Lichtenwalter v. Warden of Belmont Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DEREK LICHTENWALTER,

Case No. 2:20-cv-1559

Petitioner, Judge Edmund A. Sargus, Jr.

Magistrate Judge Kimberly A. Jolson

v.

WARDEN, BELMONT

CORRECTIONAL INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION AND ORDER

Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus. (Doc. 3).

This matter is before the Court on several of Petitioner’s Motions, in addition to his Petition and

Supplemental Brief in support, Respondent’s Return of Writ, Supplemental Memorandums

Supporting the Return of Writ and Response to the Supplemental Brief, Petitioner’s Traverse,

Respondent’s Evidence, Petitioner’s Evidence and Response to Respondent’s Evidence,

Respondent’s Reply, and the exhibits of the parties.

Regarding the miscellaneous pending motions, Petitioner’s Motion for Discovery and

Evidentiary Hearing, Request for Injunctive Order and Declaratory Judgment, Motion for Bond,

and the motions to intervene and for “Inter Question” (Docs. 8, 9, 15, 37–40) are DENIED.

Petitioner’s Motion to File Under Seal (Doc. 68) is DENIED. Respondent’s unopposed Motion

for Order to Take Judicial Notice (Doc. 50) is GRANTED. Finally, and most importantly, it is

RECOMMENDED that this action be DISMISSED.

I. BACKGROUND

Petitioner asserts that, in light of his specific health concerns, his continued incarceration

during the COVID-19 pandemic is unconstitutional. (See generally Doc. 3). He seeks immediate

release as a result. (Id.).

By way of background, on December 2, 2019, Petitioner pled guilty in the Guernsey

County Court of Common Pleas on the charge of failure to comply with the order or signal of a

police officer. (See id. at 1). He was sentenced to 30 months’ imprisonment and is currently

serving his sentence at Belmont Correctional Institution (“BeCI”). (Id.). As noted, Petitioner does

not challenge his underlying criminal conviction but instead seeks immediate release as an

allegedly immune-compromised inmate. (Doc. 5, PAGEID # 30). Petitioner’s attached medical

records indicate that he is 44-years-old and HIV positive. (Doc. 10-1, PAGEID # 366).

Petitioner initially sought relief in state court, and on April 16, 2020, the Ohio Supreme

Court summarily dismissed his action for failure to state a claim. (Doc. 5, PAGEID # 166).

Petitioner, through counsel, immediately moved for emergency withdrawal of his guilty plea on

these same grounds. (Doc. 10-1, PAGEID # 358–65). The trial court denied Petitioner’s motion.

(Id.). Petitioner also unsuccessfully applied for clemency and sought a sentence commutation

based on the impact of COVID-19. (Id., PAGEID # 401–03). Additionally, he has filed repeated

grievances within the prison system. (Id., PAGEID # 406–427).

Petitioner filed this action on March 26, 2020. (Doc. 1). In addition to being HIV positive,

Petitioner asserts that he suffers from hypertension and previously suffered a partially collapsed

lung and punctured diaphragm. (Doc. 10, PAGEID # 224). He states that he sleeps in a dormitory

holding approximately 130 inmates, and beds are less than four feet apart. (Doc. 36, PAGEID #

606). Further, he contends that inmates eat in a communal setting and wash hands twice daily

while in close proximity to each other. (Id.). Also, Petitioner shares a bathroom with 20 to 40

prisoners. (Id.). He also asserts that inmates and prison staff do not appropriately wear face masks.

(Id., PAGEID # 607).

All told, Petitioner says there is nothing BeCI can do to cure the unconstitutional risk to

his life posed by the pandemic. (See Doc. 36, PAGEID # 608) (“There is no way to avoid an

unacceptably large risk to the life of immunocompromised Petitioner [] other than ordering him

released temporarily until the COVID-19 pandemic has subsided.”). Petitioner thus seeks

immediate release as his only remedy. (See Doc. 3).

Procedurally speaking, less than two months after he brought this action, the Court

appointed Petitioner counsel and set an evidentiary hearing for August 2020. (Docs. 14, 44).

Respondent attempted to stay the case and appeal the Undersigned’s decision setting an evidentiary

hearing. (Doc. 51). On December 9, 2020, Judge Sargus denied Respondent’s requests, and the

Undersigned reset the evidentiary hearing for January 19, 2021. (Docs. 58, 59, 60). Roughly two

weeks later, the Court granted Petitioner’s request for substitution of counsel. (Docs. 61, 62).

Petitioner’s new counsel requested an extension to familiarize themselves with Petitioner’s case,

and the Court continued the hearing to February 2, 2021. (Docs. 63, 64).

As these procedural matters unfolded, the law on Eighth Amendment COVID-19 claims

began to take shape. Indeed, much has changed since Petitioner brought this case in March 2020.

Significantly, in June 2020, the Sixth Circuit addressed a claim similar to Petitioner’s. See Wilson

v. Williams, 961 F.3d 829 (6th Cir. 2020). The Circuit provided clear guidance on what is expected

of institutions to combat the spread of COVID-19. (Id.). Following that guidance, district courts

often have been able to resolve an Eighth Amendment claim without an evidentiary hearing. See

e.g., Mescall v. Hemingway, No. 2:20-11110, 2020 WL 4584028, at *7 (E.D. Mich. Aug. 10,

2020). Based upon these developments, the Court vacated the evidentiary hearing so that it could

consider the parties’ evidence in light of this controlling standard. (Doc. 67). As explained further

below, an evidentiary hearing is not necessary to resolve Petitioner’s request for relief.

II. Procedural Issues

Before considering the merits of Petitioner’s deliberate indifference claim, the Court first

addresses several procedural issues that Respondent says bars this Court from hearing the case.

To start, Respondent asserts that the Court should dismiss this action as inappropriately brought

under the provision of 28 U.S.C. § 2241 or § 2254 or, alternatively, as unexhausted due to

Petitioner’s failure to present his federal claim to the Ohio courts. (See Docs. 6, 43, 53).

Additionally, Respondent contends that the Supreme Court’s decision in Cullen v. Pinholster, 563

U.S. 170, 182 (2011), prevents the Court from considering any evidence not presented to the Ohio

Supreme Court in state habeas corpus proceedings. (See Doc. 66). As explained below, none of

Respondent’s arguments preclude the Court from addressing Petitioner’s claim on the merits.

A. Habeas Action

To begin, Respondent’s argument that Petitioner’s case does not sound in habeas is

unavailing. The Sixth Circuit’s decision in Wilson v. Williams confirms this. See 961 F.3d at 838.

There, the Court held that prisoners, like Petitioner, seeking immediate release due to health risks

associated with COVID-19 could file a petition for a writ of habeas corpus under the provision of

28 U.S.C. § 2241. See id. (citing Preiser v. Rodriguez, 411 U.S. 475, 498 (1973)) (“[R]elease from

confinement . . . is the heart of habeas corpus.”); see also Cameron v. Bouchard, 815 F. App’x

978, 983 n.1 (6th Cir. 2020) (relying on Wilson and permitting pre-trial detainees and state

prisoners to proceed with COVID-19 claims under § 2241); Aultman v. Shoop, No. 2:20-cv-3304,

2020 WL 4287535, at *1 (S.D. Ohio July 27, 2020) (relying on Wilson and holding that plaintiff’s

request for immediate release from custody failed to state a claim under 42 U.S.C. § 1983 and

must be brought under the provision of 28 U.S.C. § 2241); Blackburn v. Noble, 479 F. Supp. 3d

531, 538 (E.D. Ky. 2020) (collecting cases and citing Wilson in finding that 28 U.S.C. § 2241

provides an avenue of relief for state prisoners seeking immediate release based on COVID-19).

Respondent relies on the Sixth Circuit’s decision in Bradley v. Shoop. (Doc. 70, PAGEID

# 1857 (citing No. 2:20-cv-3897, 2021 WL 688859 (6th Cir. Jan. 8, 2021)). There, the Sixth

Circuit denied the state prisoners’ request for a certificate of appealability from the dismissal of an

action based on the impact of COVID-19 as improperly brought under 28 U.S.C. § 2254. (Id).

The petitioners in Bradley sought release to a halfway house, home confinement, furlough, or

community supervision. (Id.). Here, Petitioner seeks immediate release, so Bradley is factually

distinguishable.

Further, in denying the request for a certificate of appealability, the Sixth Circuit

acknowledged that it had permitted the claim under the provision of 28 U.S.C. § 2241:

True, the Sixth Circuit recently permitted federal inmates to bring a claim similar

to Bradley’s under 28 U.S.C. 2241. See Wilson v. Williams, 961 F.3d 829, 838–39

(6th Cir. 2020). But Bradley petitioned under 28 U.S.C. § 2254, not 28 U.S.C.

§ 2241, and “our interpretation of § 2241 does not control our interpretation of

§ 2254.” Bailey v. Wainwright, 951 F.3d 343, 347 (6th Cir. 2020). Nor does

anything require “courts to convert § 2254 petitions to petitions under § 2241[.]”

Allen v. White, 185 F. App’x 487, 489 (6th Cir. 2006).

Bradley, 2021 WL 688859, at *2.

Yet, at least some district courts, relying on Sixth Circuit precedent, have held that state

prisoners must bring this type of claim under 28 U.S.C. § 2254, not § 2241:

But Jaeger’s purported amended emergency petition [] is not governed by 28 U.S.C.

§ 2241. ‘“[R]egardless of the label on the statutory underpinning for [a] petition,

habeas petitions of state prisoners are governed by 28 U.S.C. § 2254,’ not § 2241.”

Makin v. Wainwright, No. 3:20 CV 912, 2020 U.S. Dist. LEXIS 93364, 2020 WL

2770040, at *1 (N.D. Ohio May 29, 2020) (quoting Byrd v. Bagley, 37 F. App’x

94, 95 (6th Cir. 2002)); see Sewell v. Brown, No. 2:20-cv-77, 2020 U.S. Dist.

LEXIS 113627, 2020 WL 3542154, at *1 n.1 (W.D. Mich. June 30, 2020)

(“Although petitioner purports to bring his action under 28 U.S.C. § 2241, habeas

corpus actions brought by ‘a person in custody pursuant to the judgment of a State

court’ are governed by 28 U.S.C. § 2254”). Conditions of confinement claims—

such as those relating to conditions within a prison during a pandemic—are

typically “properly brought under § 1983 and are not cognizable on habeas review.”

Sewell, 2020 U.S. Dist. LEXIS 113627, 2020 WL 3542154, at *2. However, when

a petitioner seeks release from custody, as Jaeger does here (Doc. No. 31-1 at 1323-

24), such a claim is “available only upon habeas corpus review.” Id.

Jaeger v. Wainwright, No. 1:19-cv-2853, 2020 WL 3961962, at *3 (N.D. Ohio July 7, 2020).

Initially, Petitioner in fact brought his petition under § 2241, but then his court-appointed

counsel—perhaps relying on cases like Jaeger—pivoted to using § 2254. (See, e.g., Doc. 36,

PAGEID # 609 (“There is only one remedy of the writ of habeas corpus available to state prisoners;

§ 2254 is the implementation of for state prisoners of the statutory authority conferred on courts

by § 2241 to issue writs of habeas.” (citing Allen v. White, 185 F. App’x 487 (6th Cir. 2006))).

Given the uncertainty in the law—and Wilson’s core holding that habeas is a proper vehicle to

bring these type of claims—the Court concludes that Petitioner’s habeas claim is cognizable.

B. Exhaustion

Respondent’s next argument, that the Court should dismiss this action as unexhausted, is

similarly unpersuasive. The record reflects that the American Civil Liberties Union (“ACLU”)

filed a merit brief on Petitioner’s behalf in the Ohio Supreme Court raising the same claim that

Petitioner raises here. (Doc. 5, PAGEID # 50–76). Respondent does not offer other potentially

viable avenues of relief available to Petitioner.

Further, a federal district court may dismiss an unexhausted claim on the merits. 28 U.S.C.

§ 2254(b)(2); see Cameron, 815 F. App’x at 983 n.1 (declining to address non-jurisdictional

procedural issues where claim fails on the merits). As one district court recently noted, “[a] federal

habeas court may consider unexhausted claims where ‘unusual’ or ‘exceptional’ circumstances

exist.” Blackburn, 479 F. Supp. 3d at 538 (internal quotation marks omitted) (quoting Rockwell v.

Yukins, 217 F.3d 421, 423 (6th Cir. 2000)). And, “[a]s other Courts have observed, the current

pandemic is an unusual or exceptional circumstance that could allow a federal court to consider

the matter at hand.” Blackburn, 479 F. Supp. 3d at 539 (citation omitted). So the Court will

consider the merits of Plaintiff’s claim despite any purported failure to exhaust.

C. Pinholster

Finally, Respondent argues that the Supreme Court’s decision in Cullen v. Pinholster

precludes consideration of any evidence that the Ohio Supreme Court did not consider in

Petitioner’s state habeas corpus proceeding.

The Supreme Court, in Pinholster, held that a federal court’s review under § 2254(d) of a

claim adjudicated on the merits by a state court is limited to the factual record that was before the

state court. See 563 U.S. at 182. This rule equally applies where the state court issues a summary

or unexplained entry of dismissal. See Rice v. White, 660 F.3d 242, 251 (6th Cir. 2011) (citing

Harrington v. Richter, 562 U.S. 86, 98 (2011) (holding that unexplained state court decisions are

entitled to deference as decisions on the merits under § 2254(d))).

There are several exceptions to this rule. Pinholster does not apply to a federal habeas

court’s consideration of a claim of actual innocence. See Mobley v. Warden, Northeast Ohio Corr.

Ctr., No. 2:20-cv-4510, 2020 WL 7075628, at *4 (S.D. Ohio Dec. 3, 2020) (citation omitted). Nor

does it apply where the court determines from the existing record that the state courts’ decision

was unreasonable under § 2254(d); where the state court did not adjudicate a claim on the merits

but it is otherwise properly before the court for habeas review; or if the court is considering whether

to excuse a procedural default. Johnson v. Bobby, No. 2:08-cv-55, 2018 WL 1382455, at *8 (S.D.

Ohio March 19, 2018) (citing Caudill v. Conover, 871 F. Supp. 2d 639, 649 (E.D. Ky. 2012)).

This is not the typical case. And Respondent does not refer to, and this Court has not

located any cases addressing Pinholster in the context of a habeas Eighth Amendment or due

process claim stemming from the COVID-19 pandemic. This Court recently outlined the

exhaustion requirement of a similar claim brought in an action under 42 U.S.C. § 1983 through

the prison’s grievance procedure. See Smith v. DeWine, 476 F.Supp. 3d 635, 655 (S.D. Ohio 2020).

By exhausting his or her claim in this manner and via the prison’s grievance procedure, a petitioner

would avoid application of Pinholster. (Id.). Moreover, federal courts are divided on whether

exhaustion should even be required for these claims. See DeWine, 476 F. Supp. 3d at 656 (“In

light of the COVID-19 pandemic, federal courts are split on the issue of whether administrative

remedies are currently available to prisoners.”). And waiving the exhaustion requirement would

avoid Pinholster, too.

Finally, a note of practical importance. Petitioner’s Eighth Amendment COVID-19 claim

necessarily requires some inquiry into the present conditions in Ohio prison facilities, which could

not have been presented to the Ohio courts when Petitioner filed his petition for a state habeas

corpus or mandamus petition. In other words, applying Pinholster here would limit the record to

a point in time shortly after the onset of COVID-19 pandemic (here, in April 2020) and fail to take

into account the evolving conditions, recommendations of the CDC and other health officials, and

the corresponding response by prison officials. The most just path forward, therefore, is to proceed

to the merits of Petitioner’s claim.

III. STANDARD

The Eighth Amendment requires prison officials to guarantee the safety of and provide

adequate medical care to prison inmates. Blackburn, 479 F. Supp. 3d at 539 (citing Rhinehart v.

Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

“[W]hen the State takes a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

and general wellbeing.” Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation omitted).

“Deliberate indifference by prison officials to an inmates’ serious medical needs constitutes

‘unnecessary and wanton infliction of pain’ in violation of the Eighth Amendment’s prohibition

against cruel and unusual punishment.” DeWine, 476 F. Supp. 3d at 661 (citing Miller v. Calhoun

Cnty., 408 F.3d 808, 812 (6th Cir. 2005)). “To succeed on an Eighth Amendment claim for

deliberate indifference to serious medical needs, a [petitioner] must prove more than mere

negligence on behalf of prison authorities.” Blackburn, 479 F. Supp. 3d at 539 (citing Brooks v.

Celeste, 39 F.3d 125, 127 (6th Cir. 1994); Estelle, 429 U.S. at 106). “[A] prison official will be

liable only when he or she ‘knows of and disregards an excessive risk to inmate health or safety.’”

Blackburn, 479 F. Supp. 3d at 539 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

Petitioner must establish both an objective and subjective component to obtain relief.

Cameron, 815 F. App’x at 984. The objective component requires an inmate to “show that he is

incarcerated under conditions posing a substantial risk of serious harm.” Blackburn, 479 F. Supp.

3d at 540 (citing Farmer, 511 U.S. at 833). The subjective component requires the inmate to show

that prison officials knew of and disregarded an excessive risk, thereby acting with deliberate

indifference. DeWine, 476 F. Supp. 3d at 661 (citing Farmer, 511 U.S. at 834, 837–38).

Importantly, deliberate indifference is “‘more blameworthy than negligence,’ akin to

criminal recklessness[,]” Cameron, 815 F. App’x at 984 (citing Farmer, 511 U.S. at 835, 839–40),

and “tantamount to [an] intent to punish,” DeWine, 476 F. Supp. 3d at 661 (citations and quotation

marks omitted). Thus, prison officials who know 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.” Wilson, 961 F.3d at 840 (citing Farmer, at 844).

IV. DISCUSSION

The Court considers the parties’ evidence to determine whether BeCI officials, under the

mandates of the Ohio Department of Rehabilitation and Correction (“ODRC”), responded

reasonably to the risk of the COVID-19 pandemic.

A. Respondent’s Evidence

Respondent submitted 63 exhibits reflecting the ongoing efforts made by ODRC in

response to the COVID-19 pandemic to attempt to prevent the spread of the virus within Ohio

prisons.

On March 9, 2020, Ohio Governor DeWine declared a State of Emergency. (Doc. 66-1,

PAGEID # 1525–28). Effective the following day, ODRC implemented health screening for all

persons entering a prison facility. (Id., PAGEID # 1533–1544). Staff members received a weekly

hygiene checklist and health care personal protective equipment (“PPE”) guidelines. (Id.,

PAGEID # 1545–46, 1549). On March 16, 2020, ODRC’s Director implemented additional orders

requiring screening of all inmates before being transported and refusing acceptance of transferred

inmates exhibiting symptoms of COVID-19. (Id., PAGEID # 1550–52). On March 18, 2020,

ODRC ceased random drug testing on inmates. (Id., PAGEID # 1553). On March 23, 2020, and

March 30, 2020, it updated interim guidance on management of COVID-19 in correctional and

detention facilities and issued recommendations for preparation, prevention, and management of

the virus. (Id., PAGEID # 1555–85, 1587–1612). Furthermore, ODRC also required prisons to

reschedule all non-emergency medical procedures and instituted policies to permit inmates to carry

medications in order to decrease pill call lines. (Id., PAGEID # 1586). And on March 31, 2020,

ODRC permitted facilities to make cloth face masks. (Id., PAGEID # 1613).

On April 7, 2020, ODRC’s Director issued a notice of a pandemic-driven overcrowding

emergency and implemented efforts to reduce the prisons’ population in Ohio. (Id., PAGEID #

1625–26). Effective April 8, 2020, all prison facilities designated at the “orange” level

implemented a brunch meal. (Id., PAGEID # 1622–24). Effective April 9, 2020, eligible inmates

could receive one extra food package. (Id., PAGEID # 1627). Effective April 15, 2020, all

chaplains began working remotely. (Id., PAGEID # 1634). On April 20, 2020, ODRC

implemented an isolation plan for each Ohio prison facility. (Id., PAGEID # 1637–50). Sleeping

arrangement recommendations were issued by Mark H. Weir, Ph.D. (Id., PAGEID # 1651).

Beginning April 29, 2020, staff and inmates are permitted to use personal disinfecting wipes. (Id.,

PAGEID # 1656). ODRC also implemented a housekeeping plan with a COVID-19 pandemic

update including minimum requirements for disinfection efforts and housekeeping. (Id., PAGEID

# 1712–25). On April 30, 2020, ODRC again updated PPE requirements. (Id., PAGEID # 1733–

39).

On May 4, 2020, ODRC implemented mass testing of prison inmates and staff to manage

further spread of the virus. (Id., PAGEID # 1652–55). Since May 11, 2020, all Ohio prisoners

have received four cloth face masks which are periodically replaced. (Id., PAGEID # 1731, 1770).

In May 2020, ODRC altered prisoner transfer procedures to minimize the impact of the spread of

COVID-19. (Id., PAGEID # 1740–42). Also, in May 2020, the Ohio National Guard began

conducting testing of prison staff for COVID-19.

Beginning June 5, 2020, ODRC mandated the following: all staff and inmates are required

to wear face masks; inmates must place hands in pockets and not touch surfaces when moving

throughout the facility; all services must be delivered or dropped off at doors; cohort inmate

workers from specific work areas must be placed in the same living area; and items must be

sanitized prior to reuse. (Id., PAGEID # 1615). Additionally, all employee work areas must be

routinely cleaned throughout the course of a shift with a disinfecting solution designated for

COVID-19. (Id., PAGEID # 1616). ODRC also mandated changes at prison libraries to minimize

transmission of COVID-19. (Id., PAGEID # 1619).

As of June 24, 2020, ODRC staff may obtain a COVID-19 test repeatedly and as needed

at various sites free of cost. (Id., PAGEID # 1746–51). ODRC also created an operational

modification process for a prolonged response to COVID-19 in conjunction with health experts.

(Id., PAGEID # 1752–64). On October 13, 2020, ODRC again issued new guidance regarding the

use of PPE. (Id., PAGEID # 1765–69). On December 2, 2020, ODRC began daily symptom

screening of all inmates due to the ongoing increase in positive COVID-19 cases. (Id., PAGEID

# 1772). On March 11, 2020, ODRC issued a project plan for compliance with new COVID-19

requirements. (Id., PAGEID # 1776–93).

BeCI also developed an inmate housing unit housekeeping plan with guidance for the

cleaning requirements. (Id., PAGEID # 1794–1803). During the month of January 18, 2021, 178

of BeCI staff had reported positive COVID-19 tests; 24 staff members were currently positive;

and 154 had recovered; 40 inmates were in quarantine; six were in isolation; six were currently

positive; there were ten confirmed COVID-19 inmate deaths; and 118 inmates had recovered. (Id.,

PAGEID # 1804).

B. Petitioner’s Evidence

1. Petitioner’s Motion to Seal (Doc. 68)

The Court addresses, up front, Petitioner’s request to seal medical records that are relevant

to this case. (Doc. 68). Petitioner has placed these records at issue in this case. His individual

health concerns are relevant to the objective component of the deliberate indifference standard.

See Sow v. Adducci, No. 2:20-CV-2140, 2020 WL 3000425, at *3 (S.D. Ohio June 4, 2020), report

and recommendation adopted, No. 2:20-CV-2140, 2020 WL 3415110 (S.D. Ohio June 22, 2020)

(quotation marks and citations omitted) (noting that petitioner must show “a sufficiently serious

medical need, in that he is incarcerated under conditions imposing a substantial risk of serious

harm”). Given the significance of these records, the public has a “strong interest” in viewing this

information. Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir.

2016).

Moreover, Petitioner states in his petition that he is HIV positive. And he already made a

portion of his medical records public when he attached them to his state habeas corpus and

mandamus petition. (See Doc. 10-1, PAGEID # 366; see also Doc. 36, PAGEID # 615). In sum,

Petitioner has failed to show that his medical records should be sealed in this medical deliberate

indifference case. His Motion (Doc. 68) is DENIED as a result.

2. Petitioner’s Submissions

Petitioner submitted a declaration from Meghan Novisky, an assistant professor in the

department of criminology, anthropology, and sociology at Cleveland State University. (Doc. 69-

1). Novisky has written and published articles on the incidence and implications of COVID-19 in

United States’ prisons. (Id.). She notes, “one of the greatest challenges facing correctional

facilities . . . is that prisons and jails, by their very nature, are high-risk sites for the spread of

infectious disease.” (Id., PAGEID # 1824). She asserts that close proximity, overcrowding, shard

equipment tied to risky health behaviors such as tattooing, compromised abilities to maintain

general hygiene, substandard health care services, and lack of awareness about infection status,

aggravate the risk associated with the spread of infectious disease. (Id.). She also notes that high

levels of stress exposure can weaken the immune system. (Id.). She reports that, as of January 27,

2021, over 7,000 incarcerated adults and over 4,000 staff have contracted COVID-19. (Id.). One

hundred and twenty-seven incarcerated people in Ohio prisons have died of COVID-19 related

causes in addition to 5 “probable” deaths. Hundreds of inmates and staff are currently testing

positive for COVID-19. (Id., PAGEID # 1825).

Novisky further opines that, “unless action is taken swiftly,” Petitioner will likely face

serious medical complications from COVID-19. (Id.). She notes that ODRC employs 10,952 staff

and manages a prison population of 48,857 people. (Id.). This volume, combined with shared

cells, dorms, bunks, supplies, living spaces, and bathing and eating areas, severely compromises

the ability of prison facilities to implement social distancing practices. (Id., PAGEID # 1826–27).

She also asserts that the reduction of prisoner visitations does little to prevent transmission of the

virus, and it is difficult for prisoners to follow recommended sanitation procedures. (Id., PAGEID

# 1827). So, she says, releasing as many older incarcerated adults and non-violent offenders will

help reduce the prison population and high-risk individuals. (Id., PAGEID # 1828–29).

Petitioner also attaches a report indicating that, as of January 27, 2021, 188 staff at BeCI

reported positive tests; 12 are currently positive, 176 have recovered; 45 inmates are in quarantine,

there are ten confirmed inmate deaths, and 119 inmates have recovered. (Doc. 69-2, PAGEID #

1843). Additionally, Petitioner submits a December 15, 2020, letter from fellow BeCI inmate,

Louis Warnken, who says that very little is being done by prison staff to prevent the spread of

COVID-19, that there is no social distancing, mask wearing is not being enforced, and there is no

regular cleaning. (Doc. 69-5, PAGEID # 1848–51).

Petitioner also submits an affidavit from another fellow inmate, James Kisner, who attests

that he had a temperature, and the nurse told him to take Tylenol and return to bed as the whole

dorm was presumed positive. (Id., PAGEID # 1852–53). Kisner further attests that: there is no

social distancing at the prison; he has been denied treatment; handwashing has created crowded

spaces; and staff and inmates do not consistently wear masks. (Id.).

Finally, Petitioner attaches an affidavit from Charles Sheets who states that he is at high

risk for COVID-19 and has been incarcerated since June 2, 2020. (Id., PAGEID # 1854–55). He

attests that neither inmates nor staff wear masks, though he notes he has been provided with a cloth

mask. (Id.). He further attests that he sleeps in close proximity to another inmate and cannot

socially distance. (Id.). He says the chow hall is crowded, as is the prison, generally. (Id.). For

example, after 4:00 p.m., you cannot move without bumping into someone, the gym has been used

for quarantine and has 100 inmates in it, and the bathroom has 8 toilets for 248 men. (Id.).

C. Application

As noted, Petitioner says there is nothing BeCI can do to adequately ameliorate the health

risks he suffers as an incarcerated prisoner during the COVID-19 pandemic. (Doc. 36, PAGEID

# 609). He further asserts that prison officials have acted with deliberate indifference to the

specific health risks he faces as an immunocompromised HIV positive individual at high risk for

death or serious illness from COVID-19. (Id.).

As explained, Petitioner must satisfy both an objective and subjective component to obtain

relief for his Eighth Amendment claim. Petitioner has satisfied the objective component here.

“This Court agrees with the other district courts across the country who have found COVID-19 to

be an objectively intolerable risk of harm to prisoners when it enters a prison.” DeWine, 476 F.

Supp. 3d at 662 (collecting cases); see also Wilson, 961 F.3d at 842 (finding a substantial risk of

serious harm satisfying the objective element based upon the conditions in an Ohio prison in light

of COVID-19).

But Petitioner fails to satisfy the subjective component. Petitioner’s assertions, for

example, regarding the lack of social distancing at BeCI is an unfortunate reality of prison life.

Similarly, inadequate mask enforcement by prison guards does not rise to a deliberately indifferent

unreasonable failure to act warranting habeas corpus relief. Notably, “the CDC’s own guidance

‘presupposes that some modification of its social-distancing recommendations will be necessary

in institutional settings.’” Blackburn, 479 F. Supp. 3d at 541 (quoting Swain v. Junior, 958 F.3d

1081, 1089 (11th Cir. 2020)).

And “the fact that COVID-19 has spread among [] inmates does not establish . . . the

necessary state of mind to satisfy the subjective deliberate indifference prong as to the safety

measures implemented to protect inmates from COVID-19.” Blackburn, 479 F. Supp. 3d at 541

(citing Farmer, 511 U.S. at 844). Rather, even where “the harm ultimately [is] not averted,” as

long as the institution “has responded reasonably to the risk,” it “has not been deliberately

indifferent to the inmates’ Eighth Amendment rights.” Blackburn, 479 F. Supp. 3d at 542.

ODRC and BeCI have responded reasonably here. As discussed supra, they have

undertaken consistent and ongoing efforts to attempt to prevent the spread of COVID-19. Prison

officials have implemented procedural changes, based on guidance from health officials and CDC

guidelines regarding sanitation, to: hand washing, visitation, library usage, and the use of hand

wipes, among others. They have provided inmates with masks and attempted to implement

changes to meal service, prison transfer policy, as well as efforts to reduce the prisoner population.

Testing is being conducted on all prison inmates and staff, as well as quarantining or separation of

prisoners who test positive for COVID-19.

This Court recently found these responses to be reasonable—specifically, that ODRC has

engaged in “an extensive effort to combat this new disease and protect the prisoners’ health and

safety.” DeWine, 476 F. Supp. 3d at 662–63. For example, ODRC swiftly responded to the

pandemic, including “educating staff and inmates, tracking and distributing PPE, implementing

social distancing measures among staff and inmates, increasing cleaning and sanitizing, screening

visitors, staff, and inmates, cancelling visitation, quarantining those with symptoms, and

implementing other policies designed to prevent COVID-19’s spread.” Id. at 663. The Court takes

judicial notice of these findings and applies them here. See Schneider v. Credit Hum. Fed. Credit

Union, No. 4:20-cv-1747, 2021 WL 147050, at *1 n. 2 (N.D. Ohio Jan. 15, 2021) (collecting cases

and noting that federal courts may take judicial notice of proceedings in other courts of record,

especially where those proceedings have a direct relation to matters at issue).

Importantly, “the Sixth Circuit has previously held actions such as these a reasonable

response.” Id. (citing Wilson, 961 F.3d at 840 (finding Bureau of Prisons’ response to COVID-19

including screening for symptoms, educating staff and inmates, cancelling visitation, quarantining

new inmates, implementing cleaning, providing disinfectant, and more, a reasonable response)).

“Other courts around the country have also found similar actions taken in response to COVID-19

enough to preclude a finding of deliberate indifference.” DeWine, 476 F. Supp. 3d at 663 (citing

Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020) (noting that prison officials took measures

recommended by the CDC, and plaintiffs offered no evidence they subjectively believed those

actions were inadequate); Swain, 958 F.3d at 1089 (holding that neither the resultant harm in

COVID-19 infections or the inability to achieve social distancing constituted a state of mind more

blameworthy than negligence)).

In sum, although Petitioner has shown an objective risk of harm, he has not shown that

BeCI officials were deliberately indifferent to the risks posed by this harm. To the contrary, they

immediately implemented measures to protect inmates. The fact that the spread of the virus was

ultimately not averted does not mean that BeCI failed to act reasonably in violation of Petitioner’s

Eighth Amendment rights. Petitioner has failed to establish a basis for relief as a result

IV. DISPOSITION

For the reasons set forth above, it is RECOMMENDED that this action be DISMISSED.

Additionally, Petitioner’s Motion for Discovery and for Evidentiary Hearing, Request for

Injunctive Order and Declaratory Judgment, and Motion for Bond, and Motions to Intervene and

for “Inter Question” (Docs. 8, 9, 15, 37–40) all are DENIED. Respondent’s unopposed Motion

for Order to Take Judicial Notice (Doc. 50) is GRANTED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further advised

that, if they intend to file an appeal of any adverse decision, they may submit arguments in any

objections filed, regarding whether a certificate of appealability should issue.

IT IS SO ORDERED.

Date: March 5, 2021 /s/Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE