Taylor #261843 v. Macauley et al

Filing 4

OPINION; signed by Magistrate Judge Ray Kent (fhw)

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Case 1:22-cv-00310-RSK ECF No. 4, PageID.38 Filed 08/01/22 Page 1 of 16 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ ODELL TAMAR TAYLOR, Plaintiff, v. Case No. 1:22-cv-310 Honorable Ray Kent MATT MACAULEY et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (Compl., ECF No. 1, PageID.4.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint on the named defendant(s) is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding Case 1:22-cv-00310-RSK ECF No. 4, PageID.39 Filed 08/01/22 Page 2 of 16 tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”). Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way that they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a 2 Case 1:22-cv-00310-RSK ECF No. 4, PageID.40 Filed 08/01/22 Page 3 of 16 consent from the defendants[; h]owever, because they had not been served, they were not parties to the action at the time the magistrate entered judgment.”).1 Under 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. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s 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 Plaintiff’s complaint for failure to state a claim. Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Saginaw County Correctional Facility (SRF) in Freeland, Saginaw County, Michigan. The events about which he complains, however, occurred at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. Plaintiff sues the MDOC and IBC Warden Matt Macauley. Plaintiff’s complaint resembles dozens of others that have been brought in the Western District of Michigan by prisoners with legitimate concerns posed by the MDOC’s response to the COVID-19 pandemic. Plaintiff alleges that Defendants Macauley and the MDOC failed to take 1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 3 Case 1:22-cv-00310-RSK ECF No. 4, PageID.41 Filed 08/01/22 Page 4 of 16 appropriate steps to prevent COVID-19 from spreading within IBC. Plaintiff does not complain of the Defendants’ conduct during the entirety of the pandemic. Instead, he contends that Macauley knew in February 2021 that the SARS-CoV-2 virus posed a threat to the prisoners and staff at IBC, presumably because the MDOC—and the State of Michigan, in general—already had experienced several waves of COVID-19 infections since early 2020. Plaintiff points to several specific perceived shortcomings in Defendants’ conduct. Plaintiff asserts that before February 2021, he never had COVID-19. In February 2021, Defendants issued N95 masks for MDOC staff but not for prisoners. Plaintiff asked Defendant Macauley why staff but not prisoners received masks, but Macauley purportedly failed to take the question seriously. According to the complaint, at some point, a corrections officer came to IBC without testing for COVID-19 and spread the virus to several prisoners. Macauley “lock[ed] the whole prison down . . . .” (Compl., ECF No. 1, PageID.3.) Plaintiff describes several additional events, but he fails to offer any detail on the timing and sequence of the events. At some point, Plaintiff moved cells, but it is unclear whether that happened before, during, or after the lockdown, or what prompted the move. Plaintiff’s new cellmate tested positive for the B.1.1.7 variant of COVID-19, but again the timing is unclear. Plaintiff also tested positive at some point around that time for COVID-19. After contracting COVID-19, Plaintiff has suffered from multiple symptoms, many of which continue to plague him. He asserts that he experiences severe headaches, problems with his kidneys, cardiovascular irregularities, chest pain and breathing issues, dizziness, anxiety, and depression. He also suffers from a loss of smell, and he lost weight when he was ill. Plaintiff alleges that since contracting COVID-19, meals containing meat smell “like death.” (Id.) 4 Case 1:22-cv-00310-RSK ECF No. 4, PageID.42 Filed 08/01/22 Page 5 of 16 Plaintiff states that approximately a year after providing MDOC staff with N95 masks, prisoners started receiving them in February 2022. For relief, Plaintiff seeks $4.5 million in damages “and a medical release.”2 (Id., PageID.4.) 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. Id.; 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.” Id. 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.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470–71 2 To the extent Plaintiff seeks release, that relief is unavailable to him in an action brought under § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (discussing that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody and the traditional function of the writ is to secure release from illegal custody). Plaintiff’s sole federal basis for seeking release from custody is by way of a habeas action, if one remains available to him. 5 Case 1:22-cv-00310-RSK ECF No. 4, PageID.43 Filed 08/01/22 Page 6 of 16 (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)(ii)). 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). A. Immunity Plaintiff may not maintain a § 1983 action against the MDOC. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held that the MDOC is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013); McCoy v. Michigan, 369 F. App’x 646, 653–54 (6th Cir. 2010). Therefore, Plaintiff’s claims against the MDOC are properly dismissed on grounds of immunity. 6 Case 1:22-cv-00310-RSK ECF No. 4, PageID.44 Filed 08/01/22 Page 7 of 16 In addition, the State of Michigan (acting through the MDOC) is not a “person” who may be sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)); Harrison, 722 F.3d at 771. Therefore, Plaintiff’s claims against the MDOC also are properly dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2), 1915A(b), and 42 U.S.C. § 1997e(c). B. Eighth Amendment Plaintiff alleges that Defendant Macauley violated his Eighth Amendment rights by failing to take sufficient steps to protect him from exposure to SARS-CoV-2, the virus that causes COVID-19. 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 deliberate indifference claim, he must show that he faced a sufficiently serious risk to his health or safety and that the defendant official acted with “‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 7 Case 1:22-cv-00310-RSK ECF No. 4, PageID.45 Filed 08/01/22 Page 8 of 16 474, 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). The deliberate-indifference standard includes both objective and subjective components. Farmer, 511 U.S. at 834; Helling, 509 U.S. at 35–37. To satisfy the objective prong, an inmate must show “that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Under the subjective prong, an official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844. Plaintiff contends that he was incarcerated under conditions that put him at risk of contracting COVID-19. Reading Plaintiff’s complaint with all due liberality, see Haines, 404 U.S. at 520, he contends that Macauley failed generally to prevent an outbreak of COVID-19 at IBC because Macauley did not order mandatory testing for all IBC staff before entering the facility and further did not timely provide N95 masks to prisoners. Plaintiff also presumably complains more specifically that his move to a cell with a cellmate who at some point tested positive for COVID-19 further violated his Eighth Amendment rights. 1. Objective Prong In a 2020 case brought by federal prisoners under 28 U.S.C. § 2241, the Sixth Circuit addressed the issue of whether the Bureau of Prisons (BOP) violated the Eighth 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: 8 Case 1:22-cv-00310-RSK ECF No. 4, PageID.46 Filed 08/01/22 Page 9 of 16 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 COVID-19 are significant.” CA6 R. 35, Appellant Br., PageID 42. The infection and fatality rates at Elkton have borne out the serious risk of COVID19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable 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. Under Wilson, a medically vulnerable plaintiff may satisfy the objective prong by alleging conditions that could facilitate COVID-19 transmission within a prison and the health risks posed by the virus. Plaintiff alleges conditions that could facilitate COVID-19 transmission within his prison, but he does not clearly state that he suffered from any conditions that made him medically vulnerable in February 2021. Yet, at this early stage, the Court will assume without deciding that Plaintiff alleges facts sufficient to satisfy the objective prong of the deliberate indifference test. 2. Subjective Prong Notwithstanding Plaintiff’s ability to satisfy the objective prong, he fails to allege facts sufficient to satisfy the subjective prong of the deliberate indifference test in any of his arguments. The Sixth Circuit went on in Wilson 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 COVID-19 and implemented a six-phase plan to mitigate the risk of COVID-19 spreading at Elkton. 9 Case 1:22-cv-00310-RSK ECF No. 4, PageID.47 Filed 08/01/22 Page 10 of 16 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; 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, Case 1:22-cv-00310-RSK ECF No. 4, PageID.48 Filed 08/01/22 Page 11 of 16 519–20 (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: 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. 11 Case 1:22-cv-00310-RSK ECF No. 4, PageID.49 Filed 08/01/22 Page 12 of 16 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 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. at394. 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). a. General COVID-19 Risks In the instant case, Plaintiff claims that Defendant Macauley’s handling of the COVID-19 crisis at IBC violated his Eighth Amendment rights. 12 Case 1:22-cv-00310-RSK ECF No. 4, PageID.50 Filed 08/01/22 Page 13 of 16 Plaintiff’s own allegations describe several steps that Defendant Macauley took in response to the COVID-19 pandemic and the outbreak at IBC. Based on Plaintiff’s diagnosis and that of his cellmate, Defendant Macauley clearly provided testing for prisoners for COVID-19. (See Compl., ECF No. 1, PageID.3.) By February 2021, Macauley provided N95 masks to IBC staff, who unlike most prisoners, faced exposure to COVID-19 outside the prison as well as in. (See id.) When prisoners began testing positive for COVID-19, Macauley locked down the prison. (See id.) Even Plaintiff’s movement to a new cell could reasonably be inferred as an effort to quarantine or isolate prisoners based on exposure and COVID-19 diagnosis. (See id.) By Plaintiff’s own admission, Macauley took steps to address the risk posed by COVID-19 to inmates at IBC. 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; see also Dykes-Bey v. Washington, No. 21-1260, 2021 WL 7540173, at *3 (6th Cir. Oct. 14, 2021). Therefore, Plaintiff fails to state an Eighth Amendment claim against Defendant Macauley for the failure to prevent a COVID-19 outbreak at IBC. Moreover, Plaintiff’s suggestions that Defendants Macauley should have mandated testing for all IBC staff or provided N95 masks to all prisoners in February 2021 similarly fail to state a claim. As an initial issue, the allegations related to the purported failure to test for COVID-19 at IBC are vague. Does Plaintiff suggest that all IBC staff should have tested before entering the facility each day? Or does Plaintiff contend that IBC staff should test with some other frequency? What type of tests would suffice? Similarly, Plaintiff does not explain much about his argument that N95 masks should have been provided to prisoners. Why was Defendant Macauley purportedly required to provide N95 masks to prisoners? Would prisoners have been required to wear N95 masks? Moreover, Plaintiff does not allege that he lacked any masks or that his mask was insufficient in any way. He appears 13 Case 1:22-cv-00310-RSK ECF No. 4, PageID.51 Filed 08/01/22 Page 14 of 16 instead to contend that Defendant Macauley refused to supply the mask type that he preferred. Yet, Plaintiff offers no explanation why prisoners required N95 masks specifically.3 The complaint appears to invite the Court to conceive of some way in which a failure to test for COVID-19 or a failure to provide N95 masks may satisfy the subjective prong of the deliberate indifference test and to then adopt that conception. But Plaintiff’s claim must be more than conceivable, it must be plausible to survive dismissal. See Twombly, 550 U.S. at 570. Furthermore, a focus on an individual decision or policy, such as testing or whom to provide N95 masks, “ignores the ‘key inquiry’” in the subjective prong analysis of a deliberate indifference claim, which is “whether the defendants ‘responded reasonably to the risk.’” DykesBey, No. 21-1260, 2021 WL 7540173, at *3 (quoting Wilson, 961 F.3d at 840–41); see also Young v. Whitmer, No. 21-2648, slip order at 5 (6th Cir. Apr. 5, 2022) (same). Indeed, the Sixth Circuit has previously rejected deliberate-indifference claims like Plaintiff’s that argue that prison staff must test for COVID-19. See Dykes-Bey, 2021 WL 7540173, at *1–3. Therefore, Plaintiff fails to allege facts sufficient to satisfy the subjective prong in a claim related to Defendant Macauley’s failure to test IBC staff for COVID-19 or to provide N95 masks to prisoners. 3 Indeed, in February 2021, the CDC advised that it “d[id] not recommend the use of N95 respirators for protection against COVID-19 in non-healthcare settings because N95 respirators should be reserved for health care workers.” See Types of Masks, CDC (Feb. 10, 2021), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html [https://web.archive.org/web/20210210200821/https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/types-of-masks.html]. Those facts were so well-known to persons outside of prison and such a fundamental part of the experience of virtually every American at the time that they might be proper subjects for judicial notice under Rule 201 of the Federal Rules of Evidence. Nonetheless, the information in the preceding paragraph plays no role in the Court’s decision. Instead, this information merely provides context and additional information to a prisoner who is incarcerated amidst the ongoing pandemic. Cf. United States v. Mathews, 846 F. App’x 362, 364 n.3 (6th Cir. 2021) (stating that “[p]roviding context when context matters is not misplaced”). 14 Case 1:22-cv-00310-RSK ECF No. 4, PageID.52 Filed 08/01/22 Page 15 of 16 b. Placement in New Cell Plaintiff also offers little information to support a claim related to his placement in a cell with another prisoner who also tested positive for COVID-19. Plaintiff has not indicated when he moved, when his cellmate tested positive for COVID-19, whether Defendant Macauley learned of the diagnosis, whether Plaintiff’s cellmate was ever symptomatic, or whether Plaintiff and his cellmate had been in close contact with other prisoners who tested positive for COVID-19 before Plaintiff moved into the cell. It is not even clear that Defendant Macauley had any role in Plaintiff’s cell placement. In short, Plaintiff appears to again ask the Court to fabricate plausibility to his claim from mere ambiguity. But ambiguity does not support a claim, factual allegations do. Unfortunately for Plaintiff, the complaint’s factual allegations are simply too scarce. The Court is sympathetic to Plaintiff’s ongoing suffering and the challenges that Plaintiff and other prisoners have faced while incarcerated during the COVID-19 pandemic. However, Plaintiff must plead enough factual content to permit the Court to draw a reasonable inference that Defendant Macauley violated the Eighth Amendment. See Iqbal, 556 U.S. at 679. Plaintiff has not done so here. Therefore, the Court must dismiss Plaintiff’s Eighth Amendment claims against Defendant Macauley. 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. §§ 1915(e)(2) and 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). 15 Case 1:22-cv-00310-RSK ECF No. 4, PageID.53 Filed 08/01/22 Page 16 of 16 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., 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: August 1, 2022 /s/ Ray Kent Ray Kent United States Magistrate Judge 16

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