Salem v. Mich. Dep't of Corr.
| Decision Date | 16 September 2019 |
| Docket Number | Case No. 13-cv-14567 |
| Parties | AMIRA SALEM and, KESHUNA ABCUMBY, on behalf of themselves and a class of others similarly situated, Plaintiffs, v. MICHIGAN DEPARTMENT OF CORRECTIONS and MILLICENT WARREN, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION AND ORDER (1) DENYING PLAINTIFFS' MOTION TO CERTIFY CLASS (ECF NO. 66), (2) DENYING PLAINTIFFS' MOTION FOR LEAVE OF COURT TO FILE ADDITIONAL AFFIDAVITS (ECF NO. 95), AND (3) SETTING A BENCH TRIAL ON EXHAUSTION OF THE TWO NAMED PLAINTIFFS' CLAIMS FOR NOVEMBER 6, 2019
This is a putative class action involving the Plaintiffs' claims that certain strip search procedures employed at the Women's Huron Valley Correctional Facility ("WHV") violated their Fourth Amendment rights. The background of this litigation is set forth in detail in several previous opinions of this Court. See Salem v. Mich. Dept. of Corr., No. 13-14567, 2018 U.S. Dist. LEXIS 14457 (E.D. Mich. Aug. 24, 2018); Salem v. Dept. of Corr., No. 13-14567, 2016 WL 7409953 (E.D. Mich. Dec. 22, 2016); Salem v. Mich. Dept. of Corr., No. 13-14567, 2015 WL 1966727 (E.D. Mich. May 1, 2015). The Sixth Circuit has also issued an opinion following the parties' interlocutory cross-appeal of this Court's May 1, 2015 Opinion and Order. Salem v. Mich. Dept. of Corr., 643 F. App'x 526 (6th Cir. 2016). In summary, and as narrowed by these decisions, the Plaintiffs are a putative class of inmates and former inmates of the Michigan Department of Corrections ("MDOC") female-only WHV, alleging that the WHV and then Warden Millicent Warren, in both her official and individual capacities, violated their Fourth and Fourteenth Amendment rights by subjecting them to mandatory routine strip searches, allegedly in full view of other inmates and individuals not necessary to the search, following off-site visits (including hospital visits or leaving the prison on a writ) and following all contact visits (i.e. visits at the WHV in which a prisoner was allowed physical contact with her visitors).
Presently before the Court is Plaintiffs' Motion for Class Certification. (ECF No. 66.) Defendants filed a Response to the Motion (ECF No. 71), Plaintiffs filed a Reply (ECF No. 73) and Defendants filed a Sur-Reply (ECF No. 84). The Court has determined, pursuant to E.D. Mich. L.R. 7.1(f), that a hearing is not necessary and decides the matter on the parties' written submissions.
This motion for class certification was filed on December 15, 2017, but has yet to be heard due to the prolonged inability of Plaintiffs' counsel to properly submit competent evidence in support of their motion for class certification, as detailed below. Before addressing the merits of the Plaintiffs' long-pending motion for class certification, the Court provides a brief but necessary explanation of the reason for the delay: the ongoing saga of the Plaintiffs' multiple affidavit "document dumps" and one of Plaintiffs' counsels' sheer inability to comply with the Court's numerous Orders regarding the insufficiency of their proposed "affidavit evidence." To begin with, attached to their Reply brief in support of their Motion for Class Certification, Plaintiffs attached approximately 840 pages of never-before-seen-or-referenced putative affidavits of current and former WHV inmates who claimed to have been subject to non-private strip searches while incarcerated at the WHV. (ECF No. 73-1.) Then, on the evening before the April 4, 2018 scheduled hearing on Plaintiffs' Motion for Class Certification, Plaintiffs filed a "Supplement" to their Reply that attached an additional seventy (70) pages of affidavits from additional putative class members claiming to have been strip searched in front of others. (ECF No. 75, Supplement to Plaintiffs' Reply.) Both sets of affidavits were sloppily presented with no tabbing orindexing and suffered from numerous significant procedural failings, including failure of signatures and proper notarization. In addition, many of the affidavits were not filled out at all and/or were duplicates. On April 4, 2018, the morning of the hearing on the motion for class certification, the Court issued an Order striking the Plaintiffs' supplemental filing, more appropriately characterized as a last-minute completely disorganized document dump, as inappropriate supplementation under E.D. Mich. L.R. 7.1(d). (ECF No. 76, 04/04/18 Order Striking Supplements to Plaintiffs' Replies.) Following discussion of the improperly filed affidavits at the April 4, 2018 hearing, the Court canceled the hearing on the motion for class certification and issued another Order striking the 840 pages of affidavits attached to Plaintiffs' Reply brief and imposing sanctions against the Plaintiffs under 28 U.S.C. § 1927 for unreasonably and vexatiously multiplying these proceedings. (ECF No. 77, April 5, 2018 Order Striking Exhibits and Imposing Sanctions.)1
In an effort to provide the Plaintiffs with every opportunity to present their claim, the Court issued a second Order on April 5, 2018, allowing Plaintiffs two-weeks time to submit to the Court any putative affidavits they sought to have the Court consider including "numbered pages, an index listing the name and page number for each individual affiant, tabbed pages separating each entry with the name of the individual affiant printed on the tab, and no duplicate entries." (ECF No. 78, April 5, 2018 Order Requiring Additional Filings.) The Court also Ordered a counsel for the Plaintiffs (Kenneth Hardin) to file an Affidavit or Sworn Declaration explaining how the affidavits were created, describing how, where, and by whom the affidavits were signed and notarized, and otherwise detailing the process by which the affidavits were obtained and compiled. (Id.) The Court permitted the Defendants to file a Sur-Reply up to seven (7) pages addressing the impact if any of the re-filed affidavits on their Response to the Plaintiffs' motion. (Id.)
On April 17 and 18, 2018, Plaintiffs filed the Hardin Affidavit along with the revised affidavits of the putative class members. (ECF Nos. 79, 80.) Once again, incredibly, the Plaintiffs failed to submit the required information in an appropriate or organized format. On August 1, 2018, the Court held a hearing to address the continued deficiencies in the Plaintiffs' filings. Following that hearing, the Court determined that Mr. Hardin's Affidavit was improperly notarized in Pennsylvania andthat many of the re-submitted affidavits of the putative Michigan class members were incomplete and non-conforming, and that further sanctions were warranted. That same day, the Court issued another Order Striking Filings and Imposing Sanctions, striking the Hardin Affidavit (ECF No. 79) and the "improper document dump of proposed affidavit exhibits" (ECF No. 80). (ECF No. 86, 08/01/18 Order Striking Filings and Imposing Sanctions.) In the 08/01/18 Order, the Court permitted Plaintiffs yet another final opportunity to re-file the putative class member affidavits, requiring submission on or before August 16, 2018. (Id.) On August 8, 2018, the Plaintiffs filed an Emergency Motion seeking additional time to submit the affidavits, explaining the difficulties Plaintiffs faced in attempting to obtain affidavits from putative class members who were still incarcerated, and seeking an additional thirty (30) days to re-file the affidavits. (ECF No. 88, Plaintiffs' Uncontested Motion for Order Amending the Court's August 1, 2018 Order Striking Filings.) The Defendants did not oppose this motion, and the Court issued an Order on August 15, 2019, granting the motion and permitting Plaintiffs to "properly file affidavit exhibits no later than September 15, 2018." (ECF No. 89, 08/15/18 Order.)
On September 14 and 15, 2018, as the Court had Ordered in its 08/15/18 Order, the Plaintiffs refiled the Hardin Affidavit and the affidavits of 188 putative class members. (ECF Nos. 91-94.) On December 18, 2018, continuing to submit untimelynew and additional evidence (discovery closed in this case on September 28, 2017 after several extensions and the dispositive motion deadline was December 15, 2017, also after several extensions had been granted), the Plaintiffs filed a Motion for Leave of Court to File Additional Affidavits from 23 additional putative class members. (ECF No. 95.) The Defendants filed a Response to the Plaintiffs' motion on July 17, 2019 (ECF No. 98), and the Plaintiffs filed a Reply on July 24, 2019 (ECF No. 99). These 23 additional Affidavits are strikingly untimely and the motion to file them is DENIED.
On December 22, 2016, the Court issued an Order denying Plaintiffs' original motion for class certification without prejudice, finding inconsistencies between Plaintiffs' evolving class definition and the Sixth Circuit's ruling specifically defining the touchstone of unconstitutionality in this action as the allegedly non-private nature of the searches. (ECF No. 56, December 22, 2016 Opinion and Order Denying Plaintiffs' Motion for Class Certification Without Prejudice 9-10, PgID 514-15.) At oral argument on the motion for class certification, Plaintiffs' counsel acknowledged that the Sixth Circuit's March 9, 2016 Opinion limited this action to claims of non-private searches, specifically stating that if in "going through the grievances, if it was not specifically alleged to have been conducted in front of others, we would have nochoice but to voluntarily dismiss those potential claimants." (ECF No. 100, Transcript of November 16, 2016 Hearing 9:17-20) (hereinafter "11/16/16 Hr'g Tr.") Based on the Sixth Circuit's directive and counsel's representations that inmate grievances would be...
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