, as this appears to be 

Plaintiff’s purpose in having her read them aloud. As to Plaintiff’s list of 

questions contained in his Appendix T1 to his brief, the Court permits 

Plaintiff to question Harris but will not rule on the list of questions 

individually absent objections lodged by Defendants. If Defendants object 

 3 Defendants’ counsel has notified the Court that he inquired about Harris’s 

availability to testify at the trial and learned that she has not worked in the 

Corrections Ombudsman’s office in several years, currently works in New York, and 

that no further contact information for her is available. (ECF No. 115.) 
16 

to Plaintiff’s questions at the time of trial, the Court will rule on them at 

that time. 

 In sum, Plaintiff is permitted to subpoena Christin Harris to testify 

as a fact witness at trial, and the Court will rule on Defendants’ 

objections to her testimony, if any, at that time. 

E. Conclusion 

 Accordingly, Defendants’ motion for summary judgment as to 

Plaintiff’s intentional infliction of emotional distress claim is granted. 

Defendants’ motion to preclude the testimony of Christin Harris is 

denied. 

 IT IS SO ORDERED. 

Dated: November 8, 2019 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

 United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on November 8, 2019. 

s/William Barkholz 

WILLIAM BARKHOLZ 

Case Manager