Zaya v. Adducci

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Fawzi Zaya,

Petitioner, Case No. 20-10921

v. Judith E. Levy United States District Judge Rebecca Adducci, et al., Mag. Judge Anthony P. Patti

Respondents.

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OPINION AND ORDER GRANTING PETIONER’S MOTION TO VOLUNTARILY DISMISS [32] AND DENYING PETITIONER’S MOTION TO STAY [26]

This is a case challenging the constitutionality of continued civil immigration detention of medically vulnerable detainees during the COVID-19 pandemic. On August 7, 2020, Petitioner Fawzi Zaya moved to voluntarily dismiss the case in order to be part of the class and habeas litigation group in the companion case, No. 20-10829 Malam v. Adducci. (ECF No. 32.) Respondent filed a response on August 14, 2020. (ECF No. 33.) Because voluntary dismissal will not prejudice Respondent, the Court grants Petitioner’s motion. I. Background On April 13, 2020, Petitioner filed an emergency petition for writ of

habeas corpus (ECF No. 1) and an emergency motion for a temporary restraining order. (ECF No. 2.) Petitioner claimed that his continued civil

detention at the Calhoun County Correctional Facility violated his Fifth Amendment rights by exposing him to a substantial risk of illness and death related to COVID-19. (Id. at PageID.222.) On April 18, 2020, the

Court granted Petitioner’s motion for a temporary restraining order (ECF No. 9), and on May 14, 2020, the Court converted the restraining order into a preliminary injunction. (ECF No. 15.) On July 10, 2020,

Respondent filed a notice of appeal. (ECF No. 18.) On June 19, 2020, Respondent filed a motion for summary judgment. After seeking two extensions of time to file a response (ECF

Nos. 19, 23), Petitioner moved to stay the case pending resolution of Malam. (ECF No. 25.) Petitioner, citing his counsel’s involvement in other litigation, filed a sparse response to Respondent’s motion for

summary judgment that did not include any additional evidence. (ECF No. 27, PageID.930.) Respondent replied on July 31, 2020. (ECF No. 29.) On July 31, 2020, the Court certified both a class and a habeas litigation group in Malam. Malam v. Adducci, (E.D Mich. July 31, 2020),

ECF No. 162. On August 4, 2020, the Court held a case management status conference in this case and in Malam. (ECF No. 31, PageID.965.)

The Court set deadlines for Petitioner’s motion to voluntarily dismiss his case. (Id.) Now, Petitioner seeks to voluntarily dismiss this litigation and join the class and habeas litigation group in Malam.

II. Legal Standard Fed. R. Civ. P. 41(a)(2) provides, in pertinent part, that where a summary judgment motion has been filed, an action can be voluntarily

dismissed “only by court order, on terms that the court considers proper.” “Whether dismissal should be granted under the authority of Rule 41(a)(2) is within the sound discretion of the district court.” Grover v. Eli

Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). The primary purpose of the rule in interposing the requirement of court approval is to protect the nonmovant from unfair treatment, and accordingly it is an abuse of

discretion to dismiss an action where the defendant would suffer “plain legal prejudice.” Id. In determining whether a defendant will suffer plain legal prejudice, a court should consider such factors as the defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether a motion for summary judgment has been filed by the defendant

Id. III. Analysis On balance, the Court finds that Respondent will not suffer plain legal prejudice through dismissal of this action. 1. Respondent’s Effort and Expense Respondent argues that “by fully briefing a motion for temporary

restraining order, a response and supplemental brief to an order to show cause, and a motion for summary judgment, Respondents have expended

a great deal of effort for what is ordinarily a summary proceeding.” (ECF No. 33.) While the Court appreciates the time and effort evident in the quality of Respondent’s submissions, this does not rise to the level of

effort or expense contemplated by Grover. In Grover, the parties had litigated the case for five years, including certification of a question to the Ohio Supreme Court. Grover, 33 F.3d at 718. Here, the parties have

litigated the case for five months, Respondent has submitted a total of seven filings, and the parties have not exchanged any discovery. Respondent’s work on this case to-date does not justify a finding of prejudice. Moreover, if Petitioner had been a part of the Malam case from

the start, Respondent would have likely expended the very same time and effort. Before the Court certified a class and a habeas litigation

group, counsel in Malam filed a series of motions for temporary restraining orders and preliminary injunctions on behalf of individually named detainees. Had Petitioner not filed this case, counsel likely would

have filed a motion for injunctive relief on his behalf, leading to the same amount of work for Respondent—the only difference being the docket number listed in the caption.

2. Excessive Delay/ Lack of Diligence Respondent argues that “Petitioner’s lack of diligence in responding to a properly supported motion for summary judgment should not be

rewarded with dismissal so that he can seek relief in another action.” (ECF No. 33, PageID.977.) The Court has previously expressed concern at the quality of Petitioner’s submissions. (See ECF No. 12, PageID.747

(noting that Petitioner’s reply “cites no legal authority” and was not “helpful to [the Court’s] consideration of his claims;” ECF No. 15, PageID.807 (noting Petitioner’s supplemental brief to show cause was “no more useful” and the “Petitioner failed to address the majority of Respondent’s arguments or to provide a single legal citation in support of

his own”).) Petitioner’s response to Respondent’s motion for summary judgment is, at Petitioner’s own admission, incomplete. (ECF No. 27,

PageID.931 (requesting leave to “submit a more complete response”).) But Petitioner’s lack of diligence does not support a finding of prejudice. In Smith v. Holston Medical Group, P.C., the Sixth Circuit found

prejudice where a plaintiff’s lack of diligence brought the case to “the point when the law clearly dictates a result for the defendant.” 595 F. App’x 474, 478 (6th Cir. 2014) (citing Grover, 33 F.3d at 718). In Smith,

the district court excluded expert witness testimony because of a lack of diligence by the plaintiff. Id. at 477. The district court found that the plaintiff could not “prove her medical malpractice claims without expert

medical proof” and denied her motion to voluntarily dismiss. Id. Here, unlike in Smith, there is a companion case with a record replete with expert evidence. See, e.g., Malam (June 15, 2020) ECF Nos. 112-4 (Class

Certification Declaration of Dr. Homer Venters) and 117-4 (Declaration of Gregg Gonsalves). Under Federal Rule of Civil Procedure 56, the Court may look beyond the four corners of the parties’ filings in adjudicating a motion for summary judgment and “consider other materials in the record.” Fed. R. Civ. Proc. 56(c)(3). Pursuant to Federal Rule of Civil

Procedure 42, the Court may formally consolidate this case with Malam, allowing the Court to consider the expert evidence on the record in

Malam when adjudicating the motion for summary judgment in Zaya. Accordingly, Respondent is not guaranteed summary judgment. Nor does recent Sixth Circuit precedent clearly dictate a result in

Respondent’s favor. Respondent claims that the opinion in Cameron v. Bouchard, finding that there is no due process violation where the government takes safety precautions for pretrial detainees like those

taken at the Calhoun County Correctional Facility, mandates a similar finding here. No. 20-1469, 2020 WL 3867393 (6th Cir. 2020) (citing Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020)). But Cameron applied

a deliberate indifference standard requiring an objective and subjective component, whereas the Court recently found in Malam that a punishment standard requiring only an objective component governs

Petitioner’s claims. (ECF No. 127, PageID.4220.) Although Defendants— including Respondent—have filed a motion to amend the judgment in Malam, see Malam (July 27, 2020), ECF No. 158, the Court has yet to adjudicate that motion and will continue to follow its prior reasoned opinion. Accordingly, the law does not clearly dictate Respondent’s

success, and Respondent has not shown prejudice. Additionally, Petitioner has not caused undue delay in this

litigation, nor did he delay in bringing this motion to voluntarily dismiss the case. Respondent notes that upon filing, “Petitioner did not seek to consolidate or otherwise join Malam.” (ECF No. 33, PageID.973.)

However, the Court did not certify the class or habeas litigation group in Malam until July 31, 2020. Malam v. Adducci, Case No. 20-10829 (E.D Mich. July 31, 2020), ECF No. 162. Petitioner’s stated purpose for filing

the current motion—to be part of the certified class and subclass of medically vulnerable detainees in Malam—only recently became possible.

3. Need for Dismissal Next, Respondent argues that “Petitioner does not explain his need for dismissal.” (ECF No. 33, PageID.977.) As Respondent sees it,

Petitioner seeks dismissal to avoid an unfavorable ruling on the pending motion for summary judgment. (Id. at PageID.978.) But as Petitioner explains in his motion, he seeks to join the class and habeas litigation group in Malam that were certified on July 31, 2020. (ECF No. 32, PageID.968.) There is nothing unusual about a litigant withdrawing an

individual claim to join a certified class; such consolidation can greatly increase judicial efficiency and consistency. This factor does not

demonstrate prejudice to Respondent should the Court grant Petitioner’s motion. Respondent also points to the fact that the Court scheduled the

status conference sua sponte and held it off the record, perhaps to suggest that this motion is therefore improper. (ECF No. 33, PageID.974.) The undersigned has a consistent practice of holding scheduling conferences

off the record, but more importantly, the Court has a duty to manage its caseload responsibly. The purpose of the status conference was to explore ways in which the litigation brought by ICE detainees at the Calhoun

County Correctional Facility could be managed in a more efficient and effective manner. But it was ultimately Petitioner’s decision to file the current motion, not the Court’s.

4. Motion for Summary Judgment Respondent argues that because her motion for summary judgment is fully briefed, “[i]t would be unfair to deny Respondent[] a decision on the merits.” (ECF No. 33, PageID.978.) But the filing of a summary judgment motion, while it weighs against granting voluntary dismissal,

is not dispositive. The Federal Rules contemplate that voluntary dismissals can be appropriate after a motion for summary judgment. See

Fed. R. Civ. Proc. 41(a)(1)(A)((i) & (a)(2) (noting that an action may still be dismissed by court order after the opposing party serves a motion for summary judgment). And in Rosenthal v. Bridgestone/Firestone, Inc., the

Sixth Circuit upheld a district court order granting voluntary dismissal after a motion for summary judgment had been filed on the grounds that the legal outcome was not “clearly dictated.” 217 F. App’x 498, 501 (6th

Cir. 2007) (citing Grover, 33 F.3d at 719). Such is the case here. Thus, while Respondent may perceive the dismissal of this case as unfair, this does not constitute clear legal prejudice.

Ultimately, while Respondent moves through each of the factors articulated in Grover, she does not address how any of those factors will cause her prejudice—the bar that must be met to warrant denial of

Petitioner’s motion. The context in which this case arises makes a showing of prejudice impossible: Petitioner is not seeking damages; costs to date have been low; Petitioner’s claims will continue in related litigation; and Respondent can raise nearly identical arguments in Malam. The Court finds that voluntary dismissal of this individual action

will not prejudice Respondent. Instead, adjudicating Petitioner’s claims in the context of the Malam litigation will greatly increase judicial

efficiency and consistency. Petitioner’s motion is granted. 5. Conditions of Order As Respondent properly notes, the preliminary injunction in this

case will extinguish with the dismissal of the action. See Burniac v. Wells Fargo Bank, 810 F.3d 429, 435 (6th Cir. 2016) (“A preliminary injunction cannot survive the dismissal of a complaint.”). To preserve the status quo,

the Court will enjoin Respondent from rearresting Petitioner until the Court can adjudicate Petitioner’s application for bail in Malam.1 IV. Conclusion

1 Respondent argues that “Petitioner, who is not detained, is not ‘in Custody’ at Calhoun for purposes of falling within the class definition in Malam, unless and until he is re-detained and held at Calhoun. (ECF No. 33.) Respondent has made it clear—through an appeal to the Sixth Circuit and the filing of a motion for summary judgment—that she seeks to redetain Petitioner. Despite the fact that Petitioner is not currently detained, this is not likely to bar Petitioner from filing a bail application; the Court will address this issue more thoroughly in Malam and—to the extent that Respondent challenges Petitioner’s membership in the habeas litigation group—will consider amending its certification order to include individuals previously detained at the Calhoun Country Correctional Facility but granted release by an order of this Court. For the reasons stated above, Petitioner’s motion to voluntarily dismiss this case is granted. Petitioner’s motion to stay (ECF No. 26) is

denied as moot. Respondent is enjoined from rearresting Petitioner until the Court adjudicates a bail application from Petitioner in Malam or

determines that it lacks the legal authority to grant Petitioner bail. IT IS SO ORDERED.

Dated: August 19, 2020 s/Judith E. Levy Ann Arbor, Michigan 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 August 19, 2020. s/William Barkholz WILLIAM BARKHOLZ Case Manager