Taylor #261843 v. Macauley et al
Filing
4
OPINION; signed by Magistrate Judge Ray Kent (fhw)
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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
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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
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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
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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.)
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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.
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(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.
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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
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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:
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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.
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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,
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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.
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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.
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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
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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”).
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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
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