St. Ann v. McLean et al

Filing 116

OPINION and ORDER Granting Defendants' Motion for Partial Summary Judgment and Denying Defendants' Motion to Preclude Testimony of Christin Harris 98 , Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
David St. Ann,
Plaintiff,
Case No. 15-11770
v.
Todd McLean, Dean Polita, Sam
Morgan, Thomas Haynes, and
Kelly Buczek,
Defendants.

Judith E. Levy
United States District Judge
Mag. Judge Anthony P. Patti

________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT AND DENYING
DEFENDANTS’ MOTION TO PRECLUDE TESTIMONY OF
CHRISTIN HARRIS [98]
On September 5, 2019, pursuant to the Court’s order (ECF No. 97,
PageID.2149–50), Defendants submitted a supplemental summary
judgment brief on whether Plaintiff’s intentional infliction of emotional
distress claim (“IIED”) should be permitted to go to trial, and whether
Plaintiff’s witness Christin Harris should be permitted to testify as a fact
witness. (ECF No. 99.) Plaintiff responded. (ECF No. 97, PageID.2150.)
The Court has carefully considered the issues and orders as follows.
A.

Factual Background

Plaintiff alleges that on January 27, 2014, during his period of
imprisonment in the Saginaw Correctional Facility (“SRF”), he received
a misconduct ticket for disobeying a direct order to return to his cell.
(ECF No. 99, PageID.2165, 2787.) On January 28, 2014, Warden Obell
Winn approved Plaintiff to be placed under a “W05-Investigation,” which
increased Plaintiff’s security level and housing unit to Level IV—a
maximum security and disciplinary unit. (Id. at PageID.2192.) Plaintiff
alleges that he did not receive notice of the nature of the W05investigation and also alleges that the W05-investigation and security
classification change were pretexts to punish Plaintiff for filing
grievances against prison staff. (Id.)
Plaintiff argues that he was wrongfully held in Level IV for a total
of eighteen months, during which time he alleges he was verbally
harassed and psychologically abused by prison staff Defendants Todd
McLean, Dean Potila, Samuel Morgan, and Thomas Haynes. (Id.) He
alleges that Defendants told other inmates that Plaintiff was a “baby
raper, child molester, rat, and was writing snitch-kites1 on inmates.” (Id.

The Michigan Legislative Council Ombudsman’s website defines a kite as
“note or letter, usually one that a prisoner sends to a MDOC official.”
https://council.legislature.mi.gov/Ombudsman/PrisonTerminology.
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at PageID.2177.) Plaintiff alleges that Defendants’ scheme to spread
these rumors to other inmates resulted in Plaintiff being “extorted,
harmed, and/or even sexually assaulted by STG2 gang members” while in
Level IV. (Id.) He alleges that Defendants’ position as prison staff gave
them “the power of life and death” over Plaintiff and that their “evil
motive and intent and recklessness” was to retaliate against Plaintiff for
filing grievances and to intentionally inflict emotional distress. (Id. at
2177–2188.)
Plaintiff alleges that in June 2016, he suffered from a “panic attack,
chest pains, difficulty breathing, numbness and loss of feeling on left side
of his body” as a result of Defendants’ harassment, other inmates’
extortion, and the STG members’ sexual assault. (Id. at PageID.2174.)
Plaintiff alleges that he continues to receive counseling and psychiatric
treatment for PTSD, nightmares, anxiety, and depression and has been
prescribed psychotropic medication. (Id. at PageID.2175.) Finally, he

MDOC policy directive 04.04.113 defines security threat group (“STG”) as “a
group of prisoners designated by the Director as possessing common characteristics,
which distinguish themselves from other prisoners or groups of prisoners and which,
as an entity, pose a threat to staff or other prisoners or to the custody, safety and
security of the facility.”
https://www.michigan.gov/documents/corrections/04_04_113_482417_7.pdf.
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argues that if the Court were to dismiss his IIED claim, this would allow
“criminal, inhumane, sadistic behavior to flourish in prisons.” (Id. at
PageID.2180.)
B.

Legal Standard

Summary judgment is proper when “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). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the evidence, all
facts, and any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing Skousen v.
Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
C.

Applicable Law

To prevail on a claim for intentional infliction of emotional distress
under Michigan law, Plaintiff must demonstrate the following elements:
“‘(1) extreme and outrageous conduct; (2) intent or recklessness; (3)
causation; and (4) severe emotional distress.’” Roberts v. Auto-Owners
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Inc., Co., 422 Mich. 594, 602 (1985). “The outrageous conduct
requirement is satisfied only by conduct that is so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Liability arises, moreover, only where the distress
inflicted is so severe that no reasonable man could be expected to endure
it.” Andrews v. Prudential Secs., Inc., 160 F.3d 304, 309 (6th Cir. 1998)
(internal citations and quotations omitted). Tortious, intentional, and
even criminal conduct is not sufficient to meet this standard; instead, the
test has been described as whether “the recitation of the facts to an
average member of the community would arouse his resentment against
the actor, and lead him to exclaim, ‘Outrageous!’ ” Roberts 422 Mich. at
603.
D.

Analysis
1. Intentional Infliction of Emotional Distress

Defendants deny that they intentionally caused Plaintiff emotional
distress. (ECF No.98, PageID.2158.) In support of their position, they rely
on affidavits of Defendants Buczek, Potila, Morgan, McLean, and Haynes
filed in support of their original motion for summary judgment, which
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sets forth that each individual “always acted in good faith without
harassing Plaintiff in any way.” (ECF Nos. 48-7, 48-5, 48-4, 48-3, and 482.) They also argue that there is no evidence that Plaintiff suffered
“severe emotional distress,” and that any symptoms Plaintiff suffered or
suffers could be caused by being imprisoned for over a decade. (ECF No.
98, PageID.2159.)
For his part, Plaintiff appears to set forth two arguments regarding
IIED. First, he argues that Defendants actions directly caused him
emotional distress. Second, he argues that Defendants acted in a manner
that they knew would lead other inmates to harass and injure him, which
caused Plaintiff emotional distress.
With regard to the first argument—that Defendants’ actions
directly caused Plaintiff emotional distress through their harassment—
Plaintiff argues that Defendants’ outrageous conduct included the
following:
(1) Moving Plaintiff to a new cell in the middle of the night,
allegedly unnecessarily, for the purpose of harassing him.
Plaintiff submitted a declaration dated March 14, 2014 from
another inmate, Antwan Officer, who witnessed the incident
and stated he believed officers gave a false reason for moving
Plaintiff. (ECF No.99, PageID.2215–17.)

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(2) Barring Plaintiff from using the law library. As evidence
of this, Plaintiff submitted two April 24, 2014 letters from
inmates Antwan Officer and Donaven Hollingsworth,
indicating that an unnamed officer told them he was not
permitting Plaintiff to use the prison law library due to
Plaintiff’s “top-lock” classification. (ECF No.99, PageID.2221,
2224.)
(3) Issuing an April 2014 weapons misconduct ticket, which
Plaintiff appears to argue was a false pretense to keep him in
Level IV and subject to Defendants’ continued harassment. In
support of this, he submitted a copy of the misconduct report
and an unclear photograph of the weapon he was accused of
possessing, which he argues was not a weapon and was not
his. (ECF No. 99, PageID.2226–2228, 2234.)
(4) Subjecting Plaintiff to more officer scrutiny than other
inmates. In support of this argument, Plaintiff submitted
three affidavits from inmate Roscoe Gallmore, dated July 13,
2015, May 21, 2015, and April 10, 2015, which indicate in sum
that Plaintiff’s cell was frequently searched, that Plaintiff was
frequently taken away for strip searches of his body cavities,
that on one occasion staff refused to give Plaintiff Band-Aids
when he injured his finger, and that Plaintiff asked Gallmore
to hold Plaintiff’s legal documents because he was fearful they
would “mysteriously disappear.” (Id. at PageID.2240–41;
2243–44; and 2246–47.) Plaintiff also submitted a letter from
inmate Dion Armstead dated August 7, 2015, indicating that
he witnessed Officer Glynn using obscenities and other
offensive language. Armstead also indicates that he witnessed
Plaintiff crying with his head in his lap and considering
committing suicide because he could not “handle the pressure
of officers and staff retaliating against him.” (Id. at 2249–51.)
(5) Questioning Plaintiff regarding an ombudsman inquiry.
As evidence of this argument, Plaintiff submits his own
August 12, 2015 declaration indicating that he was called to
Defendant Haynes’ office and questioned about an
ombudsman investigation regarding St. Ann’s Level IV
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placement. According to this affidavit, Haynes stated, “if I get
in trouble behind this shit-you think your ass is feeling the
heat right now-you haven’t seen anything!” (ECF No. 99-1,
PageID.2263.) Plaintiff declared that this statement made
him feel shocked, degraded, and afraid for his safety and life.
(Id.)
Although these allegations are appalling, the evidence set forth
above, either on its own or in combination, does not give rise to a colorable
claim for IIED under Michigan law. For the reasons set forth below,
Plaintiff’s factual arguments do not establish the level of “extreme and
outrageous” conduct that went “beyond all possible bounds of decency
such that they could be regarded as atrocious, and utterly intolerable in
a civilized community.” See Sperle v. Mich. Dept. of Corr., 297 F.3d 483,
496 (6th Cir. 2002).
As to item one above, Mr. Officer’s letter—asserting that he
believed staff gave a false reason for moving Plaintiff to a new cell in the
middle of the night—is not enough to create a genuine issue of material
fact that could rise to the level of atrocious behavior, and the ill-intent he
assigns to unnamed officers is speculative. As to item two above, Mr.
Officer’s and Mr. Hollingsworth’s letters regarding unnamed officers
preventing Plaintiff’s use of the law library does not rise to the level of
intent required for an IIED claim, and it does not identify the actors,
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both of which are necessary for this claim to survive. Item three does not
provide evidence of ill-intent other than Plaintiff’s speculative belief, nor
is it linked to emotional distress. As to item four, Mr. Gallmore’s
affidavits are similarly unavailing, particularly because he does not
name any of the officers involved, and there is no link between his belief
that Plaintiff was subject to more scrutiny than others by Defendants. As
to Mr. Armstead’s letter regarding Officer Glynn, Glynn was terminated
from the case and allegations regarding Glynn are not relevant to
Plaintiff’s IIED claim against the named Defendants. Item five does not
rise to the level of outrageous conduct required to maintain an IIED claim
against Defendants.
With regard to Plaintiff’s second argument—that Defendants’
actions caused other inmates to treat Plaintiff in a manner that caused
him emotional distress—Plaintiff provides two arguments and evidence
in support as set forth below:
(1) Plaintiff argues that on February 15, 2015 Defendant
Morgan stated in a loud voice to other officers, “Hey, look
guys, there’s St. Ann the baby raper!” and that
Defendant Morgan also stated, “Hey, St. Ann, did you
write any snitch-kites on anybody lately?” He argues
that other officers and inmates who heard these
remarks laughed at Plaintiff. (Id. at PageID.2258–60.)
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In support of these allegations, Plaintiff submits a
February 25, 2015 affidavit from inmate Roscoe
Gallmore. (See id.) Gallmore’s affidavit states that
Defendant Morgan spoke loudly and that he overheard
these comments “while headed to chow hall while
walking past the officer’s desk.” (Id.) He indicates that
“several inmates and correctional officers were laughing
at inmate St. Ann.” (Id.)
(2) Plaintiff’s October 1, 2019 declaration that he was
called disrespectful and harassing names by Defendant
Morgan and Officer Glynn, which caused him to be
shunned and a target at the prison. He alleges that
“they” also began extorting money from Plaintiff’s
mother, though it is unclear if Plaintiff is alleging that
other inmates were the extortionists or if the prison staff
did so. Plaintiff describes being sexually assaulted in the
Level IV shower on or around May 30, 2015, and a
second assault in the shower on June 19, 2015. He states
that he was afraid to report the assault while in Level
IV because he was “afraid of being retaliated against” by
Defendants and Officer Glynn. He states that he was
ashamed, embarrassed, and humiliated, which stripped
him of his dignity and manhood and has resulted in
nightmares, depression, recurring thoughts, and
difficulty coping. (Id. at PageID.2237–39.)
Although these allegations are appalling, Plaintiff’s second theory
of IIED liability is too attenuated under Michigan law to be submitted to
a jury. In Michigan, generally a defendant cannot be liable for the acts of
third parties. For example, in the case Sperle v. Mich. Dept. of Corr., 297
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F.3d 483 (6th Cir. 2002), Tammy Sperle, deceased, worked as a prison
storekeeper and was murdered by inmate Clarence Herndon. Her estate
sued MDOC and various prison staff for IIED for their failure to prevent
her murder. Specifically, her estate alleged that the defendants had
actual knowledge that an injury was certain to occur and willfully
disregarded that knowledge when the guards left her alone in the prison
store and failed to check on her during her shift, which provided an
opportunity for Herndon to enter the store and kill her. Id. at 487, 496.
The Sixth Circuit found that MDOC staff lacked direct evidence of intent,
and, while defendants “might have acted negligently,” their conduct was
not “extreme and outrageous.” The Court also stated, “most importantly,
the defendants did not murder Tammy Sperle. Instead, Herndon, acting
on his own, committed the crime.” Id. at 497. Accordingly, the plaintiff
failed to establish a claim for IIED.
Similarly, in Estate of Fahner ex rel Fahner v. Cty. of Wayne, 797 F.
Supp.2d 816 (E.D. Mich. 2011) (overturned on other grounds), prisoner
John Fahner was murdered in a “savage” and “unprovoked” attack by his
cell mate Sean Pollard fifteen minutes after Pollard entered the cell
immediately after intake by jail staff. Id. at 823. Pollard had an
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“extensive” history of incarceration, mental health conditions for which
he was prescribed medication, and past instances of assaultive conduct
toward other inmates and jail staff. Id. Furthermore, witnesses testified
that when Pollard first arrived in the cell, “he didn’t appear normal.” Id.
at 825. Fahner’s estate sued the county and individual jail officers for
IIED. They argued that prison staff acted in an outrageous manner when
they failed to identify Pollard as a risk during intake procedures and they
failed to protect the safety of Fahner when they placed Pollard in the
same cell. Id. at 844–45. The district court rejected this claim, finding
that defendants’ conduct was not “beyond all bounds of possible decency,
that must be regarded as atrocious,” and found that, “[a]s in Sperle,
Defendants did not kill the decedent,” id. at 845, explaining that, “it
cannot be said that any of the alleged actions by Defendants were
calculated to cause Fahner’s death or to subject him to emotional
distress.” Id. at 846 (emphasis added). Accordingly, the plaintiff’s IIED
claim failed.
Here, Plaintiff’s allegation is that other inmates’ behavior caused
him emotional distress. But the Defendants themselves are not accused
of committing the sexual assault or extorting Plaintiff’s family for money.
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Accordingly, as a matter of law, Plaintiff’s second theory of IIED liability
also fails.
Since Plaintiff’s IIED claim cannot go forward, the Court need not
address Plaintiff’s additional arguments and evidence, such as medical
records, in support of his claim for emotional distress damages.
Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s
IIED claim is granted.
2.

Christin Harris’ Testimony

Next, the Court ordered the parties to submit briefs regarding
whether Plaintiff’s proposed witness, Christin Harris, should be
permitted to testify as a fact witness at trial. Plaintiff states that Christin
Harris worked at the Legislative Corrections Ombudsman’s office and
was authorized by law to investigate Plaintiff’s claims of Defendants’
retaliation. (ECF No. 99, PageID.2181.) He argues that Harris
corresponded with MDOC staff AA Rosek for thirteen months while
investigating Plaintiff’s claim that he was improperly held in Level IV
and he attaches emails between them. (ECF No.99-1, PageID.2308–
2310.) The emails attached to Plaintiff’s brief indicate that Harris
inquired about Plaintiff’s Level IV status in June 2014, January 2015,
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and July 2015. (Id.) Plaintiff also claims that Harris visited Plaintiff
while he was in Level IV. (ECF No. 99, PageID.2182.) He also believes
that Harris is “the ultimate cause forcing the Defendants to place
Plaintiff St. Ann back in his true/correct security level, level II.” (Id.)
Defendants’ argue that Harris’s testimony would be impermissible
hearsay. (ECF No.98, PageID.2160.) They argue that the Court has
already ruled that certain letters from Harris constitute hearsay and
cannot be admitted for the truth of the matter asserted. (Id.) However, a
review of the Final Pretrial Order indicates that Defendants did not
object to the admission of Harris’s letters, and no such rulings have been
issued as to documents related to Harris, though a letter to A’Keydra
Abrams in the Ombudsman’s office has been excluded as hearsay. (ECF
No. 97, PageID.2134, 2141.)
Under Federal Rule of Evidence 401, Harris’s testimony may be
relevant based on the fact that she conducted an investigation into the
reasons that Defendants maintained Plaintiff in Level IV at the time
relevant to his case. While Defendants are correct that certain testimony
from Harris could constitute inadmissible hearsay under Federal Rule of
Evidence 802, Defendants have not demonstrated that all of her
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testimony would be excludible on this basis, and it is conceivable that
Harris could testify in a manner that does not constitute hearsay.
Accordingly, Harris’s testimony will be permitted only to the extent it is
based on her personal knowledge, and not speculation, consistent with
Federal Rule of Evidence 602.3
Plaintiff has requested that the Court permit him to “allow Harris
to only read her portion of the emails that were sent to AA Rosek and
also answer the questions posed by Plaintiff in Appendix T1.” Plaintiff’s
request that Harris read aloud from the emails contained in his exhibit
K1 to his brief is denied. (ECF No.99-1, PageID.2308–2310.) Reading the
emails aloud would constitute inadmissible hearsay if the emails were
offered to prove the truth of the matter asserted, as this appears to be
Plaintiff’s purpose in having her read them aloud. As to Plaintiff’s list of
questions contained in his Appendix T1 to his brief, the Court permits
Plaintiff to question Harris but will not rule on the list of questions
individually absent objections lodged by Defendants. If Defendants object

Defendants’ counsel has notified the Court that he inquired about Harris’s
availability to testify at the trial and learned that she has not worked in the
Corrections Ombudsman’s office in several years, currently works in New York, and
that no further contact information for her is available. (ECF No. 115.)
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to Plaintiff’s questions at the time of trial, the Court will rule on them at
that time.
In sum, Plaintiff is permitted to subpoena Christin Harris to testify
as a fact witness at trial, and the Court will rule on Defendants’
objections to her testimony, if any, at that time.
E.

Conclusion

Accordingly, Defendants’ motion for summary judgment as to
Plaintiff’s intentional infliction of emotional distress claim is granted.
Defendants’ motion to preclude the testimony of Christin Harris is
denied.
IT IS SO ORDERED.
Dated: November 8, 2019
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 8, 2019.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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