Case: Salem v. Michigan Department of Corrections

2:13-cv-14567 | U.S. District Court for the Eastern District of Michigan

Filed Date: Nov. 1, 2013

Closed Date: Oct. 18, 2019

Clearinghouse coding complete

Case Summary

On November 1, 2013, female inmates housed at the all-women Huron Valley Correctional Facility in Pittsfield Township, Michigan, sued the Michigan Department of Corrections (MDOC) over its strip-search policies. Beginning in 2009, MDOC required each prisoner at Huron Valley to sit on a chair and spread her labia to allow female corrections officers to check her vaginal cavity for contraband after returning from off-site visits and after meeting with anyone during direct-contact visits. The plai…

On November 1, 2013, female inmates housed at the all-women Huron Valley Correctional Facility in Pittsfield Township, Michigan, sued the Michigan Department of Corrections (MDOC) over its strip-search policies. Beginning in 2009, MDOC required each prisoner at Huron Valley to sit on a chair and spread her labia to allow female corrections officers to check her vaginal cavity for contraband after returning from off-site visits and after meeting with anyone during direct-contact visits. The plaintiffs alleged that the chairs were improperly sanitized, and that prisoners weren’t able to properly sanitize their hands before touching their genitals, exposing them to a heightened risk of contracting diseases through contact with the bodily fluids of other prisoners. They further alleged that the searches were carried out in view of other prisoners and male corrections officials. The plaintiffs brought suit in the U.S. District Court for the Eastern District of Michigan under 42 U.S.C. §1983. They argued that by requiring strip searches in unsanitary conditions and in view of other prisoners and male corrections officials, MDOC was deliberately indifferent to the health, safety, privacy and bodily integrity of inmates, in violation of the Fourth, Eighth, and Fourteenth Amendments. Represented by private counsel, the plaintiffs asked the court for class certification to represent other prisoners who are, were, or will be confined at Huron Valley and who have been or may be subjected to spread-labia search. They further asked the court to: declare the spread-labia search technique unconstitutional; issue a permanent injunction requiring Huron Valley correctional staff to stop performing such searches; issue an injunction requiring Huron Valley to provide medical and mental health care to address ongoing harm being suffered by the plaintiffs, including mental anguish, trauma, and infections caused by the unsanitary conditions; award damages to the plaintiffs for harm suffered, including punitive damages where appropriate; and to award the plaintiffs reasonable attorneys’ fees and costs. The case was assigned to Judge Paul D. Borman.

On May 1, 2015, the court granted in part and denied in part MDOC’s motion to dismiss, ruling that the plaintiffs’ claim for monetary damages was barred by the Eleventh Amendment. It also found that, because the warden had taken reasonable steps to avert the risks associated with the spread-labia search procedure (conducting an inquiry, taking action to make it more sanitary, and eventually ending it as a routine procedure in 2011), correctional staff had not violated the Eighth Amendment.

However, the court found that if the spread-labia searches were carried out under unsanitary conditions with other prisoners and male corrections officials watching, then the prison may have violated the prisoners’ Fourth Amendment right to privacy. The court further found that because the plaintiffs had also alleged that the spread-labia search was still being carried out, even if it was no longer officially a routine procedure, the plaintiffs could be entitled to prospective injunctive relief prohibiting corrections officials from continuing the practice. This meant that the plaintiffs’ Fourth Amendment claim was sufficiently strong to survive MDOC’s motion to dismiss. On March 9, 2016, the Sixth Circuit Court of Appeals affirmed the court’s denial of qualified immunity to the prison’s warden, and dismissed MDOC’s appeal of the district court’s order denying the motion to dismiss the plaintiffs’ claims for prospective injunctive relief. 643 Fed. App’x 526.

The plaintiffs filed a motion for class certification on August 11, 2016, but the definition of their proposed class changed multiple times throughout the proceedings. In an effort to ensure the class was ascertainable, the plaintiffs proposed in their reply brief the following class definition: “current and former women incarcerated at WHVCF since 2010 who were eligible for offsite trips and contact visits and were thus, pursuant to the practice of WHVCF subject to the ‘chair portion’ of Defendants’ strip searches.” During oral argument, the plaintiffs proposed two subclasses: (1) women who were currently or had formerly been incarcerated at the relevant facility and were subject to the chair portion of the strip search in view of other people sometime between November 1, 2010 and November 1, 2013; (2) women who were currently or had formerly been incarcerated at the relevant facility and were subject to the chair portion of the strip search under unsanitary or unhygienic conditions between November 1, 2010 and December 16, 2011. The plaintiffs asserted that individuals in both subclasses had suffered compensable injuries.

In its decision on December 22, 2016, the court rejected the motion for certification as to both proposed subclasses. As to the unsanitary conditions subclass, the court denied certification because the Sixth Circuit had affirmed that MDOC was protected by qualified immunity. As to the subclass of inmates subjected to search in public, the court found that the class was ascertainable, but did not meet the adequacy of representation, numerosity, and typicality requirements for class certification. 2016 WL 7409953.

The parties were referred to Magistrate Judge Steven Whalen for a settlement conference on July 19, 2017. The court denied motions for summary judgment from both parties on August 24, 2018. On September 16, 2019, the court again denied class certification, and scheduled a bench trial (named plaintiffs only) for November 6, 2019.

On October 17, 2019 the plaintiffs, without explanation, dismissed their claims. The court closed the case on October 18, 2019.

Summary Authors

Ryan Berry (8/5/2016)

Mackenzie Walz (10/3/2018)

Eva Richardson (5/27/2019)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5404511/parties/salem-v-michigan-department-of-corrections/


Judge(s)

Borman, Paul D. (Michigan)

Whalen, R. Steven (Michigan)

Attorneys(s) for Plaintiff

Gorman, Teresa J. (Michigan)

Hardin, Kenneth J. II (Michigan)

Miller, Racine M. (Michigan)

Attorneys(s) for Defendant

Barkman, Cori E. (Michigan)

Dean, Michael R. (Michigan)

Govorchin, A. Peter (Michigan)

Soros, Allan J. (Michigan)

Judge(s)

Borman, Paul D. (Michigan)

Whalen, R. Steven (Michigan)

Attorneys(s) for Plaintiff

Gorman, Teresa J. (Michigan)

Hardin, Kenneth J. II (Michigan)

Miller, Racine M. (Michigan)

Attorneys(s) for Defendant

Barkman, Cori E. (Michigan)

Dean, Michael R. (Michigan)

Govorchin, A. Peter (Michigan)

Soros, Allan J. (Michigan)

Documents in the Clearinghouse

Document

Docket [PACER]

Oct. 18, 2019 Docket
1

Complaint

Nov. 1, 2013 Complaint
21

Opinion and Order [regarding motion to dismiss]

May 1, 2015 Order/Opinion
56

Opinion and Order Denying Plaintiff's Motion for Class Certification Without Prejudice

Dec. 22, 2016 Order/Opinion
90

Opinion and Order Denying Defendants' Motion for Summary Judgment and Qualified Immunity, and Denying Plaintiffs' Motion for Partial Summary Judgment

Aug. 24, 2018 Order/Opinion
101

Opinion and Order (1) Denying Plaintiffs' Motion to Certify Class, (2) Denying Plaintiffs’ Motion for Leave of Court to File Additional Affidavits and (3) Setting a Bench Trial on Exhaustion of the Two Named Plaintiffs' Claims for November 6, 2019

2019 WL 4409709

Sept. 16, 2019 Order/Opinion
106

Order of Court

Oct. 18, 2019 Order/Opinion

Docket

See docket on RECAP: https://www.courtlistener.com/docket/5404511/salem-v-michigan-department-of-corrections/

Last updated May 20, 2022, 4:16 a.m.

ECF Number Description Date Link
1

Complaint

Nov. 1, 2013 PACER
2

Summons Issued

Nov. 4, 2013 PACER
3

Certificate of Service/Summons Returned Executed

Nov. 18, 2013 PACER
4

Attorney Appearance

Nov. 20, 2013 PACER
5

Attorney Appearance

Nov. 21, 2013 PACER
6

Order to Extend Time to (Free)

Nov. 27, 2013 PACER
7

Certificate of Service/Summons Returned Executed

Dec. 16, 2013 PACER
8

Attorney Appearance

Jan. 21, 2014 PACER
9

Attorney Appearance

Jan. 21, 2014 PACER
10

Attorney Appearance

Jan. 21, 2014 PACER
11

Motion to Dismiss

1 Index of Exhibits

View on PACER

2 Exhibit A

View on PACER

3 Exhibit B

View on PACER

Jan. 21, 2014 PACER
12

Notice of Appearance

Jan. 31, 2014 PACER
13

Protective Order

Feb. 6, 2014 PACER
14

Exhibit

Feb. 7, 2014 PACER
15

Order to Extend Time to (Free)

Feb. 12, 2014 PACER
16

Notice of Hearing on Motion

Feb. 13, 2014 PACER
17

Response to Motion

1 Index of Exhibits Index of Exhibits

View on PACER

2 Exhibit Exhibit 1 - Memorandum

View on PACER

3 Exhibit Exhibit 2 - Notice to Staff

View on PACER

4 Exhibit Exhibit 3 - 2012 Policy

View on PACER

5 Exhibit Exhibit 4 - Affidavits

View on PACER

6 Document Continuation Appendix - Inmates for Whom Plaintiffs have Copies of File

View on PACER

March 11, 2014 PACER
18

Reply to Response to Motion

1 Index of Exhibits

View on PACER

2 Exhibit A

View on PACER

March 25, 2014 PACER
19

Affidavit

March 28, 2014 PACER
20

Notice of Hearing on Motion

April 3, 2014 PACER

Set Motion and R&R Deadlines/Hearings

June 19, 2014 PACER

Motion Hearing

June 26, 2014 PACER
21

OPINION AND ORDER granting in part and denying in part 11 Motion to Dismiss. Signed by District Judge Paul D. Borman. (DTof)

May 1, 2015 RECAP
22

Order to Extend Time to (Free)

May 19, 2015 PACER
23

Notice of Appeal

May 21, 2015 PACER
24

Certificate of Service of Notice of Appeal - 6th Circuit

May 21, 2015 PACER

Appeal Fee Received

May 28, 2015 PACER
25

Order Staying Case

June 2, 2015 PACER
26

Notice of Cross Appeal

June 11, 2015 PACER

Court Reporter Acknowledgment of Transcript Order Form

June 12, 2015 PACER
27

Certificate of Service of Notice of Appeal - 6th Circuit

June 12, 2015 PACER
28

Transcript

June 12, 2015 PACER
29

Motion for Withdrawal of Attorney

June 16, 2015 PACER
30

Order on Motion to Withdraw as Attorney

July 14, 2015 PACER
31

Appeal Order/Opinion/Judgment

Sept. 8, 2015 PACER

Certificate of Service

Nov. 23, 2015 PACER
32

Appeal Order/Opinion/Judgment

March 9, 2016 PACER
33

Appeal Mandate

March 31, 2016 PACER
34

Motion to Compel

1 Exhibit 1 - Subpoena and Green Card for Fred Abcumby

View on PACER

April 14, 2016 PACER
35

Notice to Withdraw Motion

April 15, 2016 PACER
36

Notice to Appear

April 20, 2016 PACER

Set Deadlines/Hearings

May 25, 2016 PACER

Text-Only Notice of Hearing Cancelled

June 6, 2016 PACER
37

Discovery Plan - Rule 26f

June 6, 2016 PACER
38

Scheduling Order

June 7, 2016 PACER
39

Answer to Complaint

June 29, 2016 PACER
40

Stipulation and Order

June 30, 2016 PACER
41

Order

July 20, 2016 PACER
43

Order to Strike

Aug. 9, 2016 PACER
44

Motion to Certify Class

Aug. 11, 2016 PACER
45

Notice of Hearing on Motion

Aug. 11, 2016 PACER
46

Stipulation and Order

Aug. 22, 2016 PACER
47

Order to Extend Time to (Free)

Aug. 31, 2016 PACER
48

Witness List

Sept. 1, 2016 PACER
49

Witness List

Sept. 1, 2016 PACER
50

Response to Motion

1 Exhibit A - Policy Directive 03.02.130

View on PACER

Sept. 15, 2016 PACER
51

Reply to Response to Motion

Sept. 29, 2016 PACER
52

Order

Oct. 24, 2016 PACER
53

Sur-Reply

Nov. 1, 2016 PACER
54

Stipulation

Nov. 28, 2016 PACER
55

Order

Nov. 30, 2016 PACER
56

OPINION AND ORDER denying 44 Motion to Certify Class. Signed by District Judge Paul D. Borman. (DTof)

Dec. 22, 2016 RECAP
57

Stipulation and Order

Feb. 9, 2017 PACER
58

Stipulation and Order

April 6, 2017 PACER
59

Stipulation and Order

June 14, 2017 PACER
60

Order Referring Other Matters to Magistrate Judge

July 19, 2017 PACER
61

Notice to Appear

July 19, 2017 PACER

Settlement Conference

Oct. 17, 2017 PACER
62

Order

Nov. 13, 2017 PACER
63

Motion for Summary Judgment

1 Index of Exhibits

View on PACER

2 Exhibit A - Excerpts of Millicent Warren's Deposition

View on PACER

3 Exhibit B - Affidavit of Millicent Warren

View on PACER

Dec. 15, 2017 PACER
64

Motion for Partial Summary Judgment

1 Index of Exhibits

View on PACER

2 Exhibit 1

View on PACER

3 Exhibit 2

View on PACER

Dec. 15, 2017 PACER
65

Motion for Summary Judgment

1 Index of Exhibits

View on PACER

2 Exhibit A - Millicent Warren's Deposition

View on PACER

3 Exhibit B - Affidavit of Millicent Warren

View on PACER

Dec. 15, 2017 PACER
66

Motion to Certify Class

1 Index of Exhibits

View on PACER

2 Exhibit 1

View on PACER

3 Exhibit 2

View on PACER

4 Exhibit 3

View on PACER

5 Exhibit 4

View on PACER

6 Exhibit 5

View on PACER

7 Exhibit 6

View on PACER

Dec. 15, 2017 PACER
67

Response to Motion

1 Exhibit 1 - Deposition Transcript of Millicent Warren

View on PACER

2 Document Continuation Exhibits to Dep

View on PACER

Jan. 5, 2018 PACER
68

Order

Jan. 8, 2018 PACER
69

Notice of Hearing on Motion

Jan. 16, 2018 PACER
70

Response to Motion

Jan. 26, 2018 PACER
71

Response to Motion

Jan. 26, 2018 PACER

Set Motion and R&R Deadlines/Hearings

Jan. 29, 2018 PACER

Motion Hearing

April 4, 2018 PACER

Hearing Not Held/Hearing Cancelled

April 4, 2018 PACER
76

Order to Strike

April 4, 2018 PACER
77

Order to Strike

April 5, 2018 PACER
78

Order

April 5, 2018 PACER
81

Stipulation

April 19, 2018 PACER
82

Sur-Reply

May 2, 2018 PACER
83

Sur-Reply

May 2, 2018 PACER
84

Sur-Reply

May 2, 2018 PACER
85

Notice to Appear

July 26, 2018 PACER

Set Deadlines/Hearings

July 27, 2018 PACER

Miscellaneous Hearing

Aug. 1, 2018 PACER
86

Order to Strike

Aug. 1, 2018 PACER
87

Motion for Order

Aug. 8, 2018 PACER
88

Motion for Order

Aug. 8, 2018 PACER
89

Order on Motion for Order

Aug. 15, 2018 PACER
90

OPINION AND ORDER Denying 64 Plaintiffs' Motion for Partial Summary Judgment, and Denying 65 Defendants' Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (SPin) Modified on 8/27/2018 (DTof).

Aug. 24, 2018 RECAP
91

Affidavit

Sept. 14, 2018 PACER
92

Affidavit

Sept. 14, 2018 PACER
93

Affidavit

Sept. 14, 2018 PACER
94

Affidavit

Sept. 15, 2018 PACER

State / Territory: Michigan

Case Type(s):

Prison Conditions

Special Collection(s):

Strip Search Cases

Post-WalMart decisions on class certification

Key Dates

Filing Date: Nov. 1, 2013

Closing Date: Oct. 18, 2019

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Female prisoners at the Huron Valley Correctional Facility

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Denied

Defendants

Michigan Department of Corrections , State

Defendant Type(s):

Corrections

Case Details

Causes of Action:

42 U.S.C. § 1983

Declaratory Judgment Act, 28 U.S.C. § 2201

Constitutional Clause(s):

Cruel and Unusual Punishment

Due Process

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Complaint (any)

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Assault/abuse by staff

Personal injury

Sanitation / living conditions

Search policies

Sex w/ staff; sexual harassment by staff

Strip search policy

Affected Gender:

Female

Medical/Mental Health:

Hepatitis

HIV/AIDS

Medical care, unspecified

Type of Facility:

Government-run