DOE 1 et al v. Michigan Department of Corrections et al

Filing 91

OPINION AND ORDER granting in part and denying in part 47 Defendants' Partial Motion for Summary Judgment; denying as moot 59 Motion for More Definite Statement; granting 63 Plaintiffs' Renewed Motion for Protective Order. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, et al.,
Plaintiffs,
v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/
OPINION AND ORDER: (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ PARTIAL MOTION FOR SUMMARY JUDGMENT AND MOTION TO
DISMISS, (2) GRANTING PLAINTIFFS’ RENEWED MOTION FOR A PROTECTIVE
ORDER, AND (3) DENYING DEFENDANTS’ MOTION FOR A MORE DEFINITE
STATEMENT
I. INTRODUCTION
Plaintiffs John Does 1–7 filed the instant action alleging that while they were
juveniles in Michigan’s correctional system, Defendants improperly housed them with
adult inmates. As a result, Plaintiffs claim that adult inmates physically and sexually
harassed and assaulted them. Plaintiffs also allege that correctional officers allowed
this abuse to occur, and sometimes participated in the sexual abuse and harassment of
juvenile prisoners. Following their answer to Plaintiffs’ complaint, but before any
discovery commenced, Defendants moved for summary judgment and to dismiss Count
V of Plaintiffs’ complaint, as well as for a more definite statement of Plaintiffs’
allegations. Plaintiffs in turn moved for a protective order allowing them to proceed
pseudonymously. These matters are fully briefed, and no hearing is needed. See E.D.
Mich. LR 7.1(f)(2). For the following reasons, Defendants’ motion for summary

judgment will be denied, their motion to dismiss will be granted, and their motion for a
more definite statement will be denied. Plaintiffs’ motion for a protective order will be
granted.
Before the court addresses the merits of this case, a few comments are in order
concerning the behavior of counsel for both parties.
II. CONDUCT OF COUNSEL
“An attorney's conduct should be characterized at all times by personal courtesy
and professional integrity in the fullest sense of those terms.” – Preamble, Civility
Principles, United States District Court for the Eastern District of Michigan.
The court has held several on and off-the-record status conferences, in which the
court has endeavored to encourage reasonable agreement between the parties on
threshold issues. Counsel for both parties, however, seem unable (or unwilling) to
communicate with each other in good faith. This has led to the court striking several
motions from the docket for failure to comply with E.D. Mich. Local R. 7.1(a), a rule that
is designed to encourage counsel to meet, confer, and reach reasonable agreements
on issues that will expedite the case. Counsel on both sides are, in the court’s view,
excessively adversarial, and have sadly neglected “personal courtesy and professional
integrity in the fullest sense of those terms.” This attitude of counsel is longstanding,
and most recently illustrated in the briefing surrounding Defendants’ motion for a more
definite statement. In this briefing, Defendants argue that “Plaintiffs’ counsels’
arrogance bordered on contempt for the Court;” and Plaintiffs reply that this statement
“border[s] on defamation.” Such juvenile hyperbole serves only to cast both sides in a
poor light, tarnish the appearance of professional competence, and cloud, rather than
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illuminate, the issues. It is sad to contemplate counsel thinking that this judge might be
impressed or swayed by statements such as these.
This case presents serious allegations against Defendants; the central
contentions are inflammatory, or at least potentially so, and the implications important.
The court nevertheless expects counsel to live up to the oath they each took as a
condition of being admitted to practice before this bench, and to behave in a
professional and rational manner. Continuing unprofessional behavior, including
unreasonable withholding of consent, may result in the imposition of appropriate
sanctions.
III. BACKGROUND
Plaintiffs allege that, prior to reaching the age of majority, they were improperly
housed with adult prisoners in the Michigan Correctional System. Plaintiffs claim that
they were cell mates with adult prisoners, and were forced to eat, shower, recreate, and
work with adult prisoners. These encounters placed Plaintiffs at an increased risk for
sexual harassment and assault, including from Michigan Department of Corrections
(“MDOC”) officers who often turned a blind eye to the harassment and assaults.
Plaintiffs also allege that Defendants’ policy of housing youthful prisoners with adults
“created a prison environment that facilitates a system of sexual trafficking of youth.”
(Dkt. # 1, Pg. ID 13.) As a result of Defendants’ alleged policy, Plaintiffs suffered
physical injuries, sexual violence and abuse, and severe emotional and mental trauma.
Currently, there are seven named “John Doe” Plaintiffs, whom the court has thus far
allowed to proceed pseudonymously due to concerns regarding their safety in the
Michigan Correctional System. Each of their individual allegations are summarized
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below.
At the age of 17, Doe 1 entered Michigan’s Richard A. Handlon Correctional
Facility, where he was housed with an adult prisoner. Throughout the spring and
summer of 2012, he alleges that he was repeatedly anally and orally raped by
numerous adult male prisoners, including his adult cell mate who Doe 1 claims engaged
in selling “access” to him to other adult prisoners. Doe 1 further alleges that MDOC
staff were aware of his cell mate’s activities, and all of his attempts to get help were
rejected by MDOC personnel. Following the alleged assaults, MDOC transferred Doe 1
to a new correctional facility, where he was placed in solitary confinement. (Id. at Pg.
ID 15–16.)
Doe 2 has been incarcerated in an adult correctional facility since he was 16
years old. Shortly after he arrived at the Thumb Correctional Facility, he claims that he
was brutally beaten and raped by his adult cell mate. Despite being treated by MDOC
personnel for rectal bleeding, Doe 2 claims he was placed back in the same cell as his
assailant. Doe 2 also alleges that MDOC personnel opened Doe 2's cell so that an
adult prisoner could assault him. When he was transferred to the Oaks Correctional
Facility, MDOC placed him with another adult prisoner who subjected him to further
inappropriate physical conduct. As a result of reporting the incident, he claims he
issued a misconduct ticket and sent to solitary confinement. Since his release from
solitary confinement, Doe 2 claims he has been physically assaulted and marked on his
face with a blade, which the complaint alleges makes him a target for other prisoners.
(Id., at Pg. ID 17–18.)
Doe 3 has also been incarcerated since he was 16 years old, and MDOC initially
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housed him in a facility surrounded by adult prisoners, who allegedly sexually harassed
and threatened him. When Doe 3 was transferred to the Thumb Correctional Facility,
he claims adult prisoners raped and sexually abused him on at least three occasions.
Additionally, Doe 3 alleges that female MDOC staff members grabbed and pulled on his
genitals, sexually harassing him during body searches and while he was showering and
using the bathroom. According to Doe 3, MDOC personnel told him that he was going
to be raped, and that they would facilitate rape as punishment for any complaints. (Id.
at Pg. ID 18–20.)
Doe 4 also claims that he was abused by female MDOC staff members. He has
been incarcerated at the Thumb Correctional Facility since he was 16, and claims that
from late 2012 to early 2013, a female MDOC staff member repeatedly opened his cell
for the purpose of raping him and that she also coerced sexual intercourse with him in a
cleaning closet. Doe 4 repeats similar allegations as Doe 3 concerning sexual
harassment and tugging on his genitals by female MDOC personnel. (Id. at Pg. ID
20–21.)
The Thumb Correctional Facility female staff also harassed and groped Doe 5.
He claims that his adult cell mate physically assaulted and anally raped him, as well as
sold him to other adult male prisoners for sexual encounters. The complaint further
states that MDOC staff were aware of this sexual trafficking, but failed to discipline the
adult offenders, intervene with protective custody, or separate him from the adult
prisoners. When Doe 5 was transferred to the Carson City Correctional Facility, he
claims that other adult inmates sexually abused, assaulted, and raped him in a shower.
(Id., Pg. ID 21–23.)
5

Doe 6 alleges that he was also housed with adult inmates. He claims that he
was repeatedly sexually harassed, and despite reporting his fears to MDOC, he was
transferred to the Gus Harrison Correctional Facility where an adult prisoner raped him
in the laundry room. Following Doe 6’s report to prison authorities, he alleges that he
was transferred to another correctional facility where he has been housed for over five
months in solitary confinement. He claims that the harassment has not stopped, and
that he is threatened and told that he will be sold for sex on the prison yard. Doe 6
refuses to leave solitary confinement because of his fear of additional rapes. (Id., Pg.
ID 23–24.)
Doe 7 was incarcerated as a minor throughout the summer of 2013. Despite
acknowledging that he was vulnerable to sexual assaults, the complaint alleges that
MDOC staff took no action to protect him. Doe 7 claims that an adult male prisoner
subsequently entered Doe 7’s cell and assaulted him. (Id., Pg. ID 24–25.)
Defendants deny almost all of Plaintiffs’ claims. They state that under-age
prisoners are not housed with adults, and that adult housing is physically separate from
prisoners who are under 18 years of age. Regarding the individual Doe Plaintiffs’
allegations, Defendants state that they can neither admit or deny the allegations
because the identity of each Doe Plaintiff has not yet been revealed. Defendants also
deny having any knowledge that youthful prisoners are subjected to a heightened and
substantial risk of physical and sexual violence, stating instead that “a prisoner’s
vulnerability to another prisoner is more a function of the prisoner’s attitude and
deportment and behavior, than it is strictly of age.” (Dkt. # 36, Pg. ID 252.)

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IV. STANDARD
Defendants ask that the court grant them summary judgment on Plaintiffs’ claim
for prospective injunctive relief and that it dismiss Plaintiffs’ international law claim.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court
must view the evidence in the light most favorable to the non-moving party, drawing all
reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497
(6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine
dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
burden then shifts to the nonmovant, who must put forth enough evidence to show that
there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir.
2004) (citation omitted). The nonmovant “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita v. Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment, therefore, is not
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
In contrast, a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of a complaint’s allegations. The court views the complaint
in the light most favorable to the plaintiff and takes all well-pleaded factual allegations
as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009).
V. DISCUSSION

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A. Plaintiffs’ Claims for Prospective Injunctive Relief
Defendants seek summary judgment on Plaintiffs’ claims for prospective
injunctive relief, arguing that Plaintiffs lack standing and that Defendants have already
changed their policy in accordance with the injunctive relief Plaintiffs seek, rendering
Plaintiffs’ claims moot.
1. Standing
Defendants argue that because all Plaintiffs have now reached the age of
majority, none of them currently have standing to challenge MDOC’s practices for
housing youthful prisoners.
Defendants rely on City of Los Angeles v. Lyons, 461 U.S. 95 (1983), for this
argument. In Lyons, the plaintiff sought injunctive relief against Los Angeles after four
police officers pulled him over and placed him in a chokehold, allegedly without
provocation. Id. at 97–98. The Supreme Court found that the plaintiff lacked standing
to seek an injunction barring Los Angeles from using chokeholds, reasoning that it was
“surely no more than speculation to assert either that [the plaintiff] himself will again be
involved in one of these unfortunate instances, or that he will be arrested in the future
and provoke the use of a chokehold.” Id. at 108. Because the Lyons plaintiff failed to
demonstrate a sufficient likelihood that he would again be injured by the Los Angeles
police, he was not entitled to pursue equitable relief. Id. at 111. In the instant case,
Defendants argue that, like the plaintiff in Lyons, Plaintiffs are unable to show any
likelihood of future injury resulting from being youth improperly housed with adult
prisoners because Plaintiffs are now adults, and are thus properly housed in the adult
correctional system.
8

As Plaintiffs respond, Defendants’ argument is misplaced. “Standing to bring suit
must be determined at the time the complaint is filed,” Smith v. Jefferson Cnty. Bd. of
Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011), and “the presence of one party with
standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld
v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006). Defendants
do not present any evidence contesting Plaintiffs’ allegations that John Doe 4 and 7
were minors at the time Plaintiffs filed this action. (Dkt. # 1, Pg. ID 20, 24.) Further, the
Sixth Circuit has declined to apply Lyons in situations where, as here, a plaintiff class
alleges a realistic and non-speculative threat of future injury. See Ramirez v. Webb,
787 F.2d 592, 592 (6th Cir. 1986) (per curiam). Defendants presumably agree, given
that they make no attempt to distinguish this authority in their reply. Plaintiffs have
standing to seek injunctive relief.
2. Mootness
Defendants argue that summary judgment should be granted in their favor on
Plaintiffs’ claim for injunctive relief in the form of an order mandating the separation of
under-age and adult prisoners.1 Defendants assert that because they no longer house
1

There appears to be some confusion regarding whether Defendants also
moved for summary judgment on all of Plaintiffs’ claims for injunctive relief, or whether
they only moved for summary judgment on Plaintiffs’ claim for an injunction mandating
prisoner separation. Plaintiffs (and the United States, through a Statement of Interest)
correctly note that Plaintiffs’ requests for injunctive relief are not limited to an order
mandating the separation of juvenile prisoners from adults. Rather, they also seek
injunctive relief barring defendants from further constitutional, statutory, and common
law violations, as well as mandating “adequate medical and mental health treatment to
remediate the ongoing harm” to Plaintiffs.
Although Defendants originally argued that a decision in their favor on the
request for injunctive relief mandating juvenile/adult separation would mandate
dismissal of all of Plaintiffs’ injunctive relief claims, (Dkt. # 47, Pg. ID 379) they change
9

juvenile prisoners with adults, Plaintiffs’ request for injunctive relief is moot. “A case is
moot when the issues presented are no longer live or when the parties lack a legally
cognizable interest [personal stake] in the outcome.” Banas v. Dempsey, 742 F.2d 277,
281 (6th Cir. 1984) (citation omitted, brackets in original).
Congress enacted the Prison Rape Elimination Act of 2003, (“PREA”), in order to
address the high incidence of sexual assault within prisons. As part of the PREA,
Congress found that “at least 13 percent of the inmates in the United States have been
sexually assaulted in prison,” with juveniles being more than five times as likely as
adults to be sexually assaulted in adult facilities. 42 U.S.C. § 15601(2), (4). Congress
directed the Department of Justice to publish a “final rule adopting national standard for
the detection, prevention, reduction, and punishment of prison rape.” Id. at
§ 15607(a)(1). The PREA further states that if a state fails to certify that it has adopted
the national standard, its federal funding will be reduced by five percent per year. Id. at
§ 15607(e)(2).
Pursuant to this directive, the Department of Justice promulgated the following
rule:
(a) A youthful inmate shall not be placed in a housing unit in which the
youthful inmate will have sight, sound, or physical contact with any adult
inmate through use of a shared dayroom or other common space, shower
area, or sleeping quarters.
(b) In areas outside of housing united, agencies shall either:

course in their reply and clarify that “[insofar] as the Plaintiffs seek other forms of
injunctive relief, the Defendants will address those issues in subsequent motions.” (Dkt.
# 76, Pg. ID 1251.) Given this change in position, the court will only address whether
Plaintiff’s request for an injunction mandating juvenile/adult prisoner separation is moot.
10

(1) Maintain sight and sound separation between youthful
inmates and adult inmates, or
(2) Provide direct staff supervision when youthful inmates and
adult inmates have sight, sound, or physical contact.
(c) Agencies shall make best efforts to avoid placing youthful inmates in
isolation to comply with this provision. Absent exigent circumstances,
agencies shall not deny youthful inmates daily large-muscle exercise and any
legally required special education services to comply with this provision.
Youthful inmates shall also have access to other programs and work
opportunities to the extent possible.
28 C.F.R. § 115.14. For the purposes of this rule, “youthful inmate” “means any person
under the age of 18 who is under adult court supervision and incarcerated or detained in
a prison or jail.” Id. at § 115.5.
Defendants argue that given their change in housing policy to comply with the
PREA, Plaintiffs’ request for an injunction mandating separate housing for juvenile and
adult offenders is moot. Defendants assert that the PREA only applies to federal
prisons, but that Michigan “has elected to voluntarily emulate the PREA national
standards.” (Dkt. # 47, Pg. ID 361.) Prior to the PREA’s effective date, Defendants
claim that Michigan housed all its prisoners who were under 17-years-old with prisoners
of the same age. Juvenile prisoners who were 17-years-old were housed with adult
prisoners, pursuant to Michigan law. Mich. Comp. Laws § 750.139.
Defendants claim that as of August 15, 2013, there are only three correctional
facilities in Michigan where juvenile prisoners are held, and juvenile prisoners are no
longer housed with adults in any of the facilities. The correctional facilities which house
juvenile prisoners are: the Egeler Reception and Guidance Center in Jackson (“RGC”);
the Thumb Correctional Facility in Lapeer (“TCF”); and the Woodland Center
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Correctional Facility in Whitmore Lake (“WCC”). TCF is the primary correctional facility
where juvenile prisoners are housed. Defendants argue that all juvenile prisoners at
TCF are housed in a separate housing unit from the other correctional units, that the
juvenile prisoners do not have any physical contact with adult prisoners, and that the
only proximity they have with adult prisoners occurs “while walking to school, afternoon
or evening meals, recreation activities, religious services, visits, health care, or the
library,” but that while these movements are occurring, the juvenile inmates are under
direct staff supervision at all times. (Dkt. # 47-5, Pg. ID 413; Dkt. # 47-4, Pg. ID 407.)
RGC is used as an intake institution where juvenile prisoners are placed in quarantine
once they are sentenced so that prison officials can conduct a physical and mental
examination, review the individual prisoner’s criminal history, education and risk profile,
and place them within the MDOC system. (Dkt. # 47-3, Pg. ID 397.) Juvenile prisoners
are also processed through the RGC, although their stay is usually expedited to only
one week and there is a meshed fence with a locked gate separating the four cells used
for juveniles at RGC from the rest of the adult population. (Id. at Pg. ID 398.) Juvenile
prisoners are rarely placed in WCC, which is the MDOC facility used for short-term
mental health crisis stabilization. (Dkt. 47-6, Pg. ID 418.) When juvenile prisoners
require short-term mental health treatment, they are placed in their own cell, and
whenever they are moved from their cell, they are under direct staff supervision. (Id. at
Pg. ID 419–20.)
Plaintiffs argue that Defendants’ voluntary change of their prison housing
practices does not moot Plaintiffs’ request for injunctive relief. As the Sixth Circuit
explains:
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‘A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily
does not suffice to moot a case.’ Instead, the defendant bears ‘the
formidable burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.’
Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir. 2012) (quoting
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,
174, 190 (2000)) (internal citations omitted). Plaintiffs point out that in their motion for
summary judgment, Defendants characterize their compliance with the PREA as
“voluntary,”2 and further argue that the PREA only applies to federal prisoners. (See
Dkt. # 47, Pg ID 361.) By these assertions, Defendants’ continued compliance is
discretionary and subject to change.
Defendants change course in their reply, conceding that although their
compliance with the PREA is voluntary, and therefore generally insufficient to moot
Plaintiffs’ claim for injunctive relief, as government officials they are entitled to “more
solicitude” than private parties are. See League of Women Voters of Ohio v. Brunner,
548 F.3d 463, 473–74 (6th Cir. 2008). This may be true, but Defendants have still not
met their “formidable burden” of demonstrating that Plaintiffs’ claim is moot. Michigan
2

The United States filed a Statement of Interest clarifying that the PREA applies
with equal force to both state and federal prisons, and disputing Defendants’
characterization of Plaintiffs’ request for injunctive relief as moot. Although the United
States is correct that the PREA standards apply to state correctional systems, nowhere
does it appear that state compliance is mandatory. Rather, states may choose whether
to certify their full compliance with the PREA’s national standards, or assure the
government that it is using 5% of the federal funds it receives to achieve full
compliance. 42 U.S.C. § 15607(e)(2). A failure to adopt either course of action reduces
a state’s funding for prison purposes by 5% for each fiscal year it is non-compliant. Id.
Although the court has no doubt that a 5% reduction in federal funding has bite, states
appear free to choose whether to comply with the PREA and receive this funding, or
ignore it and face cuts in their budgets. Thus, Michigan appears to be correct in
characterizing its compliance with the PREA as “voluntary.”
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law still allows 17-year-old prisoners to be housed with adults, which if carried out would
be in conflict with the PREA. Compare Mich. Comp. Laws § 750.139 with 28 C.F.R.
§§ 115.5, 115.14. Although Defendants argue that such a practice has been
abandoned, the fact remains that it is still permissible pursuant to state law, and, as
such, subject to change. Accordingly, the court cannot find that Plaintiffs’ have met the
heavy burden of proving moot Plaintiffs’ request for an order mandating the separation
of juvenile and adult prisoners.
B. Plaintiffs’ International Law Claim (Count V)
Defendants move to dismiss Plaintiffs’ claim that Defendants’ conduct violated
their rights under various treaties, including the American Declaration of the Rights and
Duties of Man (“the American Declaration), the International Covenant on Civil and
Political Rights (“ICCPR”), and the United Nations Convention on the Rights of the Child
(“CRC”), and that Defendants’ conduct also violated “customary international law.”
Defendants argue that alleged violations of these treaties and customs are not
cognizable under 42 U.S.C. § 1983.3
3

Defendants’ citations to Wikipedia in support of various arguments are
numerous but less than convincing. Federal courts across the nation have continually
recognized that Wikipedia’s reliability is doubtful, given that by its own statement,
“Anyone with Internet access can write and make changes to Wikipedia articles.” About
Wikipedia, Wikipedia, (May 13, 2014, 5:54 PM),
http://en.wikipedia.org/wiki/Wikipedia:About. See, e.g., United States v. Lawson, 677
F.3d 629, 650–51 (4th Cir. 2012); Bing Shun Li v. Holder, 400 F. App’x 854, 857–58
(5th Cir. 2010); Badasa v. Mukasey, 540 F.3d 909, 910–11 (8th Cir. 2008); Crispin v.
Christian Audigier, Inc., 717 F. Supp. 2d 965, 976 n.19 (C.D. Cal. 2010); Kole v. Astrue,
No. CV 08-0411, 2010 WL 1338092, at *7 n.3 (D. Idaho Mar. 31, 2010) (“Wikipedia is
not a reliable source at this level of discourse.”); Baldanzi v. WFC Holdings Corp., No.
07-CV-9551, 2010 WL 125999, at *3 n.1 (S.D.N.Y. Jan. 13, 2010); Campbell ex rel.
Campbell v. Secretary of Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl.
2006). This skepticism is unsurprising given that Wikipedia articles may be written and
14

Section 1983 allows individuals who have been injured by officials acting under
color of state law to seek redress for their injuries for deprivations of “any rights,
privileges, or immunities secured by the Constitution and laws” of the United States. Id.
However, “while treaties may comprise international commitments[,] they are not
domestic law unless Congress has either enacted implementing statutes or the treaty
itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.”
Medellin v. Texas, 552 U.S. 491, 505 (2008) (quotation marks omitted). In contrast,
“[c]ustomary international law results from a general and consistent practice of states
followed by them from a sense of legal obligations.” Buell v. Mitchell, 274 F.3d 337, 372
(6th Cir. 2001) (citing Restatement (Third) of Foreign Relations Law § 102 (1987)).
“Some customary norms of international law reach a ‘higher status,’ in which they ‘are
recognized by the international community of states as peremptory [norms], permitting
no derogation.’ These peremptory norms are also referred to as jus cogens.” Id. at
372–73.
Turning first to the ICCPR, the Supreme Court rejected the argument that the
United States’s ratification of the ICCPR creates individual rights: “although the
[ICCPR] does bind the United States as a matter of international law, the United States

edited anonymously, are composed “largely by amateurs,” and are “not subject to any
peer review.” About Wikipedia. Although Wikipedia articles may be entertaining, or
even thought-provoking, and might point an interested person in a certain direction for
further reading, the court does not advise including it as a source in further filings in
court—this one or any others. “Say what you might about citing as authority a source
that once, for a brief time, credited the U’wa people of Venezuela and Colombia with the
invention of puff pastry, but there are definite advantages to being able to cite an
authority that you can always rewrite to suit your current needs.” Élise Hendrick,
Wikipedia The New Consensual Reality, 11 Green Bag 2d 187, 188 (2008).
15

ratified the [ICCPR] on the express understanding that it was not self-executing and so
did not itself create obligations enforceable in the federal courts.” Sosa v. AlvarezMachain, 542 U.S. 692, 735 (2004); see also Buell, 274 F.3d at 372. Plaintiffs’ claim
under the American Declaration also fails as the United States has not ratified the
American Declaration, which means that it is not domestic law and therefore provides
individuals with no independent rights in federal court. Garza v. Lappin, 253 F.3d 918,
923 (7th Cir. 2001) (“the American Declaration on the Rights and Duties of Man . . . is
merely an aspirational document that, in itself, creates no directly enforceable rights.”).
Similarly, because the United States has not ratified the CRC, it also creates no
independently enforceable rights for Plaintiffs. See Roper v. Simmons, 543 U.S. 551,
576 (2005); Taveras v. Taveraz, 477 F.3d 767, 780 (6th Cir. 2007); Olivia v. United
States Dept. of Justice, 433 F.3d 229, 232–33 (2d Cir. 2005). For these reasons,
Plaintiffs’ claim for violations of the above-mentioned treaties fails.
Plaintiffs also argue that, irrespective of their rights under international treaties,
the separation of youth from adults in correctional institutions is an established
peremptory norm of international law, therefore constituting binding law in the United
States. A similar argument was considered and flatly rejected some years ago by
another judge of this district:
Plaintiffs note that customary international law is recognized as forming part
of federal common law. See generally Sosa v. Alvarez-Machain, 541 U.S.
692, 729 (2004) (“For two centuries we have affirmed that the domestic law
of the United States recognizes the law of nations.”). However, it is a logical
leap to suggest that a violation of customary international law gives rise to a
private cause of action and remedy. Although Plaintiffs argue that a private
cause of action should be inferred, they do not cite a case in which a court
has actually done so. See Buell v. Mitchell, 274 F.3d 337, 374 (6th Cir.
2001) (“Courts that have determined that private rights of actions exist under
16

customary norms of international law have done so where acts were
committed on a foreign citizen or acts were committed by a foreign
government or governmental official . . . ‘[w]hile some language in several
decisions of courts of appeal states that U.S. courts have recognized the
concept of jus cogens as part of U.S. law, not a single case has been
decided on that basis alone without having been overturned.’”) (citations
omitted). This court is not inclined to create a cause of action based upon
customary international law where the legal authority in support of such a
claim is virtually nonexistent and Plaintiffs’ avenue of redress, if any, is
derived from the United States Constitution.
Hill v. Snyder, No. 10-14568, 2011 WL 2788205, at *6 (E.D. Mich. July 15, 2011)
(O’Meara, J.). Further, “the determination of what international obligations the United
States chooses to recognize or enforce is an area that has been recognized as
entrusted principally to the Legislative and Executive branches of the federal
government.” Buell, 274 F.3d at 337. Although the court recognizes its power to
“recognize new private causes of action for certain torts in violation of the law of
nations,” the Supreme Court urged caution in this regard, warning: “We have no
congressional mandate to seek out and define new and debatable violations of the law
of nations, and modern indications of congressional understanding of the judicial role in
the field have not affirmatively encouraged greater judicial creativity.” Sosa, 542 U.S. at
724, 728. This admonishment against “judicial creativity” is particularly relevant in a
context where, as here, Congress has either not ratified the international authority on
which Plaintiffs rely, or, where it has done so (as in the case of the ICCPR), it has
expressly stated that its ratification does not create individually enforceable obligations.
Sosa, 542 U.S. at 735. Section 1983 is not a vehicle with which to inject Plaintiffs’
customary international law claims into federal law. Plaintiffs’ international law claim is
baseless. Accordingly, the court grants Defendants’ motion to dismiss.
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C. Plaintiffs’ Motion for a Protective Order and
Defendants’ Motion for a More Definite Statement
Plaintiffs move for a protective order allowing them to proceed pseudonymously,
and Defendants move for a more definite statement from Plaintiffs, specifying: “(i) a
description of the alleged sexual assaults; (ii) the dates on which the sexual assaults
occurred; (iii) the names of each and every individual who participated and who aided
and abetted in the sexual assaults; (iv) the location where the sexual assaults occurred;
and (v) the nexus between the sexual assaults and the alleged violation by specifically
identified Defendants of Plaintiffs’ constitutional rights.” (Dkt. # 59, Pg. ID 801.)
Addressing first Plaintiffs’ request that they be allowed to proceed
pseudonymously, the federal rules require that the title of a complaint must generally
name all of the parties to an action. Fed. R. Civ. P. 10(a). However, the court may
excuse Plaintiffs from identifying themselves if it determines that Plaintiffs’ privacy
interests substantially outweigh the presumption of open judicial proceedings. The Sixth
Circuit identified four factors for the court to consider:
(1) whether the plaintiffs seeking anonymity are suing to challenge
governmental activity; (2) whether prosecution of the suit will compel the
plaintiffs to disclose information of the utmost intimacy; (3) whether the
litigation compels plaintiffs to disclose an intention to violate the law, thereby
risking criminal prosecution; and (4) whether the plaintiffs are children.
Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). Plaintiffs argue that they meet all four
factors. First, they are undoubtedly challenging governmental activity in that they claim
Michigan improperly housed juvenile prisoners with adults. They also allege that certain
MDOC correctional officers participated in sexual and physical abuse and allowed sex
trafficking to occur. Second, they allege sexual harassment and abuse, which is clearly
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a matter of “the utmost intimacy.” See Doe v. Blue Cross & Blue Shield United of Wis.,
112 F.3d 869, 872 (7th Cir. 1997). Although the complaint does not allege an intent to
violate the law, Plaintiffs reasonably argue that discovery in this matter may reveal
“extraordinary means they have taken to protect themselves, some of which may be
violation of [] MDOC policy” which could expose them to punishment from prison
authorities. (Dkt. # 63, Pg. ID 962.) Lastly, Plaintiffs allege that Defendants’ illegal
conduct occurred while they were still children, thus satisfying the fourth factor.
Although Defendants oppose Plaintiffs’ request to proceed pseudonymously,
they do not present any reason why Plaintiffs’ request should not be granted, aside from
asserting that Plaintiffs’ actual identities should be disclosed to Defendants’ counsel in
order to allow counsel to respond to the claims, a point that Plaintiffs do not oppose.
With the above in mind, it is baffling why the parties could not agree on a protective
order for Plaintiffs’ identities. The court therefore grants Plaintiffs’ motion for a
protective order allowing them to proceed pseudonymously, with greater specificity
provided below.
Defendants move for a more definite statement from Plaintiffs, arguing that they
are unable to prepare a proper response to Plaintiffs’ claims as the complaint does not
reveal the identities of Plaintiffs, the adult prisoners who assaulted Plaintiffs, the MDOC
personnel who allegedly aided and abetted sexual assaults, or the date, time, and
location of the alleged assaults.
The federal rules allow parties to move for a more definite statement of a
pleading to which a responsive pleading is allowed:
A party may move for a more definite statement of a pleading to which a
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responsive pleading is allowed but which is so vague or ambiguous that he
party cannot reasonably prepare a response. The motion must be made
before filing a responsive pleading and must point out the defects complained
of and the details desired.
Fed. R. Civ. P. 12(e) (emphasis added). On December 20, 2013, Defendants first
moved for a more definite statement. On December 31, 2013, the court struck
Defendants’ motion4 for failing to comply with E.D. Mich. Local R. 7.1(a), which requires
parties to confer and seek concurrence in their requested relief prior to filing any motion
before the court, and, failing the ability of the parties to agree, that the moving party
include a statement explaining that there was a conference between the attorneys and
that concurrence was denied. Defendants’ motion for a more definite statement
contained no such statement. In its order, the court directed the parties to confer with
each other and file a joint statement explaining their efforts to resolve the issues in the
terminated motions by January 17, 2014. (Dkt. # 34, Pg. ID 247–48.) Defendants filed
their answer to Plaintiffs’ complaint on January 3, 2014, without seeking an extension of
the time to respond, and without renewing their motion for a more definite statement in
compliance with Local Rule 7.1(a). On March 28, 2014, Defendants renewed their
motion for a more definite statement.
The plain language of Rule 12(e) requires a motion for a more definite statement
to be made before filing a responsive pleading. A motion for a more definite statement
“is designed to strike at unintelligibility rather than want of detail and . . . allegations that
are unclear due to a lack of specificity are more appropriately clarified by discovery
rather than by an order for a more definite statement.” In re European Rail Pass
4

The court also struck a motion by Plaintiffs for the same reason.
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Antitrust Litig., 166 F. Supp. 2d 836, 844 (S.D.N.Y. 2001) (citation omitted). Such a
motion “should not be granted unless the complaint is so excessively vague and
ambiguous as to be unintelligible and as to prejudice the defendant seriously in
attempting to answer it.” Id. (citation omitted).
In the instant case, Plaintiffs’ complaint provided sufficient detail to allow
Defendants to answer it. And, there is nothing conjectural about this observation:
Defendants did, in fact, answer the complaint. The court did not terminate Defendants’
original motion on the merits; rather, it directed Defendants to comply with Local Rule
7.1(a) before filing any motion with the court and to confer with opposing counsel as
required by this rule. Now that Plaintiffs’ complaint has been answered, Defendants will
be free to seek answers to their questions through the normal discovery process,
subject to a protective order that the court will issue at a later date. Accordingly,
Defendants’ motion for a more definite statement is denied as moot.
VI. CONCLUSION
IT IS ORDERED that Defendants’ Motion for Summary Judgment and Motion to
Dismiss [Dkt. # 47] is GRANTED in part and DENIED in part. Defendants are denied
summary judgment on Plaintiffs’ claim for prospective injunctive relief. However, Count
V of Plaintiffs’ complaint is DISMISSED WITH PREJUDICE.5
IT IS FURTHER ORDERED that Defendants’ Motion for More Definite Statement
is DENIED as moot.

5

See Wikipedia, (May 27, 2014, 5:54 PM),
http://en.wikipedia.org/wiki/Prejudice_(legal_procedure)
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IT IS FURTHER ORDERED that Plaintiffs’ “Renewed Motion for a Protective
Order to Proceed Anonymously” [Dkt. # 63] is GRANTED. A Plaintiff will be allowed to
proceed pseudonymously provided that he disclose his actual identity to the court under
seal not later than June 3, 2014. Defendants shall be provided a copy of each such
disclosure. Neither party is permitted to disclose a Plaintiff’s identity to anyone,
including Defendants’ clients and Plaintiffs’ other clients, without or until further order of
the court.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 28, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, May 28, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356.DOE.MotSJMotMoreDefiniteStatement.jac2.wpd

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