Lowe

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

KEITH W.R. LOWE,

Plaintiff,

v. Civil Action No. 2:22-cv-000434

SUPERINTENDENT DONALD AMES

and MAJOR RICHARD TONEY,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are Plaintiff’s Motion for Summary Judgment,

(ECF No. 86), filed with an accompanying memorandum of law, (ECF

No. 87); and Defendants’ Motion for Summary Judgment, (ECF No.

88), filed with an accompanying memorandum of law, (ECF No. 89),

all filed on February 20, 2025. See ECF Nos. 86-89.

Defendants and plaintiff filed responses to the

opposing motions on March 6, 2025. ECF Nos. 92, 93. Plaintiff

and defendants filed replies to the responses on March 13, 2025.

ECF Nos. 96, 97.

I. BACKGROUND

A. Factual History

Plaintiff Keith W.R. Lowe (“plaintiff”) was, at all

relevant times herein, a prisoner at Mt. Olive Correctional

Complex (“MOCC”) in Fayette County, West Virginia, which is

under the custody of the West Virginia Department of Corrections

and Rehabilitation (“WVDCR”). Pl.’s Mem. Supp., ECF No. 87, at

2. At all relevant times herein, Defendant Donald Ames (“Ames”)

was the Superintendent of MOCC, and defendant Richard Toney

(“Toney”) was a correctional officer with the rank of captain,

employed at MOCC.1 Defs.’ Mem. Supp., ECF No. 89 at 1.

This case, filed pro se by plaintiff on October 5,

2022, arises from plaintiff’s alleged mistreatment by the

defendant prison officials in the 2020 to 2021 period during the

SARS-CoV2 virus (“COVID-19”) pandemic. See Third Am. Compl.,

ECF No. 68. Plaintiff has sued the defendants in both their

official and their individual capacities and requests

compensatory damages, including attorney fees and costs,

punitive damages, and injunctive and declaratory relief. Id. at

12-13.

The parties agree that the COVID-19 pandemic occurred

in 2020 and was in effect at all relevant times herein. Pl.’s

Mem. Supp. at 2; Defs.’ Mem. Supp. at 2. In September of 2020,

1 Defendant Toney stated that he held the rank of captain for

“about four and a half years” before he earned the rank of major

“about three and a half, four years” before his deposition which

was taken on January 30, 2025. Toney Dep. at 16:1-9.

MOCC “had a high concentration of COVID-19, with over 134 active

cases and a further 42 people in quarantine.” See Preliminary

Declaration Regarding COVID-19 Quarantine Procedures, William

Weber, MD, Jan. 15, 2025, ECF No. 86-1 (“Dr. Weber Report”) at

2. In July 2020, there were two deaths related to COVID-19 at

MOCC. Id. n. 4. MOCC would see four additional deaths related

to COVID-19 in September 2020, followed by another two in

October 2020. See id. (citing report from West Virginia

Department of Health and Human Resources, Inmate deaths

confirmed or possibly related to COVID-19 as of February 9,

2022).

On September 7, 2020, plaintiff attempted to escape

from MOCC. See Lowe Dep., ECF No. 88-7 at 22:18-24, 23:1-15;

85:22-23. Maintaining that he was “consumed” by paranoid

schizophrenia, which led him to believe he “was going to be

killed” if he did not leave MOCC, plaintiff “tried to cut a hole

in the fence in the rec yard to escape.” Id. at 22:18-23.

This was, in fact, plaintiff’s third attempt to escape

MOCC. In addition to his 2020 escape attempt,2 he had previously

2 Plaintiff’s counsel indicates that plaintiff “allegedly”

attempted to escape from prison. Id. at ¶ 17. However,

plaintiff admitted in his deposition that he attempted to escape

when he volunteered, “Yeah, I tried to escape.” Lowe Dep., ECF

No. 88-7 at 85:22-23. Accordingly, the court accepts his

admission and removes any reference to the escape as “alleged.”

attempted to escape in 2007 and 2012. Id. at 21:1-23. To

effectuate both his escape attempts in 2012 and in 2020,

plaintiff created and placed a dummy in his bed “to pass count.”

Id. at 22:2-7; Toney Dep. Tr., ECF No. 88-6 at 49:1-14.

Defendant Toney testified that because the rec yard

contains “a pretty robust barbed wire system” and “a fence you

have to cut,” and because inmates are “strip-searched to come

out of their cell,” defendant Toney “didn’t think it was

possible” for someone to attempt to escape from the Quilliams 2

rec yard — it was something he “never anticipated.” Id. at

45:17-24, 46:1-7. Moreover, the dummy plaintiff had

constructed, in addition to plaintiff’s disciplinary reports

detailing a repeated history of possessing contraband,3 gave

defendant Toney pause. “Just with the history and things that

had happened in the past, I didn’t know. Did he have help? Did

3 The record contains disciplinary reports against plaintiff for

“Hate/Gang Activity,” “Possession of Weapons (Edged Weapons),”

“Contraband,” and “Escape,” with one report dated June 30, 2017,

two reports dated July 6, 2017, and two reports dated July 12,

2017. See Disciplinary Incident Reports, ECF No. 88-8. A

document entitled “Evidence/ Property Seizure Report,” dated

July 6, 2017, shows that contraband including a “CRKT folding

knife, silver/gray in color, approximately 6-inch length” was

discovered hidden “in a bottle of Velveeta cheese” in

plaintiff’s “cell/bunk” during a search. Id. Another evidence

report, also dated July 6, 2017, describes that a “bit driver”

was discovered in plaintiff’s cell. Id. Photos of the

described contraband are also contained in the record. Id.

he have assistance?” Id. at 46:15-16. Defendant Toney

testified that, following plaintiff’s escape attempt on

September 7, 2020, he “wanted [plaintiff] in the most secure

place I could put him, and that was where he went was behind the

glass.” Id. at 46:16-18.

Quilliams is a higher-security unit within MOCC

commonly referred to by inmates and prison officials as “Q.”

See Ames Dep., ECF No. 88-5 at 45:23-24, 46:1-8. The Q unit is

a two-story unit lined with individual cells where inmates are

housed individually, and the floors are referred to as “Q-1” and

“Q-2.” Id. at 45:23-24, 47:16-24. Each floor contains one

shower, which the inmates share. Id. at 82:18-24. The Q unit

as a whole is a higher-security portion of MOCC. Id. at 48:2-

18. Pod 6 is “a more secured area within the Quilliams 2

Unit[,]” because “for an officer to enter into that unit, from

going into the front door to go into the inmate’s cell, you’re

going through a series of three doors,” the second of which is a

“door to go in behind the glass unit.” Id. at 49:3-11. For

this reason, the Pod 6 section of Q-2 is commonly known as

“behind the glass.” Id. at 48:22-24; Lowe Dep., ECF No. 88-7 at

23:2-6, 24:4-18.

Each cell in Pod 6 contains its own individual toilet

and sink, and inmates are escorted to and from their cells only

with correctional officer escorts, including to take showers.

See Ames Dep., ECF No. 88-5 at 49:2-11, 51:1-52:24. Defendant

Ames testified that inmates “can’t go to the shower by

themselves – they have to be physically taken[.]” Id. at 52:23-

24. Pod 6 was used as a disciplinary unit both before and

during the COVID-19 pandemic. Id. at 50:13-24, 51:21-24, 52:1-

15. During the COVID-19 pandemic, the Q-2 Unit as a whole was

being used to quarantine, for 14 days, new inmates who were

transferred to MOCC for disciplinary violations at other

facilities. Id. at 50:23-24, 51:1-13. Additionally, Captain

Toney testified that inmates within the Quilliams Unit who

tested positive for COVID-19 were, at some unspecified point

early in the pandemic, taken to Pod 6 for isolation. See Toney

Dep., ECF No. 88-6 at 38:14-20. Superintendent Ames “can’t

remember if that’s what we did or not,” but stated that “it’s

possible.” Ames Dep. at 87:10-14. Plaintiff, who was behind

the glass as of September 7, 2020, appears to have been there in

Pod 6 with at least one inmate in Quilliams who tested positive

for COVID-19 and was moved to Pod 6 for isolation. See

Grievance of Brandon Long, ECF No. 86-7 at 4 (“On Friday August

28th [2020] I was tested for COVID-19 and on Sunday August 30th

[2020] the C.O. come to my cell (Q1-601) and told me I tested

positive and had to be moved to quarantine on Q2-604 behind the

glass.”).

Over plaintiff’s alleged protest, the parties agree

that plaintiff was “physically moved from the security wing to

Pod 6.” Defs.’ Answer to Third Am. Compl. ¶ 23. The parties

also agree that “[b]ecause Mr. Lowe was being forcefully

relocated, his move from the security wing to Pod 6 was filmed

on a handheld video camera.” Third Am. Compl. ¶ 24. While he

was being moved, the parties agree that Mr. Lowe pointed out to

the video camera operator that the officers moving him were

dressed in personal protective equipment (PPE) and were all

wearing masks, but that Mr. Lowe was not provided with a mask or

any other protective gear. Id. ¶ 25.

In response to the COVID-19 pandemic, MOCC implemented

various policies and orders, all of which were distributed by

WVDCR to address and combat the spread and effect of the virus.

See Operations and Procedure Orders, ECF Nos. 86-1, 86-2, 86-3,

86-4. The policies and orders were updated from time to time

throughout the pandemic to address the changing WVDCR guidelines

and directives regarding COVID-19. Id.

One such directive from WVDCR to “[a]ll facilities and

work units within the Division[,]” including MOCC, dated March

20, 2020, and entitled Policy Directive 337.00, instructed that

a control measure to prevent the spread of COVID-19 was to

separate incarcerated individuals who were sick with viral

infection symptoms away from other incarcerated individuals in

the general population. See Policy Directive 337.00, ECF No.

88-2. The policy directive instructed,

A critical infection control measure for pandemic

viral infection is to promptly separate incarcerated

individuals who are sick with viral infection symptoms

away from other incarcerated individuals in the

general population. Incarcerated individuals can be

isolated in private rooms. Alternatively, groups of

sick incarcerated individuals can be cohorted together

in a separate unit.

***

No special air handling is needed.

Id. at 10.

Policy Directive 337.00 further stated that quarantine

units should ideally have attached bathrooms, but if not, then

incarcerated individuals would have to wear face masks to use

the bathroom outside of the room. Id. The policy also

instructed that “[t]o minimize the likelihood of disease

transmission, persons who are isolated or cohorted should wear a

face mask while isolated[,]” and “[f]ace masks should be

replaced as needed.” Id. The policy directive established

various other measures to control the spread of COVID-19,

including, for example, increasing frequency of cleaning, (id.

at 6); supplying inmates and staff with supplies for handwashing

and hand sanitization, (id.); promoting and educating on good

health habits, (id. at 5); and providing Personal Protective

Equipment (“PPE”), (id. at 8-9).

Another policy from WVDCR with the subject “Epidemic

and Pandemic Outbreak Precautions and Procedures,” and dated

March 23, 2020, instructed that it applied to “all facility

employees and to the inmate general population.” Policy

Directive 411, ECF No. 88-3 at 1. The policy continued under

the heading “Procedure” that employees should “[i]dentify and

[l]ist possible locations for isolation and quarantine,” that

“[i]solation and quarantine rooms do not require special air

handling,” and “[i]deally, these rooms have an attached

bathroom. (If not, inmates must wear a mask while outside the

isolation or quarantine room.)” Id. at 3.

Defendant Ames, who oversaw the handling of COVID-19

at MOCC, issued memoranda to MOCC employees establishing relaxed

hygiene product limits, new “Rec Yard Procedures,” internal

COVID-19 testing protocols, and new daily schedules for prison

units. See Memoranda, ECF No. 88-4. The memoranda are dated

April 3, 2020, August 12, 2020, September 10, 2020, October 7,

2020, and December 1, 2020, respectively. Id. The April 3,

2020 memorandum, issued by defendant Ames, directed that

“considering the State of Emergency concerning the COVID-19

Virus, cell limits on personal hygiene items have been relaxed.

Quilliams Inmates may order above cell limits of items such as

soaps, shampoo and other cleaning items within reason.”

Memorandum, April 3, 2020, ECF No. 88-4.

The various policies also stressed the importance of

frequently cleaning “high touch” surfaces, such as the showers

shared by inmates. While the defendants do not define “high

touch” surfaces, the Operational Procedure defines “high touch

surfaces” as “surfaces that are frequently touched and therefore

can become contaminated with germs.” See Operational Procedure,

ECF No. 86-3 at 7 (dated March 23, 2020). With respect to “high

touch” surfaces, each Unit was to develop a Housekeeping Plan

designating those individuals (i.e. inmate workers) who

would be responsible for performing these tasks. At a

minimum, those assigned individuals shall be required to

clean high-contact areas within there [sic, their] are

[sic, area] of responsibility no less than three (3) times

during every eight (8) hour period.

Id.

Plaintiff has recently retained William Weber, MD,

MPH, as an expert to review WVDCR and MOCC COVID-19 policies and

procedures. Dr. Weber submitted a report dated January 15,

2025. See Dr. Weber Report. Dr. Weber concluded in his 2025

report that MOCC policy encouraged isolation of COVID-19-

positive inmates, and that “housing a patient with no known

exposure to COVID-19 in close proximity to patients who were in

isolation and/or quarantine for COVID-19, puts the patient at

needless risk for COVID-19 infection.” Id. at 4. He also noted

in his report that

people could be exposed to bodily substances or respiratory

particles if they showered in quick succession without

cleaning the shower area. This type of situation would be

the opposite of the ‘separation of the sick from the well.’

Such a situation would place people at needless risk of

contracting COVID-19.

Id. at 3.

Defendant Toney recalled that after being placed in

Pod 6 on September 7, 2020, plaintiff filed a grievance dated

September 10, 2020, stating,

On Monday, September 7, 2020 around 11 p.m. I was

informed . . . that Captain Richard Toney

unequivocally knew that behind the glass (Pod 6) was

being used as quarantine for inmates who either tested

positive for COVID-19 or were suffering from symptoms

of the virus. Despite that knowledge, Capt. Toney

forcefully had me placed behind the glass with inmates

that were positive for COVID-19.

See Toney Dep., ECF No. 88-6 at 47:14-20; Grievance of Keith

Lowe, ECF No. 86-8 at 5-6. Plaintiff testified that he filed

his grievance because “Larry Cantrell come in from another

regional jail and said he felt sick and was positive and they

put him back there.” See Lowe Dep. Tr., 32:24; 33: 1-2.

Defendant Toney confirmed that the grievance reflected his

signature. See Toney Dep. Tr. at 47: 21-23. In signing, Toney

responded “Due to your recent escape attempt I am forced to

place you in the most secure location that I have.” Grievance

of Keith Lowe, ECF No. 86-8 at 5-6. Defendant Ames also

acknowledged receipt of the grievance and responded “You are

housed in our most secure housing due to your recent and second

escape attempt. We are doing all we can to stop the spread of

COVID. Also the cell you were placed into was cleaned before

you [illegible].”4 Id.

Other inmates being held in Pod 6 filed similar

grievances. On September 28, Benjamin Marcum filed a grievance

complaining that

Capt. Panick come to my cell in Pod 4 cell #1 and moved me

to cell #1 in Pod 6 even though inmates who were behind the

glass had tested positive for COVID-19 and some were still

in quarantine and I have experienced the following:

diarrhea, vomiting, my bones and joints hurt so bad I can

barely move, shortness of breathe [sic] and a persistent

cough. I feel my move was done with the knowing intent on

making me sick due to my recent use of force and the fact

that my family has steady called here over my living

conditions . . . .

Grievance of Benjamin Marcum, ECF No. 86-7 at 2. Captain Toney

confirmed his receipt of the grievance on September 29, 2020,

4 The superintendent’s signature is illegible on the grievances,

but each grievance includes a signature of a superintendent that

is presumably that of Defendant Ames. See id. The grievance

forms do not require signature by the commissioner, whose name

is unclear from the record, but instead include a section

entitled “Action by Commissioner” with options for the

commissioner to mark to indicate whether the grievance has been

accepted or rejected, and the reason for the decision. See id.

and responded that “you were placed behind the glass due to

causing a disturbance in Pod 4. There was no one on quarantine

when you were placed in your cell. You will be moved shortly.”

Id. Defendant Ames also responded, “When you create

disturbances you will be housed ANYWHERE that is deemed

appropriate.” Id. Neither defendant Toney nor defendant Ames

indicate whether Marcum would be tested for COVID-19.

Terrel Davis arrived at MOCC from another facility on

August 21, 2020, whereupon he was placed behind the glass for

quarantine. See Greivance of Terrel Davis, September 1, 2020,

ECF No. 86-7 at 7. On September 26, 2020, he filed a grievance

complaining that, although his 14-day quarantine period had

ended, he was still being housed in Pod 6 and “was exposed to

inmates who either tested positive for COVID-19 or who were

showing symptoms.” Grievance of Terrel Davis, 2020, ECF No. 86-

7 at 6. “As a result to [sic] Captain Toney’s continued

indifference[,]” he continues, “I was exposed to COVID-19 and

got sick.” Defendant Toney responded on September 29, 2020,

“You were placed in your current cell due to security reasons.

You have been tested 2 times, and you were negative each time.”5

5 The record indicates that Terrel Davis was tested for COVID-19

sometime between arriving at MOCC on August 21, 2020, and

September 1, 2020, when he filed a grievance stating “I

transferred here to Mt. Olive from eastern regional jail on Aug

21, 2020. Upon arrival was placed on fourteen-day quarantine.

Id. Defendant Ames also responded on the same day, “You are

behind the glass due to your negative behavior. You can be

housed anywhere that is deemed appropriate.” Id.

Upon receiving this response, Terrel Davis filed a

grievance a day later on September 30, 2020, complaining that he

was “exposed to people who either tested positive for COVID or

who were showing signs of COVID unnecessarily,” though he does

not state who those people are. Grievance of Terrel Davis, ECF

No. 86-7 at 5. Captain Toney responded, “Your actions at ERJ

placed you in the cell you are in now.” Id. Defendant Ames

likewise responded, “Due to your actions at another facility you

must be housed in the most secure housing possible. The free

public has [sic] and is exposed to persons that test positive

for COVID.” Id.

Additional grievances filed by both plaintiff and

other inmates reflect concern over contracting COVID-19 due to

the state of Pod 6’s showers. Defendant Toney confirmed his

receipt of and signature on a second grievance filed by

plaintiff dated September 14, 2020, wherein plaintiff stated,

Capt. With all due respect, I had to shower barefoot last

night in a shower stall that has not been cleaned since who

knows when. It’s the worst I’ve ever seen it, the walls

Since then I have been tested for COVID-19 and my test has come

back negative . . . .” Grievance of Terrel Davis, ECF No. 86-7

at 7.

have spit, snot and scum on them. I’m dead serious come

look for yourself. I showed Ms. Stephanie from mental

health. The guy next to me opens the shower, who has

symptoms of COVID-19, blows his nose hacks and washes his

face and mouth, so then he comes out of the shower and then

I get put in the same shower stall without it getting

cleaned . . . there is 20-30 fruit nats [sic, gnats] around

in the shower seriously this ain’t right. I just want the

shower cleaned on a regular basis I would be glad to clean

it myself.

Grievance of Keith Lowe, ECF No. 86-8 at 3. Defendant Toney

replied on September 18, 2020, that “[t]he unit schedule has

been adjusted to provide extra cleaning.” Id. Defendant Ames,

referring to defendant Toney’s response, responded “See above

response.” Id. The record does not otherwise indicate whether

the cleaning schedule was adjusted.

Plaintiff filed a third grievance, dated September 15,

2020, wherein plaintiff stated,

After forcing me to be housed in quarantine behind the

glass, Capt. Toney further placed me in a cell 602, which

had not been cleaned for a long time, there was and still

is feces smeared on the wall and by the door frame, crude

[sic] in the toilet which smells of urine, pubic hairs and

other “dust bunnies” liter the floor. Since Sept. 7, 2020,

I have repeatedly asked for cleaning supplies, a broom and

a mop, on a daily basis, most CO’s tell me you gotta ask

Capt. Toney, we can’t give you anything, another CO told me

“that’s what happens when you try to escape” and “I should

have thought about that before I tried.”

Grievance of Keith Lowe, ECF No. 86-8 at 4. Defendant Toney

confirmed his receipt of the grievance eight days later, on

September 23, 2020, when he signed the grievance and responded,

“you will be provided with cleaning supplies.” Id. Defendant

Ames, referring to defendant Toney’s response, responded “See

above response.” Id.

On September 20, 2020, plaintiff filed a fourth

grievance, wherein he stated

Captain Toney this grievance is filed due to you using

force on me 9/7/2020 which was against my Constitutional

right to be free from cruel and unusual punishment when you

forced me to be moved behind the glass in quarantine with

other inmates who were infected with and tested positive

for the COVID-19 virus, exposing me to catch COVID-19. Why

would you do that Capt? I don’t understand. You made me

sick.6 Did someone make you put me behind the glass? If so

who?

Grievance of Keith Lowe, ECF No. 86-8 at 1. Defendant Toney

confirmed receipt of the grievance on September 23, 2020. Id.

Defendant Ames responded, “Moving you and changing your housing

is NOT force. You can be moved at any time anywhere that is

deemed appropriate.” Id.

On November 2, 2020, plaintiff filed a fifth

grievance, wherein he asked

Capt. Toney. Really? [H]ow can you continue to use or

have inmates back here on “quarantine,” dude on B side

said he just was sick from COVID-19, now here you go

again putting inmates around other inmate who tested

positive for COVID-19, on top of that the showers are

not being cleaned much less sanitized. Why Capt. Toney

why? Quarantine/Punishment, how does that go together.

Don’t make sense.

6 Plaintiff’s handwriting makes it difficult to tell whether he

wrote “you made me sick” or “you make me sick.”

See id. at 50:22-24, 51:1-4; Grievance of Keith Lowe, ECF

No. 86-8 at 2. Defendant Toney confirmed his receipt of

the grievance seven days later on November 9, 2020, when he

responded “No inmates at MOCC are positive for the virus.

You are not in quarantine. Id. Defendant Ames responded,

“See above response.”7

Defendant Toney also signed off on various grievances

filed during this time by other Quilliams inmates complaining of

COVID-19 exposure and unclean showers, at least one of whom

claims to have been confirmed positive for COVID-19. On

September 2, 2020, Brandon Long filed the following grievance:

On Friday August 28th I was tested for COVID-19 and on

Sunday August 30th the C.O. came to my cell (Q1-601) and

told me I tested positive and had to be moved to quarantine

on Q2-604 behind the glass. Then the nurses tell me that

my test got mixed up with another inmate with the same

name. So, I’ve been behind the glass with positive cases

quarantined when the whole time I’m negative. I’ve been

7 A report published by the West Virginia Department of Health

and Human Resources on November 15, 2020, shows that, by this

date, MOCC had zero active COVID-19 cases and zero tests pending

for a population of 1000. See West Virginia Department of

Health and Human Resources, COVID-19 testing, W. Va Division of

Corrections and Rehabilitations As of 3 p.m., Nov. 15, 2020,

https://dhhr.wv.gov/COVID-19/Documents/COVID19_DCR_2020_11-

15_corrected.pdf. The report cited by Dr. Weber, published on

February 9, 2022, shows that in the two months prior, MOCC saw

six deaths related to COVID-19, with four in September 2020, and

two in October 2020. See Dr. Weber Report at 2, n. 4; West

Virginia Department of Health and Human Resources, Inmate deaths

confirmed or possibly related to COVID-19 as of February 9,

2022.

showering after these people and not once has the shower

been cleaned or disinfected in a week.

Grievance of Brandon Long, ECF No. 86-7 at 4. Defendant Toney

responded to Long’s grievance on September 8, 2020, and stated

that “I have talked to medical + they have informed me that your

test was not mixed up with anyone else.” Id. Defendant Ames,

referring to defendant Toney’s response, likewise responded,

“See above response.” Id. The court understands the

defendants’ response to mean that Long’s original positive

COVID-19 test was correct and that he was subsequently moved to

Pod 6, cell #604, for isolation. Plaintiff was housed in Pod 6,

cell #602. See Grievance of Keith Lowe, ECF No. 86-8 at 4.

On August 22, 2020, Todd Boyes filed a grievance

requesting that someone “Please clean showers with bleach to

kill ‘Covid’ showers are dirty and have been dirty, everyone

shares the showers they should be cleaned every shower day with

bleach”). Grievance of Todd Boyes, ECF No. 86-7 at 8.

Defendant Toney signed off on August 24, 2020, noting that

“germicidal is effective against COVID-19.” Id. Defendant Ames

also acknowledged receipt of the grievance. See id.

Defendant Toney testified that he was unaware whether

plaintiff had tested positive or been exposed to COVID-19 prior

to his disciplinary placement behind the glass. See Toney Dep.,

ECF No. 88-6 at 51:11-15. He further stated that he had no

concerns about placing an inmate who did not have COVID-19 in

Pod 6, regardless of whether other inmates housed there were

infected with COVID-19, because the inmates were housed in

separate cells. See id. at 51:16-24, 52:1-9. Regarding

plaintiff specifically, defendant Toney stated that he was not

concerned about placing plaintiff in Pod 6 inasmuch as plaintiff

“was in that cell by himself.” Id. at 52:8-9. Defendant Ames

likewise testified that COIVD-positive and COVID-negative

inmates “wouldn’t really have been mixed because they’re in a

single cell by themselves.” Ames Dep. Tr. at 52:3-7. He

further testified that “as far as them having contact with each

other and touching each other and exchanging accidental bodily

fluids, that can’t happen.” Id. at 72:22-24.

Defendants Toney and Ames both stated that they were

unsure whether individuals who tested positive for COVID-19 were

being housed in isolation or in quarantine on Pod 6 at the time

plaintiff was placed there. See Toney Dep. Tr. at 51:20-24,

52:1; Ames Dep. Tr. at 87:10-14.8 As previously noted, however,

8 Defendant Toney did not distinguish between “isolation” and

“quarantine” and used those words interchangeably when

describing the prison’s COVID-19 response. See id. When asked

to define “isolation” and “quarantine,” Defendant Ames stated in

his deposition, “Isolation is you test positive and you’re going

to be isolated in your cell, and if you’re in the Quilliams

Unit, you’re going to be in a single cell because it’s only

single cells in the Quilliams 2 Unit.” Ames Dep. at 83:9-13.

He went on to explain that “quarantine” applied to people who

the record indicates that on September 2, 2020, defendants Toney

and Ames had signed off on Brandon Long’s grievance, confirming

that Mr. Long was positive for COVID-19, that his positive test

was not mixed up with anyone else’s, and that he was

subsequently moved from Q1 to Pod 6 for isolation. See

Grievance of Brandon Long, ECF No. 86-7 at 4.

Regarding the showers, Defendant Ames testified that

inmates in Pod 6 were housed individually, and though showers

were shared, they were used separately by inmates who were

escorted individually by corrections officers to use them. See

Ames Dep. Tr. at 52:21-24. He explained, “any inmate who was on

quarantine or if they were there [behind the glass] for

isolation, if they were taken to the shower, they were given

their shower, and then once they’re put back up, the shower is

to be cleaned before the next inmate is showered or before

anybody else goes in there.” Id. at 81:16-21. When asked “Do

you have any way of knowing for certain that the showers at this

time, say, September of 2020, were being cleaned in the way you

described that they were supposed to be?”, defendant Ames

responded “Do I have proof? No, I did not physically see it.”

Id. at 87:23-24, 88:1-4.

had been exposed to COVID-19 but tested negative for the virus.

Id.

Defendant Toney was not asked this question but had

the following exchange when asked about the shower procedure in

Pod 6:

Q: So, if you had an inmate who was on Q2 who tested

positive [for COVID-19], where would they go to shower?

A: They’d go to the shower. To the best of my – if I

remember correctly, they would either be first or last,

because that shower would have to be cleaned. The showers

were cleaned. We had a – oh, God, I don’t want to guess.

We had a green gun that we used to spray all over the

place.

Toney Dep. Tr., ECF No. 88-6 at 40:9-16.

Plaintiff further testified that the cell in which he

was placed in Pod 6 was not cleaned, had feces and urine in the

toilet and, according to his grievance, feces smeared on the

wall, contained items belonging to the previous resident, and

that he was not provided with cleaning supplies. See Lowe Dep.

Tr. at 24:4-18. Plaintiff filed a grievance dated September 15,

2020, about the condition of his cell, noting the “feces smeared

on the wall and by the door frame” and that his repeated

requests for cleaning supplies remained unfulfilled. See

Grievance of Keith Lowe, ECF No. 86-8 at 4. On September 23,

Captain Toney responded “[y]ou will be provided with cleaning

supplies.” Id. It is otherwise unclear from the record if and

when plaintiff received these cleaning supplies, but the record

suggests that his cell remained in this condition from at least

September 7, 2020, when he was placed there, to September 23,

2020, when defendant Toney responded to his September 15

grievance.

Plaintiff testified that soon after he was placed

behind the glass on September 7, 2020, he began experiencing

symptoms of COVID-19. See Lowe Dep., ECF No. 88-7 at 30:11-15.

Plaintiff stated that he had most recently been tested for

COVID-19 sometime in August 2020, prior to being moved behind

the glass, and that his test result was negative. Id. at 82:15-

19.

Plaintiff stated that he “never had any effects or

sick [sic] from COVID until September 7th, or something around

there, 10th or something when I was placed behind the glass is

when I started getting diarrhea.” Lowe Dep., ECF No. 88-7 at

30:11-15. He testified that, in part for this reason, he

believes he contracted COVID after being placed behind the

glass. See Lowe Dep., ECF No. 88-7 at 32:1-4. Dr. Weber

concluded in his report that diarrhea is a symptom of COVID-19.

See Dr. Weber Report at 4.

Plaintiff testified both that he believed he was

suffering from COVID-19 and to his belief that he suffered

symptoms of “long COVID.” See Lowe Dep., ECF No. 88-7 at 32:5-

24; 33:11-21. Plaintiff added that he “periodically continued

to have symptoms on and off of COVID throughout – I mean, every

bit of a year while I was behind the glass.” Id. at 32:15-18.

Plaintiff further testified that “[d]uring my time [behind the

glass] in September, October, I was asking to be tested on a

daily basis, anybody who would listen to me[,]” and that from

September 2020 to March 2021, he never received a test for

COVID-19. Id. at 33:14-16; 82:12-16.

Defendant Toney testified that he recalls plaintiff

reporting to him that plaintiff felt ill while he was in Pod 6.

See ECF No. 88-6, Toney Dep. Tr. at 80:21-24. He further

testified that “any time an inmate tells them [sic] they’re

sick, especially back then with COVID, it always went to

medical.” Id. at 81:5-7. When asked if he recalled whether

plaintiff went to medical after complaining of COVID-19

symptoms, defendant Toney responded, “No. Actually, medical

probably came down and talked to him.” Id. at 81:11-12. The

record does not indicate whether this occurred or whether

defendant Toney reached out to medical on plaintiff’s behalf.

When asked if he ”recall[ed] ever directing anybody from medical

not to test an inmate[,]” defendant Toney answered “No.” Id. at

77:18-20. Neither defendant has claimed that plaintiff was

tested before March 2021, nor have they produced any evidence to

this effect. When plaintiff was finally tested for COVID-19,

which he maintains was sometime in March 2021, the test returned

a negative result. See Lowe Dep. ECF No. 88-7 at 82:12-20.

There is no suggestion in the record that defendant Ames was

aware of plaintiff’s repeated requests for testing, and Ames has

testified that he does not know of any reason why an inmate

reporting symptoms would not be tested. See Ames Dep. Tr. at

72:3-5.

Significantly, Dr. Weber stated in his report that

Testing is an important public health measure to reduce the

risk of infectious disease transmission in a congregate

living space such as a correctional facility. Testing can

help determine whether a patient is indeed infected,

facilitating isolation of the sick and quarantine of the

exposed. Testing also provides better statistics about

disease prevalence that can guide decisions about

lockdowns. A memo circulated on 6/1/2020 noted that all

DCR prisons and jails were beginning onsite COVID-19

testing.

XXX

In September 2020, patients who reported symptoms of COVID-

19 such as chest pressure, body aches, difficulty

breathing, or diarrhea should have received prompt testing

for COIVD-19. Failing to do so without clear rationale

would violate facility policy as well as generally-

recognized public health practice to reduce the spread of

infectious disease. If testing was available, failing to

test for COVID-19 would fall below the medical standard of

care, especially in a congregate setting.

Dr. Weber Report at 4.

B. Procedural History

Plaintiff filed the original complaint pro se dated

September 28, 2022, and filed with the Clerk on October 5, 2022.

ECF No. 1. On December 7, 2023, with leave of the court,

plaintiff, still proceeding pro se, filed an Amended Complaint

to which he attached an affidavit. See ECF No. 27 (“First Am.

Compl.”). On February 21, 2024, after counsel was appointed for

plaintiff, and with leave of the court, plaintiff’s counsel

filed on his behalf a Second Amended Complaint. See ECF No. 39

(“Sec. Am. Compl.”).

Defendants filed on March 6, 2024, a motion to dismiss

the Second Amended Complaint, (ECF No. 40), along with a

memorandum of law in support thereof, (ECF No. 41). Plaintiff,

by counsel, responded in opposition to the motion on March 20,

2024. ECF No. 42.

On June 28, 2024, the court entered a now-vacated

memorandum opinion and order, (ECF No. 59, (“Vacated Order”)),

and judgment order, (ECF No. 60), granting defendants’ motion to

dismiss on statute of limitations grounds. The court granted

the motion on the basis that the West Virginia statute of

limitations, deemed applicable for section 1983 actions, is two

years, see W. Va. Code § 55-2-12, and the plaintiff, in his

amended complaint as of that time, failed to “place one or more

of [defendants’ violations] within the statutory limitation

period. Vacated Order at 24 (citing DePaola v. Clarke, 884 F.3d

481, 484-85, 487 (4th Cir. 2018)).

The court otherwise concluded that plaintiff had pled

“enough facts to state a claim that is plausible on its face.”

Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58

(2006)). Specifically, the court concluded at the then motion

to dismiss stage that the defendants had not shown at that

juncture that they were entitled to qualified immunity, but that

plaintiff’s claims must nevertheless be dismissed inasmuch as he

failed to allege any continuing or ongoing deprivation of

plaintiff’s Eighth Amendment rights that occurred within two

years prior to the date the original complaint was filed. Id.

at 27, 34.

Plaintiff filed on July 26, 2024, a motion under Rule

60 (b)(1) of the Federal Rules of Civil Procedure to alter or

amend judgment, noting that plaintiff’s counsel, due to mistake,

inadvertence, surprise, or excusable neglect, omitted a date in

the second amended complaint that plaintiff had in fact included

in his pro se first amended complaint that alleged harm within

the limitations period. See Order, ECF No. 61.

In the Second Amended Complaint filed by plaintiff’s

newly appointed counsel, the last date complained of occurred on

September 20, 2020, which placed plaintiff’s harm outside the

operative limitations period. See ECF No. 59 (citing Second Am.

Compl.). However, in an affidavit that was incorporated into

plaintiff’s pro se First Amended Complaint, plaintiff stated

that on November 2, 2020, he had filed a grievance regarding his

continued housing behind the glass and that defendants continued

to use Pod 6 as a COVID-19 quarantine unit. Id. at 2 (citing

First Am. Compl., ECF No. 27-1 at ¶ 53.) Inclusion of the

November 2, 2020, date, if proven, would place plaintiff’s

complained-of harm within the limitations period.

In the motion to alter or amend judgment, plaintiff’s

counsel argued that inclusion of the November 2, 2020

allegation, which plaintiff himself had alleged pro se, likely

would have resulted in a different outcome in the court’s

analysis of the statute of limitations imposed on plaintiff’s

claims. Id.

The court granted plaintiff’s motion to alter or amend

under Rules 60(b)(1) and 59(e) by memorandum opinion and order,

(ECF No. 64 (“Rule 60(b)(1) Order”)), and judgment order, (ECF

No. 65), entered on November 5, 2024. The court ordered

vacation of its previous memorandum opinion and order, see

Vacated Order, and judgment order, (ECF No. 60), set a schedule

for the case to proceed, and permitted the plaintiff to file a

third amended complaint. See Rule 60(b)(1) Order. The

plaintiff, by counsel, filed his Third Amended Complaint on

November 27, 2024, in which the previously omitted allegation on

the date of November 2, 2020, was included. See Third. Am.

Compl. The defendants filed an Answer to the Third Amended

Complaint on December 6, 2024. ECF No. 71 (“Defs.’ Answer”).

The parties proceeded through discovery, and each

filed their respective dispositive motions for summary judgment

that are now ripe for adjudication.

II. LEGAL STANDARD

A party is entitled to summary judgment “if the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Material facts are

those necessary to establish the elements of a party’s cause of

action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

A genuine issue of material fact exists if, in viewing

the record and all reasonable inferences drawn therefrom in a

light most favorable to the non-moving party, a reasonable

factfinder could return a verdict for the non-movant. Id. The

moving party has the burden of showing - “that is, pointing out

to the district court - that there is an absence of evidence to

support the nonmoving party’s case.” Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). If the movant satisfies this burden,

then the non-movant must set forth specific facts as would be

admissible in evidence that demonstrate the existence of a

genuine issue of fact for trial. Fed. R. Civ. P. 56(c); id. at

322-23. A party is entitled to summary judgment if the record

as a whole could not lead a rational trier of fact to find in

favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991).

III. ANALYSIS

A. Statute of Limitations

Neither party in its motions for summary judgment or

the briefing thereon addresses the statute of limitations issue

that was the basis of the court’s now-vacated order granting

defendants’ motion to dismiss. See Vacated Order. It is noted

that the defendants do provisionally list the statute of

limitations as an affirmative defense in their answer to the

operative amended complaint. See ECF No. 71 at 14.

In the Rule 60(b)(1) Order, the court acknowledged its

prior conclusion that a two-year statute of limitation applied

to plaintiff’s claims under W. Va. Code § 55-2-12, and the

plaintiff failed to “place one or more of [defendants’

violations] within the statutory limitation period.” See Rule

60(b)(1) Order at 1-2 (citing Vacated Order at 24). Inasmuch as

the latest date of alleged harm contained in plaintiff’s Second

Amended Complaint occurred on September 20, 2020, plaintiff’s

alleged harm would have occurred outside of the limitations

period. See Vacated Order at 23-34.

The court recognized that plaintiff’s pro se first

Amended Complaint contained an affidavit in which plaintiff

alleged that he had filed a grievance against defendants on

November 2, 2020, alleging continued harm, but plaintiff’s

counsel failed to include that allegation and date in the Second

Amended Complaint. See Rule 60(b)(1) Order at 1-2 (citing First

Am. Compl., ECF No. 26). The court explained, “This allegation,

if proven, and if established that plaintiff was still confined

at the time when he filed the grievance, would place plaintiff’s

alleged injury within the limitations period.” Id. at 2.

As noted, neither party has addressed this issue in

the motions for summary judgment or related briefing.

Nevertheless, the court concludes, upon review of the record,

that the record supports the conclusion that plaintiff was still

confined in the Quilliams Unit on November 2, 2020. Plaintiff

provided the grievance reflecting the November 2, 2020 date as

an exhibit to his motion for summary judgment, (ECF No. 86-8 at

2), and plaintiff stated in his deposition that he remained

behind the glass for “every bit of a year,” (Lowe Dep. at 32:17-

18). Taken together with the undisputed fact that he was placed

behind the glass on September 7, 2020, the record supports that

plaintiff remained on Pod 6 on November 2, 2020.

Accordingly, the court concludes that plaintiff has

shown continued harm on November 2, 2020, which placed his

complaint within the two-year limitations period.

B. Official Capacity Claims

Plaintiff has sued defendants in their official

capacities and “seeks whatever equitable relief this Court deems

appropriate, such as but not limited to, any injunctive and

declaratory relief.” See Third Am. Compl. at 13. While the

Eleventh Amendment to the United States Constitution ordinarily

bars federal courts from entertaining suits against individual

states, federal courts may award injunctive and declaratory

relief from state officials whose actions run afoul of

controlling federal law. See Ex parte Young, 209 U.S. 123

(1908). “In determining whether the doctrine of Ex parte Young

avoids an Eleventh Amendment bar to suit, a court need only

conduct a ‘straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective.” Verizon Maryland, Inc.

v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002)

(quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,

296 (1997) (O'CONNOR, J., joined by SCALIA and THOMAS, JJ.,

concurring in part and concurring in judgment)).

Plaintiff in this case has not alleged any ongoing

violations of federal law. His claims relate to actions taken

by defendants during the COVID-19 pandemic in the years 2020-

2021, and he has not alleged, for example, that he continues to

be exposed to a heightened risk of contracting COVID-19, or that

he was denied access to COVID-19 testing after March 2021.

Inasmuch further as injunctive and declaratory relief has not

been sought, his claims against defendants in their official

capacities appear not to be cognizable.

C. Qualified Immunity

The court turns now to plaintiff’s claims against the

defendants in their individual capacities. Plaintiff claims

that he is entitled to relief under 42 U.S.C. § 1983 due to

violation by the defendants of the Eighth Amendment to the

United States Constitution inasmuch as plaintiff asserts that

defendants were deliberately indifferent to a substantial risk

of serious harm to plaintiff. See Third Am. Compl. at ¶ 73-79.

Plaintiff argues that he is entitled to summary judgment

inasmuch as, he contends, no genuine issues of material fact

exist regarding defendants’ deliberate indifference to

plaintiff’s health and safety. See Pl.’s Motion for Summ. J. at

1.

Defendants counter that they are entitled to summary

judgment on the defense of qualified immunity inasmuch as, they

contend, their conduct did not violate clearly established law,

and they were not deliberately indifferent. See Defs.’ Motion

for Summ. J. at 1.

The court notes that it previously concluded in its

now-vacated order, at the motion to dismiss stage, that the

plaintiff “pled sufficient facts to allege that defendants acted

with deliberate indifference, satisfying the subjective prong at

this [motion to dismiss] stage[,]” inasmuch as plaintiff had

alleged facts in the then operative amended complaint that would

establish that the defendants were “acutely aware of th[e] risk”

that plaintiff would contract the COVID-19 virus when they

placed him behind the glass. See Vacated Order. The court now,

at the summary judgment stage, reviews the evidence produced to

determine whether either side has established that there is no

genuine issue of material fact on the issue of qualified

immunity.

In a section 1983 claim, the plaintiff must plead and

prove that “each Government-official defendant, through the

official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In

deciding the legal question of whether a reasonable official

would have known that the alleged actions violate “clearly

established” law, a court must determine whether the actions

would infringe “particularized” rights claimed by the plaintiff.

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ruling on a

defense of qualified immunity requires “(1) identification of

the specific right allegedly violated; (2) determining whether

at the time of the alleged violation the right was clearly

established; and (3) if so, then determining whether a

reasonable person in the [official's] position would have known

that doing what he did would violate that right.” Pritchett v.

Alford, 973 F.2d 307, 312 (4th Cir. 1992).

1. Plaintiff had a clearly established right to be free

from unnecessary exposure to COVID-19.

A right is clearly established if existing precedent –

either controlling case law or a “consensus of persuasive

authority” from other Circuits – has placed the question beyond

dispute. Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 544 (4th

Cir. 2017) (citing Taylor v. Barkes, 575 U.S. 822, 825 (2015)).

“It bears emphasizing that ‘the lodestar for whether a right was

clearly established is whether the law gave the officials ‘fair

warning’ that their conduct was unconstitutional.” Pfaller v.

Amonette, 55 F.4th 436 (4th Cir. 2022) (quoting Iko v. Shreve,

535 F.3d 225, 238 (4th Cir. 2008)).

The court must first define the specific right at

issue, inasmuch as the Supreme Court has consistently admonished

that courts are “not to define the clearly established law at a

high level of generality.” City of Escondito v. Emmons, -- U.S.

-- 139 (2018). But the question of whether a right was clearly

established examines not whether “the very action in question

has previously been held unlawful,” but whether, “in light of

the pre-existing law[,] the unlawfulness” of the action was

“apparent.” Wilson v. Layne, 526 U.S. 603, 615 (2009). And the

Fourth Circuit “require[s] less specificity in [the] Eighth

Amendment Context.” Younger v. Crowder, 79 F.4th 373, 386 (4th

Cir. 2023).

The clearly established right claimed in plaintiff’s

Third Amended Complaint is plaintiff’s right to be free from

unnecessary exposure to “[t]he COVID-19 virus [that] created a

substantial risk of serious harm leading to pneumonia,

respiratory failure, or death.” Third Am. Compl. at ¶ 76

(citing Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020))

(additional citation omitted).

Neither the United States Supreme Court nor the Fourth

Circuit has ruled whether COVID-19-negative prisoners had a

right not to be exposed to COVID-19-positive inmates. But the

Supreme Court has held that “prison authorities may not be

deliberately indifferent to . . . a condition of confinement

that is sure or very likely to cause serious illness[.]”

Helling v. McKinney, 509 U.S. 25, 33 (1993). In that case, the

Court found that prison officials had been deliberately

indifferent to an inmate in the Nevada prison system by

assigning him to share a cell with an inmate who smoked five

packs of cigarettes per day. See id. at 28. In so holding, the

Court also clarified that prison officials may not “be

deliberately indifferent to the exposure of inmates to a

serious, communicable disease on the ground that the complaining

inmate shows no serious current symptoms.” Id. at 33.

Using Helling as a guide, three circuits have

concluded that such a right existed, though two did so in

unpublished opinions. See Nazario v. Thibeault, No. 22-1657,

2023 WL 7147386 (2d Cir. Oct. 31, 2023); see Gordon v. Burt, No.

23-1775, 2024 WL 1842873 (6th Cir. Apr. 24, 2024) cert.

denied, 145 S. Ct. 1046, 220 L. Ed. 2d 378 (2025); see Hampton

v. California, 83 F.4th 754 (9th Cir. 2023), cert. denied sub

nom. Diaz v. Polanco, No. 23-722, 2024 WL 2116277 (U.S. May 13,

2024); see also Anderson v. Long, No. 23-1050, 2023 WL 8543932

(10th Cir. Dec. 11, 2023), cert. denied, 144 S. Ct. 1377 (2024)

(declining to decide whether such a right existed, but affirming

the district court’s finding that no constitutional violation

occurred where defendant prison Warden was not aware of

plaintiff’s particular vulnerabilities to COVID-19). Of those

Circuit Court decisions, the Second, Sixth, and Ninth Circuits

analyzed whether the right was clearly established, and all

three found that it was.

In Nazario, the United States Court of Appeals for the

Second Circuit affirmed a district court’s denial of summary

judgment to a defendant prison official, the former Deputy

Warden at Osborn Correctional Institution, on qualified immunity

grounds. See Nazario, No. 22-1657 at *2. As relevant, the

Second Circuit affirmed the district court’s ruling that the

defendant warden was not entitled to qualified immunity where,

in April of 2020, defendant “Thibeault knew of Covid-19-positive

and/or symptomatic inmates in E-Block and disregarded the risk

associated with Nazario’s transfer there.” Nazario v.

Thibeault, No. 22-1657, 2023 at *2 WL 7147386 (2d Cir. Oct. 31,

2023). The court concluded that a clearly established right not

to be exposed to COVID-19 existed under the Helling standard

“that prison officials may not ‘be deliberately indifferent to

the exposure of inmates to a serious, communicable disease[.]’”

Id. (citing Helling, 509 U.S. at 33).

In Gordon, the United States Court of Appeals for the

Sixth Circuit twice vacated and remanded district court orders

granting prison officials’ motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6). See Gordon, No. 23-1775 at *3.

Plaintiff alleged that he contracted COVID-19 in August of 2020.

He alleged that, at this time, defendants, Warden Burt and

Deputy Steward, were “purposefully housing him [in the same

unit] with close contact prisoners,” that the close-contact

prisoners were allowed to access the same areas as the non-

close-contact prisoners, and that the common spaces were not

being sanitized. See Gordon v. Burt, No. 21-1832, slip op. at 9

(6th Cir. August 17, 2022). The district court had held that

the plaintiff had failed to state an Eighth Amendment violation,

finding that “the mere fact that prisoners were housed in

dormitory style units is insufficient to establish deliberate

indifference.” Gordon v. Burt, No. 1:21-CV-415, 2021 at *5 WL

4891546 (W.D. Mich. Oct. 20, 2021). Reversing the district

court, the Sixth Circuit found that Gordon had sufficiently

stated a deliberate indifference claim where he alleged

defendants were “purposefully housing him [in the same unit]

with close-contact prisoners, allowing close-contact prisoners

to commingle freely with the other prisoners, and not sanitizing

areas occupied by close-contact prisoners.” Gordon v. Burt, No.

21-1832, slip op. at 9 (6th Cir. August 17, 2022).

On remand, the district court again dismissed Gordon’s

claim, this time on qualified immunity grounds, reasoning that

“Plaintiff does not allege that he was placed in a cell with a

COVID-19 positive prisoner or even a close-contact prisoner[,]”

and so had not shown that a clearly established right had been

violated. Gordon v. Burt, No. 1:21-CV-415, 2023 at *2 WL

3914934 (W.D. Mich. June 9, 2023), vacated and remanded, No. 23-

1775, 2024 WL 1842873 (6th Cir. Apr. 24, 2024), cert.

denied, 145 S. Ct. 1046 (2025). For the second time, the Sixth

Circuit reversed. Like the Second Circuit, the Sixth Circuit

concluded that under Helling, prisoners had a clearly

established right to be protected against unnecessary exposure

to COVID-19. The court emphasized that “prisoners have limited

or no ability to protect themselves, [so] prison officials have

a duty to protect them from involuntary exposure to dangerous

prison conditions.” Gordon v. Burt, No. 23-1775, 2024 at *2 WL

1842873 (6th Cir. Apr. 24, 2024), cert. denied, 145 S. Ct. 1046

(2025) (citing Helling, 509 U.S. at 35).

In Hampton, the United States Court of Appeals for the

Ninth Circuit, considering an interlocutory appeal of the

defendants, “high level officials in the California prison

system[,]” affirmed the district court’s conclusion that the

wife of a deceased inmate had pled enough facts to establish

that prison officials had violated the decedent’s clearly

established right not to be exposed to COVID-19. Hampton, 83

F.4th at 770. The decedent’s wife alleged that on May 30, 2020,

the decedent prisoner was exposed to COVID-19 through the prison

officials’ deliberate indifference when the officials initiated

a transfer of 122 inmates with high-risk medical conditions to

San Quentin State Prison, where there were no known COVID-19

cases. Id. at 759. Even though some inmates began to show

symptoms during the transfer, the inmates were not quarantined

upon their arrival at San Quenten, and the defendants “had them

use the same showers and eat in the same mess hall as other

inmates.” Id. Like the Second and Sixth Circuits, the Ninth

Circuit found that the right of the prisoner not to be exposed

to COVID-19 was clearly established inasmuch as the Ninth

Circuit had previously held in Parsons v. Ryan, 754 F.3d 657

(9th Cir. 2014) that “a prison’s failure to ‘provide prisoners

with . . . protection from infectious diseases’ (among other

deficiencies) was ‘firmly established in our constitutional

law.’” Id. at 664, 676 (citing Helling, 509 U.S. at 33).

Given the consensus of the Second, Sixth, and Ninth

Circuits which have considered this issue and extended the

Helling standard to the COVID-19 context in instances that

occurred in April 2020, August 2020, and May 2020, respectively,

the court concludes that a clearly established right existed at

the time of plaintiff’s alleged harm, September 7, 2020, to

November 2, 2020, for prisoners to be free from unnecessary

exposure to COVID-19.

2. Whether defendants were deliberately indifferent to

the risk that plaintiff would develop COVID-19

Under the Eighth Amendment, a prisoner has the right

to be free from cruel and unusual conditions of confinement.

Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Though the

constitution “does not mandate comfortable prisons,” id. at 350,

it does not permit inhumane ones, and “the treatment a prisoner

receives in prison and the conditions under which he is confined

are subject to scrutiny under the Eighth Amendment.” Helling v.

McKinney, 509 U.S. 25, 31 (1993). Conditions of confinement

that expose prisoners to serious, communicable diseases can

establish an Eighth Amendment violation. Id. at 35. Moreover,

the Eighth Amendment “proscribes more than physically barbarous

punishments[,]” but also “embodies ‘broad and idealistic

concepts of dignity, civilized standards, humanity, and decency’

. . . against which we must evaluate penal measures.” Estelle

v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop,

404 F.2d 571, 579 (C.A.8 1968).

Prisoners alleging “that they have been subjected to

unconstitutional conditions of confinement must” satisfy both an

objective and a subjective prong. Scinto v. Stansberry, 841

F.3d 219, 225 (2016). The objective prong requires the

plaintiff to “demonstrate that the deprivation alleged was,

objectively, sufficiently serious.” Id. (quoting Farmer v.

Brennan, 511 U.S. 825, 834 (1994). “To be ‘sufficiently

serious,’ the deprivation must be ‘extreme’— meaning that it

poses a ‘serious or significant physical or emotional injury

resulting from the challenged conditions,’ or ‘a substantial

risk of serious harm resulting from . . . exposure to the

challenged conditions.’” Id. (quoting De’Lonta v. Angelone, 330

F.3d 630, 634 (4th Cir. 2003).

Citing Wilson v. Williams, 961 F.3d 829, 840 (6th Cir.

2020), which held that the objective prong was ‘easily

satisfied’ by the transmissibility of COVID-19 and the

seriousness of its symptoms in conjunction with other factors,

defendants “do not contend that plaintiff is unable to satisfy

the objective prong of a conditions of confinement claim.” See

Defs.’ Mem. Supp., ECF No. 89 at 11-12. Given defendants’

concession, the court therefore finds that plaintiff has

satisfied the objective prong.

The subjective prong requires that the inmate allege that

“prison officials acted with ‘deliberate indifference.’” Porter

v. Clarke, 923 F.3d 348 (4th Cir. 2019), as amended (May 6,

2019) (quoting Scinto, 841 F.3d at 225)). “To prove deliberate

indifference, plaintiff[] must show that ‘the official kn[ew] of

and disregard[ed] an excessive risk to inmate health or

safety.’” Id. (quoting farmer, 511 U.S. at 837). A plaintiff

may satisfy this standard by “prov[ing] by circumstantial

evidence that a risk was so obvious that it had to have been

known.” Makdessi v. Fields, 789 F.3d 126, 136 (4th Cir. 2015).

“Put differently, ‘[a]n obvious risk of harm justifies an

inference that a prison official subjectively disregarded a

substantial risk of serious harm to the inmate.” Porter, 923

F.3d at 361 (quoting Schaub v. VonWald, 638 F.3d 905, 915 (8th

Cir. 2011)). But where there is a “legitimate penological

justification” for the challenged conditions of confinement,

courts will account for such a justification “in considering

whether [the] adverse treatment is sufficiently gratuitous to

constitute punishment for Eighth Amendment purposes.” Id. at

362 (quoting Grenning v. Miller-Stout, 739 F.3d 1235, 1240 (9th

Cir. 2014).9

9 Porter notes that “the exact role of penological justification

in analyzing an Eighth Amendment conditions of confinement case

is unsettled[,]” and that courts are split between whether to

Defendants maintain that the subjective prong has not been

satisfied because they had a legitimate penological

justification for placing plaintiff behind the glass and because

they responded reasonably to the corresponding risk that

plaintiff would develop COVID-19. See Defs.’ Mem. Supp., ECF

No. 89 at 12-18.

Plaintiff was “a dangerous inmate who had just attempted to

escape from Mount Olive immediately prior to being placed behind

the glass.” Id. at 13. In addition to this being plaintiff’s

third escape attempt, plaintiff had been found three years prior

“to be in possession of a commercially manufactured knife, cell

phone, marijuana pipe, and bit driver with the specific bit

necessary to tamper with hardware at Mount Olive.” Id. at 14.

Defendants, concerned that plaintiff would attempt to escape

once more, acquire more contraband, or both, placed him in the

only feasible secured area — behind the glass — despite knowing

that Pod 6 was being used as a quarantine/isolation unit at the

analyze penological justifications as part of the subjective

prong, the objective prong, or as a separate inquiry altogether.

923 F.3d at 362. The court concludes, however, that the

“clearest way penological justification factors into ‘conditions

of confinement cases’ is through the subjective prong

inquiry[.]” Id. The court will therefore account for

penological justifications in the subjective prong.

time. Thus, defendants maintain that their actions had a

penological justification. Id. at 15.

Additionally, defendants maintain in their briefing that

they responded reasonably to the risk that plaintiff would

develop COVID-19 whilst behind the glass. Id. They emphasize

that they “put in place numerous efforts to help alleviate the

spread of COVID-19[,]” including limiting visitor access,

screening employees and new intakes for COVID-19, isolating and

quarantining exposed inmates, implementing social distancing

measures, conducting routine testing in accordance with public

health guidelines, increasing cleaning frequency for shared

areas, and furnishing inmates with supplies for handwashing and

sanitation, as well as PPE. Id. at 16-17. And they contend

that the risk to plaintiff was low because he was housed in an

individual cell. Id. But the record indicates that the

communal showers in Pod 6 were not being cleaned in accordance

with prison policy even after defendants were alerted to this

fact. And despite plaintiff’s testimony that he was symptomatic

and requested COVID-19 tests daily in September and October of

2020, and despite grievances from other inmates complaining of

exposure to COVID-19 in others or themselves, he did not receive

a COVID-19 test until March of 2021.

The precautions taken by defendants notwithstanding,

plaintiff claims that he was forced to move into Pod 6, where

COVID-19-positive inmates were being isolated and where new

intakes were being quarantined. He was moved into a cell with

“feces smeared on the wall and by the door frame” and his

requests for cleaning supplies went unfulfilled for a week or

more, compelling him to file a grievance on September 15, 2020.10

See Grievance of Keith Lowe, ECF No. 86-8 at 4. The record also

contains four grievances spanning August 22, 2020 to November 2,

2020, from three inmates – Todd Boyes, Brandon Long, and Keith

Lowe – complaining that they were forced to share unclean

showers with COVID-19-positive inmates and that the showers were

not being cleaned or disinfected. Inmates such as Benjamin

Marcum and Terrel Davis likewise filed grievances in late

September 2020 complaining that they were exposed to COVID-19-

positive inmates while being housed behind the glass and, in the

case of Benjamin Marcum, became symptomatic. See Grievance of

Benjamin Marcum, ECF No. 86-7 at 2; Grievance of Terrel Davis,

id. at 6. One week before plaintiff was moved to Pod 6, at

least one inmate, Brandon Long, was moved to Pod 6 for isolation

after testing positive for COVID-19 on August 30, 2020.

10 As previously noted, defendant Toney responded on September

23, 2020, that he would provide the plaintiff with cleaning

supplies, though it is unclear if or when this occurred.

Plaintiff’s own grievance from September 14, 2020, notes

that the walls of the shower were covered with “spit, snot and

scum,” that he watched another inmate, allegedly with symptoms

of COVID, spit phlegm into the shower right before plaintiff was

forced to use it, and that the showers were infested with fruit

flies. See Grievance of Keith Lowe, ECF No. 86-8 at 3. He

complains again on November 2, 2020, that “the showers are not

being cleaned much less sanitized.” See Grievance of Keith

Lowe, ECF No. 86-8 at 2. Mount Olive’s policies mandated that

“high touch surfaces” were to be cleaned, at minimum, nine times

per every 24-hour period. See Operational Procedure, ECF No.

86-3 at 7 (dated March 23, 2020). Despite acknowledging that

the showers were supposed to be disinfected regularly, defendant

Ames admitted he had no proof that this occurred. See Ames

Dep., ECF No. 88-5 at 87-88. Defendant Toney likewise could not

confirm that such cleaning occurred, though he stated that,

“[t]o the best of my – if I remembered correctly, [COVID-

positive inmates on Q-2] would either be first or last, because

that shower would have to be cleaned. The showers were

cleaned.” See Toney Dep. Tr., ECF No. 88-6 at 40:9-16.

Plaintiff, Brandon Long, and Todd Boyes, however, all

affirmatively state that the showers were not being cleaned.

Plaintiff’s medical expert stated in his report that sharing

showers without cleaning between uses increases the risk of

contracting COVID-19. See Dr. Weber Report at 3.

Finally, plaintiff has testified that when he allegedly

fell ill, experiencing symptoms common to COVID-19, he was

denied access to COVID-19 tests. See ECF No. 88-7, Keith Lowe

Dep. Tr. at 33:14-16 (“Because during my time in September,

October, I was asking to be tested on a daily basis, anybody who

would listen to me.”). Defendant Toney testified that he

recalled plaintiff informing him that he felt ill. See Toney

Dep. Tr. at 80:21-24. Despite this, plaintiff did not receive a

COVID-19 test until March 2021. Plaintiff’s medical expert has

stated that failing to test symptomatic inmates “without clear

rationale would violate facility policy” and “fall well below

the medical standard of care, especially in a congregate

setting.” Dr. Weber Report at 4. As mentioned, there is no

evidence in the record to suggest that defendant Ames was aware

of plaintiff’s requests for testing.

Even though defendants had a legitimate penological

justification for their initial decision to place plaintiff in a

separate cell in Pod 6, such a justification does not extend to

the unsanitary condition of Q-2’s showers, plaintiff’s cell,

and, in the case of defendant Toney, the refusal of his requests

for medical testing, to which plaintiff has testified. See

Keith Lowe Dep. Tr. at 33:14-16; 82:12-16 (testifying that

plaintiff requested tests daily in September and October of 2020

and that he was not tested until “March 2021 time, you know, way

after.”). Once plaintiff was behind the glass, “[a] Prison

official’s duty” to him “under the Eighth Amendment is to ensure

“’reasonable safety.’” Farmer, 511 U.S. at 844 (quoting

Helling, 509 U.S. at 33). Here, defendants exposed inmates to

an increased risk of contracting COVID-19, failed to follow

their own procedures for mitigating that risk, and ignored the

pleas of the inmates regarding violations of those procedures.

While their initial decision to put plaintiff in a secure area

may be penologically justified, the conditions of confinement in

Pod 6 and the denial of testing to plaintiff are not.

In this context, defendants cannot be said to have acted

reasonably with respect to the risk. Defendants rely on

Hallinan v. Scarantino, 466 Supp. 3d 587 (E.D.N.C. 2020) for the

proposition that their myriad precautions establish that they

acted reasonably. See Defs.’ Mem. Supp., ECF No. 89 at 15-18.

Similarly, they cite an unpublished district court opinion,

Zellers v. Northam, No. 7:21-cv-393, 2022 WL 3711892 (W.D. Va.

Aug. 29, 2022), for the proposition that “the occasional failure

of the policies or failure of the policies to be followed” is

insufficient to establish liability under the Eighth Amendment.

But both cases miss the mark here. Hallinan involved

inmates at a Federal Correctional Complex seeking injunctive

relief —immediate release from their confinement — in response

to the prison’s failure to prevent the spread of COVID-19. 466

Supp. 3d at 590. In denying injunctive relief, the district

court noted that the only evidence plaintiffs had presented that

the prison’s COVID-19 policies were not being followed, or were

otherwise insufficient, was the spread of the virus itself.

“While this evidence is tragic, continued spread of a novel,

highly contagious virus cannot standing alone establish

respondents failed to reasonably respond to the virus.” Id. at

607.

Zellers concerned an inmate in the Virginia Department of

Corrections (“VDOC”) alleging that certain officials in the

prison were deliberately indifferent to his risk of contracting

COVID-19 by failing to release him on parole, failing to

decrease the prison population generally, and failing to adhere

to the prison’s stated policies of contact tracing, cleaning

shared surfaces, and enforcing social distancing. Zellers v.

Northam, No. 7:21-cv-393, 2022 WL at *2 3711892 (W.D. Va. Aug.

29, 2022). In particular, the plaintiff in Zellers “believe[d]

he was exposed to COVID-19 when he went to the administration

building” for a parole hearing on the basis that there was no

PPE or hand sanitizer available in the building. Id. Whilst

there, he “claims that he contracted COVID-19 from the officer

who was monitoring the building’s gatepost, although he does not

explain how he knows this.” Id.

The circumstances of these two cases are markedly different

from those here. Sometime between August 28, 2020, and August

30, 2020, Brandon Long tested positive for COVID-19 and was

moved to Pod 6 for isolation. See Grievance of Brandon Long,

ECF No. 86-7 at 4. Plaintiff was then moved, over his

objections and for disciplinary reasons, to Pod 6 on September

7, 2020, into a cell smeared with feces, where he appears to

have been denied cleaning supplies for a week or more. See

Grievance of Keith Lowe, ECF No. 86-8 at 4. Whilst there, the

grievances of plaintiff, Brandon Long, and Todd Boyes suggest

that, despite their repeated grievances, the showers were not

being cleaned in between uses. See ECF No. 86-7, 86-8.

Plaintiff, as he claims, may have contracted COVID-19 through

his use of the showers in Pod 6, which was at the time being

used both as a disciplinary unit and a COVID isolation and

quarantine unit. And though plaintiff claims to have been

symptomatic for COVID-19 and to have asked for tests “on a daily

basis”, he was not tested until March 2021. See ECF No. 88-7,

Keith Lowe Dep. Tr. at 33:14-16; 82:12-15.

In light of the above, the court finds that genuine issues

of material fact exist as to whether the defendants were

deliberately indifferent to the risk that plaintiff would

contract COVID-19 when he was moved to Pod 6 for disciplinary

reasons and, according to the plaintiff and other inmates,

forced to share unclean showers with COVID-19-positive inmates,

and, as to defendant Toney, denied access to COVID-19 testing

when plaintiff claims he fell ill. Plaintiff’s then right to be

free from such unnecessary exposure was clearly established. By

virtue of the genuine factual disputes as to those matters, the

defendants are unable to show at this juncture that they are

entitled to qualified immunity.

At the same time, genuine issues of material fact remain

that preclude granting summary judgment in favor of plaintiff.

First, the only evidence plaintiff has provided in support of

the claim that he suffered from COVID-19 or from any symptoms of

long COVID is his deposition testimony as to his symptoms.

Second, while plaintiff has presented evidence by him and other

inmates that the showers were not being cleaned between uses in

accordance with prison policy, defendant Toney has testified,

“to the best of my – if I remember correctly, [an inmate who

tested positive for COVID-19] would either be first or last

because that shower would have to be cleaned. The showers were

cleaned.” Toney Dep. Tr., ECF No. 88-6 at 40:9-16. Third,

though plaintiff may have been exposed to COVID 19 by showering

in an uncleaned shower after use by COVID-19-positive inmates

such as Brandon Long, it is not clear from the record whether

plaintiff was in fact exposed to any COVID-19-positive inmates.

Finally, while defendant Toney has testified that the decision

to test an inmate lies with “medical” and that he never

instructed medical staff not to have an inmate tested, id. at

77:18-20, he has not testified that he did in fact inform

medical staff of plaintiff’s claimed daily requests for testing

during the months of September and October 2020. It seems

conceded that plaintiff did not receive a COVID-19 test until

March 2021.

III. CONCLUSION

Inasmuch as questions of fact remain as to whether

either defendant is entitled to qualified immunity, defendants’

motion for summary judgment, (ECF No. 88), is DENIED, and

plaintiff’s motion for summary judgment, (ECF No. 86), is also

DENIED.

The Clerk is directed to transmit copies of this order

to all counsel of record and any unrepresented parties.

Enter: November 19, 2025

Jo . Copenhaver, Jr.

Senior United States District Judge

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