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Salem v. Michigan Department of Corrections

United States District Court, E.D. Michigan, Southern Division

December 22, 2016

AMIRA SALEM AND KESHUNA ABCUMBY, Plaintiffs,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS, ET AL., Defendants.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION WITHOUT PREJUDICE (ECF NO.44)

          PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

         Now before the Court is Plaintiffs Amira Salem and Keshuna Abcumby's Motion for Class Certification that was filed on August 11, 2016. (ECF No. 44.) Defendants Michigan Department of Corrections ("MDOC") and Millicent Warren filed a response and Plaintiffs thereafter filed a reply. (ECF Nos. 50 & 51.)[1]

         A hearing on this matter was originally scheduled for Thursday, October 27, 2016. On October 24, 2016, the Court issued an order directing Defendants to file a sur-reply addressing the new proposed class definition that Plaintiffs raised for the first time in their reply brief. (ECF No. 52.) Defendants filed their sur-reply on November 1, 2016. (ECF No. 53.) A hearing on this matter was held on November 16, 2016. For the following reasons, the Court will DENY Plaintiffs' motion for class certification at this time.

         I. BACKGROUND AND PROCEDURAL POSTURE

         On November 1, 2013, Plaintiffs filed the instant putative class action pursuant to 42 U.S.C. § 1983 on behalf of all female prisoners who "since October 2010, have been, are now, or will be hereafter incarcerated by [the Women's] Huron Valley Correctional Facility and who have been subject to sexual harassment and degrading and unhygienic treatment by MDOC custodial staff." (Compl. ¶ 16). Plaintiffs alleged violations of their Fourth, Fourteenth and Eighth Amendment rights and named six defendants in their action: Michigan Department of Corrections, Daniel Heyns, Thomas Finco, Randy Treacher, Dennis Straub, and Millicent Warren (collectively "Defendants").

         Prior to 2009, a standard strip search at a correctional facility that housed female prisoners in Michigan was conducted by female correction officers who would require the prisoner to remove all her clothing, bend forward and spread her buttocks to allow for a visual inspection of the vagina and rectal cavity. Then, in 2009, Defendant MDOC consolidated all of its female prisoners into one facility, the Women's Huron Valley Correctional Facility ("WHV"). At that time, Defendant Warren became the warden for the entire facility and the "chair portion" of the strip search was added to the above described standard strip search procedure. Plaintiffs allege that the "chair portion" of the strip search procedure required that a female prisoner was forced to sit on a chair, open her knees, and spread her labia to expose her vaginal cavity for inspection by correction officers. (Compl, at ¶ 25.) Plaintiffs contend that the communal chairs on which they were required to sit were "unwashed and unsantizied, " were not lined with sanitary paper, and were "wet with bodily fluids from other prisoners." (Id.) Plaintiffs further claim that female prisoners who suffered from communicable diseases such as "HIV, AIDS, tuberculosis, hepatitis C, sexually transmitted diseases, and other vaginal infections" were all subject to the chair portion of the strip searches while on their menstrual cycles which resulted in blood being left on the communal chairs used during the strip searches. (Id., at ¶ 26.) Plaintiffs also allege that the chair portion of the search were conducted on "numerous female prisoners in full view of other female prisoners. (Id., at ¶ 19.) This type of strip search was required after every visit in which a prisoner was allowed physical contact with a visitor or was taken to any off site location. (Id., at ¶ 27.)

         On January 21, 2014, Defendants filed a "Motion to Dismiss and for Summary Judgment based upon Qualified Immunity." (ECF No. 11.) After briefing and a hearing, the Court issued an Opinion and Order granting in part and denying in part Defendants' motion to dismiss and for summary judgment based on qualified immunity.[2] See Salem v. MDOC, No. 13-14567, 2015 WL 1966727 (E.D. Mich. May 1, 2015) (available on the docket at ECF No. 21.) Defendants appealed the Court's Opinion and Order. The United States Court of Appeals for the Sixth Circuit succinctly summarized this Court's Opinion and Order:

The district court agreed that the Eleventh Amendment barred Plaintiffs' monetary claims against the MDOC and the named defendants in their official capacities. It also found Plaintiffs' Fourteenth Amendment claim abandoned and their Eighth Amendment claim insufficiently established. The court then dismissed the Fourth Amendment, unreasonable-search claim against all the defendants except Warren because Plaintiffs "failed to differentiate [their] individual conduct." Finding adequate the individual-conduct allegations against Warren, the court then denied Warren qualified immunity, holding that "Plaintiffs have identified a... well established right to be free from a strip search that was performed in full view of other prisoners." Finally, the court denied summary judgment on the claim for prospective injunctive relief, finding that the allegedly ongoing nature of the searches overcame Defendants' mootness argument.

Salem v. Michigan Dep't of Corr., 643 F.App'x 526, 529 (6th Cir. 2016) (available on the docket at 31).

         On March 9, 2016, the Sixth Circuit affirmed this Court's denial of qualified immunity as to Defendant Warren. Id., at 529-531. The Sixth Circuit rejected Defendant Warren's argument on appeal that she was not personally involved in any of the alleged constitutionally offensive searches, because she failed to raise the argument in her motion for summary judgment. Id., at 530. The Sixth Circuit then went on to "confine" its inquiry as to "whether the searches, performed in the manner alleged by Plaintiffs, violated their clearly established Fourth Amendment rights." Id. The Sixth Circuit concluded "that viewing the facts in a the light most favorable to Plaintiffs, we uphold the judgment of the district court denying qualified immunity to Warren regarding the non-private searches." Id., at 531.

         The Sixth Circuit also held that it lacked jurisdiction to address Defendants' appeal from this Court's finding that the claim for injunctive relief could proceed against the Defendants. The Sixth Circuit explained that while Defendants argued in their appeal that sovereign immunity barred Plaintiffs' claim for injunctive relief against Defendants based upon Papasan v. Allain, 478 U.S. 265 (1986), "the Defendants never invoked sovereign immunity as to this claim. Instead they relied on the Prison Litigation Reform Act in pressing for summary judgment on mootness grounds." Id. at 531.

         The mandate issued on March 31, 2016. (ECF No. 33.) Thereafter, Defendants filed an Answer to the Complaint and the parties submitted a discovery plan. (See ECF No. 37, 39.)

         II. STANDARD OF REVIEW

         "A district court has broad discretion to decide whether to certify a class." In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838, 850 (6th Cir. 2013) (citation omitted); see also In re Am. Med Sys.,75 F.3d 1069, 1079 (6th Cir. 1996). A district court has such substantial discretion because "it possesses the inherent power to manage and control its own pending litigation." Rikos v. Proctor & Gamble Co.,799 F.3d 497 (6th Cir. 2015) (quoting Beattie v. CenturyTel, Inc.,511 F.3d 554, 559 (6th Cir. 2007). "The class action is 'an exception to the usual rule that litigation is conducted by an on behalf of the individual named parties only.'" Young v. Nationwide Mut. Ins. Co.,693 F.3d 532, 537 (6th Cir. 2012) (quoting Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2550 (2011)). Critically, "Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart, ...


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