Davis #368425 v. Washington et al, No. 2:2021cv00129 - Document 10 (W.D. Mich. 2022)
Court Description: OPINION; signed by Magistrate Judge Maarten Vermaat (cam)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______ CHRIS DAVIS, Plaintiff, Case No. 2:21-cv-129 v. Honorable Paul L. Maloney HEIDI WASHINGTON 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. (ECF No. 8.) 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. §§ 1915(e)(2) and 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 Litig. 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 defendants 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 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) (“Pursuant 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 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 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 the 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 Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues MDOC Director Heidi Washington, KCF Warden Mike Brown, the MDOC, and the State of Michigan. Plaintiff indicates he is suing the individual Defendants in their official capacities. (Compl., ECF No. 1, PageID.9) 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. Feb. 10, 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”). 1 3 (“Heidi Washington . . . is being sued in her official capacity . . . . Mike Brown . . . is being sued in his official capacity . . . .”). Plaintiff alleges generally that the Defendants have failed to mitigate the risks of COVID19 transmission at KCF. He reports that “nine . . . highly contagious prisoners originally housed at Marquette Branch Prison (MBP), who had tested positive for COVID-19, were anonymously, intentionally and deliberately transferred into the KCF population to contaminate the majority of the KCF population . . . .” (Id., PageID.10.) Plaintiff does not indicate who was responsible for the transfer. Plaintiff also alleges that Defendants disregarded CDC recommendations because the KCF school principal, who was showing symptoms of COVID-19 and was known to be positive for the deadly virus, was let into the facility. Other persons likewise let several officers and other staff into the facility without testing them. Plaintiff complains that it is impossible to socially distance at KCF. Plaintiff notes that he contracted the virus during November of 2020. Plaintiff identified several other parties as plaintiffs; however, Plaintiff Davis was the only person to sign the complaint and, thus, the only person the Court recognizes as a party plaintiff to this action. Plaintiff purports to bring this action on behalf of a class of prisoners who experience lingering side-effects that impede their ability to carry out normal day-to-day tasks. Plaintiff also identifies a subclass of prisoners who are over the age of 45 and medically vulnerable. Plaintiff seeks declaratory relief, injunctive relief, and treble damages. Plaintiff also seeks class certification, a temporary restraining order, and the appointment of counsel. Release as a remedy Plaintiff seeks relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2241. Plaintiff’s request for relief is not a typical habeas petition. The Supreme Court has made clear that constitutional 4 challenges to the fact or duration of confinement are the proper subject of a habeas corpus petition rather than a complaint under 42 U.S.C. § 1983. Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). Constitutional challenges to the conditions of confinement, on the other hand, are proper subjects for relief under 42 U.S.C. § 1983. Id. The Preiser Court, however, did not foreclose the possibility that habeas relief might be available even for conditions of confinement claims: This is not to say that habeas corpus may not also be available to challenge such prison conditions. See Johnson v. Avery, 393 U.S. 483, (1969); Wilwording v. Swenson, supra, at 251 of 404 U.S. . . . When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. See Note, Developments in the Law—Habeas Corpus, 83 Harv. L. Rev. 1038, 1084 (1970).[] Preiser, 411 U.S. at 499 (footnote omitted). But, the Court has also never upheld a “conditions of confinement” habeas claim. Indeed, in Muhammad v. Close, 540 U.S. 749 (2004), the Court acknowledged that it had “never followed the speculation in Preiser . . . that such a prisoner subject to ‘additional and unconstitutional restraints’ might have a habeas claim independent of § 1983 . . . .” Id. at 751 n.1. The Sixth Circuit has concluded that claims regarding conditions of confinement are properly brought under § 1983 and are not cognizable on habeas review. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (“Petitioner in this case appears to be asserting the violation of a right secured by the federal Constitution or laws by state prison officials. Such a claim is properly brought pursuant to 42 U.S.C. § 1983.”); In re Owens, 525 F. App’x 287, 290 (6th Cir. 2013) (“The criteria to which Owens refers involves the conditions of his confinement . . . . This is not the proper execution of sentence claim that may be pursued in a § 2254 petition.”); Hodges v. Bell, 170 F. App’x 389, 392–93 (6th Cir. 2006) (“Hodges’s complaints about the conditions of his confinement . . . are a proper subject for a § 1983 action, but fall outside of the cognizable core of habeas corpus relief.”); Young v. Martin, 83 F. App’x 107, 109 (6th Cir. 2003) (“It is clear under 5 current law that a prisoner complaining about the conditions of his confinement should bring suit under 42 U.S.C. § 1983.”). Plaintiff’s claims regarding the constitutionality of his custody because of risks posed by COVID-19 are principally claims regarding the conditions of his confinement. Such claims should be raised by a complaint for violation of 42 U.S.C. § 1983. Nonetheless, Plaintiff’s request for relief seeks release from custody. That relief is available only upon habeas corpus review. “The Supreme Court has held that release from confinement—the remedy petitioner[] seek[s] here—is ‘the heart of habeas corpus.’” Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020), (quoting Preiser, 411 U.S. at 498).2 A challenge to the fact or duration of confinement should be brought as a petition for habeas corpus and is not the proper subject of a civil rights action brought pursuant to § 1983. See Preiser, 411 U.S. at 484 (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). In Wilson, the Sixth Circuit stated: “[o]ur precedent supports the conclusion that where a petitioner claims that no set of conditions would be constitutionally sufficient the claim should be construed as challenging the fact or extent, rather than the conditions, of the confinement.” Wilson, 961 F.3d at 838. Plaintiff, like the petitioners in Wilson, contends there are no conditions of confinement sufficient to prevent irreparable injury at the facility where he is housed. Accordingly, the Court construes his request for relief as a permissible claim for habeas relief. Nonetheless, to the extent Plaintiff has chosen to pursue relief by way of a habeas petition, the available relief is circumscribed. Wilson, 961 F.3d at 837. Even if there might be conditions of confinement, short 2 The Wilson petitioners were federal prison inmates who brought habeas claims under 28 U.S.C. § 2241 similar to those claims brought by Plaintiff here. 6 of release, that would mitigate the risk—and eliminate the cruel or unusual character of the punishment—it is not within this Court’s habeas jurisdiction to grant such relief. Id. A claim seeking relief other than release is properly brought under 42 U.S.C. § 1983. Plaintiff may not bring both types of claims in one action. Courts generally have been reluctant to allow hybrid civil rights/habeas actions, given that civil rights actions and habeas petitions have distinct purposes and contain unique procedural requirements that make a hybrid action difficult to manage. See Spencer v. Barret, No. 14-10823, 2015 WL 4528052, at *4 (E.D. Mich. July 27, 2015); see also Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997) (reasons for not allowing a prisoner to transform a § 1983 action into one seeking habeas relief include (1) potential application of Heck v. Humphrey, 512 U.S. 477 (1994), (2) differing defendants, (3) differing standards of § 1915(a)(3) and § 2253(c), (4) differing fee requirements, (5) potential application of second or successive petition doctrine or three-strikes rules of § 1915(g)); Dunbar v. Rozen, No. 1:18-cv-617, 2019 WL 3213757, at *2 (W.D. Mich. July 17, 2019) (holding that a “hybrid” action involving both civil rights and habeas claims “presents significant problems,” and courts typically have directed prisoners to file separate actions) (citing Kirk v. Jablonski, No. 18cv-288, 2019 WL 1283009, at *1 (D.N.M. Mar. 20, 2019)); Mittelstadt v. Wall, No. 14-cv-423jdp, 2014 WL 5494169, at *2 (W.D. Wisc. Oct. 30, 2014) (holding that prisoner “cannot pursue both habeas and § 1983 claims in a single lawsuit”); Phelps v. Sabol, C.A. No. 09-cv-40091-MLW, 2010 WL 2640167, at *1 (D. Mass. June 26, 2010) (“The substantive and procedural differences between habeas and Bivens claims makes it difficult to convert a habeas petition into a Bivens action.”); Hooper v. Caruso, No. 1:08-CV-1085, 2009 WL 104026, at *2 (W.D. Mich. Jan. 14, 2009) (explaining why a declaratory judgment action should not be converted into a habeas petition). 7 Prisoner Davis has denominated himself as Plaintiff and the opposing parties as Defendants. That nomenclature is appropriate for civil rights suits under § 1983, not habeas petitions. Although Plaintiff seeks relief under § 1983 and § 2241, the Court will address his claims as civil rights claims under § 1983. The Court notes, however, that for the reasons stated below, Plaintiff would not be entitled to relief if the Court instead addressed Plaintiff’s action as a habeas petition. Although Plaintiff specifically references 28 U.S.C. § 2241, he is “a person in custody pursuant to the judgment of a State court,” his claim would be governed by 28 U.S.C. § 2254. Id. Section 2254 “‘allows state prisoners to collaterally attack either the imposition or the execution of their sentences[.]’” Bailey v. Wainwright, 951 F.3d 343, 348 (6th Cir. 2020) (Stranch, J., dissenting) (quoting Allen v. White, 185 F. App’x 487, 490 (6th Cir. 2006)); see also Rittenberry v. Morgan, 468 F.3d 331, 336–37 (6th Cir. 2006). As a consequence, Plaintiff’s filing is subject to all of the requirements that apply to a petition filed under § 2254. Moreover, § 2241 petitions by state prisoners are subject to the rules governing § 2254 petitions. See Rule 1(b), Rules Governing § 2254 Cases. Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a prisoner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s constitutional claim. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270, 275–77 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982). To fulfill the exhaustion requirement, Plaintiff must have fairly presented his federal claims to all levels of the state appellate system, including the state’s highest court. O’Sullivan, 526 U.S. at 8 845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d 134, 138–39 (6th Cir. 1970). Plaintiff bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Plaintiff has neither alleged that he exhausted his claims in the state courts nor has he provided any documentation indicating that he has pursued any such state remedies. Subsection (b) of § 2254 precludes the Court from granting habeas relief unless Plaintiff has exhausted his claims in state court. A prisoner’s failure to exhaust may be excused if “there is an absence of State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Plaintiff does not claim that there is an absence of state corrective process. Instead, by seeking emergency injunctive relief and relying on the imminent danger he faces, Plaintiff presumably intends to invoke the latter exception: that circumstances have made the state’s corrective process ineffective. However, he has failed to allege how the present circumstances have rendered state court remedies ineffective. The Sixth Circuit Court of Appeals has concluded that a prisoner in Plaintiff’s position has an appropriate remedy: he may seek release from confinement by action in the Michigan courts claiming that the conditions under which he is imprisoned are unconstitutional. Smith v. Jackson, No. 20-2264, 2021 WL 2555478, at *2 (6th Cir. June 3, 2021) (citing Kent Cnty. Prosecutor v. Kent Cnty. Sheriff, 409 N.W.2d 202, 208 (Mich. 1987)). The Sixth Circuit has indicated that the action might take the form of a post-conviction motion, a state habeas corpus petition, or a civil action. Carter v. Cheeks, No. 21-1171, 2021 WL 3671139, at *2 (6th Cir. July 23, 2021). Accordingly, the Court concludes that Plaintiff has at least one available state remedy. 9 To properly exhaust his claim, Plaintiff would have to present his claim to each level of the state court system. O’Sullivan, 526 U.S. at 845; Hafley, 902 F.2d at 483 (“[P]etitioner cannot be deemed to have exhausted his state court remedies as required by 28 U.S.C. § 2254(b) and (c) as to any issue, unless he has presented that issue both to the Michigan Court of Appeals and to the Michigan Supreme Court.”) (citation omitted). Because Plaintiff has failed to exhaust his claims, if the complaint were instead construed as a habeas petition, the petition would be properly dismissed without prejudice because it is unexhausted. Immunity Plaintiff may not maintain a § 1983 action against the State of Michigan or 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). 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, the Court dismisses the State of Michigan and the MDOC. 10 Plaintiff has also sued Defendant Washington, Director of the MDOC, and Mike Brown, Warden of KCF, in their respective official capacities. A suit against an individual in his or her official capacity is equivalent to a suit brought against the governmental entity: in this case, the Michigan Department of Corrections. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). An official-capacity defendant is absolutely immune from monetary damages. Will, 491 U.S. at 71; Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998); Wells v. Brown, 891 F.2d 591, 592–93 (6th Cir. 1989). Therefore, the Court also dismisses the suit for monetary relief against Defendants Washington and Brown in their respective official capacities. Although damages claims against official capacity defendants are properly dismissed, an official-capacity action seeking injunctive relief constitutes an exception to sovereign immunity. See Ex Parte Young, 209 U.S. 123, 159–60 (1908) (Eleventh Amendment immunity does not bar prospective injunctive relief against a state official). The Supreme Court determined that a suit under Ex Parte Young for prospective injunctive relief should not be treated as an action against the state. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Instead, the doctrine is a fiction recognizing that unconstitutional acts cannot have been authorized by the state and therefore cannot be considered done under the state’s authority. Id. Nonetheless, the Supreme Court has cautioned that, “Ex parte Young can only be used to avoid a state’s sovereign immunity when a ‘complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Ladd v. Marchbanks, 971 F.3d 574, 581 (6th Cir. 2020) (quoting Verizon Md. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). Plaintiff’s complaint is focused entirely on the events that occurred during the fall of 2020. He does not contend that the circumstances that existed when Plaintiff filed the complaint months 11 later required the Court to step in and compel Defendant Washington or Defendant Brown to take action with regard to mitigating the risks—other than compelling Plaintiff’s release, relief not available to him by way of a civil rights complaint under § 1983. Moreover, although certainly COVID-19 is still with us, and we have cycled through additional variants since the times described in the complaint, the MDOC has also vaccinated all of the prisoners who wanted that protection. There are presently only a handful of active positive cases in the MDOC and no active positive COVID-19 cases at KCF. See MDOC Response and Information on coronavirus (COVID-19), https://medium.com/@MichiganDOC/mdoc-takessteps-to-prevent-spread-of-coronavirus-covid-19-250f43144337 (last visited Mar. 19, 2022).3 Thus, the only prospective relief Plaintiff seeks is not only unavailable under § 1983, it is unwarranted. Because there is no prospective injunctive or declaratory relief sought or available, Ex Parte Young official capacity relief against Defendants Washington or Brown would be inappropriate. Moreover, as explained below, even if such relief were available, Plaintiff’s allegations do not state a claim. 3 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). 12 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)). 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 13 identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). Plaintiff claims that Defendants’ actions (or inactions) violated his rights under the Eighth Amendment.4 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 4 Plaintiff also mentions the Fourteenth Amendment Due Process Clause, but he does not suggest that he has been deprived of life, liberty, or property without due process. Instead, it appears that Plaintiff contends that Defendants’ conduct violates his substantive due process rights. “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) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). “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)). “Where 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 substantive due process, must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273–75 (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). If such an amendment exists, the substantive due process claim is properly dismissed. See Heike v. Guevara, 519 F. App’x 911, 923 (6th Cir. 2013). In this case, the Eighth Amendment prohibition of cruel and unusual punishment applies to protect Plaintiff from the alleged deliberate indifference of the individual Defendants. Consequently, any intended substantive due process claim is properly dismissed. 14 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. Plaintiff contends that Defendants were deliberately indifferent to the risk posed by the COVID-19 pandemic. 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 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. A. 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, 961 F.3d at 829. In the opinion, the 15 Sixth Circuit found that the plaintiffs in Wilson had easily satisfied the objective component of an Eighth Amendment claim: 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 that precedent, 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 KCF, and Plaintiff states that he suffers from conditions that make him medically vulnerable: “high blood pressure, chronic obstructive pulmonary disorider (C.O.P.D.), diabetes 2 and obesity . . . .” (Compl., ECF No. 1, PageID.4.) At this early stage, the Court concludes that Plaintiff alleges facts sufficient to satisfy the objective prong of the deliberate indifference test. B. 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. 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 16 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; 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 17 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: 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 18 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 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). 19 Plaintiff contends that Defendants Washington and Brown did not reasonably respond to the COVID-19 threat. Michigan’s Governor Gretchen Whitmer issued Executive Order 2020-20, on March 20, 2020, that announced the first two presumptive-positive cases of COVID-19 in Michigan. The MDOC did not stand idly by. Defendant Washington issued a series of Director’s Office Memorandums (DOMs) addressing the risks posed by the pandemic and the MDOC’s efforts to mitigate that risk. (Id., PageID.351.) The Court notes that the MDOC issued its first COVID-19 DOM on April 8, 2020, and issued multiple revised DOMs on the subject to limit the threat posed by COVID-19.5 See MDOC DOM 2020-30 (eff. Apr. 8, 2020) (mandating multiple protective measures including the wearing of masks by prisoners and staff, screening of all individuals before entering prison facilities, keeping of social distance, restricting visits and phone calls, and limiting transfers and cell moves); 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); DOM 2020-30R3 (eff. May 27, 2020); DOM 2020-30R4 (eff. Aug. 10, 2020); DOM 2020-30R5 (eff. Aug. 25, 2020); DOM 2020-30R6 (eff. Aug. 27, 2020); DOM 2020-30R7 (eff. Nov. 5, 2020); DOM 2020-30R8 (eff. Nov. 24, 2020); DOM 2021-26 (eff. Jan. 1, 2021); DOM 2021-26R (eff. Jan. 12, 2021); DOM 2021-26R (eff. Jan. 12, 2021); DOM 2021-26R2 (eff. Jan. 21, 2021); DOM 2021-26R3 (eff. Jan. 25, 2021); DOM 2021-26R4 (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); DOM 2021-26R7 (eff. June 23, 2021); DOM 2021-26R8 (eff. Aug. 6, 2021); DOM 2021-26R9 (eff. Aug. 23, 2021); DOM 2021-26R10 (eff. Oct. 11, 2021); DOM 2021-26R11 (eff. Nov. 19, 2021); DOM 2021- 5 The Court takes judicial notice of these facts under Rule 201 of the Federal Rules of Evidence as well. See supra n.3. 20 26R12 (eff. Dec. 3, 2021); DOM 2022-21R (eff. Jan. 11, 2022); DOM 2022-21R2 (eff. Jan. 14, 2022); DOM 2022-21R3 (eff. Jan. 18, 2022); DOM 2022-21R4 (eff. Jan. 24, 2022); DOM 202221R5 (eff. Feb. 9, 2022); DOM 2022-21R6 (eff. Feb. 15, 2022); DOM 2022-21R7 (eff. Feb. 28, 2022). The DOMs in effect during October and November of 2020 were DOM 2020-30R6, DOM 2020-30R7, and DOM 2020-30R8. Each of those DOMs called for the wearing of personal protective equipment, screening of individuals before entering a facility, social distancing, the creation of isolation and quarantine areas—as resources permit—for prisoners who tested positive and prisoners under investigation for having COVID-19, isolation of the personal property of positive prisoners and prisoners under investigation, limitations of visitation and programs, the use of alcohol-based sanitizers and wipes by staff, limited transfers and cell moves, testing, adequate soap for hygiene and cleanliness, the use of bleach under staff supervision, no prisoner co-pays for COVID-19 testing and management, and remote work by staff when possible. The mitigation measures called for by the DOMs are the same types of actions that the Sixth Circuit in Wilson determined were a reasonable response to the COVID-19 risk, not deliberate indifference. Plaintiff offers two paths to overcome the Wilson determination: first, Plaintiff suggests that the Defendants did not follow their own policies as set forth in the DOMs; and second, the measures called for by the DOMs were contrary to CDC guidance and, therefore, reckless. In considering Plaintiff’s suggestions, it is important to keep in mind that government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. 21 Knight, 532 F.3d 567, 575–76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). Plaintiff appears to hold Washington liable because she “is responsible for all acts of correctional facilities in Michigan . . . .” (Compl., ECF No. 1, PageID.9.) Likewise, Plaintiff holds Brown accountable because he “is responsible for operating the prison objectively and maintaining the care and custody of people incarcerated in the prison.” (Id.) But, the acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. The Sixth Circuit has summarized the minimum required to constitute active conduct by a supervisory official: “[A] supervisory official’s failure to supervise, control or train the offending individual is not actionable unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it.” Shehee, 199 F.3d at 300 (emphasis added) (internal quotation marks omitted). We have interpreted this standard to mean that “at a minimum,” the plaintiff must show that the defendant “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee, 199 F.3d at 300, and citing Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see also Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode, 423 U.S. 362, 375–76 (1976), and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). 22 Against that backdrop, the Court will consider Plaintiff’s contention that Defendants’ actions fell short in four specific ways. 1. “[N]ine highly contagious prisoners originally housed at Marquette Branch Prison (MBP), who had tested positive for COVID-19, were anonymously, intentionally, and deliberately transferred into the KCF population to contaminate the majority of the KCF population . . . .” (Compl., ECF No. 1, PageID.10.) Accepting Plaintiff’s allegations as true, they certainly appear incriminating on first inspection. To transfer “highly contagious” COVID-19 positive prisoners from one facility where there is an outbreak to another facility where there is not would seem to be a dangerous course. But Plaintiff’s allegations are hopelessly conclusory. Peeling back Plaintiff’s conclusory allegations reveals that the transfer of the MBP prisoners was not as troubling as it seems at first blush. Plaintiff is not the first prisoner to make this accusation. Of particular interest are the identical claims made by seven other KCF prisoners who attempted to back up their conclusory statements with affidavits from the transferred prisoners. See, e.g., Good v. Washington, No. 2:21cv-18 (W.D. Mich.). Examination of the affidavits from the transferred prisoners in Good reveals that the transferred prisoners were, in fact, COVID-19 positive. That status was determined by tests administered on October 2, 2020. They were transferred to KCF 26 days later on October 28, 2020. The first one of the transferred prisoners was not released into the KCF population until October 31, 2020—more than 28 days after the positive test. By the end of October 2020, CDC guidance regarding when a person could be around other people after having or likely having COVID-19 was less than 28 days. See CDC, When You Can be Around Others After You Had or Likely Had COVID-19 (Oct. 27, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/if-you-are-sick/end-home-isolation.html 23 [https://web.archive.org/web/ 20201113232734/https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/end-homeisolation.html]. Therefore, Plaintiff’s factual allegation that COVID-19 positive prisoners were transferred into the KCF population, even accepted as true, does not support an inference that either of the Defendants was deliberately indifferent to the risks posed by the COVID-19 pandemic. Plaintiff’s further contention that the MBP transfers were “highly contagious” is entirely conclusory. He alleges no facts to support that allegation. It is a transparent attempt to work backward from the fact that COVID-19 infections spread rapidly at KCF during November of 2020 to the conclusion that the MBP transfers were contagious when released into the population and that Defendants must have been deliberately indifferent. Moreover, Plaintiff does not allege that Defendant Brown effected the transfer. To the contrary, Plaintiff alleges that only an MDOC Assistant Deputy Director or higher could authorize the transfer. Nor does Plaintiff allege that Defendant Washington authorized the transfer. Even if the transfer did evidence deliberate indifference, Plaintiff does not allege any active involvement by the individual Defendants in the transfer of the MBP prisoners to KCF. Accordingly, he has failed to state a claim against the individual Defendants relating to the transfer of the MBP prisoners. 2. “[T]he KCF school principal was initially stopped, but subsequently let into the facility, showing symptoms of COVID-19 and was known to be positive (contagious) for the deadly virus.” (Compl., ECF No. 1, PageID.11.) Through this allegation, Plaintiff attacks not the content of the DOMs, but the implementation of them. Plaintiff indicates that someone let the principal into the prison although he showed symptoms and was known to be COVID-19 positive and contagious. But Plaintiff does not allege that Defendant Washington or Defendant Brown let the principal into KCF or that 24 Defendant Washington or Defendant Brown did so knowing that the principal was symptomatic and contagious. Because Plaintiff has not alleged active involvement by the individual defendants relating to the principal’s improper admission to the facility, Plaintiff has failed to state a claim against them. 3. “Defendants . . . disregarded the CDC recommendations by letting several C/o’s and staff, into the facility by the defendants’ every eight (8) hours around the clock without administering testing approved by the CDC. . . . Defendants’ only took temperatures of all its staff . . . . Defendants . . . refus[ed] to administer nasal tests several times a week, letting staff come to work in[ ]spite of being asymptomatic or hiding their symptoms . . . [for] financial . . . [or] political reasons . . . .” (Compl., ECF No. 1, PageID.11.) Through these allegations, Plaintiff attacks the content of the DOMs. He claims that screening by temperature was insufficient and that MDOC staff should have been tested before entry. Such screening of staff for symptoms and temperature, however, was the sort of response to the COVID-19 risk that the Sixth Circuit determined was reasonable—not deliberately indifferent—in Wilson. Plaintiff suggests that Defendants could have done more. Specifically, Plaintiff contends that Defendants could have used a rapid antigen test for every employee as they entered the facility. But that is not the standard. The Eighth Amendment does not require that prison officials take every possible step to mitigate a risk.6 Wilson, 961 F.3d at 844. Defendants’ failure to require a rapid test before entry, therefore does not amount to deliberate indifference. 6 Moreover, Plaintiff overstates the availability of rapid antigen tests during the fall of 2020. To accommodate Plaintiff’s proposal would have required thousands of rapid antigen tests every day. Plaintiff apparently labors under the false impression that COVID-19 testing kits were readily available. That was not the case. The nation faced several shortages of testing kits during 2020 and since. See, e.g., GAO, COVID-19: Urgent Actions Needed to Better Ensure an Effective Federal Response, https://www.gao.gov/products/gao-21-191 (Nov. 30, 2020) (“In September 2020, GAO reported that ongoing constraints with the availability of certain types of personal protective equipment (PPE) and testing supplies remain due to a supply chain with limited domestic production and high global demand. In October 2020, GAO surveyed public health and emergency 25 4. “Inside the facility there is absolutely no way possible to carry out the CDC’s main recommendation . . . to social distance.” Plaintiff is plainly correct that incarceration limits the ability to comply with the CDC’s recommended spacing guidelines. But that is not the product of some failure in Defendants’ response to the pandemic; it is the very premise of that response. As the United States District Court for the Eastern District of Michigan noted in United States v. Kennedy, 449 F. Supp. 3d 713 (E.D. Mich. 2020): On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that correctional and detention facilities “present[ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html [Hereinafter “CDC Guidance 3/23/2020”]. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing). Id. Kennedy, 449 F. Supp. 3d at 715–16. The personal protective equipment, the cleaning, the increased efforts to maintain hygiene, the quarantine and isolation requirements, the limits on transfer, the testing, the screening—all of the other elements mandated by the DOMs are intended to address the risk of COVID-19 transmission that is simply inherent in the congregate setting of a correctional facility. The fact that Defendants could not ensure proper spacing at all times does management officials from all states . . . and found . . . about one-third to one-half [of states] reported shortages in . . . testing supplies.”). Notwithstanding the Court’s ability to take judicial notice of these facts under Rule 201 of the Federal Rules of Evidence, the information in this 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 an ongoing deadly pandemic. C.f. United States v. Mathews, 846 F. App’x 362, 364 n.3 (6th Cir. 2021). 26 not, therefore, suggest that they are deliberately indifferent to the risk of COVID-19 transmission. Moreover, Plaintiff does not allege that Defendants knew of and disregarded the alleged failure of other MDOC personnel to enforce the spacing protocol where practicable. Accordingly, he has failed to allege the requisite subjective prong with regard to his spacing claim. Class certification (ECF No. 4) Plaintiff asks the Court to certify a class of persons suffering lingering side-effects of COVID-19 infection and a subclass of those persons who are over the age of 45 and medically vulnerable. (Compl., ECF No. 1, PageID.15–16; Mot. to Certify Class, ECF No. 4.) For a case to proceed as a class action, the Court must be satisfied on a number of grounds, including the adequacy of class representation. See Fed. R. Civ. P. 23(a)(4). Plaintiff bears the burden of establishing the right to class certification. See In re Am. Med. Sys., 75 F.3d 1069, 1086 (6th Cir. 1996). It is well established that pro se litigants are “inadequate class representatives.” Garrison v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th Cir. 2009) (citations omitted); Ziegler v. Michigan, 59 F. App’x. 622, 624 (6th Cir. 2003) (recognizing that “[g]enerally pro se prisoners cannot adequately represent a class” (citing Fymbo v. State Farm & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000))); Dodson v. Wilkinson, 304 F. App’x 434, 438 (6th Cir. 2008) (recognizing that “[p]ro se prisoners generally may not bring class action lawsuits concerning prison conditions” (citing Dean v. Blanchard, 865 F.2d 257 (6th Cir. 1988) (table); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975))); Palasty v. Hawk, 15 F. App’x. 197, 200 (6th Cir. 2001) (concluding that “pro se prisoners are not able to represent fairly [a] class” (citing Fymbo, 213 F.3d at 1321; Oxendine, 509 F.2d at 1407)); Marr v. Michigan, No. 95-1794, 1996 WL 205582, at *1 (6th Cir. Apr. 25, 1996) (noting that “an imprisoned litigant who is not represented by counsel may not represent a class of inmates because the prisoner cannot adequately represent the interests of the 27 class” (citing Oxendine, 509 F.2d at 1407)). Because Plaintiff is an incarcerated pro se litigant, the Court finds he would not be an appropriate representative of the proposed class or subclass. Moreover, Plaintiff’s claims have no merit as he has raised them. The principal relief he requests—release from custody—is not available in an action under 42 U.S.C. § 1983. Moreover, although such relief might be available in an action under 28 U.S.C. § 2241, Plaintiff must first exhaust his state court remedies before proceeding in this Court. He has not. To the extent Plaintiff seeks damages, he has sued Defendants, the State of Michigan, the MDOC, the MDOC Director in her official capacity, and the KCF Warden in his official capacity, who enjoy immunity from such a suit. To the extent Plaintiff seeks prospective injunctive relief short of release, the State of Michigan and the MDOC are still immune. Although the MDOC Director and the KCF Warden are not immune from such a suit, Plaintiff has failed to allege facts that would warrant such relief and has also failed to state a claim against Defendants Washington or Brown. Under these circumstances, certification of a class would be pointless and detrimental to the proposed classes. Motion for temporary restraining order or preliminary injunction (ECF No. 2) Plaintiff has sought preliminary injunctive relief in the form of a temporary restraining order compelling the MDOC to immediately release him. The purpose of a preliminary injunction is to preserve the status quo until a trial on the merits. Southern Glazer’s Distributors of Ohio L.L.C. v. Great Lake Brewing Co., 860 F.3d 844, 848 (6th Cir. 2017) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1982)). Because the complaint is properly dismissed, the Court will deny Plaintiff’s request as moot. See Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020) (“[A] court must not issue a preliminary injunction where the movant presents no likelihood of merits success.”). 28 Request to appoint counsel (ECF No. 4) Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604–05 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604–05; see Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these factors and determines that, at this stage of the case, the assistance of counsel does not appear necessary to the proper presentation of Plaintiff’s position. Plaintiff’s motion will be denied. Conclusion The Court will construe Plaintiff’s complaint as a pleading filed under 42 U.S.C. § 1983. Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed because release is not an available remedy under § 1983, Defendants are immune from any claim for money damages, Defendants State of Michigan and the MDC are immune from a claim for prospective injunctive relief, and, with regard to Plaintiff’s claim for prospective injunctive relief against Defendants Washington and Brown in their official capacities, Plaintiff has failed 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 29 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., 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. The Court will deny Plaintiff’s motion for class certification, his motion for temporary restraining order, and his motion to appoint counsel. A judgment consistent with this opinion will be entered. Dated: /s/Maarten Vermaat Maarten Vermaat United States Magistrate Judge March 23, 2022 30
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