Salem v. Mich. Dep't of Corr.

AMIRA SALEM and KESHUNA ABCUMBY, Plaintiffs, v. MICHIGAN DEPARTMENT OF CORRECTIONS, et al., Defendants.

Case No. 13-14567

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 24, 2018

Paul D. Borman United States District Judge

R. Steven Whalen United States Magistrate Judge

OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND QUALIFIED IMMUNITY, AND DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

This is a putative class action concerning certain strip search practices that were employed at the Women's Huron Valley Correctional Facility, operated by the Michigan Department of Corrections ("MDOC"). Named Plaintiffs Amira Salem and Keshuna Abcumby, both former inmates there, filed suit against the Michigan Department of Corrections, Warden Millicent Warren, and four other state officials, alleging that the inmate strip search procedures used by officers at the facility violated their rights under the Fourth, Eighth, and Fourteenth Amendments.

In May 2015, this Court dismissed Plaintiffs' Eighth and Fourteenth Amendment claims against all Defendants, and Plaintiffs' Fourth Amendment claims against all Defendants except Defendant Warren, concluding that Defendant Warren was not entitled to qualified immunity on that claim. The issue of prospective injunctive relief against MDOC was not raised in this count.

Defendants appealed this Court's ruling denying qualified immunity to Defendant Warren to the United States Court of Appeals for the Sixth Circuit, which affirmed that ruling. See generally Salem v. Michigan Dep't of Corr., 643 F. App'x 526 (6th Cir. 2016) (available on the docket at ECF No. 32). The Sixth Circuit noted that Defendant Warren had not raised at the District Court the issue that there were no facts supporting her personal involvement in any searches done in public view and that MDOC policy forbade guards from searching in such a manner. See id. at 530. In December 2016, this Court denied Plaintiffs' class certification motion without prejudice.

The remaining issues are whether Defendant Warren is entitled to summary judgment on the claim that strip searches were performed in view of others, and whether Plaintiffs are entitled to future injunctive relief against MDOC.

Presently before the Court are Defendants' Motion for Summary Judgment and Qualified Immunity, as well as Plaintiffs' Motion for Partial Summary Judgment.

I. BACKGROUND

A. Factual Background

1. Chair-based Strip Searches at the Women's Huron Valley Correctional Facility

Prior to 2009, a standard strip search at a correctional facility that housed female prisoners in Michigan was conducted by female corrections officers, who would require the prisoner to "remove her clothing [and] bend forward, [to allow] for a visual inspection of the entrance to the vagina and rectal cavity; in such cases, the [prisoner would] be required to bend and spread her buttocks, and cough." (ECF No. 21, May 2015 Opinion and Order¹ at 3, Pg ID 241 (internal quotation marks omitted) (citing ECF No. 11 Ex. A, January 2014 Affidavit of Millicent Warren ¶ 6).) "The female [corrections officer] then performed a visual check of the inmate's mouth, nose, ears, hair and asked the prisoner to allow the officer clear view of areas behind ears and under breasts." (Id. (alteration in original) (internal quotation marks and citation omitted).)

Defendant Millicent Warren became warden of MDOC's Huron Valley complex in October 2008. (ECF No. 65, Defs.' Mot. Summ. J. Ex. A, Deposition ofMillicent Warren at 39:25-40:2.) At some time prior to that, MDOC had instituted the use of a chair to aid corrections officers in performing strip searches on female inmates, in certain circumstances, in the East Side of the facility. (May 2015 Opinion and Order at 3-4, Pg ID 241-42.) After MDOC consolidated all of its female prisoners into the Huron Valley facility—now known as the Women's Huron Valley Correctional Facility ("WHV")—in 2009, id., MDOC also implemented the chair-based strip searches on the West Side of the facility. (ECF No. 18 Ex. A, March 2014 Supplemental Affidavit of Millicent Warren ¶ 4.)

As to the specifics of the chair-based strip searches, a WHV Operating Procedure dated May 1, 2009 (and hereinafter referred to as "WHV-OP-04.04.110"²) defined the general term "strip search" as follows:

Strip Search: Visual inspection of all body surfaces of a person who has been required to remove all or most of his/her clothing and jewelry for purposes of the search. This includes visual inspection of the mouth, ears, and nasal cavities. Unless determined by the Warden to be unnecessary for an assignment within the security perimeter which requires a strip search (e.g., Michigan State Industries), it also includes visual inspection of the entrance to the vagina and rectal cavity; in such cases, the person will be required to bend and spread her buttocks and sit on a sanitary paper lined chair and spread her knees so as to spread the lips of her vagina to allow inspection. All clothing and articles which are removed also shall be inspected for contraband.

(ECF No. 11 Ex. A, Jan. 2014 Warren Aff. Ex. C-2, WHV-OP-04.04.110 at 3, Pg ID 129 (emphasis in original).) Importantly, WHV-OP-04.04.110 also provides that"[a] strip search of a prisoner at WHV must be conducted by and only in the presence of female employees." (Id. at 4, Pg ID 130.)

These types of searches were performed after a prisoner returned from an off-site visit (including hospital visits or leaving the prison on writ), and after each "contact visit" (i.e., visits in which a prisoner was allowed physical contact with her visitors). (May 2015 Opinion and Order at 4, Pg ID 242.) Warren averred in a sworn affidavit that the decision to use the chair portion of the strip search was an attempt "to better comply with the search depicted in the 1998 training video which showed how a proper strip search of female offenders was to be done. The additional step of using a chair was added because of the awareness that females could hide contraband in their vagina." (Id. (internal quotation marks omitted) (quoting Jan. 2014 Warren Aff. ¶ 8).) Warren further averred that "MDOC, at the time, believed that incorporating a chair into the routine strip search procedure would aid staff in performing a more thorough search for contraband and to better comply with MDOC policy on strip searches." (Id. at 4-5, Pg ID 242-43) (internal quotation marks and citation omitted).)

The 1998 training video includes a visual depiction of how to conduct a strip search pursuant to PD 04.04.110, and instructs that during a routine strip search the female inmate is "required to sit and spread the lips of her vagina." (Id. at 5, Pg ID 243 (citing Jan. 2014 Warren Aff. Ex. B, Video).) The training video further advisesthat any tampon or sanitary napkin must be removed to allow the corrections officer to visually search the vaginal opening, but is silent as to the maintenance of sanitary conditions and as to the prevention of the spread of communicable disease. (Id. (citing Jan. 2014 Warren Aff. Ex. B, Video).)

Warren testified that the initial decision to institute the chair portion of the strip search in the Huron Valley complex was not hers, as it was being used on the East Side of the facility before she became warden. (Warren Dep. 40:18-41:6.) Warren also testified as to how searches like this were to be carried out: specifically, she testified that they were required to be conducted in a windowless room by female officers, and that only the officer performing the search was allowed to be present in the room with the inmate unless another officer was also present for training purposes. (Warren Dep. 49:12-25.) Like all strip search procedures, strip searches involving a chair were to be conducted one at a time, out of view of other prisoners. (Warren Dep. 50:1-13.)

Warren provided further testimony regarding the administration of chair-based strip searches in a sworn affidavit dated December 14, 2017. (Defs.' Mot. Summ. J. Ex. B, December 2017 Affidavit of Millicent Warren, Pg ID 706-10.) In that affidavit, she averred, consistently with the language of WHV-OP-04.04.110 quoted above, that the policy required any strip search to be conducted "by and only in the presence of female employees." (Dec. 2017 Warren Aff. ¶ 3 (quoting WHV-OP-04.04.110 at 4, Pg ID 130).) She then averred as follows:

At no time did I give instruction to staff to violate these policies in any way. I did not encourage staff to conduct strip searches of prisoners in view of other prisoners or to conduct strip searches in an unsanitary manner. I did not participate directly in conducting strip searches of prisoners in view of other prisoners or to conduct strip searches in an unsanitary manner. I did not implicitly authorize, approve or knowingly acquiesce in staff conducting strip searches of prisoners in view of other prisoners or to conduct strip searches in an unsanitary manner.

(Id.)

2. Inmate Complaints and Subsequent Policy Changes

During 2010 and 2011, MDOC personnel (including Warren) became aware of complaints from inmates at WHV regarding the chair strip search. (May 2015 Opinion and Order at 6, Pg ID 244.) The parties differ over the precise number of such complaints, but there is no dispute that MDOC received at least 67 grievances regarding some aspect of the chair strip search between 2009 and 2011, and that WHV's psychological services staff received at least 30 complaints regarding the same (with possible overlap between the two groups). (See id. at 6-7, Pg ID 244-45.)

Complaints about WHV's strip search procedures were also raised by WHV inmates at Warden's Forum Committee ("WFC") meetings, which Warren conducted periodically in order to share news with the inmate population and to allow inmates to discuss issues of concern to them. (Warren Dep. 12:20-13:6.) Minute records from four WFC meetings (three in 2009 and one in...