Doe v. Dep't of Corr.

312 Mich.App. 97

878 N.W.2d 293

DOE

v.DEPARTMENT OF CORRECTIONS.

Docket Nos. 321013

321756.

Court of Appeals of Michigan.

Submitted June 3, 2015, at Lansing.

Decided Aug. 25, 2015, at 9:05 a.m.

Deborah LaBelle, Anlyn Addis, Richard A. Soble, Jennifer B. Salvatore, Nakisha Chaney, Edward Macey, Michael L. Pitt, Peggy Goldberg Pitt, and Cary S. McGehee for plaintiffs in Docket No. 321013.

Pitt McGehee Palmer & Rivers, PC, Royal Oak (by Michael L. Pitt, Beth M. Rivers, Peggy Goldberg Pitt, and Cary S. McGehee ), Deborah LaBelle and Anlyn Addis, and Jennifer B. Salvatore, Nakisha Chaney, and Edward Macey for plaintiffs in Docket No. 321756.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Ann Sherman, Assistant Solicitor General, and Mark E. Donnelly, Michael F. Murphy, Christina M. Grossi, and Heather S. Meingast, Assistant Attorneys General, for defendants in Docket No. 321013.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, B. Eric Restuccia, Deputy Solicitor General, and Mark E. Donnelly and

Heather S. Meingast, Assistant Attorneys General, for defendants in Docket No. 321756.

Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.

RIORDAN, P.J.

Defendants, various governmental entities and individuals including the Department of Corrections and the Governor, originally sought leave to appeal the trial court orders denying their motions for summary disposition in this action initiated by plaintiffs, who are male prisoners.

In Docket No. 321013, defendants sought to appeal the trial court order denying their motion for summary disposition based on plaintiffs' failure to comply with the prison litigation reform act (PLRA), MCL 600. 5501 et seq. In Docket No. 321756, defendants sought to appeal the trial court order denying their motion for summary disposition based on the prisoners' substantive discrimination claims.

This Court initially denied defendants' applications for leave to appeal. The Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. Doe v. Dep't of Corrections, 497 Mich. 882, 854 N.W.2d 718 (2014). Having reviewed the issues raised on appeal, we reverse and remand for proceedings consistent with this opinion.

I. BACKGROUND

Plaintiffs are seven unidentified males who became imprisoned while under the age of 18 in Department of Corrections (DOC) facilities. Plaintiffs sued under the Elliott–Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., claiming that they had been subjected to sexual violence and harassment by adult male prisoners and female prison guards.

Defendants eventually moved for summary disposition on several grounds. First, they contended that plaintiffs failed to comply with MCL 600.5507(2), a provision of the PLRA requiring that a prisoner filing a lawsuit concerning prison conditions disclose the number of civil actions and appeals the prisoner previously initiated. Defendants alleged that plaintiffs' disclosure was insufficient. Defendants further argued that, because MCL 600.5507(3) provides that a court "shall" dismiss any action if the prisoner fails to comply with subsection (2), plaintiffs' complaint had to be dismissed without prejudice. MCR 2.116(C)(4). Plaintiffs countered that MCL 600.5507 only applied to complaints filed on behalf of indigent prisoners, which did not include the prisoners in this case. The trial court ultimately denied defendants' motion for summary disposition.

Defendants also moved for summary disposition under MCR 2.116(C)(8), contending that plaintiffs failed to state a claim on which relief could be granted because the plain language of the ELCRA, as amended, provides that a "public service" does not include a state or county correctional facility with respect to prisoners. Defendants further argued that the amendment did not violate equal-protection principles. Plaintiffs vigorously disputed this point, arguing that the amendment was unconstitutional because it violated plaintiffs' rights to equal protection of the law, with no legitimate justification. They also highlighted that a federal district court case had found the amendment to be unconstitutional, and that decision was binding on the court.

The crux of plaintiffs' equal-protection argument at this juncture is not based on the allegation that their fundamental right to be free from sexual assault is being violated. Rather, plaintiffs' contention is that the ELCRA violates their right to equal protection because it prohibits them from filing a lawsuit based on their status as prisoners, regardless of the type of claim they seek to assert.

The trial court ultimately denied defendants' motion for summary disposition. It ruled that MCL 37.2301(b), which excluded prisons as places of public services under the ELCRA, was unconstitutional because it violated the Equal Protection Clauses of the Michigan and United States Constitutions. Defendants now appeal.

II. STANDARDS OF REVIEW

"The interpretation and application of statutes is a question of law that we review de novo." Ewin v. Burnham, 272 Mich.App. 253, 255, 728 N.W.2d 463 (2006).¹ We also review constitutional issues de novo. Mahaffey v. Attorney Gen., 222 Mich.App. 325, 334, 564 N.W.2d 104 (1997). "Statutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent." Cadillac Mayor v. Blackburn, 306 Mich.App. 512, 516, 857 N.W.2d 529 (2014) (quotation marks and citation omitted). Additionally, we review issues concerning the application of collateral estoppel de novo. Barrow v. Pritchard, 235 Mich.App. 478, 480, 597 N.W.2d 853 (1999).

III. PRISON LITIGATION REFORM ACT

A. DISCLOSURE

The PLRA "sets forth certain requirements that apply when a prisoner brings a civil action concerning prison conditions." Anderson v. Myers, 268 Mich.App. 713, 715, 709 N.W.2d 171 (2005) (quotation marks omitted). A "prisoner" is defined as "a person subject to incarceration, detention, or admission to a prison who is accused of, convicted of, sentenced for, or adjudicated delinquent for violations of state or local law...." MCL 600.5531(e). A "civil action concerning prison conditions" is defined as "any civil proceeding seeking damages or equitable relief arising with respect to any conditions of confinement or the effects of an act or omission of government officials, employees, or agents in the performance of their duties...." MCL 600.5531(a). Plaintiffs do not dispute that each one of them is a "prisoner" and that the present case is a "civil action concerning prison conditions." Nor do the parties dispute that plaintiffs are not indigent.

MCL 600.5507, the provision in dispute, provides:

(1) A prisoner shall not claim indigency under [MCL 600.2963 ] ^{[2 ]} in a civil action concerning prison conditions or an appeal of a judgment in a civil action concerning prison conditions or be allowed legal representation by an attorney who is directly or indirectly compensated for his or her services in whole or in part by state funds if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any prison, brought an action or appeal in a court of this state that was dismissed on the grounds that it was frivolous, unless the prisoner has suffered serious physical injury or is under imminent danger of suffering serious physical injury or has suffered or is under imminent danger of suffering conduct prohibited under ... MCL 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g.

(2) A prisoner who brings a civil action or appeals a judgment concerning prison conditions shall, upon commencement of the action or initiation of the appeal, disclose the number of civil actions and appeals that the prisoner has previously initiated.

(3) The court shall dismiss a civil action or appeal at any time, regardless of any filing fee that may have been paid, if the court finds any of the following:

(a) The prisoner's claim of injury or of imminent danger under subsection (1) is false.

(b) The prisoner fails to comply with the disclosure requirements of subsection (2).

The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Mich. Ed. Ass'n v. Secretary of State (On Rehearing), 489 Mich. 194, 217, 801 N.W.2d 35 (2011). "The first criterion in determining intent is the language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written." Tevis v. Amex Assurance Co., 283 Mich.App. 76, 81, 770 N.W.2d 16 (2009). "Courts may not speculate regarding legislative intent beyond the words expressed in a statute.... Unless defined in the statute, every word or phrase should be accorded its plain and ordinary meaning, taking into account the context in which the words are used." Chico–Polo v. Dep't of Corrections, 299 Mich.App. 193, 198, 829 N.W.2d 314 (2013) (quotation marks and citations omitted). We also presume every word in a statute has meaning, and avoid construing the statute in a way that would render any part surplusage or nugatory. Griswold Props., LLC v. Lexington Ins. Co., 276 Mich.App. 551, 565, 741 N.W.2d 549 (2007). Furthermore, "[a] provision in a statute is ambiguous only if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning." Alvan Motor Freight, Inc. v. Dep't of Treasury, 281 Mich.App. 35, 39–40, 761 N.W.2d 269 (2008) (quotation marks and citation omitted).

When filing this action, plaintiffs disclosed the following in their complaint:

A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has been previously filed in this court, where it was given docket number 13–1049–CZ and was assigned to Judge Kuhnke. The

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