Ryan v. Nagy et al

Filing 70

OPINION and ORDER Granting in Part Plaintiff's Motion for Relief from Judgment 58 . Signed by District Judge Laurie J. Michelson. (EPar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SEAN MICHAEL RYAN,
Plaintiff,
v.

Case No. 20-11528
Honorable Laurie J. Michelson
Mag. Judge Patricia T. Morris

NOAH NAGY,
HEIDI WASHINGTON, and
GRETCHEN WHITMER,
Defendants.
OPINION AND ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT [58]
Sean Ryan is an inmate at the G. Robert Cotton Correctional Facility (JCF), a
Michigan Department of Corrections prison located in Jackson, Michigan. Many
inmates at JCF live in shared housing: either two inmates share a small cell or 150
inmates share a large pole barn. Ryan believes that because inmates must share
sleeping and living quarters, they are at risk of contracting contagious diseases
including—but not limited to—COVID-19. Based on this belief, Ryan maintains that
MDOC Director Heidi Washington’s and JCF Warden Noah Nagy’s policy or practice
of shared housing violates the Eighth Amendment of the U.S. Constitution and the
analogous provision of the Michigan Constitution. So Ryan filed this lawsuit.

In a January 2022 opinion and order, this Court dismissed Ryan’s claims
insofar as they sought monetary relief for past injuries. See generally Ryan v. Nagy,

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No. 20-11528, 2022 WL 260812 (E.D. Mich. Jan. 26, 2022). The Court reasoned that
Ryan had not cited precedent that gave Defendants clear notice that the shared
housing arrangements at JCF were unlawful because they exposed inmates to
contagious diseases. See id. at *2–3. So to the extent that Ryan had sued Defendants
in their individual capacities, his claims for damages were barred by qualified
immunity. See id. And, the Court explained, to the extent that Ryan had sued
Defendants in their official capacities, his claims for damages were barred by
sovereign immunity. Id. at *3. Thus, “Ryan’s claims, insofar as they seek damages,
[we]re DISMISSED.” Id. at *7.
Ryan disagrees with that ruling and asks the Court to change it. (ECF No. 58.)

Ryan seeks relief under Federal Rule of Civil Procedure 60(b), but that rule
does not apply here. Rule 60(b) is limited to finals orders or judgments. Fed. R. Civ.
P. 60 advisory committee’s note to 1946 amendment (“The addition of the qualifying
word ‘final’ emphasizes the character of the judgments, orders or proceedings from
which Rule 60(b) affords relief . . . .”). In the order that Ryan challenges, the Court
ruled that he was not entitled to damages for his claims, but “Ryan’s claims, insofar
as they seek prospective, injunctive relief, remain[ed] in this case.” Ryan, 2022 WL
260812, at *7. So the Court did not enter a final order or judgment. See 10 Charles
Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2654 (4th ed.) (“Absent a
certification under Rule 54(b) any order in a multiple-party or multiple-claim action,

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even if it appears to adjudicate a separable portion of the controversy, is
interlocutory” rather than final).
Although Ryan’s motion does not invoke the proper procedural rule, Ryan is
not a lawyer who has been trained in those rules. And, as will be explained, his motion
has some merit. So the Court will address the merits. See Mallory v. Eyrich, 922 F.2d
1273, 1282 (6th Cir. 1991) (“District courts have inherent power to reconsider
interlocutory orders and reopen any part of a case before entry of a final judgment.”).

Ryan’s motion challenging this Court’s January 2022 order essentially comes
in two parts. For one, Ryan says that this Court erred in finding that there was no
clearly established law giving Defendants notice that their conduct was unlawful. For
two, Ryan says that his claim for damages, insofar as it is based on a violation of the
Michigan Constitution, should not have been dismissed.
The Court disagrees with Ryan on part one but agrees with him on part two.

The Court previously ruled that the cases Ryan had cited did not “clearly
establish[] that requiring two people to share a one-person cell, or requiring many
people to share a pole barn, violates the Eighth Amendment because it exposes the
inmates to contagious diseases.” Ryan, 2022 WL 260812, at *3.
Ryan says this finding was error. In support of that assertion, Ryan cites
numerous cases that he says clearly establish “that it is unconstitutional to mingle
inmates with contagious diseases with other inmates.” (ECF No. 58, PageID.885.)

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Ryan again runs into a procedural problem. Aside from Helling and Hutto,
which this Court already addressed, Ryan did not cite the cases he relies on now in
his briefing before the Magistrate Judge or in his objections to this Court. (See ECF
No. 27, PageID.375 (citing Helling and Hutto as clearly established law); ECF No. 32,
PageID.427–430 (same).) And, generally speaking, it is not fair for a litigant to ask
for reconsideration of a Court’s decision based on arguments that could have been,
but were not, made before the Court ruled. See Murr v. U.S., 200 F.3d 895, 902 n.1
(6th Cir. 2000) (“[A]bsent compelling reasons, [the Federal Magistrates Act] does not
allow parties to raise at the district court stage new arguments or issues that were
not presented to the magistrate.”); cf. E.D. Mich. LR 7.1(h) (providing that a motion
for reconsideration is warranted where “[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” (emphasis added)).
And even looking past the procedural improprieties, none of the cases Ryan
now cites gave Washington and Nagy clear notice that housing two people in a singleperson cell or housing many people in a pole barn is unconstitutional because it is
possible for one or more of them to have a serious, contagious disease.
Ryan again cites Helling and Hutto. But Helling did not give clear notice
because the plaintiff had to endure a cellmate who breathed cigarette smoke into the
air, not a cellmate who breathed pathogens into the air. See 509 U.S. 25, 28 (1993).
And while Hutto did involve contagious diseases, the housing conditions there were
quite different than those at JCF. See 437 U.S. 678, 682–83 (1978) (“At night the

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prisoners were given mattresses to spread on the floor. Although some prisoners
suffered from infectious diseases such as hepatitis and venereal disease, mattresses
were removed and jumbled together each morning, then returned to the cells at
random in the evening.”).
Ryan also cites Valentine v. Collier, 141 S. Ct. 57 (2020); but that is merely a
dissent (from a denial of an application to vacate a stay). Dissents do not clearly
establish anything.
Ryan directs the Court’s attention to four district court opinions. It is highly
doubtful that four district courts can clearly establish law, especially when three of
them are from outside this Circuit. See Hopkins v. Nichols, 37 F.4th 1110, 1116 (6th
Cir. 2022) (“To determine whether the law is clearly established we must look first to
decisions of the Supreme Court, then to decisions of this court and other courts within
our circuit, and finally to decisions of other circuits.” (internal quotation marks
omitted)); Ashford v. Raby, 951 F.3d 798, 804 (6th Cir. 2020) (“[W]e can’t expect
officers to keep track of persuasive authority from every one of our sister circuits.
They spend their time trying to protect the public, not reading casebooks.”); cf. Rhodes
v. Michigan, 10 F.4th 665, 682 (6th Cir. 2021) (“[W]here an array of our sibling
circuits have acted in concert on an issue, we have not hesitated to hold that out-ofcircuit precedent has clearly established a constitutional right.”).
In any event, the four district court opinions did not address a claim like
Ryan’s.

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Consider Wright and Joy first. True, they say that “inmates can state an
Eighth Amendment claim for confinement in a cell with an inmate who has a serious
contagious disease that is spread by airborne particles, such as tuberculosis.” Joy v.
Healthcare C.M.S., 534 F. Supp. 2d 482, 485 (D. Del. 2008); see also Wright v. Hayden,
No. CIV A 5:08CV-179-R, 2009 WL 909562, at *2 (W.D. Ky. Mar. 31, 2009) (similar).
But what appears to be missing from that statement of law is what prison officials
know: requiring inmates to share a cell while knowing that one of them has a serious,
contagious disease is different than requiring inmates to share a cell while knowing
it is possible for one of them to have a serious, contagious disease. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (providing that prison official violates the Eighth
Amendment only if he infers a “substantial” risk of serious harm). Further, tracing
Wright and Joy’s statement of law back to its source ends at Helling and Hutto. And,
again, the facts of Helling and Hutto are not like the facts of this case. As for Wright
itself, the court there found that officials did not expose the plaintiffs to a substantial
risk of serious harm when they required them to share a cell with an HIV-positive
inmate. 2009 WL 909562, at *3. And the court in Joy merely found that the plaintiffs
had pled a viable claim where they alleged that the warden “was aware that inmates
were not thoroughly screened for disease before going into general population and
that Correctional Medical Services does not have a policy in place to examine inmates
before placing them into general population.” 534 F. Supp. 2d at 485. Ryan has not
directed the Court to evidence that Warden Nagy is similarly indifferent.

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A third district court opinion that Ryan relies on, Legate v. Livingston, is
further afield. That case addressed a prisoner’s claim that he contracted Hepatitis C
because a prison policy “allowed Native American practitioners to smoke a communal
pipe.” No. 2:14-CV-269, 2014 U.S. Dist. LEXIS 180135, at *2 (Aug. 6, 2014), report
and recommendation adopted by 2015 U.S. Dist. LEXIS 2997 (S.D. Tex. Jan. 12,
2015).
Ryan also relies on Cameron v. Bouchard, 462 F. Supp. 3d 746 (E.D. Mich.
2020). True, that early-pandemic decision did find it problematic that “almost half of
the Jail’s population was housed in multi-person cells, with a significant number in
housing units with more than 10 individuals.” Cameron v. Bouchard, 462 F. Supp. 3d
746, 777 (E.D. Mich. May 21, 2020). But that decision was vacated on appeal.
Cameron v. Bouchard, 815 F. App’x 978, 986 (6th Cir. 2020) (“Given the lack of
evidence as to whether the empty cells could be safely occupied, Plaintiffs have not
satisfied their burden of showing that officials have left these cells empty out of an
objectively (or subjectively) reckless disregard of the risks of COVID-19.”). Vacated
decisions are not law, let alone clearly established law. United States v. Sigma Int’l,
Inc., 300 F.3d 1278, 1280 (11th Cir. 2002).
Accordingly, the Court did not err in finding that Defendants are entitled to
qualified immunity. While the Eighth Amendment might prohibit prison officials
from housing a prisoner who they know has a serious, contagious disease with other
prisoners, Ryan’s claim goes further. As this Court understands it, Ryan claims that
Washington and Nagy violated the Eighth Amendment by requiring inmates to share

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housing because they know that at any given time, an inmate might have a serious,
contagious disease. None of the cases Ryan cites go that far. Indeed, most prisons in
the country use some form of shared housing.

Ryan also claims that because he brought a claim under the Michigan
Constitution, the Court erred in completely dismissing his damages claims. (See ECF
No. 58, PageID.888.) Although the case Ryan cites is not directly on point (see id.),
the Court agrees with Ryan that his claims for damages should not have been
dismissed in their entirety.
In its prior opinion, the Court focused on Ryan’s claim under the Eighth
Amendment of the U.S. Constitution and found that a combination of qualified
immunity (individual capacity) and sovereign immunity (official capacity) barred
Ryan’s claim for damages. See Ryan v. Nagy, No. 20-11528, 2022 WL 260812, at *2–
6 (E.D. Mich. Jan. 26, 2022).
As for Ryan’s claim under the Michigan Constitution’s “cruel or unusual”
provision, the Court “ma[d]e no finding as to the viability” of that claim. Ryan, 2022
WL 260812, at *7. The Court noted that Defendants urged the Court to decline
supplemental jurisdiction over that claim and that the Magistrate Judge had
recommended the same. And while “[t]hat may well end up being the proper route to
take,” the Court concluded that “this issue can be revisited at a later date.” Id. That
made sense: the parties still needed to litigate Ryan’s Eighth Amendment claim for
injunctive relief.

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Unfortunately, the Court’s opinion concluded with this order: “Ryan’s claims,
insofar as they seek damages, are DISMISSED.” Id. at *7. That was too broad.
Although at least two judges have argued otherwise, the Sixth Circuit has held that
sovereign immunity does not bar a claim for damages when a state official is sued in
her individual capacity for violating state law. See Williams v. Com. of Ky., 24 F.3d
1526, 1543 (6th Cir. 1994) (“[N]either the Eleventh Amendment nor Pennhurst [v.
Halderman, 465 U.S. 89 (1984)] deprives federal courts of jurisdiction over state law
claims for damages against state officials sued in their individual capacities.”); accord
Koch v. Dep’t of Nat. Res., 858 F. App’x 832, 836 (6th Cir. 2021). But see In re Ohio
Execution Protocol Litig., 709 F. App’x 779, 785 (6th Cir. 2017) (Sutton, J., concurring)
(“I am skeptical about this statement in Williams. . . . I see no reason why the
rationale of [Pennhurst] does not apply equally, if not more forcefully, to a state law
money damages action against a state employee.”); Koch v. Dep’t of Nat. Res., 858 F.
App’x 832, 840 (6th Cir. 2021) (Bush, J., concurring) (“I agree with Judge Sutton that
the logic of Pennhurst applies to state-law claims for damages against state officials
in their personal capacities.”). And it appears that state-law immunities do not
protect state officials who violate the state constitution. See Bauserman v.
Unemployment Ins. Agency, — N.W.2d. —, No. 160813, 2022 WL 2965921, at *14 &
n.13 (Mich. July 26, 2022) (holding that the State of Michigan can be liable for
damages for violating the Michigan Constitution but that “whether other entities,
such as . . . individual government actors, can be liable for constitutional torts is not
before us, and we decline to address that question”). And so the Court should not have

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dismissed Ryan’s claim for damages insofar as it was based on the Michigan
Constitution’s “cruel or unusual” punishment clause.
So what is the best course forward? The first step is clear: the Court will
reinstate Ryan’s request for damages insofar as it is based on the Michigan
Constitution. From there the path ahead gets murkier. In accordance with this
Court’s January 2022 order, it appears that the parties’ discovery focused on present
and future circumstances—not on past circumstances relating to damages. (See e.g.,
ECF No. 48, PageID.637 (objecting to discovery request on the basis that discovery
should be limited to Ryan’s circumstances as of February 1, 2022).) And recently,
Defendants have moved for summary judgment on Ryan’s remaining claims. (ECF
No. 64.) So, potentially, the reinstatement of Ryan’s claim for damages will require
unwinding this litigation a bit.
For now, the Court need not look too far down the road. Based on evidence
gathered after this Court’s January 2022 opinion, the Court doubts that Ryan has
standing to seek forward-looking, injunctive relief. This doubt is detailed in a
separate opinion and order entered today. If Ryan in fact lacks standing to seek
injunctive relief, then Ryan’s Eighth Amendment claim under the U.S. Constitution
would need to be dismissed in its entirety. (As discussed, the Court already dismissed
the Eighth Amendment claim for damages.) And if the federal claim is dismissed in
its entirety, it may be best to decline supplemental jurisdiction over Ryan’s state
claim.

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In short, the Court GRANTS IN PART and DENIES IN PART Ryan’s motion
for relief from judgment (ECF No. 58). His Eighth Amendment claim, insofar as he
seeks damages for past injuries, remains dismissed—the Court did not err in finding
that qualified and sovereign immunity shield Defendants from that federal claim.
But Ryan’s claims for damages should not have been dismissed in their entirety
because he also sought damages for Defendants’ violation of the Michigan
Constitution. Thus, Ryan’s claim for damages under the Michigan Constitution will—
for the time being—be reinstated. To the extent the January 2022 opinion stated
otherwise—and only to that limited extent—it is VACATED. See Mallory v. Eyrich,
922 F.2d 1273, 1282 (6th Cir. 1991) (“District courts have inherent power to
reconsider interlocutory orders and reopen any part of a case before entry of a final
judgment.”). The Court will address whether to expand discovery to address Ryan’s
damages claim at a later date.
SO ORDERED.
Dated: November 21, 2022
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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