Woodall et al v. County of Wayne et al

Filing 31

ORDER granting in part and denying in part 10 MOTION to Dismiss and denying 18 MOTION to Certify Class and dismissing plaintiffs Whack-Finley and Williams. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KATRINA WOODALL, ET AL.,
Case No. 17-13707
Plaintiffs,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
COUNTY OF WAYNE, ET AL.,

U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS [10], AND DENYING PLAINTIFF’S MOTION TO CERTIFY CLASS [18]
This putative class action is the third filed by women formerly incarcerated at
the Wayne County Jail who are challenging the constitutionality of group strip
searches. Plaintiffs seek declaratory, injunctive, and monetary relief under 42 U.S.C.
§ 1983. They allege that in the course of these searches, both male and female
correction officers taunted them, insulted them, and humiliated them, while
subjecting them to unsanitary and degrading conditions.
FACTUAL BACKGROUND
Plaintiffs, Katrina Woodall, Katana Johnson, Kelly Davis, Joanie Williams,
Latoya Hearts, and Cynthia Whack-Finley brought this lawsuit against the County
of Wayne, Wayne County Sheriff Benny Napoleon in his official capacity, and

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Officer Terri Graham in her individual capacity. Plaintiffs were all incarcerated in
the Wayne County Jail for different periods of time between 2010 and 2014. They
allege that they were made to strip in full view of male guards, officers, employees,
and inmates. (Compl. ¶ 23). Plaintiffs and other female inmates were “forced to bend
over and spread their vaginal parts and anus under the pretense of searching for
contraband.” (Id. at ¶ 25). Exposure to menstrual discharge heightened the
unhygienic and dehumanizing effect of these directives. (Id. at ¶ 26). Plaintiffs allege
that guards, including Defendant Graham, would routinely degrade and humiliate
Plaintiffs by viciously commenting on their appearances and sexuality. (Id. at ¶¶ 2830).
Defendants maintain that the two types of searches at issue are “Registry
Searches” and Safety/Sanitation Searches.” The former is employed when inmates
enter the jail from the outside, and the latter is employed periodically, without
announcement, and also includes a search of the inmates’ cells. (Dkt. 10, pg. 6).
They deny allegations of abusive treatment. They also contend that both types of
searches are now conducted on an individual basis.
PROCEDURAL HISTORY
Previous plaintiffs have attempted to represent this class, and this case raises
similar, but by no means identical, factual and legal questions. The first was filed
pro se by Janine Weathington on August 13, 2012. Weathington v. City of Detroit,

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et al., No. 5:12-cv-13573 [Dkt. # 1] (E.D. Mich. 2012) (O’Meara, J.). Plaintiff filed
a motion for class certification on October 16, 2013, and an amended motion to
certify class on February 24, 2014. Id. at Dkt. 30 & 45. The motion for class
certification was administratively terminated by the Magistrate Judge on July 31,
2014. On June 16, 2015, following a Report and Recommendation, the court granted
Defendants’ Motion to Dismiss on the grounds that Weathington had not exhausted
her administrative remedies as required by the Prison Litigation Reform Act. Id. at
Dkt. 101; see also Weathington v. Cnty. Of Wayne, 2015 U.S. Dist. LEXIS 79031
(E.D. Mich. May 22, 2015). The court gave the Plaintiff 30 days to substitute a lead
plaintiff for their class action. Plaintiff did not, and the case was dismissed on August
3, 2015. Id. at Dkt. 102.
Meanwhile, Amanda Sumpter, represented by the same counsel, had filed a
similar complaint on December 17, 2014. Sumpter v. County of Wayne, No. 5:14-cv14769 (E.D. Mich. 2014).1 Plaintiff filed a motion to certify a class on March 12,
2015. Id. at Dkt. 23. On June 7, 2016, the court granted the defendants’ motion for
summary judgment and denied the motion for class certification, without prejudice.
Id. at Dkt. 58; Sumpter v. Cnty. of Wayne, 2016 U.S. Dist. LEXIS 73626 (E.D. Mich.,

1

This case was originally heard by Judge Levy, but, upon Defendants’ Motion to
Consolidate, it was transferred to Judge O’Meara.
1

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June 7, 2016). On August 18, 2017, that decision was affirmed 2-1 in Sumpter v.
Wayne County, 868 F.3d 473 (6th Cir. 2017).
On November 14, 2017, Plaintiffs in this suit, who were putative class
members in the prior suits, filed their Complaint [1]. Defendants filed a Motion to
Dismiss on April 19, 2018. Plaintiffs filed a Motion to Certify class on June 28, 2018
[18]. These motions are full briefed, and the Court held a hearing on March 19, 2019.
I. Statute of Limitations
The applicable statute of limitations for § 1983 actions is three years. Carroll
v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986). Defendants have raised challenges to
the timeliness of the plaintiffs’ and the class members’ claims.
The named plaintiffs’ claims have been tolled during the pendency of
Weathington. “The commencement of a class action suspends the applicable statute
of limitations as to all asserted members of the class who would have been parties
had he suit been permitted to continue to a class action.” American Pipe &
Construction Co. v. Utah, 414 U.S. 538, 552 (1974).
The Court must therefore determine when Weathington was commenced as a
class action. Plaintiffs put the date at August 13, 2013, when the suit was filed, and
defendants propose the date of February 24, 2014, when the plaintiff, represented by
counsel, brought her amended motion for class certification. American Pipe tolling
is designed to protect the claims of potential class members who might otherwise be

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forced to sue before the statute of limitations elapsed. Id. at 550-551. It is therefore
immaterial whether Janine Weathington’s initial, pro se class action was legally
sound; potential class members would have been on notice that there was a class
action under which they could shelter their claims. Ms. Weathington’s initial
complaint, however, provides no clear signs of being a class action (allegations of
general jail conditions and several uses of the term “plaintiffs” notwithstanding).
The operative start date for tolling under Weathington is therefore October 16, 2013.2
Plaintiffs Whack-Finley and Williams are therefore dismissed as Plaintiffs, as they
were released from custody in May and June of 2010. (Compl. ¶¶ 19, 21). The
Plaintiff with the next oldest claim (based only on dates of custody, which form an
outer boundary of the claims’ ages) is Ms. Davis, who was released from Wayne
County Jail in June 2013. Her claim was tolled after approximately four months.
The parties next dispute whether American Pipe tolling extended through the
litigation of Sumpter. The Sixth Circuit has prohibited tolling a class action that was
commenced during the pendency of a prior class action. See In re Vertrue, Inc.

2

Defendants argue that a different date should be used for tolling as to Defendant
Graham. Officer Graham was not named in the Weathington case until the May 5,
2014 Amended Complaint. Officer Graham would have had notice of the suit,
however, as several of her coworkers were named, and she was not prejudiced by
the late addition, as Wayne County Corporation Counsel continued to defend the
suit. For purposes of the statute of limitations. the amended complaint therefore
relates back to the date of the original pleading, pursuant to FED. R. CIV. P.
15(c)(1)(C). There is no difference between the statute of limitations as applied to
the municipal defendants and as applied to the individual defendant.
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Marketing and Sales Practices Litigation, 719 F.3d 474 (6th Cir. 2013). “The
purposes of American Pipe tolling are not furthered when plaintiffs file independent
actions before decision on the issue of class certification.” Wyser Pratte Mgmt. Co.
v. Telxon Corp., 413 F.3d 553, 569 (6th Cir. 2005). The Weathington Court had not
decided the motion for class certification prior to the filing of Sumpter on December
17, 2014 or its motion for class certification on March 12, 2015. Plaintiff references
the July 31, 2014 “administrative termination” of the class action, but as the
transcript of the Magistrate Judge’s July 29, 2014 conference with the parties on this
matter made clear, the class action was only being held in abeyance pending the
resolution of dispositive motions. As the Magistrate Judge explained,
So I think we should go ahead with the motion for summary judgment in
the normal course of things. With respect to the class certification motion,
what I commonly do under these circumstances since we have an indefinite
time period for resolution of the motion for summary judgment, is I’d
simply like to terminate the class certification motion administratively
without prejudice and then once there is a decision, a final decision on the
motion for summary judgment and then we would, assuming the case isn’t
disposed of, then we would simply administratively reopen that motion
and address it in -- in the normal course of things based on a schedule that
we would set up at that time.
Case No. 5:12-cv-13573, Dkt. 103, Transcript of Jul. 29, 2014 Conference, pg. 8.
Judge O’Meara clearly thought the class action was still pending, because the
court offered Plaintiffs an opportunity to substitute a new lead Plaintiff to represent
the class after Ms. Weathington’s claims were dismissed. Plaintiffs will therefore be
unable to avail themselves of American Pipe tolling for the pendency Sumpter. The
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statute of limitations began to run again 30 days after Weathington’s dismissal on
September 3, 2015, and continued to run until Plaintiffs filed this case on November
14, 2017. Two years and seven to eight months had run from Ms. Davis’ statute of
limitations. She, and the remaining Plaintiffs, brought this suit in a timely manner.
The class action is not timely, however. The Supreme Court limited the tolling
provisions of American Pipe in China Agritech v. Resh, 138 S. Ct. 1800 (2018).
China Agritech held that American Pipe tolling does not preserve successive class
claims that are brought outside the statute of limitations. Id. at 1811 (“Time to file a
class action falls outside the bounds of American Pipe.”).
China Agritech must be applied to all cases pending before federal courts.
Plaintiffs dispute this, and cite case law tracing back to the Supreme Court’s old test
on when its holdings are retroactive. See Chevron Oil Co. v. Huson, 404 U.S. 97
(1971). Such cases are no longer good law, however. See Toms v. Taft, 338 F.3d 519,
529 (6th Cir. 2003) (Chevron Oil “has been overruled to the extent that it permits
the selective prospective-only application of a new rule of law.”); see also Michel v.
Federated Dep't Stores (In re Federated Dep't Stores), 44 F.3d 1310, 1317 (1995)
(“the Supreme Court overruled Chevron Oil and adopted a strict rule requiring
retroactive application of new decisions to all cases still subject to direct review.”).
Indeed, the Supreme Court has made clear,
When this Court applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and must be given full
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retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate our announcement
of the rule.
Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993).
As an Illinois District Court held when considering the same issue, “It would be error
to refuse to apply China Agritech retroactively here.” Practice Mgmt. Support Servs.
v. Cirque Du Soleil Inc., 2018 U.S. Dist. LEXIS 129633 (N.D. Ill. August 2, 2018).
Plaintiffs also try to distinguish this case from China Agritech on the grounds
that China Agritech involved the Private Securities Litigation Reform Act of 1995
(“PSLRA”), which had unique procedural requirements for class actions. This
indeed was the gist of Justice Sotomayor’s concurrence, but that concurrence makes
clear that the majority’s ruling was much broader than the PSLRA. China Agritech,
138 S. Ct. 1811-15. The three-year statute of limitations bars claims which accrued
before November 14, 2014.
Plaintiffs recently produced affidavits by two women alleging that they were
victimized by group strip searches that occurred in 2016 and 2018. (Dkt. 30).
Nonetheless, all—or nearly all—of the original putative class members’ claims are
barred by the statute of limitations. Plaintiffs’ Motion for Class Certification is
therefore foreclosed by China Agritech. If plaintiffs want to file a new motion for
class certification consisting of members whose claims accrued on or after
November 14, 2014, they may still do so.

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II. Defendant’s Motion to Dismiss
LEGAL STANDARDS
Rule 12(b)(6) of the Federal Rules of Civil Procedure directs the Court to
dismiss a complaint “only if it is clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations.” Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984) (internal citations omitted). To survive Defendants’
motion to dismiss, Plaintiffs “must allege ‘enough facts to state a claim to relief that
is plausible on its face.’” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep’t
of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “The complaint must be construed in the light most favorable
to plaintiff, and its well-pleaded facts must be accepted as true.” Morgan v. Church’s
Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987); see also Scheuer v. Rhodes, 416 U.S.
232, 236 (1974). The Court must draw all reasonable inferences in favor of the
plaintiff. DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). It is the
defendant’s burden of showing that the plaintiff has failed to state a claim for relief.
Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). Although the motion to
dismiss standard is quite liberal, and “the factual allegations of the complaint are
accepted as true, ‘we need not accept as true legal conclusions or unwarranted factual
inferences.’” Treesh, 487 F.3d at 476 (quoting Gregory v. Shelby County, 220 F.3d
433, 446 (6th Cir. 2000)).

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Defendant’s also move for dismissal pursuant to FED. R. CIV. P. 12(b)(5):
insufficient service of process.
ANALYSIS
1.

Equitable Relief
Plaintiffs do not have standing to bring a suit for equitable relief.3 None of the

current Plaintiffs are incarcerated, and the Sixth Circuit held in Sumpter that
individuals who had already left jail did not have standing to sue for injunctive or
declaratory relief regarding jail conditions. Sumpter, 868 F.3d at 490-491 (“In the
absence of evidence demonstrating a ‘sufficiently real and immediate’ threat of
being subjected to group strip searches at the Wayne County Jail again, plaintiff has
failed to establish standing to seek injunctive or declarative relief.”). Sumpter cited
Summers v. Earth Island Inst., 555 U.S. 488 (2009), for the proposition that to
warrant injunctive or declaratory relief, “a plaintiff must show that he is under threat
of suffering injury in fact that is concrete and particularized” and that “threat must
be actual and imminent, not conjectural and hypothetical.” Id. at 493.
Plaintiffs argue that inmates can continue to press for injunctive relief even
once they have left jail. See Gerstein v. Pugh, 420 U.S. 103 (1975). They may be

3

Plaintiffs argue that this motion should not have been brought under a 12(b)(6)
standard. They are correct. Defendant should have made this argument under Rule
12(b)(1) or 12(c). But since standing goes to subject matter jurisdiction, it cannot be
waived, and it can be raised at any time.
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right, but the rule announced in Gerstein applied to mootness, not standing. The
Plaintiffs in Gerstein had standing when they brought suit, but their claims were
threatened with mootness once they were released from custody. Id. at 105-06. In
this case, none of the Plaintiffs had standing when they requested equitable relief.
This defect cannot be cured simply because the claims may be “capable of repetition,
yet evading review.” See Sumpter, 868 F.3d at 490 (explaining the distinction
between standing and mootness as “standing applies at the sound of the starting gun,
and mootness picks up the baton from there”). The Court lacks jurisdiction over
Plaintiffs’ suit for injunctive relief, because none of the Plaintiffs had a “‘personal
stake in the outcome of the controversy’ at the outset of the litigation.” Id. (quoting
Baker v. Carr, 369 U.S. 186, 204 (1962)).
2.

Qualified Immunity
Defendant argues that the Sixth Circuit in Sumpter already decided that

Officer Graham is entitled to qualified immunity for strip searches undertaken before
2014. Though the cases are similar, the allegations and the procedural postures are
too different to reflexively import Sumpter’s qualified immunity holding. Sixth
Circuit precedent forecloses qualified immunity for those who conduct strip searches
in a constitutionally unreasonable manner. Stoudemire v. Michigan Department of
Corrections, 705 F.3d 560 (6th Cir. 2013) (holding that an officer was not entitled
to qualified immunity for conducting a humiliating group strip search where “a

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reasonable officer would have been on notice that the search was unreasonable under
the circumstances and devoid of any legitimate penological justification related to
security or order.”); accord Bell v. Wolfish, 441 U.S. 520, 559 (1979); Salem v. Mich.
Dep’t of Corr., 643 Fed. Appx. 526 (6th Cir. 2016); Williams v. City of Cleveland,
771 F.3d 945, 952-56 (2014). A strip search is unreasonable if it lacks a legitimate
penological justification. Sumpter, 868 F.3d at 482.
Sumpter only held that the defendants provided a legitimate penological
justification for group strip searches by referencing the high volumes of inmates
entering the jail and other exigent circumstances. “Neither Stoudemire, nor
Williams4 nor any other case, would have put Graham on notice that conducting
group strip searches when the volume of inmates made individual searches
imprudent was unreasonable.” Id. at 488.
Plaintiffs allege more than that Officer Graham conducted group strip
searches, however. They allege that Graham routinely degraded and humiliated
Plaintiffs by her comments and actions. (Compl. ¶ 29). Moreover, the district court
in Sumpter considered the issue of qualified immunity only after full discovery, as

4

The Sixth Circuit in Sumpter makes much of the fact that because Williams was
appealed from a Motion to Dismiss, not a Motion for Summary Judgment, the
Williams court did not find that it was appropriate to confront the jail’s reasons for
conducting the strip searches in the manner in which it did. Sumpter, 868 F.3d at 486
(citing Williams, 771 F.3d at 955-56). The procedural posture on this case is that of
Williams, not that of Sumpter.
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the issue of whether the searches were conducted with a legitimate penological
justification was a fact question turning on the circumstances of the search. See
Cochram v. Gilliam, 656 F.3d 300, 306 (6th Cir. 2011) (“This ‘objective legal
reasonableness’ standard analyzes claims of immunity on a fact-specific, case-bycase basis to determine whether a reasonable official in the defendant's position
could have believed that his conduct was lawful, judged from the perspective of the
reasonable official on the scene.”). Because the allegations in this case are more
severe than those on which the Sumpter court passed judgment, and because the
factual record is underdeveloped in terms of the factual circumstances of the strip
searches in this case, Defendant Graham has not shown that she is entitled to
qualified immunity.
3.

Monell Municipal Liability
“While a municipality may be held liable under 42 U.S.C. § 1983 for a

constitutional violation directly attributable to it, § 1983 does not impose vicarious
liability on a municipality for the constitutional torts of its employees.” Stemler v.
City of Florence, 126 F.3d 856, 865 (6th Cir. 1997). Indeed, § 1983 provides for
municipal liability only where Plaintiffs were injured by actions undertaken pursuant
to municipal policy. Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690 (1978).
Plaintiffs allege that Defendants Wayne County and its Sherriff maintained
degrading group strip searches as a matter of policy, practice, and custom in the

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Wayne County Jail. (Compl. ¶ 56). Plaintiffs muster hundreds of affidavits as proof
of the existence of this policy. These claims are not foreclosed by Sumpter, because
the Sixth Circuit never ruled on the merits of Amanda Sumpter’s case for Monell
liability. The Sixth Circuit was under the impression that plaintiff did not believe
that defendants were seeking summary judgment on the municipal liability issue,
and so the plaintiff’s cursory references to her supporting affidavits were akin to
“hiding elephants in mouseholes.” Sumpter, 868 F.3d at 489. “In short, because
plaintiff failed to bring the affidavits to the district court’s attention in connection
with the cellblock claim, it had no occasion to consider them in that context.” Id.
This case is not even at the stage of drawing inferences from affidavits. Plaintiffs
have carried their burden under FED. R. CIV. P. 8(a) of demonstrating plausible
grounds for relief against the municipal Defendants.
4. Timeliness of Service
Defendant seeks dismissal under FED. R. CIV. P. 12(b)(5): insufficient service
of process. FED. R. CIV. P. 4(m) states,
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
FED. R. CIV. P. 4(m).

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Defendants observe that Wayne County was served 112 days after the
Complaint was filed. Officer Graham was not served for 125 days. Defendants move
for dismissal without prejudice on these grounds. They oppose granting Plaintiffs an
extension of the summons nunc pro tunc on the grounds that Plaintiffs could have
no good cause for failure to make timely service because their office is a block away
from the Defendants. Further, they argue, such an extension would be extremely
prejudicial because every extra day for which the Defendants are forced to defend a
class tolls the statute of limitations for their entire putative class.
Plaintiffs’ counsel excused the delay by referencing a subordinate’s confusion
over the switch from 120-days for service to 90-days for service. The Court need not
determine if this is “good cause.” As the Advisory Committee to the 1993
Amendments to Rule 4(m) made clear, the Rule “authorizes the court to relieve a
plaintiff of the consequences of an application of this subdivision even if there is no
good cause shown.” FED. R. CIV. P. 4, Advisory Committee Notes, 1993
Amendment, Subdivision (m). “Relief may be justified, for example, if the
applicable statute of limitations would bar the refiled action.” Id. Referencing these
Notes, the Supreme Court has held that even absent a showing of good cause “courts
have been accorded discretion to enlarge the 120-day5 period.” Henderson v. United
States, 517 U.S. 654, 662 (1996); accord Rose v. Berea, 327 F.R.D. 628, 633-634

5

That period is of course now 90 days.
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(S.D. Ohio 2018). Defendants’ prejudice from the month-long-delay is de minimis—
especially since the class claims have been disposed of—compared to Plaintiffs’
prejudice if all their claims were time-barred due to an administrative error. Plaintiffs
are granted a nunc pro tunc extension of time.
CONCLUSION
Even in light of adverse Sixth Circuit precedent in a very similar case,
Plaintiffs have pled facts sufficient to establish grounds for relief under 42 U.S.C. §
1983. They have not established grounds for injunctive or class-wide relief,
however.
IT IS ORDERED that Defendant’s Motion to Dismiss [10] is GRANTED
IN PART AND DENIED IN PART. Plaintiffs Whack-Finley and Williams are
dismissed.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Class Certification
[18] is DENIED without prejudice. Plaintiffs may revive their motion for class
certification if they can show a numerosity of class members whose claims accrued
on or after November 14, 2014.
SO ORDERED.

Dated: March 26, 2019

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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