Case: Does v. Michigan Department of Corrections

On December 9, 2013, a group of unidentified minors who were incarcerated in Michigan Department of Corrections (MDOC) adult prisons filed this putative class action lawsuit against the MDOC in the Michigan Circuit Court for the County of Washtenaw. Represented by attorneys from a civil rights law firm, the plaintiffs brought this action under the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2301 et seq. The plaintiffs alleged that the MDOC placed at least 500 minors in the three years leading up to this lawsuit in adult prisons without adequate supervision—despite the known safety risks—and as a result these minors had been subjected to physical and sexual violence. The plaintiffs claimed that the MDOC's policies violated their rights under the ELCRA by creating a sexually hostile environment, and requested monetary damages and attorneys' fees and costs.

In addition to this lawsuit, the plaintiffs filed a complaint arising out of the occurrence alleged here in the Eastern District of Michigan. That suit is available here.

On February 18, 2014, the MDOC moved for summary judgment, arguing that the plaintiffs failed to comply with MCL 600.5507(2), a provision of the Prison Litigation Reform Act requiring that a prisoner filing a lawsuit concerning prison conditions disclose the number of civil actions and appeals the prisoner previously filed. Because the plaintiffs had made insufficient disclosures, the MDOC argued the case should be dismissed under MCL 600.5507(3). The plaintiffs argued that MCL 600.5507 only applied to complaints filed on behalf of indigent prisoners, which did not include the prisoners in this case. Judge Carol Kuhnke denied the motion on March 13.

On March 7, 2014, the plaintiffs moved for class certification. Judge Kuhnke granted the motion on October 30, after extensive discovery, and the defendants appealed. On January 16, 2015, the Court of Appeals denied leave. However, the Michigan Supreme Court remanded to the Court of Appeals for reconsideration. 859 N.W.2d 712 (2015).

Meanwhile, the MDOC again moved for summary judgment on March 25, 2014, this time arguing that that the plaintiffs failed to state a claim upon which relief could be granted because the plain language of the ELCRA, as amended in 1999, provided that "public service" did not include a state or county correctional facility with respect to prisoners. ELCRA provided that person shall not "(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status." MCL 37.2302(a). But in its definition, the statute stated that "public service does not include a state or county correctional facility with respect to actions and decisions regarding an individual serving a sentence of imprisonment." MCL 37.2301(b).

The plaintiffs argued that this amendment to the ELCRA was unconstitutional under the equal protection clauses of the Michigan and U.S. Constitutions. Judge Kuhnke heard oral arguments regarding this motion on April 23, and on April 30 entered an order denying the motion of summary judgment. Judge Kuhnke held that the amendment was indeed unconstitutional in that it deprived prisoners of equal protection under the law. The MDOC then appealed both denials of summary judgment.

On August 25, 2015, the Michigan Court of Appeals issued an opinion written by Judge Riordan that held the trial court had erred in both denials of summary judgment for the MDOC. The Court of Appeals held that this suit should have been dismissed pursuant to MCL 600.5507(3) because the plaintiffs had failed to disclose sufficiently as required by MCL 600.5507(2). In addition, the Court of Appeals found that the 1999 amendment to the ELCRA was not unconstitutional and was rationally related to a legitimate government interest in compliance with equal protection principles. As such, the plaintiffs were precluded from bringing suit under the ELCRA. The Court of Appeals remanded the case to the trial court to enter summary judgment in favor of the defendants. Judge Beckering dissented. 878 N.W.2d 293 (2015). The plaintiffs sought leave to appeal to the state supreme court. Though it denied leave to appeal on March 30, 2016, the Michigan Supreme Court vacated the equal protection holding from the Court of Appeals decision because “[i]n light of the Court of Appeals ruling that plaintiffs’ complaint should be dismissed under the Prisoner Litigation Reform Act . . . it was unnecessary to resolve the remaining issues.” 876 N.W.2d 570 (2016). These decisions mooted the appeal concerning class certification. 2016 WL 3365114.

While litigating the appeal to the Michigan Supreme Court, the plaintiffs moved to file an amended complaint in September 2015 in order to address the deficiencies the Court of Appeals noted. Judge Kuhnke granted the motion on October 1, and the plaintiffs filed an amended complaint on October 2. The MDOC filed for summary judgment for this new complaint on October 8. The court granted in part and denied in part summary judgment on March 30, 2016. The MDOC appealed once again, and the Court of Appeals affirmed the trial court's order on September 14.

On October 4, the court granted the plaintiffs' motion to vacate judgment and reinstate their ELCRA claims and motion for rehearing and/or reconsideration. The same day, the court consolidated this case with another case pending before the court, No. 15­-1006-­CZ. Meanwhile, the MDOC appealed the appellate court's September 14 decision to the state Supreme Court, but the appeal was denied on April 4, 2017. 891 N.W.2d 492.

The trial court heard oral arguments on the remaining issues—the ELCRA claim and a government immunity claim—on October 11, 2017. The trial court decided in October 2017 that the it was unconstitutional for the amendment to prohibit individuals serving a sentence of imprisonment from bringing actions under the Elliott-Larsen Civil Rights Act (ELCRA). It also concluded that governmental immunity does not apply to prisoners' civil-rights actions. The defendants appealed to the Michigan Court of Appeals.

On March 27, 2018, the Court of Appeals adopted Judge Beckering's dissent from the court's August 25, 2015 decision. That opinion had explained that the Michigan Constitution's Article I, § 2 did not grant the legislature the authority to exclude a class of individuals from the protections of ELCRA. The court therefore concluded that the dissent's analysis had been correct: the 1999 amendment had violated the Michigan Constitution. The court affirmed the trial court's decision and held that the legislature must craft laws that protect all citizens. The court also affirmed that the governmental immunity does not apply to ELCRA claims. 917 N.W.2d 730. The Michigan Supreme Court denied the defendant's application for leave to appeal.

Back in the state trial court, the cases proceeded to trial and through multiple discovery issues. The defendant tried to decertify the plaintiff's class or, in the alternative, bifurcate classwide liability into separate trials, but the Court denied on the motion on May 2, 2019. The defendant then moved for summary judgment again, but the Court denied this motion on August 29, 2019, after determining that multiple issues of material fact were in dispute. The Court found that one class member's exhaustion of administrative remedies satisfied the requirement for the entire class, and denied summary judgment because there was an issue of material fact as to whether any plaintiff had exhausted their administrative remedies. Additionally, the Court found that there was a genuine issue of material fact as to what can cause a physical injury. With regards to this case, Judge Kuhnke found that verbal abuse causing brain injury, or emotional distress that causes sleep loss or vomiting, can satisfy the PLRA's physical injury requirement. Finally, Judge Kuhnke found a genuine issue of material fact pertaining to the ELCRA and whether the defendants had received constructive notice that youth were being targeted and sexually abused.

On February 26, 2020, the Court approved a proposed preliminary settlement agreement. The final class included those persons incarcerated in an MDOC facility while under the age of 18 any time between October 15, 2010 and February 24, 2020. The settlement resolved this case and four others: Docket 15-001006-CZ in Michigan's 22nd Circuit Court; Docket 16-cv-13765 in the Eastern District of Michigan; 2:17-cv-11181 in the Eastern District of Michigan; and 13-cv-14356 in the Eastern District of Michigan (additional information on this case can be found at Does v. Michigan Department of Corrections in the Clearinghouse).

As part of the settlement, the MDOC agreed to pay $80,000,000 to an escrow fund in installments, with the final payment to be made by October 15, 2022. The settlement also required the MDOC to issue a "Youthful Offender Policy Directive," which requires any observation or report of a Prison Rape Elimination Act (PREA) violation to be reported to the PREA Coordinator. The settlement noted that the MDOC would provide enhanced training on youth development, and also provide counseling services for the plaintiffs. The MDOC also agreed to revise its PREA grievance process to remove the requirement that a prisoner exhaust their administrative remedies.

Class counsel issued an allocation plan to disburse the $80,000,000. The plan stated that eligible claimants would be divided into four compensation pools based on the nature of their claims, their injuries, and the legal risks involved in proceeding with the litigation. Pool 1 was created to compensate class members who suffered at least one sexual assault involving penetration by an adult prisoner or MDOC Staff member, and $30,000,000 was set aside for these claimants. Pool 2 was set to comprise of class members who suffered solitary confinement; "solitary confinement" was defined as confinement in a cell alone for at least 23 hours a day regardless of the reason. $4,000,000 was set aside for Pool 2. Pool 3 was created for class members who were sexually assaulted without penetration by an adult prisoner, probationer, or MDOC staff member. Pool 3 was allocated $16,000,000. Finally, $1,000,000 was set aside for Pool 4, which compensated class members subjected to use of force by an MDOC staff member.

The allocation plan also stipulated that class members may be eligible to receive enhancement awards if they provided substantial assistance to class counsel during litigation; $1,666,667 was set aside for this purpose. A residual claim fund was also established in case of variance in the forecasted number of claimants.

The Court also approved attorneys' fees of $1,000,000. Because the docket lists a few remaining hearings to finalize the settlement agreement, as of April 12, 2020, this case remains ongoing.