Onumonu #303121 et al v. Washington et al

Filing 4

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

NOSAKHARE N. ONUMONU
and REGINALD D. BLUNT,
Case No. 1:21-cv-272
Plaintiffs,
Honorable Robert J. Jonker
v.

HEIDI WASHINGTON et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the
Court is required to dismiss any prisoner action brought under federal law if the complaint is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary
relief from a defendant immune from such relief. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c).
The Court must read Plaintiffs’ pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519,
520 (1972), and accept Plaintiffs’ allegations as true, unless they are clearly irrational or wholly
incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court
will dismiss Plaintiffs’ complaint for failure to state a claim.
Discussion
Factual allegations
Plaintiffs are presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. The events
about which he complains occurred at that facility.

Plaintiffs sue MDOC Director Heidi

Washington, Warden John Davids, Deputy Warden Lynn Sandborn, Assistant Deputy Warden of
Housing Sabrina C. Davis, Assistant Deputy Warden of Security Charles Traylor, Resident Unit
Manager Erric Smith, Prisoner Counselor Jeffrey Luther, and Prisoner Counselor Trent
Hengesbach.
Plaintiffs Onumonu and Blunt contend that Defendants violated their Fourteenth
Amendment rights when they forced them to submit to COVID-19 testing on multiple occasions.
In addition, Plaintiff Onumonu asserts that his Eighth Amendment rights were violated when he
was forced to reside in punitive segregation under the pretense that he was being quarantined.
Plaintiffs allege that following Governor Whitmer’s declaration of a state of
emergency on March 10, 2019, Defendant Washington implemented COVID-19 protocols which
required the mandatory temperature check of all prisoners and correctional staff, optional nasal
swab testing for correctional staff and mandatory swab testing of all prisoners, the practice of
social distancing, and encouraged the use of masks. Plaintiffs state that the mandatory temperature
check was ineffective since some of the COVID-19 positive corrections employees were
asymptomatic, and that because nasal swab testing of employees was optional, many infected staff
members did not get tested. Plaintiffs also assert that the mandatory testing of prisoners was
unnecessary because they were quarantined from the general public and could only contract the
virus by being exposed to corrections employees. Plaintiffs state that social distancing was
impossible in the prison and that the single-layer mask provided to prisoners was ineffective in
preventing infection.
On May 18, 2020, Defendants Washington, Davids, Sandborn, Davis, Traylor, and
Smith ordered the National Guard to perform a COVID-19 test on Plaintiffs, despite the fact that
there were no cases of COVID-19 at ICF at that time. Plaintiffs were subjected to COVID-19 tests

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again on September 21, 2020 and September 28, 2020. In October of 2020, Defendant Luther
informed Defendants Washington, Davids, Sandborn, Davis, Traylor, and Smith that he had
contracted COVID-19, however the prisoners were not informed, which caused an outbreak of the
COVID-19 virus in the prison. On October 19, 2020, Defendants Washington, Davids, Sandborn,
Davis, Traylor, and Smith again ordered mandatory testing of prisoners, including Plaintiffs.
However, testing of employees remained optional. On the same day, one of Plaintiff Onumonu’s
cube mates had a fever, so he and the other cube mates were forced into quarantine.
On October 21, 2020, Plaintiff Onumonu was told that he was COVID-19 positive.
However, on October 22, 2020, Plaintiff Onumonu was told that he was actually COVID-19
negative and should be moved out of segregation/quarantine that day. At approximately 4:45 p.m.,
Plaintiff Onumonu asked to speak to Defendant Davis, Defendant Davids, or to any of the shift
commanders about being moved out of quarantine. Plaintiff Onumonu’s request was ignored.
Around 9:00 p.m., Plaintiff received legal mail indicating that his retaliation claims in Case
Number 1:20-cv-816 against corrections officers at ICF were not being dismissed. On October
24, 2020, Plaintiff Onumonu asked Lieutenant Rynke why he was still in quarantine and Rynke
responded that the administration had not ordered him to be moved.
Plaintiff Onumonu was forced to remain in quarantine, where he was denied a
shower, laundry services, a change of clothing, and adequate personal protective equipment for
eleven days. Plaintiff Onumonu believes that he contracted COVID-19 from another prisoner
while in quarantine due to the poor ventilation system and the lack of proper protective equipment.
On October 26, 2020, while in quarantine, Plaintiff Onumonu was again tested for COVID-19.
Plaintiff’s test was positive for COVID-19. Plaintiff was subsequently placed in unit 7 where all
the COVID-19 positive prisoners were being quarantined.

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On October 23, 2020, Defendants Washington, Davids, Sandborn, Davis, Traylor,
and Smith ordered a blood test on Plaintiff Blunt. On October 24, 2020, Plaintiff Blunt was told
that he had COVID-19.
Plaintiffs seek compensatory and punitive damages, as well as declaratory and
injunctive relief.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
Substantive Due Process
Plaintiffs claim that the forced COVID-19 testing constituted a forcible intrusion
upon their bodies in violation of the Fourteenth Amendment. “Substantive due process prevents
the government from engaging in conduct that shocks the conscience or interferes with rights
implicit in the concept of ordered liberty.” Prater v. City of Burnside, 289 F.3d 417, 431 (6th Cir.
2002) (internal quotation marks and citations omitted). “‘Substantive due process [] serves the
goal of preventing governmental power from being used for purposes of oppression, regardless of
the fairness of the procedures used.’” Pittman v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs.,
640 F.3d 716, 728 (6th Cir. 2011) (quoting Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir.
1996)). “Conduct shocks the conscience if it ‘violates the “decencies of civilized conduct.”’”
Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014) (quoting Cnty. of Sacramento v. Lewis, 523
U.S. 833, 846–47 (1998) (quoting Rochin v. California, 342 U.S. 165, 172–73 (1952))).
In the context of the State quelling an ongoing pandemic, “the Constitution . . . does
not import an absolute right in each person to be, at all times and in all circumstances, wholly freed
from restraint.” Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).1 Restraints may be placed

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In Jacobson, the Supreme Court decided whether, under state law, vaccinations could be compelled during an
outbreak of a transmissible disease. Although the Supreme Court decided Jacobson more than a century ago, courts

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on individuals, particularly in pursuit of the “common good.” Id. The Supreme Court “has
distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every
description.’” Id. at 25. A state’s police powers must include the authority to issue “reasonable
regulations” that “will protect the public health and public safety.” Id. (citations omitted). A
plaintiff cannot succeed in invalidating such a regulation absent a showing of “reasonable
certainty” that the regulation would result in a serious impairment of his health or “probably cause
his death.” See id. at 39.
To the extent Plaintiffs claim that Defendants violated their substantive due process
rights by inducing them to participate in COVID-19 testing, their claim fails. The State’s effort to
test all prisoners appears entirely reasonable and calculated to identify COVID-19 infections, to
isolate those infected individuals, and to quarantine those who have been exposed to infected
individuals. Plaintiffs have not alleged that they faced any increased risk of death or risk to their
own health posed by the COVID-19 testing. Consequently, Plaintiffs fail to state a substantive
due process claim related to the COVID-19 testing.
Plaintiffs also claim that the failure to require testing of all prison employees
subjected them to a risk of infection with COVID-19 in violation of their substantive due process
rights, as well as their rights under the Eighth Amendment. The Court notes that “[w]here a
particular [a]mendment ‘provides an explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that [a]mendment, not the more generalized notion of

have looked to it for guidance in the present pandemic. See, e.g., S. Bay United Pentecostal Church v. Newsom, 140
S. Ct. 1613, 1613–14 (2020) (mem.) (Roberts, C.J., concurring) (quoting Jacobsen that the Tenth Amendment vests
State officials with powers to protect “‘the safety and the health of the people’”); Kentucky v. Beshear, 981 F.3d 505
(6th Cir. 2020) (determining that, because the Plaintiffs brought a Free Exercise challenge to a law of general
applicability, the Sixth Circuit need not extend its analysis under Jacobson); Page v. Cuomo, 478 F. Supp. 3d 355,
366 (N.D.N.Y. 2020) (“As relevant here, courts across the country have nearly uniformly relied on Jacobson’s
framework to analyze emergency public health measures put in place to curb the spread of coronavirus.”) (citing
cases).

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“substantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510
U.S. 266, 269 (1994) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989) (holding that the
Fourth Amendment, not substantive due process, provides the standard for analyzing claims
involving unreasonable search or seizure of free citizens, and the Eighth Amendment provides the
standard for such searches of prisoners), overruled on other grounds by Saucier v. Katz, 533 U.S.
194 (2001)). If such an amendment exists, the substantive due process claim is properly dismissed.
Heike v. Guevara, 519 F. App’x 911, 923 (6th Cir. 2013).
In this case, there are specific constitutional amendments that apply to Plaintiffs’
claims regarding the failure to test prison employees. As noted by Plaintiffs in their complaint,
the Eighth Amendment provides an explicit source of constitutional protection concerning their
failure to protect from COVID-19 claims. See Graham, 490 U.S. at 394 (citing Whitley v. Albers,
475 U.S. 312, 327 (1986) (rejecting a substantive due process claim where the Eighth Amendment
supplies a textual source for prison-condition claims); Dodson v. Wilkinson, 304 F. App’x 434,
438 (6th Cir. 2008) (because the Eighth Amendment supplies the explicit textual source of
constitutional protection for claims governing a prisoner’s health and safety, the plaintiff’s
substantive due process claim was subject to dismissal). Consequently, Plaintiffs’ substantive due
process claims will be dismissed.
Eighth Amendment
Plaintiffs claim that Defendants violated their Eighth Amendment rights when they
failed to take reasonable measures to protect prisoners from COVID-19, including mandating
testing for all prison employees and providing adequate personal protective equipment. Plaintiffs’
complaints regarding the handling of the COVID-19 pandemic concern measures taken by the
prison from March of 2019 through October of 2020. As noted by Plaintiffs, Defendants undertook

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numerous measures to protect prisoners and staff from infection during this period. Plaintiffs’
claim merely asserts that these measures did not go far enough.
Plaintiffs’ allegations do not rise to the level of an Eighth Amendment violation.
The Eighth Amendment imposes a constitutional limitation on the power of the states to punish
those convicted of crimes. Punishment may not be “barbarous” nor may it contravene society’s
“evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal
civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148
F.3d 596, 600–01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations
of essential food, medical care, or sanitation” or “other conditions intolerable for prison
confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, Plaintiffs must
show that they faced a sufficiently serious risk to their health or safety and that Defendants acted
with “‘deliberate indifference’ to [their] health or safety.” Mingus v. Butler, 591 F.3d 474, 479–
80 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate
indifference standard to medical claims)); see also Helling v. McKinney, 509 U.S. 25, 35 (1993)
(applying deliberate indifference standard to conditions of confinement claims).
In a case brought by federal prisoners under 28 U.S.C. § 2241 in 2020, the Sixth
Circuit addressed the issue of whether the Bureau of Prisons (BOP) violated the Eighth

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Amendment rights of medically vulnerable inmates at the Elkton Federal Correctional Institution
by failing to adequately protect them from COVID-19 infection. Wilson v. Williams, 961 F.3d 829
(6th Cir. 2020). In the opinion, the Sixth Circuit found that the plaintiffs in Wilson had easily
satisfied the objective component of an Eighth Amendment claim:
In assessing the objective prong, we ask whether petitioners have provided
evidence that they are “incarcerated under conditions posing a substantial risk of
serious harm.” Farmer, 511 U.S. at 834. The COVID-19 virus creates a substantial
risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP
acknowledges that “[t]he health risks posed by COIVD-19 are significant.” CA6
R. 35, Appellant Br., PageID 42. The infection and fatality rates at Elkton have
borne out the serious risk of COVID-19, despite the BOP’s efforts. The
transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitorystyle housing—which places inmates within feet of each other—and the medicallyvulnerable subclass’s health risks, presents a substantial risk that petitioners at
Elkton will be infected with COVID-19 and have serious health effects as a result,
including, and up to, death. Petitioners have put forth sufficient evidence that they
are “incarcerated under conditions posing a substantial risk of serious harm.”
Farmer, 511 U.S. at 834.
Id. at 840.
The Sixth Circuit went on to address the subjective prong of an Eighth Amendment
claim, noting that the pertinent question was whether the BOP’s actions demonstrated deliberate
indifference to the serious risk of harm posed by COVID-19 in the prison.
There is no question that the BOP was aware of and understood the potential risk
of serious harm to inmates at Elkton through exposure to the COVID-19 virus. As
of April 22, fifty-nine inmates and forty-six staff members tested positive for
COVID-19, and six inmates had died. “We may infer the existence of this
subjective state of mind from the fact that the risk of harm is obvious.” Hope v.
Pelzer, 536 U.S. 730, 738 (2002). The BOP acknowledged the risk from COVID19 and implemented a six-phase plan to mitigate the risk of COVID-19 spreading
at Elkton.
The key inquiry is whether the BOP “responded reasonably to th[is] risk.” Farmer,
511 U.S. at 844. The BOP contends that it has acted “assiduously to protect inmates
from the risks of COVID-19, to the extent possible.” CA6 R. 35, Appellant Br.,
PageID 42. These actions include
implement[ing] measures to screen inmates for the virus; isolat[ing]
and quarantin[ing] inmates who may have contracted the virus;
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limit[ing] inmates’ movement from their residential areas and
otherwise limit[ing] group gatherings; conduct[ing] testing in
accordance with CDC guidance; limit[ing] staff and visitors and
subject[ing] them to enhanced screening; clean[ing] common areas
and giv[ing] inmates disinfectant to clean their cells; provid[ing]
inmates continuous access to sinks, water, and soap; educat[ing]
staff and inmates about ways to avoid contracting and transmitting
the virus; and provid[ing] masks to inmates and various other
personal protective equipment to staff.
Id. at 42–43.
The BOP argues that these actions show it has responded reasonably to the risk
posed by COVID-19 and that the conditions at Elkton cannot be found to violate
the Eighth Amendment. We agree.
Here, while the harm imposed by COVID-19 on inmates at Elkton “ultimately [is]
not averted,” the BOP has “responded reasonably to the risk” and therefore has not
been deliberately indifferent to the inmates’ Eighth Amendment rights. Farmer,
511 U.S. at 844. The BOP implemented a six-phase action plan to reduce the risk
of COVID-19 spread at Elkton. Before the district court granted the preliminary
injunction at issue, the BOP took preventative measures, including screening for
symptoms, educating staff and inmates about COVID-19, cancelling visitation,
quarantining new inmates, implementing regular cleaning, providing disinfectant
supplies, and providing masks. The BOP initially struggled to scale up its testing
capacity just before the district court issued the preliminary injunction, but even
there the BOP represented that it was on the cusp of expanding testing. The BOP’s
efforts to expand testing demonstrate the opposite of a disregard of a serious health
risk.
Id. at 840–41.
In its decision, the Sixth Circuit recognized that other Sixth Circuit decisions have
found similar responses by prison officials and medical personnel, such as cleaning cells,
quarantining infected inmates, and distributing information about a disease in an effort to prevent
spread, to be reasonable. Id. at 841 (citing Wooler v. Hickman Cnty., 377 F. App’x 502, 506
(6th Cir. 2010); Rouster v. Cnty. of Saginaw, 749 F.3d 437, 448–49 (6th Cir. 2014); Harrison v.
Ash, 539 F.3d 510, 519–20 (6th Cir. 2008); Rhinehart v. Scutt, 894 F.3d 721, 740 (6th Cir. 2018)).
The Wilson Court also noted that other circuits had concluded that similar actions by prison
officials demonstrated a reasonable response to the risk posed by COVID-19:
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In Swain [v. Junior], the Eleventh Circuit granted a stay of a preliminary injunction
pending appeal on state inmates’ Eighth Amendment claims. 958 F.3d [1081,]
1085 [(11th Cir. 2020) (per curiam)]. The Eleventh Circuit held that “the inability
to take a positive action likely does not constitute ‘a state of mind more
blameworthy than negligence,’” and “the evidence supports that [Metro West
Detention Center (“MWDC”) is] taking the risk of COVID-19 seriously.” Id. at
1088–90 (citation omitted). In response to the pandemic in early March, MWDC
began “cancelling inmate visitation; screening arrestees, inmates, and staff; and
advising staff of use of protective equipment and sanitation practices” and, after
reviewing further CDC guidance, began “daily temperature screenings of all
persons entering Metro West, establish[ed] a ‘COVID-19 Incident Command
Center and Response Line’ to track testing and identify close contacts with the
virus, develop[ed] a social hygiene campaign, and mandate[d] that staff and inmates
wear protective masks at all times.” Id. at 1085–86. The Eleventh Circuit held that,
because MWDC “adopted extensive safety measures such as increasing screening,
providing protective equipment, adopting [physical] distancing when possible,
quarantining symptomatic inmates, and enhancing cleaning procedures,” MWDC’s
actions likely did not amount to deliberate indifference. Id. at 1090.
Similarly, the Fifth Circuit granted stays of two preliminary injunctions in
Valentine [v. Collier, 956 F.3d 797 (5th Cir. 2020) (per curiam),] and Marlowe [v.
LeBlanc, No. 20-30276, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) (per curiam)].
In Valentine, inmates at Texas’s Wallace Pack Unit filed a class action suit against
the Texas Department of Criminal Justice (“TDCJ”) alleging violations of the
Eighth Amendment. 956 F.3d at 799. In response to the COVID-19 pandemic,
TDCJ had taken preventative measures such as providing “access to soap, tissues,
gloves, [and] masks,” implementing “regular cleaning,” “quarantin[ing] of new
prisoners,” and ensuring “[physical] distancing during transport.” Id. at 802. The
Fifth Circuit determined that the district court applied the wrong legal standard by
“collaps[ing] the objective and subjective components of the Eighth Amendment
inquiry” by “treating inadequate measures as dispositive of the Defendants’ mental
state” under the subjective prong and held that “accounting for the protective
measures TDCJ has taken” the plaintiffs had not shown deliberate indifference. Id.
at 802–03. In Marlowe, the Fifth Circuit relied on its reasoning in Valentine and
again reiterated that there was “little basis for concluding that [the correctional
center’s] mitigation efforts,” which included “providing prisoners with disinfectant
spray and two cloth masks[,] . . . limiting the number of prisoners in the infirmary
lobby[,] and painting markers on walkways to promote [physical] distancing,” were
insufficient. 2020 WL 2043425, at *2–3.
Wilson, 961 F.3d at 841–42.
After reviewing the cases, the Wilson Court held that even if the BOP’s response to
COVID-19 was inadequate, it took many affirmative actions, not only to treat and quarantine
inmates who had tested positive, but also to prevent widespread transmission of COVID-19. The
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Court held that because the BOP had neither disregarded a known risk nor failed to take steps to
address the risk, it did not act with deliberate indifference in violation of the Eighth Amendment.
Id. at 843–44.
In addition, in Cameron v. Bouchard, 818 F. App’x 393 (6th Cir. 2020), the Court
relied on Wilson to find that pretrial detainees in the Oakland County Jail were unlikely to succeed
on the merits of their Eighth and Fourteenth Amendment claims. The plaintiffs in Cameron
claimed that jail officials were deliberately indifferent to the substantial risk of harm posed by
COVID-19 at the jail. The district court initially granted a preliminary injunction requiring the
defendants to “(1) provide all [j]ail inmates with access to certain protective measures and medical
care intended to limit exposure, limit transmission, and/or treat COVID-19, and (2) provide the
district court and Plaintiffs’ counsel with a list of medically vulnerable inmates within three
business days.” Id. at 394. However, following the decision in Wilson, the Court granted the
defendants’ renewed emergency motion to stay the preliminary injunction, finding that the
preventative measures taken by the defendants were similar to those taken by officials in Wilson
and, thus, were a reasonable response to the threat posed by COVID-19 to the plaintiffs. Id. at
395. Subsequently, in an unpublished opinion issued on July 9, 2020, the Sixth Circuit vacated
the injunction. Cameron v. Bouchard, 815 F. App’x 978 (6th Cir. 2020).
As noted above, Plaintiffs concede that as of March 10, 2019, Defendant
Washington had implemented COVID-19 protocols which required the mandatory temperature
check of all prisoners and correctional staff, optional nasal swab testing for correctional staff and
mandatory swab testing of all prisoners, the practice of social distancing, and encouraged the use
of masks. In addition, the Court notes that the MDOC has taken numerous additional measures to

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limit the threat posed by COVID-19.2

See MDOC, MDOC Response and Information on

coronavirus (COVID-19), https://medium.com/@MichiganDOC/mdoc-takes-steps-to-preventspread-of-coronavirus-covid-19-250f43144337 (last visited Mar. 8, 2021).3

These measures

include:
Information on COVID-19 Vaccinations
Staff COVID-19 Vaccinations began in later Dec. 2020 and employees across the
department have now received vaccinations with the help of local county health
departments and the Michigan National Guard.
In accordance with MDHHS vaccination strategy, prisoners 65 years and older have
previously been offered the vaccine. Starting on Monday, March 8, facilities will
begin offering the vaccine to prisoners who are aged 50 and older with an
underlying health condition.
Personal Protective Equipment, cleaning and mitigation measures
•

Michigan State Industries has produced masks for all prisoners and
correctional facility staff to wear. Each employee and prisoner received
three masks each and the masks can be laundered and worn again. Facility
staff are also permitted to bring their own PPE, such as masks, gloves and
gowns. Staff are expected to wear their mask during their entire shift and
prisoners are expected to also wear their masks at all times, except while
eating, sleeping or showering. Michigan State Industries also manufactured
gowns, protective eyewear and protective suits. Every facility was expected
to receive a new order of MSI masks for both prisoners and staff as of late
July. These are made of a lightweight material for use during the summer
months. Prisoners will receive three each and staff will receive three each
as well. FOA and Central Office staff will be receiving new masks as well.

2

The Court takes judicial notice of these facts under Rule 201 of the Federal Rules of Evidence. The accuracy of the
source regarding this specific information “cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see also Paul
F. Rothstein, Federal Rules of Evidence 49 (3d ed. 2019) (citing Matthews v. NFL Mgmt. Council, 688 F.3d 1107 (9th
Cir. 2012) (taking judicial notice of statistics on the NFL website that the plaintiff played 13 games in California over
19 years); Victaulic Co. v. Tieman, 499 F.3d 227, 236–37 (3d. Cir. 2007), as amended (Nov. 20, 2007) (finding error
where a district court took judicial notice of facts stated in “a party’s . . . marketing material” on an “unauthenticated”
website because marketing materials often lack precise and candid information and the source was not authenticated)).
Moreover, “[t]he court may take judicial notice at any stage of the proceeding.” Fed. R. Evid. 201(d) (emphasis
added). Thus, the Court may take judicial notice even at this early juncture because the Court is permitted to take
judicial notice sua sponte, Fed. R. Evid. 201(c)(1), and “the fact is not subject to reasonable dispute,” Fed. R. Evid.
201(b).
3

Although the page is hosted on Medium.com, the MDOC specifically links to this page from their website as the
location where they will provide updates and information. See https://www.michigan.gov/corrections/0,4551,7-1199741_12798-521973--,00.html (last visited July 11, 2021).

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•

All MDOC staff transporting a prisoner on or off grounds are required to be
dressed in full personal protective equipment (PPE), which is available for
those employees.

•

All facilities have received approval from the regional sanitation officer to
use bleach during facility cleaning. Facilities have enhanced cleaning
efforts and cleaning products are available to clean commonly-used areas
and phones before and after use. Cleaning efforts have been doubled at
facilities with vulnerable prisoner populations. We have increased our
production of soap and ensured that all prisoner areas and bathrooms have
plentiful access to soap. Soap has been distributed to prisoners and
prisoners have been told that if they need more soap they only need to ask.
Additional soap will be provided at no charge. CDC posters detailing
proper hygiene practices have been posted in correctional facilities and have
also been recreated digitally so they play on TV screens throughout our
facilities. These are the same posters you will see in your community and
throughout State of Michigan office buildings.

•

Movements have been modified to help facilitate social distancing and the
number of prisoners attending classes and meals has been reduced so
prisoners can be seated farther apart. Prisoners and staff are frequently
reminded of the need for social distancing and prisoners are instructed not
to gather in groups on the yard. Activities such as basketball and weight pit
have been suspended to encourage social distancing, as well. There are also
markers and cones set up for med lines and in the chow hall as a visual
reference for prisoners on how far apart they should stand.

•

The department has been leading the nation when it comes to consistent
testing of the prisoner population. Following the completion Friday, May
22, of testing prisoners at Michigan Reformatory in Ionia for COVID-19,
the Michigan Department of Corrections has completed its goal of testing
every prisoner in its system. Testing also continues daily at our facilities.
When prisoners are set to parole, discharge or other such movements, they
are tested again and are not moved until the test results return.

•

Staff and visitors can also access information about their facility by signing
up for Nixle alerts.
To sign up for Nixle alerts, go to
www.michigan.gov/corrections and select the page for the correctional
facility in your area to register via the Nixle Widget, or text the zip code of
the facility you would like to receive updates from to 888777.

Visits and Transfers
•

Visitation at facilities statewide was suspended as of March 13[, 2020].

•

After suspending visitation at all correctional facilities to protect the health
of staff, prisoners, and the public, Director Heidi Washington convened a
Visiting Operations Committee to develop recommendations for
reactivating prisoner visits. The committee recommended establishing a
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pilot project to evaluate the use of video visitation technology and online
scheduling of prisoner visits. The following MDOC Facilities will serve as
pilot sites for video visitation: Women’s Huron Valley Correctional Facility
(WHV); G. Robert Cotton Correctional Facility (JCF); Chippewa
Correctional Facility (URF); Richard A. Handlon Correctional Facility
(MTU); Ionia Correctional Facility (ICF); Parnall Correctional Facility
(SMT); Duane Waters Health Center (DWH). More information is located
in the visitations section of this page below.
•

During this time when visits are suspended, we have worked with GTL and
JPay to provide enhanced services for you to communicate with your family
and friends. Detailed information from those companies is being relayed to
the prisoner population. JPay is continuing to offer two free stamps per
week through April 30, 2021. GTL’s internet and mobile fees are reduced
with the regular $2.95 transaction fee reduced to $1.95 and the $1.95
transaction fee reduced to $0.95.

•

In connection with visitation suspension, face-to-face college classes at all
facilities have also been suspended effective immediately. The MDOC will
work with higher education institutions willing and able to deliver classes
as correspondence courses. Core programming and school classes taught
by MDOC staff will continue.

•

Outside contractors for substance abuse programming will be allowed
inside and will be screened upon entry per the screening protocol. Attorney
visits will continue to be authorized.

•

During this time, transfers of prisoners or staff between facilities will not be
authorized without the approval of the Assistant Deputy Director or higher.

•

The department issued protocol to all county sheriff offices to offer
guidance on screening and other preventative measures.

Quarantine and Care of Sick Prisoners
•

Facility healthcare staff will meet with prisoners who have presented with
symptoms of coronavirus. The MDOC does not make the diagnosis of the
coronavirus. The department is following the Michigan Department of
Health and Human Services protocol.

•

Prisoners who test positive for the virus are isolated from the general
population and any prisoners or staff they have had close contact with are
identified and notified of the need to quarantine.

•

Prisoners who test positive may be transferred to the department’s
designated quarantine unit at Carson City Correctional Facility. This unit
is completely separated from the main facility, has limited movement and
access to the unit is limited. Only a small number of designated staff work
in the unit in 12-hour shifts to limit the number of people entering. Those
staff members report directly to the unit and do not enter the main
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correctional facility. Prisoners transferred to the unit also stay on the unit
and do not enter any other areas of the prison.
•

Prisoners who have been identified as having close contact with another
prisoner who tests positive, but have not tested positive for the virus
themselves, will be isolated from the general population at their facility for
the 14-day quarantine period.

•

Co-pays for prisoners who need to be tested for COVID-19 have been
waived.

•

Prisoners have been urged to notify healthcare if they are sick or
experiencing symptoms of illness so they can be evaluated. Prisoners who
require outside medical attention will be transported to an area hospital for
treatment.

•

Prisoners are considered in step-down status when they no longer have
symptoms, are no longer considered contagious and have been medically
cleared by our chief medical officer.

Parole Information
•

The MDOC Parole Board continues to hold parole hearings and is reviewing
all eligible cases to determine prisoners who can be safely released at this
time. In addition, the department is holding remote public Parole Board
hearings for parolable life sentence and clemency cases. You can find more
information on scheduled hearings and how to participate here.

•

The department continues to review individual cases and the Parole Release
Unit is working to process parole releases for prisoners with positive parole
decisions as quickly and safely as possible.

•

We are no longer allowing parole representatives to enter correctional
facilities for parole hearings as an additional step to limit the potential
introduction of illness. However, individuals designated by a prisoner as []
parole representatives should contact the facility where the prisoner is being
housed to find out about options to call in for the hearing.

•

The Parole Board is aware that prisoners do not have access to certain
programming and the Board is taking that into consideration. If there are
changes in the prisoner’s case, the prisoner will be notified directly.

•

We continue to monitor the prisoner population, our parole and probation
population and the parole process as this pandemic continues, in order to
consider all options to ensure the safety of offenders under our supervision.

•

All of our paroles are done with public safety in mind. The Parole Board
looks at each individual on a case-by-case basis and will only grant a parole
if they believe that person will not be a harm to society.

•

All prisoners set to parole must take a COVID-19 test before being released.
The MDOC is working to expedite the parole release of those individuals
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who can safely and legally be released at this time. There are a number of
steps that are included in the parole release process, which now includes
testing for COVID-19 to ensure the individual will not pose a risk to loved
ones or the community upon release. As a result, a limited number of parole
dates may be changed to accommodate these processes. If a prisoner tests
positive they will not parole until they are cleared by healthcare, which is at
least 14 days from the onset of symptoms. Prisoners who test negative will
be paroled as scheduled.
Staff Measures and Information
•

The need for social distancing to help prevent the spread of this virus has
included asking organizations to have as many people telecommute as
possible, and the MDOC is doing that to the extent we can. Employees
should have been authorized to telecommute by their supervisor and
supervisors who have questions should contact their leadership. No
employees who have been ordered to telecommute should return to their
work site unless authorized to do so by their deputy director or Director
Washington. Employees who are telecommuting should complete required
online training during this time.

•

ALL correctional facility employees continue to report to work. Our
facilities need to continue operating as close to normal as possible for the
safety of those both outside and inside the institution. We need to continue
to keep those incarcerated engaged and occupied in a productive manner to
ensure the stability, safety and security of our facilities. Thank you to our
correctional facility staff for all they do to keep the citizens of our state safe.

•

Anyone entering facilities will be subject to enhanced screening prior to
entering. This includes answering screening questions and having their
temperatures taken. Anyone suspected of having symptoms will not be
allowed in the facility.

•

The Michigan Correctional Officers’ Training Council has supported the
Department’s request to extend the period for obtaining necessary college
credits to 24 months from date of hire. Officers who are deficient in their
college credits will now have 24 months from their date of hire to complete
the required college credits, rather than 18. This change allows officers
extra time during this period of uncertainty.

•

As the state works to limit the spread of the virus, we caution employees
not to let fear lead to discriminatory actions against any individuals based
on their disability, race or ethnicity. If you have experienced or witnessed
discriminatory harassment or discrimination, we want you to know it will
not be tolerated and we strongly encourage you to report it by calling the
MDOC Equal Employment Opportunity Office at 1–800–326–4537, 517–
335–3654, or by contacting MDOC EEO Officer Toya Williams at 517–
335–4125 or [e-mail].
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•

The department’s corrections officer training academies will now be
starting again with social distancing measures and enhanced cleaning and
sanitizing efforts in place.

•

The Department of Health and Human Services issued an emergency public
health order on Aug. 19 requiring COVID-19 testing of all staff at any
facilities that have a positive staff or prisoner case. Employees must
continue to obtain testing weekly until 14 days after the last confirmed
positive case at the facility. Employees can receive testing in the
community or utilize the free, on-site testing the MDOC will provide each
week the order applies at a facility.

•

The Department of Health and Human Services issued an emergency public
health order on Feb. 10 requiring daily testing of all employees and
prisoners at a facility where an outbreak of special concern has been
declared for at least 14 days.

Operational Changes
•

Corrections Transportation Officers or other department staff will be
reassigned to facilities to augment custody staff as determined by Assistant
Deputy Directors.

•

No out-of-state business travel will be allowed until further notice. All instate business travel should be for essential matters only and precautions,
including wearing a mask, should be used if traveling with others in the
same vehicle.

•

Most construction projects have been placed on hold. Each project will be
evaluated on a case-by-case basis.

•

Staff are encouraged to use phone calls, email and teleconferencing in place
of in-person meetings when possible. Any necessary in-person meetings
should be limited as much as possible and the size of the meeting should be
reduced to allow for attendees to stay the recommended 6-foot distance
apart.

Id. Further, the MDOC issued a COVID-19 Director’s Office Memorandum (DOM) on April 8,
2020, and issued multiple revised DOMs on the subject. See MDOC DOM 2020-30R2 (eff. May
26, 2020) (outlining specific precautions to be taken by staff members, including the use of
personal protective equipment and hand sanitizer); MDOC DOM 2020-30R3 (eff. May 27, 2020);
MDOC DOM 2020-30R4 (eff. Aug. 10, 2020); MDOC DOM 2020-30R5 (eff. Aug. 25, 2020);
MDOC DOM 2020-30R6 (eff. Aug. 27, 2020); MDOC DOM 2020-30R7 (eff. Nov. 5, 2020);
MDOC DOM 2020-30R8 (eff. Nov. 24, 2020); MDOC DOM 2021-26 (eff. Jan. 1, 2021); MDOC
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DOM 2021-26R (eff. Jan. 12, 2021); MDOC DOM 2021-26R (eff. Jan. 12, 2021); MDOC DOM
2021-26R2 (eff. Jan. 21, 2021); MDOC DOM 2021-26R3 (eff. Jan. 25, 2021); MDOC DOM 202126R4 (eff. Mar. 5, 2021); DOM 2021-26R5 (eff. Mar. 19, 2021); DOM 2021-26R6 (eff. Mar. 26,
2021); DOM 2021-26R7 (eff. June 23, 2021). The DOMs set forth specific details about protective
measures to be taken in all facilities: describing the types of PPE to be worn by staff and when;
setting screening criteria for individuals entering facilities; setting social distancing requirements;
establishing isolation areas and practices for isolation; setting practices for managing prisoners
under investigation for COVID-19; modifying how personal property is managed; setting
requirements for jail transfers; outlining communication adjustments and video visitation;
upgrading hygiene, health care, and food service policies, setting protocols for COVID-19 testing
of prisoners; and making other necessary adjustments to practices to manage the pandemic. Thus,
the MDOC recognized the need to adjust practices and implemented those practices by way of
policy.
Clearly, the MDOC has taken extensive steps to address the risk of COVID-19 to
inmates statewide. As noted by the Sixth Circuit in Wilson, such actions demonstrate the opposite
of a disregard of a serious health risk. Wilson, 961 F.3d at 841. The fact that Defendants did not
take every measure proposed by Plaintiffs in this case fails to show that they acted with the
requisite deliberate indiffence.
Plaintiffs also assert that Defendants violated Plaintiff Onumonu’s Eighth
Amendment rights when they confined him to punitive segregation under the pretense of
quarantine, which exposed him to COVID-19 positive prisoners while he was still negative for
COVID-19. Plaintiffs contend that this was done in retaliation for a civil complaint Plaintiff
Onumonu had filed against certain correctional officers at ICF, because the ruling finding certain

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claims in that case to be meritorious had been received at the prison on the prior day. Plaintiffs
state that the unit where Plaintiff Onumonu was confined during this time lacked proper ventilation
and protective equipment, which caused Plaintiff to contract COVID-19.
As noted above, one of Plaintiff Onumonu’s cube mates had a fever on October 19,
2020, so he was tested and forced into quarantine. On October 21, 2020, Plaintiff Onumonu was
told that he was COVID-19 positive, but the next day, he was told that he was actually COVID19 negative and should be moved out of segregation/quarantine that day. Plaintiff Onumonu
nevertheless was kept in quarantine, where he was denied a shower, laundry services, a change of
clothing, and adequate personal protective equipment. On October 26, 2020, Plaintiff Onumonu
tested positive for COVID-19.
Plaintiff claims that his stay in quarantine constituted deliberate indifference and
resulted in his illness. However, as noted above, Prisoners who have been identified as having
close contact with another prisoner who tests positive, but have not tested positive for the virus
themselves, will be isolated from the general population at their facility for the 14-day quarantine
period. Plaintiff’s initial placement in quarantine on October 19, 2020, until his COVID-19
positive test on October 26, 2020, was a period of seven days. This period was well within the 14day quarantine period. There is no indication that Plaintiff’s placement in quarantine was the result
of anything but his exposure to a prisoner who had symptoms of COVID-19. Moreover, Plaintiff’s
eventual positive COVID-19 test was just as likely the result of his initial exposure on October 19,
2020, than a later exposure while in quarantine.
The Court also notes that Plaintiff Onumonu’s allegations that he was denied a
shower, laundry services, a change of clothing, and adequate personal protective equipment4 for a

4

Plaintiff asserts that the single-layer mask provided to prisoners was ineffective in preventing infection.

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period of eleven days do not rise to the level of an Eighth Amendment violation because they did
not result in the denial of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S.
at 347; see also Wilson, 148 F.3d at 600–01, and did not constitute the deprivation of “essential
food, medical care, or sanitation” or “other conditions intolerable for prison confinement.”
Rhodes, 452 U.S. at 348 (citation omitted). Therefore, Plaintiffs Eighth Amendment claims are
properly dismissed.
Retaliation
Plaintiffs claim that the decision to keep Plaintiff Onumonu in quarantine after his
initial COVID-19 test was negative was retaliatory. Retaliation based upon a prisoner’s exercise
of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a
plaintiff must establish three elements: (1) he was engaged in protected conduct; (2) an adverse
action was taken against him that would deter a person of ordinary firmness from engaging in that
conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id.
Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial
or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250
F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)).
It is well recognized that “retaliation” is easy to allege and that it can seldom be
demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);
Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of
retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory
motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’”
Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987));
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see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened
pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete
and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted);
Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the
defendants’ parts are not enough to establish retaliation claims” that will survive § 1915A
screening) (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998)).
In this case, as noted above, Plaintiff Onumonu was exposed to another prisoner
with symptoms of COVID-19 on October 19, 2020, and tested positive for COVID-19 seven days
later, well within the 14-day quarantine period observed by the MDOC. There is no indication
that Plaintiff Onumonu’s placement in quarantine was the result of anything but his exposure to a
prisoner who had symptoms of COVID-19. Therefore, Plaintiff Onumonu’s retaliation claim is
properly dismissed.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28
U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c). The Court must next decide whether an appeal of
this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v.
Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). Although the Court concludes that Plaintiff’s
claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on
appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly,
the Court does not certify that an appeal would not be taken in good faith. Should Plaintiff appeal
this decision, the Court will assess the $505.00 appellate filing fee pursuant to § 1915(b)(1), see
McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g.,

22

by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay the $505.00
appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.

Dated:

July 14, 2021

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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