Woodall et al v. County of Wayne et al

Filing 129

OPINION and ORDER Denying Defendants' Motion for Reconsideration 124 . Signed by District Judge Laurie J. Michelson. (EPar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KATRINA WOODALL, KATANA
JOHNSTON, KELLY DAVIS, and
LATOYA HEARST,

Case No. 17-13707
Honorable Laurie J. Michelson

Plaintiffs,
v.
WAYNE COUNTY and OFFICER
TERI GRAHAM,
Defendants.
OPINION AND ORDER DENYING DEFENDANTS’
MOTION FOR RECONSIDERATION [124]
Four women—Katrina Woodall, Katana Johnston, Kelly Davis, and Latoya
Hearst—were incarcerated at the Wayne County Jail at various points in 2013 and
2014. They say they were strip-searched by Jail officers in humiliating ways.
Specifically, they say that Officer Teri Graham, who works the Jail’s registry, stripsearched them in groups of five or more, made derogatory comments about their
bodies, allowed men to see them being strip-searched, and maintained an unsanitary
environment. And because many women—at least 99—claim they were subject to
similar strip searches, Plaintiffs accuse Wayne County, the municipality in charge of
the Jail, of ignoring a pattern of constitutional violations and failing to train its
officers or otherwise address the issue, allowing the violations to continue.
This Court recently considered Defendants’ motions for summary judgment
against each plaintiff (ECF Nos. 89, 90, 91, 92), and denied them in part. Specifically,

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the Court found that the following claims may proceed: (1) Hearst’s claim against
Graham for searches that occurred in January 2014 and (2) all four plaintiffs’ Monell
claims against Wayne County for injuries sustained in 2013 based on custom-ofacquiescence or failure-to-train theories.
Defendants (specifically the County) ask this Court to reconsider its decision
on the Monell claims. (ECF No. 124.) In the alternative, the County asks this Court
to re-open discovery so it can conduct additional depositions. (Id.)
Arguments for Reconsideration
Local Rule 7.1(h) governs motions for reconsideration of non-final orders in this
District. The rule makes clear that such motions are disfavored. E.D. Mich. LR
7.1(h)(2). They may only be brought in three circumstances: one, if “[t]he court made
a mistake, correcting the mistake changes the outcome of the prior decision, and the
mistake was based on the record and law before the court at the time of its prior
decision”; two, if there was an intervening change in controlling law, or; three, if new
facts were discovered that could not have been discovered prior to the decision. E.D.
Mich. LR 7.1(h)(2)(A)–(C).
As an initial matter, it is unclear whether the County’s motion fits into any of
these buckets for a proper motion for reconsideration. The County cites no
intervening change in law or new facts that it could not have discovered before this
Court issued its decision. Instead, the County’s motion argues that the declarations
from women who were formerly detained at Wayne County Jail—which were
attached to Plaintiffs’ prior motion for class certification (ECF Nos. 18-2, 18-3, 18-4,

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18-5) and referenced in Plaintiffs’ summary judgment response (ECF No. 102,
PageID.3323)—cannot create an issue of fact for each plaintiff’s Monell claim (ECF
No. 124, PageID.3655). In doing so, the County either repeats arguments made in its
summary judgment motions or raises new arguments that were not presented in its
first motions. But a motion for reconsideration is not a vehicle for presenting the
Court with arguments that should have been made in an original motion. Nor should
it be used to express mere disagreement with the Court’s decision absent a mistake
in fact or law based on what was already presented to the Court. Accordingly, any
argument already addressed in the Court’s opinion on summary judgment will not be
discussed again.
Nevertheless, the Court will address the County’s new legal arguments on
their merits. However, the Court will not consider evidence attached to the motion
for reconsideration as these facts could have been presented to the Court in the
County’s initial motions but were not.
Use of Generic Proof
The County argues that the “law of the case” is that municipal liability may
not be established by “mass” or “generic” proof. In support of this argument, the
County cites the Sixth Circuit’s decision denying class certification in this case. (ECF
No. 124, PageID.3665); see also Woodall v. Wayne Cnty., No. 20-1705, 2021 WL
5298537, at *7–8 (6th Cir. Nov. 15, 2021). There, the Sixth Circuit states that “it is
not enough to show generically that the County had a policy of acting with deliberate
indifference toward the four types of unconstitutional strip searches (which were

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allegedly conducted in violation of its formal policies). Rather, a class member must
also show that the class member was herself subjected to a constitutional deprivation
in the way that she was searched.” Id. at *7.
The County is wrong about the “law of the case.” The Sixth Circuit’s opinion
was about whether Plaintiffs’ claims could be litigated as class claims under Federal
Rule of Civil Procedure 23. The Sixth Circuit has not expressed any opinion on the
merits of the individual plaintiffs’ claims.
Further, as this Court extensively laid out in its opinion, each plaintiff showed
that a reasonable jury could determine she was “herself subjected to a constitutional
deprivation in the way she was searched.” Id. at *7; see also Woodall v. Wayne Cnty.,
— F. Supp. 3d —, 2022 WL 737502, at *12 (E.D. Mich. Mar. 10, 2022) (“In all, a
reasonable jury could credit Plaintiffs’ observations and determine that at least some
of the time, even when no penological justification for a group strip search existed,
registry officers would routinely conduct group strip searches instead of conducting
individual searches ‘when possible.’”).
And, most importantly, the Sixth Circuit stated in its opinion that “[p]erhaps
the first element—a clear pattern of unconstitutional strip searches—could be
established for each of the four subclasses.” Woodall, 2021 WL 5298537, at *7. So the
same pattern of constitutional violations could be used to support each plaintiff’s
Monell claims. Given that the County’s primary basis for reconsideration is that
Plaintiffs did not present sufficient evidence of a pattern of constitutional violations,
the Sixth Circuit’s opinion does not change this Court’s opinion on that issue.

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To the extent the County attempts to use the Sixth Circuit’s class-action ruling
to challenge Plaintiffs’ ability to show causation, the Court will not consider this
argument because it was not raised at summary judgment. The Court also notes that
the Sixth Circuit’s statement that the “causation question would have to be decided
on an individual basis,” Woodall, 2021 WL 5298537, at *7, does not mean that
Plaintiffs cannot use the same declarations to establish a pattern of constitutional
violations and that indifference to this pattern is what resulted in each of their
individual constitutional injuries. Contrary to the County’s assertion, nowhere did
the Sixth Circuit state that the “inmate statements, taken together, are not
competent proof of a municipal liability claim[.]” (ECF No. 128, PageID.3720.) The
Sixth Circuit merely stated that causation would have to be proven for each
individual class member, meaning that individual issues would predominate over
class issues making the claims inappropriate for class adjudication. Thus, Plaintiffs
will be required to prove at trial that each of their individual strip searches was
caused by the County’s indifference. But this requirement has no bearing on whether
the Court’s opinion on summary judgment was correct, especially when causation was
not raised in the initial motions.
Declarations Under 28 U.S.C § 1746
The County also argues that the declarations are not “legitimate” under 28
U.S.C. § 1746(2). The statute states that for a declaration to be used as evidence, it
must state “in substantially the following form” that “I declare (or certify, verify, or

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state) under penalty of perjury that the foregoing is true and correct. Executed on
(date). (Signature).”
As with other grounds for reconsideration, the County did not present this
argument in its motions for summary judgment or in its replies to the motions,
though Plaintiffs cited to many of the declarations in their response. Further, the
Court has already accepted many of these declarations as evidence at summaryjudgment. And for good reason: many of the affidavits state they are submitted
“without perjury, to the best of my ability, truthfully, and without duress.” (See, e.g.,
ECF No. 18-2, PageID.556.) That is substantially similar to the language provided in
28 U.S.C. §1746(2). And the submitted declarations that did not have this language,
such as the letters submitted to Plaintiffs’ counsel, were not considered by the Court.
Woodall, 2022 WL 737502, at *17, n.3. So the Court’s decision is not altered by this
argument either.
Pattern of Clearly-Established Constitutional Violations
The County’s most significant legal argument for reconsideration relies on a
line of Sixth Circuit cases which require the “violated right . . . be clearly established”
when a plaintiff premises its Monell claim on deliberate indifference “because a
municipality cannot deliberately shirk a constitutional duty unless that duty is clear.”
See, e.g., Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 994–95 (6th Cir.
2017).
Both of Plaintiffs’ remaining Monell theories (custom-of-acquiescence and
failure-to-train) require showing that the County acted with deliberate indifference,

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which Plaintiffs say is met by indifference to a pattern of constitutional violations.
Putting these two pieces together, Plaintiffs must show both the County’s deliberate
indifference to a clear and persistent pattern of federal rights being violated and that
the federal rights were already clearly established when they were violated. If the
violations that form the alleged pattern were not clearly established as constitutional
violations at the time of the searches, then the County cannot be shown to have
“deliberately shirk[ed] a constitutional duty[.]” See Arrington-Bey, 858 F.3d at 994.
In its summary-judgment opinion, the Court focused on Plaintiffs’ allegations
that they were strip searched in groups. In this context, the Court already identified
what would be a clearly established constitutional right: “the right not to be subjected
to a humiliating strip search in full view of several (or perhaps many) others unless
the procedure is reasonably related to a legitimate penological interest.” Woodall,
2022 WL 737502, at *9 (citing Stoudemire v. Michigan Dep’t of Corrections, 705 F.3d
560, 575 (6th Cir. 2013)). In other words, under Sixth Circuit case law, it was clearly
established in 2013 that group strip searches were unconstitutional if there was no
countervailing penological interest. So for Plaintiffs to proceed with their Monell
claims for group strip searches, they must show a pattern of group strip-searches at
the Wayne County Jail without a legitimate penological justification.
Defendants argue that they have asserted a penological justification for group
strip searches that occurred before November 2013: volume concerns. And, say
Defendants, the declarations Plaintiffs used to prove a pattern of unconstitutional
group strip searches do not dispute that there were volume concerns. Many of the

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declarations merely state the individual was searched in a group without any
mention of whether volume truly required it. So, the argument goes, no reasonable
jury could find that the County was deliberately indifferent to a pattern of clearlyestablished constitutional violations because the County had an uncontested
penological justification for the group strip searches that make up the alleged
pattern.
In response, Plaintiffs first argue that they have created a genuine issue of fact
as to whether the County had a penological justification for group strip searches
before November 2013. For starters, as the Court has recognized, Woodall and
Hearst’s testimony has created an issue of fact as to whether there was a penological
justification for the group strip searches they were a part of. See Woodall, 2022 WL
737502, at *7. And the declarations provide other evidence of officers intentionally
waiting to conduct searches in groups when they could have conducted searches
individually. For example, Karri Bulloch, who was incarcerated from 2010 to 2012,
stated that she was searched “after enough women accumulate in the holding tank[.]”
(ECF No. 18-2, PageID.557.) Jennifer Carter, who was incarcerated from July 2012
to November 2013, stated, “After a few hours, I was told to enter the room with all
the females that were in the cell with [me] and strip nude in their presence.” (ECF
No. 18-2, PageID.569.) And a couple of other women stated that group strip searches
were a common practice, rather than a necessity based on volume concerns, as the
County states. A reasonable jury could credit this testimony and conclude that the
County did not have a penological justification for at least some of the group strip

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searches, and therefore, was deliberately indifferent to a pattern of known
constitutional violations leading up to Plaintiffs’ searches.
Second, Plaintiffs argue that they have provided evidence of other strip-searchrelated violations, and so even declarations that do not rebut the County’s
justification of volume concerns create a pattern of clearly-established constitutional
violations. One such allegation Plaintiffs (other than Hearst1) have made and
supported with the declarations is that the County conducted strip searches of women
in view of either male correctional officers or male trustees (incarcerated people who
have jobs around the jail).
The Court agrees that Plaintiffs have shown that a reasonable jury could find
that there was a clear and persistent pattern of strip-searching women in front of
men at the Jail. The County does not assert a penological justification for strip
searching women in front of men. Instead, it argues that women were never strip
searched in front of men at the Jail, which merely creates a fact issue. (ECF No. 9011, PageID.2720, 2723 (Graham saying male officers or trustees were “not ever” in
the change-out room or in the registry area when detainees were strip searched).)
Without a penological justification to balance out the condition of the searches,
the declarations, if believed by a jury, provide sufficient evidence of a pattern of
clearly established constitutional violations. See Everson v. Mich. Dep’t of Corrections,

As the Court noted in its summary judgment opinion, Hearst testified that
she could hear men outside of the registry while being strip searched, but that she
does not recall if any of the men saw her being strip-searched. Woodall, 2022 WL
737502, at *2; (ECF No. 91-6, PageID.2863, 2866).
1

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391 F.3d 737, 757 (6th Cir. 2004) (“Our court has recognized that a convicted prisoner
maintains some reasonable expectations of privacy while in prison, particularly
where those claims are related to forced exposure to strangers of the opposite sex,
even though those privacy rights may be less than those enjoyed by nonprisoners.” (citing Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992))); see also
Brannum v. Overton Cnty. School Bd., 516 F.3d 489, 495 (6th Cir. 2008)
(“Before Kent, we had not articulated the Fourth Amendment’s protection as
extending to the right to shield one’s naked body from view by members of the
opposite sex. But, since Kent, we have recognized this privacy right.”); Cf. Sumpter v.
Wayne Cnty., 868 F.3d 473, 487 (6th Cir. 2017) (“Rather, Stoudemire [in 2013] held
that the particularized right at issue in that case—freedom from an especially
intrusive public strip search ‘devoid’ of justification—was clearly established.”). So
setting aside whether the declarations create a fact issue on the County’s penological
justification for group strip searches, Plaintiffs have also provided sufficient evidence
for a jury to find deliberate indifference based on a pattern of conducting strip
searches in front of people of the opposite gender. As that is another part of Plaintiffs’
Monell claim, the County still cannot prevail on summary judgment for Monell claims
based on injuries sustained in 2013.
In sum, the County’s assertion that Plaintiffs cannot establish deliberate
indifference to a clear and persistent pattern of constitutional violations to a jury
because they cannot show that the alleged violations were clearly established does
not merit reconsideration of its motions for summary judgment. Plaintiffs have

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produced evidence that, at least on a few occasions, the County’s asserted penological
interest in conducting group strip searches (i.e., volume) may not have applied. A jury
could credit this evidence and find that the group strip searches were conducted
without justification, which is a clearly established constitutional violation, and by
not acting to remedy them, the County was deliberately indifferent. Further, in
addition to Plaintiffs’ (except Hearst) own claims, many declarations allege that
women were strip searched in view of men. The County has not asserted a penological
interest in conducting searches in this way, and instead asserts that strip searches
were not conducted in front of men. It is up to the jury to decide who to believe. And
if it believes Plaintiffs and their witnesses, it could also conclude the County was
deliberately indifferent to violations of clearly-established law by allowing strip
searches to be conducted in front of men without justification.
Request to Re-Open Fact Discovery
In the alternative to reconsideration, Defendants ask this Court to order
Plaintiffs to identify “the specific witnesses who would be called to support their
individual municipal liability claims.” (ECF No. 124, PageID.3672.)2 Defendants also
request time to depose these individuals ahead of trial. (Id.)
The Court understands that, on one hand, the County cannot depose the 500
plus purported witnesses on Plaintiffs’ witness list without more information as to

In its reply, the County asserts that the Court ordered Plaintiffs to “identify,
specifically, by name, each witness who would be called to support their own
municipal liability claim.” (ECF No. 128, PageID.3719.) It did not. The Court merely
ordered Plaintiffs to respond to the County’s request to reopen discovery. Plaintiffs
oppose the request, so the Court will decide the issue.
2

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who will be called. On the other hand, the County seems to have waited until
summary judgment to raise the issue, hoping that the Court would grant summary
judgment on that basis. But the Court agreed with Plaintiffs that the declarations
(and the witnesses who made them) were part of the summary-judgment record and
considered them in its analysis. The Court had no more information or means to
analyze these declarations than Defendants.
So the Court will resolve the issue in the following way: when a trial date is
set for this case, the Court will order the final pretrial order witness list to be due 90
days before trial. During this time, Defendants will have the opportunity to depose
any of the witnesses that they have not already deposed.
Further, Plaintiffs shall identify the witnesses they know they will call as soon
as they determine they will be called, even if that occurs before they submit a final
pretrial order. It is likely that Plaintiffs already know several of the declarants they
intend to call at trial and they should be disclosed immediately. At the very latest,
Plaintiffs shall identify the witnesses they will call at trial in the proposed final
pretrial order.
Order
Defendants’ motion for reconsideration (ECF No. 124) is DENIED for the
foregoing reasons and the reasons provided in the opinion on summary judgment
(ECF No. 122).

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As for deposing witnesses that made declarations, Plaintiffs are ORDERED to
identify the witnesses they know they will call at trial as soon as they determine they
will be called.
Plaintiffs are also required to provide a final list of witnesses to be called
during trial in the proposed final pretrial order. This proposed order will be due 90
days before the start of trial. In those 90 days, Defendants will have the opportunity
to depose any trial witnesses they have not deposed already.
SO ORDERED.
Dated: May 10, 2022
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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