Merrill v. Whitmer et al

Filing 67

OPINION AND ORDER GRANTING 62 MOTION FOR RECONSIDERATION Signed by District Judge Linda V. Parker. (AFla)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER SCOTT MERRILL,
Plaintiff,
v.

Case No. 22-cv-10541
Honorable Linda V. Parker

GRETCHEN WHITMER, et al.,
Defendants.
_________________________________/
OPINION AND ORDER GRANTING MOTION FOR RECONSIDERATION
(ECF No. 62.)
This matter is before the Court on a motion filed by Defendants and nonparty Michigan Department of Corrections (“MDOC”), seeking reconsideration of
this Court’s March 18, 2024 decision ordering MDOC to provide reasonable access
to Plaintiff by his pro bono counsel, Frank J. Lawrence, Jr. The request for
reasonable access arose because MDOC requires individuals, including most
attorneys, seeking to schedule in-person visitation or telephone calls with MDOC
prisoners, to go through MDOC’s third-party vendor, referred to as Global
Tel*Link Corp. (“GTL”). (See ECF No. 54.) This requires individuals to accept
GTL’s “Terms of Use” and “Privacy Policy.”

Reconsideration Standard
Eastern District of Michigan Local Rule 7.1 provides that “[m]otions for
reconsideration of non-final orders are disfavored” and may only be granted on
three grounds. E.D. Mich. LR 7.1(h)(2). Those grounds are: (A) a mistake of the
court “based on the record and law before the court at the time of its prior
decision” if correcting the mistake would change the outcome of the prior decision;
(B) “[a]n intervening change in controlling law warrants a different outcome”; or
(C) “[n]ew facts warrant a different outcome and the new facts could not have been
discovered with reasonable diligence before the prior decision.” Id.
Arguments
Defendants and MDOC raise several arguments in support of their motion
for reconsideration. First, they assert that the Eleventh Amendment bars the relief
ordered against MDOC, a state agency. Next, they assert that the Court’s order
violates the Prison Litigation Reform Act, 18 U.S.C. § 3626, and is contrary to
United States Supreme Court precedent with respect to the All Writs Act, 28 U.S.C.
§ 1651. Lastly, Defendants and MDOC argue that “new” evidence warrants
reconsideration. Specifically, they present the declaration of an MDOC employee,
Alanna Schnell, who indicates that MDOC does not currently require prisoners or
attorneys to use GTL to schedule in person visits. (ECF No. 62-4 at PageID. 1538,
at ¶ 5.) They further present records reflecting that Plaintiff has spoken with Mr.
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Lawrence by telephone ten times since June 30, 2023. (ECF No. 62-6 at PageID.
1551-52.)
In response, Plaintiff does not dispute that in person visitation can now be
scheduled without going through GTL. With respect to the telephone calls,
Plaintiff asserts that it has been “nearly . . . impossible” to have productive
conversations with Mr. Lawrence because it is very hard to hear on the inmate
phone lines, the calls must be made in a noisy and public area occupied by many
other prisoners and staff members, and there is no space for Plaintiff to sort
through and review the hundreds of pages of documents he has relevant to his
claims in this case during the calls. (ECF No. 64-3 at PageID. 1587-88, ¶¶ 2-4.) In
reply, Defendants and MDOC represent that Plaintiff could have used the housing
unit lobby or yard phones to speak with Mr. Lawrence, where it is quieter. (ECF
No. 66-2 at PageID. 1690-91, ¶ 7.) They also assert that, to keep the telephone
calls confidential, Plaintiff need only request a confidential phone call with his
attorney and submit counsel’s phone number. (Id. at PageID. 1691, ¶8.)
Discussion
Defendants never raised their Eleventh Amendment immunity argument
before the Court issued its March 18 decision. “The burden of establishing
Eleventh Amendment immunity lies with the [S]tate, and the defense is waived if it
is not raised.” Barker v. Goodrich, 649 F.3d 428, 432 (6th Cir. 2011) (citations
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omitted). The Court finds it unnecessary, however, to decide whether Defendants’
failure to raise the immunity issue in response to Plaintiff’s motion for reasonable
access led to MDOC’s waiver of it.
Yet, it is notable that the same attorneys from the Michigan Attorney
General’s Office represent Defendants and MDOC, and it was clear when Plaintiff
filed his motion that he was seeking relief against MDOC. Moreover, Defendants
and the MDOC undoubtedly knew that if Eleventh Amendment immunity had been
raised initially in response to Plaintiff’s motion, it would not have precluded the
Court from granting Plaintiff relief. The Court simply could have instead ordered
the Warden at STF or Heidi Washington, the Director of MDOC, to provide
reasonable access to Plaintiff. The Eleventh Amendment does not preclude
“prospective injunctive relief against State actors in their official capacity.” In re
Flint Water Cases, 960 F.3d 303, 334 (6th Cir. 2020) (citing Ex Parte Young, 209
U.S. 123, 156 (1908); S&M Brands, Inc. v. Cooper, 527 F.3d 507, 6th Cir. 2008)).
And while the Court could make that modification now in response to the
pending motion, it concludes the change is unnecessary at this time. This is
because if, as Defendants and the MDOC now represent, Mr. Lawrence can
schedule in-person visits with Plaintiff without using GTL and Plaintiff will be
permitted to use telephones in a more private and quieter environment to speak
with his attorney upon request, the access issue on which Plaintiff’s motion was
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based is resolved and the Court’s intervention is no longer necessary.1 If
Defendants and MDOC’s representations prove unreliable, Plaintiff may ask the
Court to reinstitute its order. If that need arises, the Court will then consider the
other challenges to the order raised by Defendants and MDOC.
Accordingly,
IT IS ORDERED that the motion for reconsideration (ECF No. 62) is
GRANTED and the March 18, 2024 order (see ECF No. 61 at PageID. 1463) is
VACATED.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE

Dated: June 3, 2024

Presumably, Plaintiff may take his documents into these alternative areas during
his telephone conversations with his counsel.
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