Petition for Writ of Certiorari — Jason L. Sanders, Petitioner v. Matt Macauley, Warden, et al.
Supreme Court briefAug 30, 2022
Ask Donna
What actually matters in this document.
Text
Case: 22-1502
Document: 12-1
Filed: 08/10/2022
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Deborah S. Hunt
Clerk
Page: 1
Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: August 10, 2022
Mr. Jason L. Sanders
Earnest C. Brooks Correctional Facility
2500 S. Sheridan Drive
Muskegon Heights, MI 49444
Re: Case No. 22-1502, Jason Sanders, et al v. Matt Macauley, et al
Originating Case No. : l:22-cv-00018
Dear Mr. Sanders,
The Court issued the enclosed Order today in this case. Judgment to follow.
Sincerely yours,
s/Julie Connor
Case Manager
Direct Dial No. 513-564-7033
cc: Mr. Thomas Dorwin
Enclosure
Mandate to issue
(1 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
(2 of 10)
Page: 1
NOT RECOMMENDED FOR PUBLICATION
(f
No. 22-1502
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Aug 10, 2022
DEBORAH S. HUNT, Clerk
JASON L. SANDERS,
)
)
)
)
Plaintiff-Appellant,
)
)
)
)
ANTHONY MURPHY, et al.,
Plaintiffs,
v.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN
)
)
)
)
)
MATT MACAULEY, Warden, et al,
Defendants-Appellees.
ORDER
Before: SUTTON, Chief Judge; GUY and COLE, Circuit Judges.
Jason Sanders, a Michigan prisoner proceeding pro se, appeals the district court’s judgment
dismissing his civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a
panel of the court that, upon examination, unanimously agrees that oral argument is not needed.
See Fed. R. App. P. 34(a).
In January 2022, Sanders filed a complaint against Bellamy Creek Correctional Facility
(IBC) Warden Matt Macauley and several named and unnamed IBC officials and employees,
purportedly on behalf of himself and “every prisoner” in his unit. The complaint was signed by
Sanders and 85 other prisoners, all of whom were housed in Unit-5 at IBC. The plaintiffs alleged
that the defendants’ response to the ongoing COVID-19 pandemic violated their rights under the
Eighth, First, and Fourteenth Amendments. Sanders also filed motions to appoint counsel, to
certify a class, and to supplement the complaint.
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 2
No. 22-1502
-2Upon initial screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C.
§ 1997e(c), the district court dismissed the complaint as to Sanders as malicious and dismissed the
complaint as to the remaining plaintiffs for failure to state a claim. The district court also denied
Sanders’s motions to appoint counsel and to certify a class and his four additional motions, which
the district court construed as motions to supplement. See Fed. R. Civ. P. 15(d).
The complaint contained the following factual allegations, which are accepted as true for
purposes of this appeal. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
IBC staff members are not required to test for COVID-19 before coming into direct contact
with the prison population. In December 2021, Officer Stuntman entered Unit-5 while COVIDpositive. Several prisoners tested positive after contact with him. Officer Stuntman was sent home
but returned to work the next morning. The COVID-positive prisoners were then transferred to a
different unit, and Unit-5 was placed on “semi-Covid lockdown.” However, “positive prisoners
were snuck back to Unit-5 (B-lower) during count.” A few days later, several more prisoners in
Unit-5 tested positive for COVID-19, and Unit-5’s operations shut down. The positive prisoners
were placed on B-lower with the other prisoners who did not have COVID-19, but were separated
from the rest of the prison because of close contact. The COVID-positive prisoners were housed
in the first seven or eight cells.
Surfaces and bathrooms were not properly sanitized after use by COVID-positive
prisoners, and unit staff did not wear proper personal protective equipment (PPE), nor were the
close-contact prisoners given PPE. Approximately 15 COVID-positive prisoners were housed
together on B-lower with approximately 30 prisoners who did not have COVID-19, including
Sanders, who “is on record of being high risk of COVID.” Macauley then placed “close contact
prisoners in cells with prisoners who are positive COVID-19 patients.” No healthcare staff
checked in on the prisoners who were housed with the prisoners who contracted COVID-19. All
prisoners in Unit-5, whether COVID-positive or not, were denied access to various parts of the
prison, including the law library and religious services.
On appeal, Sanders argues that the district court erred by dismissing the complaint as
malicious and for failure to state a claim and by denying the motions to appoint counsel, certify a
(3 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 3
No. 22-1502
-3class, and supplement the complaint. Although the complaint and some supplements were signed
by multiple parties, the notice of appeal was filed by Sanders alone. “A pro se notice of appeal is
considered filed on behalf of the signer... unless the notice clearly indicates otherwise.” Fed. R.
App. P. 3(c)(2). Sanders cannot appeal the district court’s rulings on behalf of the other 85
plaintiffs. See 28 U.S.C. § 1654 (“[PJarties may plead and conduct their own cases personally or
by counsel.”).
I.
Dismissal of the complaint
We review de novo a district court’s sua sponte dismissal under §§ 1915(e)(2), 1915A, and
1997e(c). Hilt v. Lappin, 630 F.3d 468,470 (6th Cir. 2010). These statutes require a district court
to screen and dismiss complaints that are frivolous or malicious or fail to state a claim upon which
relief may be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c); see also Grinter
v. Knight, 532 F.3d 567, 572 (6th Cir. 2008). To avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Hill, 630 F.3d at 471 (quoting Iqbal, 556 U.S. at 678).
The district court dismissed Sanders’s complaint as malicious because he had filed several
recent complaints raising similar claims against some of the same defendants. Whether that is the
correct standard is an open question in this circuit. Because we may affirm the district court’s
judgment on any basis supported by the record, see Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir.
2002), we instead ask whether Sanders’ claims are plausible and find that all but one fail to state a
claim.
a. Eighth Amendment Claims
The complaint alleged that the defendants’ response to the ongoing COVID-19 pandemic
violated the Eighth Amendment. The complaint listed 13 claims, 12 of which implicated the
Eighth Amendment. With one exception, we affirm the dismissal of these claims.
First, Sanders alleged that, by denying or restricting the plaintiffs’ access to various
locations in the prison, Macauley violated the Eighth Amendment. “To move beyond the pleading
stage in this setting, an inmate must allege that he has been deprived ‘of the minimal civilized
measure of life’s necessities.’” Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (quoting
(4 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 4
No. 22-1502
-4Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). We agree with the district court that these
temporary restrictions, especially in the light of COVID-19 exposure, did not deprive Sanders “of
the minimal civilized measure of life’s necessities.” Id. (quoting Rhodes, 452 U.S. at 347).
Next, Sanders alleged that IBC healthcare staff members violated the Eighth Amendment
by failing to check on the health of the prisoners without COVID-19 who were quarantining in
Unit-5. u[D]eliberate indifference to serious medical needs of prisoners” violates the Eighth
Amendment prohibition on the “unnecessary and wanton infliction of pain.” Estelle v. Gamble,
429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). We agree with
the district court’s determination that halting routine healthcare checks in the light of COVID-19
exposure is not sufficient to support an Eighth Amendment claim, particularly when Sanders did
not allege a serious medical need to which the defendants were indifferent. See id.
Lastly, Sanders alleged that defendants were deliberately indifferent to the risk posed by
COVID-19. Specifically, he alleged that defendants were deliberately indifferent by failing to (i)
order mandatory testing for all IBC staff, (ii) provide adequate PPE, (iii) enforce staff PPE
requirements, (iv) provide prisoners adequate cleaning materials, (v) properly clean the showers
after COVID-positive prisoners’ use, and (vi) adequately separate prisoners with COVID-19 from
those who were only exposed. Finally, he alleged that Stuntman was deliberately indifferent when
he entered Unit-5 with COVID-19.
A deliberate indifference claim under the Eighth Amendment includes both an objective
and a subjective prong: (1) the prisoner “is incarcerated under conditions posing a substantial risk
of serious harm” (the objective prong), and (2) “the official knows of and disregards an excessive
risk to inmate health or safety” (the subjective prong). Farmer v. Brennan, 511 U.S. 825, 834, 837
(1994). We have previously stated that “the objective prong is easily satisfied” in the COVID-19
context, especially among the medically vulnerable. Wilson v. Williams, 961 F.3d 829, 840 (6th
Cir. 2020).
The subjective prong, on the other hand, generally requires alleging at least that the
defendant “acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id.
(quoting Farmer, 511 U.S. at 842). The official must have a “state of mind more blameworthy
(5 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 5
No. 22-1502
-5than negligence.” Farmer, 511 U.S. at 835. The key inquiry is whether the defendants “responded
reasonably to the risk posed by COVID-19.” Wilson, 961 F.3d at 841. And a response may be
reasonable even if “the harm imposed by COVID-19 on inmates .. . ‘ultimately [is] not averted.’”
Id. at 841 (alteration in original) (quoting Farmer, 511 U.S. at 844).
Like the district court, we assume that the complaint adequately alleged the objective
component of an Eighth Amendment claim, although we note that Sanders did not set forth specific
facts showing that he is at particularly high risk for contracting COVID-19. We conclude, however,
that the complaint did not allege sufficient facts to satisfy the subjective component of an Eighth
Amendment claim.
We agree that the allegations related to the failure to test IBC staff are vague. Testing of
every staff member before every encounter with prisoners would be infeasible. Without more
specific allegations, this claim was properly dismissed. See Iqbal, 556 U.S. at 679.
Next, we agree that the allegations relating to the failure to provide adequate PPE, enforce
PPE requirements, provide adequate cleaning materials, and clean surfaces and bathrooms failed
to satisfy the subjective prong. Notably, as the district court pointed out, the complaint did not
allege that protective gear, cleaning supplies, or cleaning protocols were lacking. As noted above,
a response may be reasonable even if “the harm imposed by COVID-19 on inmates ... ‘ultimately
[is] not averted.’” Wilson, 961 F.3d at 841 (alteration in original) (quoting Farmer, 511 U.S. at
844). The defendants acted reasonably given the COVID-19 outbreak by providing protective
gear and cleaning supplies. Further, it was reasonable for the defendants to separate the prisoners
who had COVID-19 from those who were only exposed and to clean the bathrooms in between
uses. Even if the harm was not “ultimately .. . averted,” the defendants took reasonable steps to
mitigate the spread of COVID-19 in the prison, even if it was not in the exact manner requested
by Sanders. Wilson, 961 F.3d at 841.
Next, we agree that the allegations that the defendants failed to adequately separate
prisoners were insufficient to state a claim. The facts alleged only suggest the mere possibility
that the Eighth Amendment was violated, which is not sufficient to state a claim for relief. See
Iqbal, 556 U.S. at 678. As the district court pointed out, the defendants took actions in response
(6 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 6
No. 22-1502
-6to the COVID-19 outbreak in Sanders’s unit, such as isolating the positive prisoners in the first
seven or eight cells and quarantining the exposed prisoners from the rest of the population. These
precautions show defendants were not indifferent to COVID-19’s risks.
See Cameron v.
Bouchard, 815 F. App’x 978, 985 (6th Cir. 2020). While the reasonableness of these actions may
be undermined by the allegation that Macauley housed prisoners with COVID-19 in the same cells
with prisoners who did not have COVID-19, the district court correctly identified key deficiencies
in these allegations. For example, without knowing when the prisoners tested positive in relation
to when the placements were made, it cannot be determined whether the defendants acted with a
“state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. Additionally, it is
unclear whether Sanders himself was placed in cells with prisoners who were positive with
COVID-19 or was otherwise harmed by the defendants’ alleged actions. As this appeal pertains
to only Sanders, see Fed. R. App. P. 3(c)(2), the lack of alleged injury to Sanders is fatal to his
claim.
Lastly, Sanders alleged that Officer Stuntman acted with deliberate indifference. Unlike
the other allegations, this one states a claim. Sanders alleged that Stuntman had COVID-19 when
he entered Unit-5 to distribute Christmas gifts to the prisoners in December 2021. Though he was
“sent out” of the Unit that day, Stuntman “came back to work the very next morning.” He did so
despite being “reminded that he was positive of Covid-19.” That’s a plausible allegation of
deliberate indifference.
The district court disagreed, concluding that the claim gave too little information to gauge
Stuntman’s mental state. But read in the light most favorable to Sanders, the complaint alleged
that Stuntman knowingly disregarded a substantial risk of serious harm to the inmates. See
Farmer, 511 U.S. at 837; Wilson, 961 F.3d at 840.
The district court’s alternative rationale fares no better. The court dismissed Sanders’
complaint as malicious because his prior lawsuits raise similar claims against some of the same
defendants. In doing so, the district court relied on cases from other circuits holding that a
complaint is malicious if it raises repetitive claims. Even if that is the correct standard, it doesn’t
apply here. For the most part, Sanders’ prior lawsuits involve different COVID-19 outbreaks and
(7 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 7
No. 22-1502
-7complain about different conduct. And most of them were filed before the events of this case.
More important, none of the prior lawsuits reference Stuntman. So, at the very least, this claim is
not repetitive and should not have been dismissed as malicious,
b. Remaining Constitutional Claims
Sanders also alleged that the defendants’ actions violated his rights under the Fourteenth
and First Amendments. We affirm the dismissal of these claims as well.
Sanders asserted that prisoners on the B wing who did not have COVID-19 were denied
access to areas of the prison, and the services provided in those areas, to which other similarly
situated prisoners had access. To establish a Fourteenth Amendment equal protection claim, a
plaintiff “must plausibly allege ‘that the government treated the plaintiff disparately as compared
to similarly situated persons and that such disparate treatment either burdens a fundamental right,
targets a suspect class, or has no rational basis.’” Courser v. Allard, 969 F.3d 604, 617 (6th Cir.
2020) (quoting Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,379 (6th Cir. 2011)).
Because it is rational to treat prisoners who may have been exposed to COVID-19 differently than
those who have not, the district court correctly determined that the complaint failed to state an
equal protection claim.
Sanders also asserted that Macauley violated his First Amendment rights by precluding his
access to the IBC 300 building, which houses religious services. To show a violation of First
Amendment Free Exercise rights, a prisoner “must show that ‘the belief or practice asserted is
religious in the person’s own scheme of things’ and is ‘sincerely held.
Flagner v. Wilkinson,
241 F.3d 475,481 (6th Cir. 2001) (quoting Kent v. Johnson, 821 F.2d 1220, 1224 (6th Cir. 1987)).
As the district court noted, Sanders did not allege a “sincerely held” religious belief that Macauley
infringed on. See id.
Lastly, Sanders asserted that two of the defendants violated his right to access the courts
by failing to process legal mail. Prisoners enjoy a constitutional right to access to the courts under
the First and Fourteenth Amendments. See Bounds v. Smith, 430 U.S. 817, 821 (1977). But this
is not an “abstract, freestanding right to a law library or legal assistance,” and the plaintiff must
allege an “actual injury” to state a claim. Lewis v. Casey, 518 U.S. 343, 351 (1996). Because
(8 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 8
No. 22-1502
-8Sanders did not allege that he suffered an actual injury from the defendants’ actions, this claim
also fails.
II.
Preliminary motions
Sanders argues the district court erred in denying his motions to appoint counsel, certify a
class, and supplement the complaint. We review each of these rulings for an abuse of discretion.
See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (motion to appoint counsel); Rikos v.
Procter & Gamble Co., 799 F.3d 497, 504 (6th Cir. 2015) (motion to certify a class); Spies' v.
Voinovich, 48 F. App’x 520, 527 (6th Cir. 2002) (motion to supplement complaint).
Indigent parties do not have a constitutional right to counsel in civil cases, and the
appointment of counsel is warranted only in exceptional circumstances. Lavado, 992 F.2d at 60506. Because no exceptional circumstances were present in this case, the district court did not abuse
its discretion by denying the motion to appoint counsel.
Federal Rule of Civil Procedure 23(a)(4) generally does not permit pro se plaintiffs without
legal training to serve as class representatives. See Garrison v. Mich. Dep’t ofCorr., 333 F. App’x
914, 919 (6th Cir. 2009) (holding that pro se litigants are “inadequate class representatives”);
Dodson v. Wilkinson, 304 F. App’x 434, 438 (6th Cir. 2008) (holding that “[p]ro se prisoners
generally may not bring class action lawsuits concerning prison conditions”). Sanders, who is
incarcerated and lacks legal training, has not attempted to establish that he would be an adequate
class representative, either in his motion for class certification or on appeal. Because Sanders has
offered no basis for departing from the general rule that pro se plaintiffs are not adequate class
representatives, the district court did not abuse its discretion by denying class certification.
Motions to supplement may be denied if the additional allegations fail to state a claim for
relief. See Spies, 48 F. App’x at 527. The allegations in Sanders’ motions, which all concerned
the ongoing response to COVID-19 at IBC, would be subject to dismissal for failure to state a
claim for the reasons noted above. See id.\ see also Thiokol Corp. v. Dep’t of Treasury, State of
Mich., Revenue Div., 987F.2d376,383 (6th Cir. 1993). Additionally, as the district court correctly
pointed out, § 1654 permits Sanders to proceed pro se, but only with respect to his own claims.
The motions seek to assert claims involving matters unrelated to Sanders, such as COVID-19-
(9 of 10)
Case: 22-1502
Document: 12-2
Filed: 08/10/2022
Page: 9
No. 22-1502
-9related incidents in areas of the prison where Sanders was not housed. The district court did not
abuse its discretion by dismissing the motions to supplement the complaint.
For these reasons, we AFFIRM in part, REVERSE in part, and REMAND for further
proceedings.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
(10 of 10)
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.410 Filed 04/21/22 Page lot49
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JASON L. SANDERS et al.,
Plaintiffs,
v.
Case No. l:22-cv-18
Honorable Paul L. Maloney
MATT MACAULEY et al.,
Defendants.
OPINION
This is a civil rights action brought by 86l state prisoners under 42 U.S.C. § 1983. Plaintiffs
seek redress from employees of the State government. Therefore, under the Prison Litigation
Reform Act, Pub. L. No. 104-134, llOStat. 1321 (1996) (PLRA), the Courtis required to screen
the complaint “before docketing, if feasible or, in any event, as soon as practicable after docketing
.. . .” 28 U.S.C. § 1915A(a). The Court is obligated to dismiss any prisoner action brought under
federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C.
§§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiffs’ pro se complaint
indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiffs’ allegations as
true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992). Applying the PLRA standard, the Court will dismiss the complaint because it is malicious
and because it fails to state a claim. The Court will also deny Plaintiff Sanders’ pending motions.
l
A pending motion to file a supplemental complaint seeks to add an 87th plaintiff. (See ECF
No. 18, PageID.401.)
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.411 Filed 04/21/22 Page 2 of 49
Discussion
I.
Factual allegations
Plaintiffs are presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. The
events about which they complain occurred at that facility. Plaintiffs sue the following IBC
personnel: Warden Matt Macauley; Deputy Warden Unknown Walzach; Assistant Deputy Warden
of Housing Brian Hadden; Prisoner Counselors Unknown Lemke and Craig Ritter; Corrections
Officer Unknown Stuntman; Healthcare Unit Manager Unknown Part(y)(ies) #1; and Healthcare
Unit Supervisor Unknown Part(y)(ies) #2.
Plaintiffs list what they style as 132 separate “legal claims” for relief asserting rights
provided under the First, Eighth, and Fourteenth Amendments. Each claim relates in some way to
IBC’s response to the ongoing COVID-19 pandemic. Although this complaint may initially appear
to resemble others that have been brought in the Western District of Michigan by prisoners since
the start of the pandemic, this complaint is different for at least two reasons.
First, Plaintiffs are not a single prisoner or a small group; they are 86 prisoners. Plaintiff
Sanders prepared the complaint “on behalf of himself’ and 85 other Plaintiffs who signed the
complaint and, purportedly, “are similarly situated.”3 (Compl., ECF No. 1, PageID.1.) Plaintiff
Sanders provides a paragraph describing himself in the list of parties. (Id., PageID.4.) All of the
other Plaintiffs are described collectively in a single paragraph. (Id.) Little is said about these 85
2 The complaint includes two claims identified as “Claim 12.” (SeeCompl., ECF No. 1, PagelD. 10,
12.) For clarity, the claims will be referred to as “Claim 12a” and “Claim 12b” based on the order
they appear in the complaint.
3 Plaintiff Sanders also wrote, “I am filing this formal complaint on behalf of myself and every
prisoner in Unit-5 from 12- -2021 [sic] to the present date . . ..” (Compl., ECF No. 1, PagelD.2.)
2
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.412 Filed 04/21/22 Page 3 of 49
other Plaintiffs who are identified only because they signed the complaint. (Id., PageID.14-17.)
The complaint explains merely that each of these 85 other Plaintiffs “is and was at all times
mentioned” during the events described a prisoner at IBC on Unit 5. (Id., PageJD.4.) Yet, it is not
at all clear that even this description is correct.4 Moreover, the complaint fails to describe with
particularity how any of the Plaintiffs other than Plaintiff Sanders has been harmed by any
Defendant. The factual allegations that involve any Plaintiff other than Plaintiff Sanders refer only
to prisoners generically, e.g., “prisoners,” “[prisoners on B side, „s (id., PageID.5, 7), without
clarifying which Plaintiffs, if any, were involved. As a result, to the extent the complaint focuses
on any prisoner, it focuses on Plaintiff Sanders.
Second, this is not Plaintiff Sanders’ first, second, or even third complaint since September
2020 complaining of IBC’s response to the COVID-19 pandemic. Indeed, as another judge in this
district recently noted,
[sjince September 2020, Plaintiff has become a frequent litigant in this Court.
During his first 20 years of incarceration, Plaintiff filed only six civil actions in the
Western District of Michigan. It does not appear that Plaintiff has filed any civil
actions in the Eastern District of Michigan. In less than 18 months since September
2020, Plaintiff has filed 7 actions in this Court.
4 Some of the complaint’s earliest factual allegations assert that “[sjeveral prisoners in Unit-5
tested positive for COVID-19,” and as a result, “[fjhese prisoners were transferred to Housing
Unit-8” before they later transferred back to Unit 5. (Compl., ECF No. 1, PageID.5.) The complaint
fails to articulate whether any of the 86 Plaintiffs were among those who transferred to Unit 8.
5 The complaint alternatively refers to “B side” of Unit 5 as “B Wing.” For consistency going
forward, the Court will refer to that division of Unit 5 as “B Wing.”
3
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.413 Filed 04/21/22 Page 4 of 49
Sanders v. Washington, No. l:21-cv-1091, 2022 WL 247831, at *5 (W.D. Mich. Jan. 27, 2022).
The instant action is Sanders’ seventh of the seven.6 Three of the previous actions complained of
IBC’s response to the COVID-19 pandemic. Sse Sanders I; Sanders IV; Sanders VI.
In the instant action, which is Plaintiff Sanders’ fourth challenge to IBC’s pandemic
response, Plaintiffs allege that Defendants Macauley, Healthcare Supervisor Unknown Part(y)(ies)
#1, and Healthcare Manager Unknown Part(y)(ies) #2 failed to order COVID-19 testing of IBC
staff. (Compl., ECF No. 1, PageID.8.) The complaint contends that, as a result, Defendant
Stuntman introduced the novel coronavirus to IBC’s Unit 5 when he “came to work” on December
16, 2021, and “pass[ed] out Christmas bags to . . . every 5 Unit prisoner.” (Id., PageID.5.)
Defendant Stuntman allegedly had COVID-19 at the time, and sometime in the next three days,
several Unit 5 prisoners tested positive.
The first set of prisoners who tested positive for COVID-19 were initially moved to Unit 8
before they were moved to the lower level of B Wing on Unit 5. By that time, Unit 5 allegedly had
been placed on a COVID-related lockdown. On December 19,2021, several other prisoners tested
positive and “Unit-5’s operation was shut down.” (Id., PageID.6.) What that purported shutdown
encompassed is not altogether clear because the complaint next asserts that “[p]ositive COVID
6 For clarity and brevity, the Court designates these actions as “Sanders” followed by a roman
numeral to indicate the order in which they were filed:
Sanders v. Washington, No. l:20-cv-871, 2020 WL 5757387 (W.D. Mich.) (Sanders I);
Sanders v. Washington, No. l:20-cv-889, 2020 WL 6110787 (W.D. Mich.) (Sanders II);
Sandersv. Washington, No. l:21-cv-54, 2021 WL 1049876 (W.D. Mich.) (Sandersill);
Sanders v. Washington, No. l:21-cv-510, 2022 WL 575179 (W.D. Mich.) (Sanders IV)
(action related to and with claims severed from Franklin v. Washington, No. 1:21cv-313 (W.D. Mich.));
Sandersv. Macauley, No. l:21-cv-746, 2021 WL 5997284 (W.D. Mich.) (SandersV);
Sanders v. Washington, No. 1:21-cv-1091, 2022 WL 247831 (W.D. Mich.) (Sanders VI);
Anders v. Macauley, No. l:22-cv-18 (W.D. Mich.) (Sanders VII).
4
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.414 Filed 04/21/22 Page 5 of 49
prisoners were all placed on B-lower in the [f]irst 7 or 8 cells . ..(Id.) The complaint appears to
allege that some of the Plaintiffs remained on the lower level of B Wing but had not tested positive
for COVID-19 at that point in time. Additionally, the lower level of B Wing was closed off to the
rest of Unit 5 and the rest of the prison. Plaintiffs allege that Defendant Stuntman returned to work
on the next Monday—presumably December 20, 2021.
Many of the complaint’s remaining allegations challenge IBC’s handling of the outbreak.
Plaintiffs argue that “the showers ... [we]re not power washed or properly cleaned” after prisoners
with COVID-19 used them. (Id.) Plaintiffs aver that Unit 5 was not “properly bleached and
sanitized” because “only” 2 sanitation workers wiped down surfaces. (Id.) Unspecified “[u]nit staff
on 1st shift c[ould] be seen without their mask or any PPE” after seeing prisoners with COVID19. (Id.) Defendant Macauley did not require that IBC staff test for COVID-19 after working on
Unit 5. Defendants Healthcare Supervisor Unknown Part(y)(ies) #1 and Healthcare Manager
Unknown Part(y)(ies) #2 did not conduct rounds on Unit 5 to question the health of those prisoners
without COVID-19. During the outbreak on B Wing, prisoners could not enter A Wing to use the
“J-Pay and store machines.” (Id., PageID.7.) While prisoners continued testing positive on Unit 5,
prisoners from the unit were not permitted to go to the building that housed the law library, school,
religious services, barbershop, or quartermaster. Prisoners on Unit 5 also had their daily exercise
time reduced. Plaintiffs allege that IBC had multiple signs posted on B Wing stating that staff must
wear personal protective equipment (PPE), but IBC did not supply prisoners who do not have
COVID-19 with the same PPE.
5
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.415 Filed 04/21/22 Page 6 of 49
Plaintiffs organize their factual allegations into what they assert are 13 legal claims for
relief. Plaintiffs contend in twelve of the claims that the following conduct violated the Eighth
Amendment:
Claim 1: Defendants Macauley, Healthcare Supervisor Unknown Part(y)(ies) #1,
and Healthcare Manager Unknown Part(y)(ies) #2 failed to test IBC staff for
COV1D-19;
Claim 2: Defendants Macauley, Walzach, Hadden, Healthcare Supervisor
Unknown Part(y)(ies) #1, and Healthcare Manager Unknown Part(y)(ies) #2
housed prisoners who had tested positive for COV1D-19 on the same unit as those
who had not;
Claim 3: Defendants Macauley, Walzach, Hadden, Healthcare Supervisor
Unknown Part(y)(ies) #1, and Healthcare Manager Unknown Part(y)(ies) #2 did
not provide porters additional PPE to enter cells of COVID-negative prisoners after
using the PPE to enter cells of COVID-positive prisoners;
Claim 4: Defendant Macauley did not provide prisoners with bleach to clean their
cells;
Claim 5: Defendant Macauley failed to enforce staff PPE requirements on the lower
level of B Wing;
Claim 6: Defendant Macauley permitted COVID-negative prisoners to use the
showers after COVID-positive prisoners without “properly sanitizing]”;
Claim 7: Defendant Macauley shortened the time prisoners on Unit 5 could use the
exercise yard;
Claim 8: Defendant Stuntman purportedly had COVID-19 and twice entered Unit
5;
Claim 9: Defendant Macauley did not provide PPE to COVID-negative prisoners
on Unit 5;
Claim 10: Defendants Healthcare Supervisor Unknown Part(y)(ies) #1 and
Healthcare Manager Unknown Part(y)(ies) #2 did not conduct rounds on Unit 5 to
question the health of those prisoners without COVID-19;
Claim 11: Defendant Macauley denied at least some prisoners from Unit 5 the
ability to go to the IBC 300 building, which houses the law library, chapel, school,
barber, and psychological health services; and
6
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.416 Filed 04/21/22 Page 7 of 49
Claim 12b: Defendant Macauley placed COVID-positive prisoners and prisoners
who had been in close contact with COVID-positive individuals in the same cells.
(Id., PageID.8-12.)
Plaintiffs further allege that two “claims” assert constitutional violations that extend
beyond the Eighth Amendment. In Claim 11, Plaintiffs argue that because Defendant Macauley
denied some prisoners the ability to go to the IBC 300 building, he also violated unspecified
provisions of the First and Fourteenth Amendments. (Id., PageID.11-12.) In Claim 12a, Plaintiffs
contend that Defendants Lemke’s and Ritter’s failure to process Plaintiffs’ court documents
violated their rights to access the courts in violation of the First and Fourteenth Amendments. (Id.,
PageID.10.)
Plaintiffs seek declaratory relief, injunctive relief, compensatory damages, and punitive
damages. In their request for declaratory relief, Plaintiffs ask for declaration that Defendants’
conduct “violated all the Plaintiffs[’] rights under the U.S. Constitution and laws of the United
States.” (Id., PageID.12.) The request for injunctive relief asks for a Court order directing that
Defendant Macauley (1) cease placing any COVID-positive prisoners at IBC, (2) create a housing
area at least 100 yards away from the rest of IBC for prisoners who test positive for COVID-19 or
other diseases, (3) require that prison staff test for COVID-19 every time before entering the
facility, and (4) remove all COVID-positive prisoners from Unit 5. (Id., PageID.12—13.) Plaintiffs
ask for $100,000 in compensatory damages for each Plaintiff, and an additional $100,000 in
compensatory damages for each Plaintiff who tested positive for COVID-19 after December 15,
2021. (Id., PageID.13.) In their request for punitive damages, Plaintiffs seek “$100,000 against
each [Defendant to each Plaintiff similarly situated.” (Id. (emphasis added).) With 86 Plaintiffs
and 8 Defendants, the amount requested in punitive damages totals $68.8 million.
7
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.417 Filed 04/21/22 Page 8 of 49
II.
Pending motions
As a preliminary matter, Plaintiff Sanders also has motions pending before the Court. He
has filed four motions seeking to file supplemental pleadings (ECF Nos. 9, 14, 15, 18), a motion
for preliminary and permanent injunctive relief (ECF No. 3), a motion to appoint counsel (ECF
No. 5), and a motion to certify a class (ECF No. 6).
A.
Motions to supplement the complaint
Plaintiff Sanders has filed four motions seeking to file a succession of supplemental
pleadings,7 each of which he purports to file “on behalf of himself and others similarly situated.”
(ECF No. 9, PagelD.325; see also ECF Nos. 14,15, 18.)
Rule 11 of the Federal Rules of Civil Procedure requires that “[ejvery pleading, written
motion, and other paper must be signed by at least one attorney of record in the attorney’s name—
or by a party personally if the party is unrepresented.” Fed. R. Civ. P. 11(a). In the federal courts,
“the parties may plead and conduct their own cases personally or by counsel, as, by the rules of
such courts, respectively, are permitted to manage and conduct causes therein.” 28 U.S.C. § 1654
(emphasis added). The statute clearly makes no provision for a pro se party to represent others.
The federal courts long have held that Section 1654 preserves a party’s right to proceed pro se, but
only with respect to her own claims. Only a licensed attorney may represent other persons. See
Rowland v. Calif. Men’sColony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-03 (1993);
7 Although Plaintiff Sanders titles the motions differently, all four motions ask the Court for leave
to add allegations of conduct that occurred after the filing of the complaint. Therefore, these are
properly construed as motions to file supplemental pleadings. See Fed. R. Civ. P. 15(d) (“On
motion ... the court may, on just terms, permit a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.”).
8
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.418 Filed 04/21/22 Page 9 of 49
United Sates v. 9.19Acresof Land, 416 F.2d 1244,1245 (6th Cir. 1969). Because Plaintiff Sanders
is not a licensed attorney, he is prohibited from filing motions on any other prisoner’s behalf. Only
one of the 85 remaining Plaintiffs has signed Plaintiff Sanders’ motions, and as result, the motions
to file supplemental pleadings fail to comply with Rule 11. See Proctor v. Applegate, 661 F. Supp.
2d 743, 780 (E.D. Mich. 2009) (“Rule 11 (a).. . requires every pleading to be signed by all pro se
plaintiffs.”). The Court will therefore deny Plaintiff Sanders’ motions to file supplemental
complaints.
B.
Motion for preliminary and permanent injunctive relief
Plaintiff Sanders has filed a motion for “preliminary and permanent injunction^]”
purportedly “pursuant to Rule 65(b)” and “on behalf of himself and other plaintiffs similarly
situated.”8 (ECF No. 3, PagelD.26.) Although Plaintiff Sanders specifically invokes subsection
(b), which pertains only to temporary restraining orders, he includes nothing addressing the special
requirements of Rule 65(b) to explain why action is needed before Defendants may be heard. That
procedural deficiency, standing alone, is reason enough to deny the motion. Yet, even considering
the motion on the merits, it fails.
Preliminary injunctions are “one of the most drastic tools in the arsenal of judicial
remedies.” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001) (quoting Hanson Trust PLC v.
ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986)). The issuance of preliminary
injunctive relief is committed to the discretion of the district court. SeeNe. Ohio Coal. v. Blackwell,
8 As discussed above, Rule 11 prohibits Plaintiff Sanders from filing a motion on behalf of others
without their signatures. See Fed. R. Civ. P. 11(a). The remaining motions discussed herein suffer
from the same defect. Notwithstanding Plaintiffs’ failure to comply with Rule 11, the Court has
considered the motions and would deny each motion even if all Plaintiffs had signed it.
9
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.419 Filed 04/21/22 Page 10 of 49
467 F.3d 999, 1009 (6th Cir. 2006); Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). In
exercising that discretion, a court must consider whether plaintiff has established the following
elements: (1) a strong or substantial likelihood of success on the merits; (2) the likelihood of
irreparable injury if the preliminary injunction does not issue; (3) the absence of harm to other
parties; and (4) the protection of the public interest by issuance of the injunction. Nader, 230 F.3d
at 834.
Crucially, the Sixth Circuit has also concluded “that a court must not issue a preliminary
injunction where the movant presents no likelihood of merits success.” Daunt v. Benson, 956 F.3d
396,421-22 (6th Cir. 2020) (quoting La.-Pac. Corp. v. James HardieBldg. Prod., Inc., 928 F.3d
514, 517 (6th Cir. 2019)); see also Cooey v. Strickland, 604 F.3d 939, 946 (6th Cir. 2010).
As fully discussed below in Part IV, Plaintiff Sanders presents no likelihood of success on
the merits. Accordingly, Plaintiff Sanders’ motion for injunctive relief will be denied.
C.
Motion to appoint counsel
Plaintiff Sanders has also asked the Court to appoint counsel “to represent him and the
other Plaintiffs ...” (ECF No. 5, PageID.67.) Indigent parties in civil cases have no constitutional
right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492
(6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993). The Court may,
however, request an attorney to serve as counsel, in the Court’s discretion. Abdur-Rahman, 65
F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S Dist. Ct., 490 U.S. 296 (1989).
Appointment of counsel is a privilege that is justified only in exceptional circumstances.
In determining whether to exercise its discretion, the Court should consider the complexity of the
issues, the procedural posture of the case, and Plaintiffs’ apparent ability to prosecute the action
without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these
10
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.420 Filed 04/21/22 Page 11 of 49
factors and determines that the assistance of counsel does not appear necessary to the proper
presentation of Plaintiffs’ position. Plaintiff Sanders’ motion will be denied.
D.
Motion to certify a class
Plaintiff Sanders has also filed a motion on behalf of himself and others seeking class
certification, which only he has signed. (ECF No. 6.)
The purposes of class action suits are judicial economy and the opportunity to bring claims
that would not be brought absent the class action because it might not be economically feasible to
bring them as individual claims, fee Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 650
(6th Cir. 2006). Federal Rule of Civil Procedure 23, which governs class certification, provides
that:
One or more members of a class may sue ... as representative parties on behalf of
all only if (1) the class is so numerous that joinder ... is impracticable; (2) there
are questions of law or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). The four prerequisites for class certification are respectively referred to as
“numerosity, commonality, typicality, and adequacy of representation.” Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010); see also Daffin v. Ford Motor Co.,
458 F.3d 549 (6th Cir. 2006).
Thus, for a case to proceed as a class action, the Court must be satisfied on the grounds
enumerated above, including the adequacy of class representation. See Fed. R. Civ. P. 23(a)(4).
Plaintiff bears the burden of establishing the right to class certification. See In re Am. Med. Sys.,
75 F.3d 1069, 1086 (6th Cir. 1996).
It is well established that pro se litigants are “inadequate class representatives.” Garrison
v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th Cir. 2009) (citations omitted); Ziegler v.
11
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.421 Filed 04/21/22 Page 12 of 49
Michigan, 59 F. App’x 622, 624 (6th Cir. 2003) (recognizing that “[generally pro se prisoners
cannot adequately represent a class” (citing Fymbov. State Farm & Cas. Co., 213 F.3d 1320,1321
(10th Cir. 2000))); Dodson v. Wlkinson, 304 F. App’x 434, 438 (6th Cir. 2008) (recognizing that
“[p]ro se prisoners generally may not bring class action lawsuits concerning prison conditions”
(citing Dean v. Blanchard, 865 F.2d 257 (6th Cir. 1988) (table); Oxendine v. Wiliams, 509 F.2d
1405, 1407 (4th Cir. 1975))); Palasty v. Hawk, 15 F. App’x 197, 200 (6th Cir. 2001) (concluding
that “pro se prisoners are not able to represent fairly [a] class” (citing Fymbo, 213 F.3d at 1321;
Oxendine, 509 F.2d at 1407)); Marr v. Michigan, No. 95-1794, 1996 WL 205582, at *1 (6th Cir.
Apr. 25, 1996) (noting that “an imprisoned litigant who is not represented by counsel may not
represent a class of inmates because the prisoner cannot adequately represent the interests of the
class” (citing Oxendine, 509 F.2d at 1407)). Because Plaintiff Sanders is an incarcerated pro se
litigant, the Court finds that he is not an appropriate representative of a class. Therefore, the Court
will deny Plaintiff Sanders’ request for class certification.
III.
Malice
Because the instant complaint repeats many claims that Plaintiff Sanders has previously
raised in the federal courts, the Court must determine whether the complaint is malicious as to him.
A.
Standard
Plaintiffs generally have “no right to maintain two separate actions involving the same
subject matter at the same time in the same court and against the same defendants.” V\feilton v.
Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977). Accordingly, as part of its inherent power to
administer its docket, a district court may dismiss a suit that is duplicative of another federal court
suit. See Colo. River \Afeter Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); Adams
v. California Dep’t of Health Serv., 487 F.3d 684, 688 (9th Cir. 2007); Missouri v. Prudential
Health Care Plan, Inc., 259 F.3d 949, 953-54 (8th Cir. 2001); Curtis v. Citibank, N.A., 226 F.3d.
12
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.422 Filed 04/21/22 Page 13 of 49
133,138-39 (2d Cir. 2000); Shith v. SEC, 129 F.3d 356,361 (6th Cir. 1997). The power to dismiss
a duplicative lawsuit is meant to foster judicial economy and the “comprehensive disposition of
litigation,” Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180,183 (1952), and to protect
parties from “the vexation of concurrent litigation over the same subject matter.” Adam v. Jacobs,
950 F.2d 89, 93 (2d Cir. 1991).
Moreover, prisoners who bring civil actions in forma pauperis face additional constraints
due to statutory barriers when bringing duplicative claims. See, e.g., Bailey v. Johnson, 846 F.2d
1019, 1021 (5th Cir. 1988) (per curiam) (“[T]he court’s power of dismissal in IFP cases under
section 1915(d)[9] is broader than in other civil cases under the Federal Rules of Civil Procedure”).
The PLRA commands that district courts “shall review ... as soon as practicable ... a complaint
in which a prisoner seeks redress from a governmental entity or officer” and dismiss it if it “is
frivolous, malicious, or fails to state a claim ....” 28 U.S.C. § 1915A.
The Sixth Circuit has not provided clear guidance as to the meaning of “malicious” in
§ 1915A(b)(l) or its analogues in § 1915(e)(2)(B) and 42 U.S.C. § 1997e(c)(2).10 However, the
Eleventh Circuit recently joined all other circuits that have confronted the question to conclude
that a “duplicative complaint is an abuse of the judicial process and is properly dismissed without
prejudice as malicious” for prisoners suing governmental entities and those proceeding in forma
pauperis. Daker v. \Aford, 999 F.3d 1300, 1308 (11th Cir. 2021); accord Day v. Toner, 530 F.
App’x 118, 121 (3d Cir. 2013) (“[A] complaint is malicious where it is abusive of the judicial
9 Prior to April 26, 1996, the provisions in § 1915(e)(2) were set forth at 28 U.S.C. § 1915(d).
10 28 U.S.C. § 1915A requires a court to screen prisoners complaints seeking redress from a
governmental entity or officer. Section 1915(e) requires that a court dismiss an action, in whole or
in part, if it is malicious, where a plaintiff is proceeding in forma pauperis. In a related statute,
42 U.S.C. § 1997e(c) requires that a court dismiss an action, in whole or in part, if it is malicious,
where a prisoner challenges prison conditions under federal law. Frequently, a prisoner who brings
a civil rights case is subject to all three.
13
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.423 Filed 04/21/22 Page 14 of 49
process and merely repeats pending or previously litigated claims . . .
Bailey v. Johnson, 846
F.2d 1019, 1021 (5th Cir. 1988) (“[RJepetitious litigation of virtually identical causes of action
may be dismissed under 28 U.S.C. § 1915(d) as malicious.” (alteration in original)); Aziz v.
Burrows, 976 F.2d 1158, 1158-59 (8th Cir. 1992) (confirming rule under former § 1915(d) that a
district court may dismiss duplicative complaints as malicious); Cato v. United States, 70 F.3d
1103, 1105 n.2 (9th Cir. 1995) (noting that dismissal without prejudice of an action under 28
U.S.C. § 1915 when the complaint “merely repeats pending or previously litigated claims,” serves
Congress’ goal of limiting plaintiffs from filing “frivolous, malicious, or repetitive lawsuits”
(citations omitted)); McVWIiamsv. Colorado, 121 F.3d 573, 574 (10th Cir. 1997) (“[Repetitious
litigation of virtually identical causes of action may be dismissed under § 1915 as frivolous or
malicious.” (quotation marks omitted, first alteration in original)); Crisafi v. Holland, 655 F.2d
1305, 1309 (D.C. Cir. 1981) (explaining that a complaint brought by a pauper “that merely repeats
pending or previously litigated claims” is abusive and “[a] complaint plainly abusive of the judicial
process is properly typed malicious”); see also Hurst v. Counselman, 436 F. App’x 58, 60-61 (3d
Cir. 2011) (concluding that the plaintiffs duplicative action evinced an attempt to vex, injure or
harass a defendant and was therefore properly dismissed as malicious); Davis v. Bacon, 234 F.
App’x 872, 874 (10th Cir. 2007) (affirming dismissal of a complaint as frivolous and malicious
because it “substantially mirror[ed] the prior complaint”); Pittman v. Moore, 980 F.2d 994, 995
(5th Cir. 1993) (concluding “it is ‘malicious’ for a pauper to file a lawsuit that duplicates
allegations of another pending federal lawsuit” filed by the same plaintiff); Van Meter v. Morgan,
518 F.2d 366, 367 (8th Cir. 1975) (affirming the dismissal of a complaint as frivolous where the
plaintiff proceeding with pauper status already had filed similar complaints, one of which was
currently pending and “deal[t] with issues directly related, if not identical, to these herein”).
14
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.424 Filed 04/21/22 Page 15 of 49
Therefore, this Court concurs with the uniform practices of the seven circuits that have
confronted the issue: a complaint challenging prison conditions under federal law brought by a
prisoner proceeding in forma pauperis that repeats pending or previously litigated claims is
properly dismissed without prejudice as malicious under the PLRA. Yet, several circuits have
further indicated that a complaint need only be substantially similar to previous or pending claims
for a court to dismiss the complaint as malicious. See, e.g., Davis, 234 F. App’x at 874; Van Meter,
518 F.2d at 367. For example, notwithstanding permissive joinder under Rule 20(a)(2) of the
Federal Rules of Civil Procedure, the Fifth Circuit permits dismissals for malice where a plaintiff
brings a subsequent complaint against new defendants with claims arising out of the transaction
or occurrence as an earlier complaint. See, e.g., Bailey, 846 F.2d at 1020, 1021 (affirming the
district court’s dismissal as malicious of an action alleging similar facts as an earlier action but
against a new defendant). Clearly, even some partially duplicative complaints may abuse the
judicial process, particularly where a court concludes that the plaintiff intends to vex, injure or
harass a defendant.
Dismissing as malicious substantially duplicative or similar complaints serves multiple
purposes. First, the practice conserves judicial resources. Conservation of judicial resources
permits courts to identify and resolve other pending matters with urgency including, for example,
legitimate claims brought by prisoners who are in imminent danger. Indeed, Congress created the
PLRA to address “the skyrocketing numbers of claims filed by prisoners—many of which are
meritless—and the corresponding burden those filings have placed on the federal courts.”
Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997). Dismissals of subsequent but
substantially similar complaints as malicious therefore aid judicial economy. Cf. Kerotest Mfg.
Co., 342 U.S. at 183.
15
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.425 Filed 04/21/22 Page 16 of 49
Second, it limits a vexatious litigant from filing lawsuits with similar factual allegations
and claims against the same or overlapping defendants. The PLRA extends a federal court’s
inherent power to dismiss as frivolous a duplicative complaint, see, e.g., Colo. River \Naier
Conservation Dist., 424 U.S. at 817, because it permits a federal court to dismiss as malicious a
substantially duplicative complaint, see Davis, 234 F. App’x at 874; Pittman, 980 F.2d at 995.
Substantially duplicative complaints, when filed without good cause, abuse the judicial process
and may subject defendants to “the vexation of concurrent litigation over the same subject matter.”
Adam, 950 F.2d at 93.
An example illustrates the point. A prisoner-plaintiff proceeding with pauper status may
bring, for example, Claims A, B, and C against a defendant in the first complaint. Suppose that
only Claim A survives preliminary screening under 28 U.S.C. § 1915A, and the plaintiff therefore
avoids a strike under 28 U.S.C. § 1915(g). While the first action remains pending, the plaintiff may
then file a new action with a complaint alleging Claims A, D, and E against the same defendant;
and a third action with a complaint alleging Claims A, F, and G against the original defendant.
Notwithstanding differences between the complaints, the presence of Claim A would permit all
three actions to proceed beyond the preliminary screening required by the PLRA even if only
Claim A survived in each. The original defendant would face three separate actions.
Furthermore, absent the ability to dismiss without prejudice substantially similar
complaints as malicious, a prisoner-plaintiff may circumvent the three-strikes provision of 28
U.S.C. § 1915(g). Whether inadvertent or deliberate, a plaintiff could be shielded from receiving
strikes by appending any new claims he desires to bring and reasserting a previous claim that
alleged facts sufficient to state a claim. Such a result would undermine Congress’ objectives with
16
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.426 Filed 04/21/22 Page 17 of 49
the PLRA “to put in place economic incentives that would prompt prisoners to” proceed prudently.
See Hampton, 106 F.3d at 1286.
Finally, a dismissal without prejudice of a substantially similar complaint would ensure
that the plaintiff does not suffer gratuitous harm. Cf. Strandlund v. Hawley, 532 F.3d 741, 745-46
(8th Cir. 2008) (interpreting “gratuitous harm” in the context of remedying misjoinder). The
plaintiff would remain able to refile a new complaint after eliminating the duplicative claims.
For all of the foregoing reasons, this Court concludes that partially duplicative complaints
aimed at vexing, injuring or harassing defendants, and that therefore abuse the judicial process,
should be dismissed without prejudice as malicious pursuant to the PLRA.
B.
Analysis
As stated above, this is Plaintiff Sanders’ seventh case of seven against Defendant
Macauley since September 2020. As discussed more thoroughly below, Plaintiff filed the first of
the seven actions soon after it became apparent that he would not satisfy the conditions placed on
him to qualify for parole. Although Sanders has filed seven cases against Macauley since
September 2020, no claim against Macauley has survived preliminary screening.11 Sanders has not
been deterred. Recently, in Sanders VI, the court dismissed the complaint as malicious because it
raised several claims that Sanders raised in previous or pending actions. Sanders again raises many
of the same claims here. For the reasons described below, the Court therefore concludes that, as to
Plaintiff Sanders, the complaint is properly dismissed as malicious.
According to Sanders II, Plaintiff Sanders began filing complaints at an accelerated rate
after 1BC indefinitely suspended in August 2020 a prison program and thereby delayed his
11 Plaintiff Sanders has also been instructed that he cannot maintain a § 1983 claim against
Defendant Macauley, the warden of IBC, merely premised on a theory of respondeat superior. See,
e.g., Sanders I, 2020 WL 5757387, at *3-4; Sanders II, 2020 WL 6110787, at *13.
17
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.427 Filed 04/21/22 Page 18 of 49
anticipated parole. See Sanders II, 2020 WL 6110787, at *2-3. “Plaintiffs earliest release date
was September 1, 2009, and his maximum discharge date is June 16, 2025.” Id. at *2. From 2008
to 2017, Sanders accrued approximately 300 misconduct tickets. Id. Many of the tickets were for
sexual misconduct reporting that he verbally harassed or exposed himself to female staff. Id.
Although Sanders went more than two years from 2017 to late 2019 without a misconduct and he
was not convicted of any sex offenses, parole board members informed Sanders in December 2019
that he would need to complete the Michigan Sex Offender Program (MSOP) before he could gain
parole. Id. Sanders began the MSOP and apparently was not a model participant. Id. at *2-3. He
was kicked out between April and July 2020. See id. By July 30, 2020, he had returned to the
MSOP. See id. However, the MSOP group leader suspended the program shortly thereafter in late
August 2020, presumably because of the COVJD-19 pandemic. Id. at *3. Sanders therefore
remained unable to complete the conditions imposed on him to qualify for parole, and he filed his
complaint in that action on September 14, 2020.
Less than a week earlier, on September 8, 2020, Sanders filed Sanders I, the first of his
seven civil actions since September 1,2020. In his Sanders I complaint, Sanders described conduct
at IBC from March to late August 2020, related to the facility’s response to the COVID-19
pandemic. A review of the court’s opinion partially dismissing his Sanders I complaint reveals
that many of Sanders’ allegations from Sanders I are repeated in his instant complaint. Sanders
alleged IBC staff entered the facility without testing. Sanders 1,2020 WL 5757387, at *1. Sanders
averred that prisoners who worked as porters cleaning IBC were not provided personal protective
gear and only received a water-sodium mixture to decontaminate surfaces rather than bleach.12 Id.
12 In the instant complaint, Sanders omits any mention of what prisoners have been provided and
instead alleges only that prisoners have not been provided bleach.
18
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.428 Filed 04/21/22 Page 19 of 49
He asserted that when he went to the control center to pick up legal mail or to healthcare services,
the areas were crowded, and prisoners were not socially distanced.13 Id. at *1, 2. Sanders also
stated that some IBC personnel refused to wear masks properly. Id. at *2.
In Sanders I, Sanders named, among others, the following defendants: Warden Matt
Macauley, Deputy Warden Unknown Walzach,14 and an unknown Health Services Unit Manager.
Id. at *1. The above allegations and defendants are repeated in the instant complaint.
Later in Sanders III, which Sanders filed on January 19, 2021, he alleged that the
defendants in that action suspended legal library services in August 2020 after several IBC
prisoners tested positive for COVID-19. Sanders III, 2021 WL 1049876, at *1. In Sanders III,
Sanders named, among others, Warden Matt Macauley as a defendant. The Sanders 111 complaint
was dismissed on preliminary screening because Sanders’ allegations failed to state a claim. In the
opinion dismissing the claims, the court explained that Sanders could not maintain his access-tothe-courts claim because he failed to show that he suffered an “actual injury.” See Sanders III,
2021 WL 1049876, at *4. Notwithstanding that court’s explanation, Sanders raises a similar claim
here without any allegation of an actual injury. Sanders also again names Warden Macauley as a
defendant in the instant complaint.
Sanders IV was created by the severance of Plaintiff Sanders’ claims from the claims of
another plaintiff. In an amended complaint in Franklin v. V\feshington, No. l:21-cv-313 (W.D.
Mich.), Sanders joined an ongoing action initiated by another prisoner. The court severed Sanders’
13 The instant complaint flips this argument on its head. Plaintiff Sanders now argues that
Defendant Macauley violated the rights of COVID-positive and close-contact prisoners who are
restricted from traveling to the IBC 300 building. Presumably the restrictions aim to limit the risk
of spreading COVID-19 to unexposed units within the prison.
14 Throughout his litigation, Plaintiff Sanders has referred to Deputy Warden Unknown Walzach
by several different spellings of the surname. For consistency, the Court will use the name that
Sanders has used in the instant complaint.
19
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.429 Filed 04/21/22 Page 20 of 49
claims into a new, related action, see Franklin, No. 1:2I-cv-313 (W.D. Mich. June 16,2021) (ECF
No. 9, PagelD.307-311), which resulted in Sanders IV.
The amended complaint in Sanders IV again raised allegations like those in the instant
complaint, and against an overlapping set of defendants. In his amended complaint, Sanders again
alleged that IBC staff did not undergo mandatory testing for COVID-19 and as a result, staff
entered the facility while sick with COVID-19. Sanders IV, (W.D. Mich. July 7, 2021) (Am.
Compl., ECF No. 12, PagelD.325, 332). He stated that prison porters cleaned without “proper”
personal protective equipment or cleaning supplies. Id., (PagelD.330.) After Plaintiff tested
positive in February 2021, he was placed in an isolation unit where IBC personnel did not perform
medical rounds, did not collect grievances, did not process legal mail, and custody and
administrative staff did not conduct rounds on the unit. Id., (PagelD.327, 329, 336, 337, 341). In
Sanders IV, Plaintiff sued Warden Macauley, Deputy Warden Walzach, the unknown Healthcare
Unit Manager, and the unknown Healthcare Unit Supervisor. Here, Sanders again raises claims
similar to those from Sanders IV described above, and he repeats all of the defendants described
above in the instant complaint.
Sanders filed his complaint in Sanders VI on December 29, 2021, just nine days before he
filed the instant complaint. The court in Sanders VI described his complaint in that action as an
“omnibus complaint” because it did “nothing more than duplicate claims and allegations that
[Sanders] ha[d] previously brought . . . .” Sanders VI, 2022 WL 247831, at *7. Specifically,
Sanders again alleged that defendants did not require all IBC staff to test for COVID-19 prior to
entering the facility. Sanders further argued that prisoners were not required to properly distance
themselves from each other. He asserted that defendants did not fumigate or sanitize areas of the
prison that he believed led to the spread of COVID-19 at IBC. Sanders alleged that porters cleaned
20
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.430 Filed 04/21/22 Page 21 of 49
units without protective gear, and they were denied bleach. Sanders averred that, when he was in
quarantine and isolation related to COVID-19 contact and diagnosis, respectively, defendants did
not perform regular medical rounds on his unit, nor did they pick up or distribute legal mail. The
court dismissed that complaint as frivolous and malicious because Sanders had brought the same
or similar COVID-related claims against an overlapping set of defendants. See id. That court
further concluded that Sanders intended to vex and harass multiple defendants including Warden
Macauley. See id. In Sanders VI, Sanders again sued Warden Macauley, Deputy Warden Walzach,
the unknown Healthcare Unit Manager, and the unknown Healthcare Unit Supervisor. In the
instant action, Sanders again raises claims similar to or the same as those described above from
Sanders VI. He also again sues the four defendants identified above.
In sum, Plaintiffs instant complaint raises several of the same or virtually the same issues
he raised in four earlier actions against an overlapping set of defendants. In each of these five
actions—Sanders I, Sanders III, Sanders IV, Sanders VI, and the instant action, Sanders VII—
Plaintiff has challenged IBC’s efforts to address the risks posed by the ongoing global COVID-19
pandemic.15 Many claims that Sanders brings in this action are similar to or the exact same as those
he has previously brought. In fact, the instant complaint is at least the third time Sanders has argued
that IBC’s failure to mandate COVID-19 testing for staff violated the Eighth Amendment. For the
above reasons, the Court will dismiss him from the action because, as to him, the complaint is
malicious.
15 The Court further notes that the instant complaint, like those that have come before it, arguably
contain claims against misjoined defendants. See Proctor v. Applegate, 661 F. Supp. 2d 743, 778
(E.D. Mich. 2009) (“[A] civil plaintiff may not name more than one defendant in his original or
amended complaint unless one claim against each additional defendant is transactionally related
to the claim against the first defendant and involves a common question of law or fact.” (internal
quotation marks omitted)).
21
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.431 Filed 04/21/22 Page 22 of 49
This Court will further join the court from Sanders VI in concluding that Sanders intends
to vex and harass multiple Defendants, particularly Defendant Macauley, IBC’s warden.16 Sse
Sanders VI, 2022 WL 247831, at *7. Although most circuits apply an objective standard when
determining malice, at least one circuit has suggested that a court must inquire into the subjective
motivations of the plaintiff “to determine whether the action is an attempt to vex, injure, or harass”
any defendant. See Hurst, 436 F. App’x at 60. The complaint in this action represents Sanders’
seventh attempt to sue Defendant Macauley since September 1, 2020. None of Sanders’ claims
against Defendant Macauley in these prior actions have survived preliminary screening. Yet,
Sanders continues to name Defendant Macauley as a defendant, including in the instant action.
Moreover, the rapid succession of actions follows the postponement of Sanders’ anticipated parole,
for which he sued Defendant Macauley.
Additionally, the Court further takes note of the sincerity of the concern with which
Sanders maintains some of his claims. In several of Sanders’ actions, including the current one, he
argues that Defendant Macauley has violated his Eighth Amendment rights because several prison
staff somewhere at IBC did not wear their masks properly. According to Sanders’ own allegations
in a previous complaint, he has not worn his own mask properly. Sanders waited in an IBC medical
line one day with his mask buried in his pocket rather than on his face. See Sanders V, 2021 WL
5997284, at *2 (“Defendant Smith told Plaintiff [Sanders] to put his mask on. Plaintiff [Sanders]
statefd] that it took a minute to retrieve the mask from his pocket. . . .”). Sanders did not have
quick access to his mask even when directed to put it on. According to the complaint in that action,
16 Indeed, although Defendant Macauley is the warden of IBC and Plaintiff Sanders has previously
been instructed on the limits of supervisory liability for § 1983 claims, see, e.g., Sanders I, 2020
WL 5757387, at *3-4, Macauley is purportedly responsible for the conduct in 11 of the
complaint’s 13 claims.
22
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.432 Filed 04/21/22 Page 23 of 49
when a corrections officer challenged Sanders to hurry up, allegedly in a reprehensible manner,
Sanders stated that he said he would file grievances on any officer he saw without a mask. See id.
Sanders’ earlier conduct certainly does not forfeit his right to bring an Eighth Amendment claim
related to masking during the COV1D-19 pandemic, but his conduct adds context to an issue he
has raised in multiple complaints.
Thus, to the extent this Court must consider Sanders’ subjective motivations, the facts
described above—when taken together with Sanders’ duplicative allegations and claims—provide
a clear inference that Sanders intends to vex and harass Defendant Macauley and perhaps others.
Substantially or virtually duplicative claims, like those filed here, bring multiple harms.
They are time-consuming and divert judicial resources away from other pressing matters, including
complaints filed by prisoners who face legitimate and original problems with their prison
conditions. They also subject defendants to serial and vexatious litigation related to the same
conduct. Thus, for all the foregoing reasons, the Court will dismiss Plaintiff Sanders from the
action because, as to him, the complaint is malicious. 17
IV.
Failure To State a Claim
A complaint may be dismissed for failure to state a claim if it fails “to give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint
need not contain detailed factual allegations, a plaintiffs allegations must include more than labels
and conclusions. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The
17 Plaintiff Sanders is further warned that continued attempts to file duplicative claims may result
the Court issuing a motion to show cause why he should not be sanctioned under Rule 11 of the
Federal Rules of Civil Procedure.
23
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.433 Filed 04/21/22 Page 24 of 49
court must determine whether the complaint contains “enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility
standard is not equivalent to a ‘“probability requirement,’ ... it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to
relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010) (holding that the Twombly/lqbal plausibility standard applies to dismissals of
prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(l) and 1915(e)(2)(B)(ii)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. \Afest v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
Plaintiffs18 allege over a dozen constitutional violations. They allege that multiple
Defendants violated their Eighth Amendment rights. Plaintiffs further assert that Defendant
Macauiey violated their First and Fourteenth Amendment rights. Finally, Plaintiffs argue that
Defendants Lemke and Ritter violated their rights to access the courts.
18 Henceforth, “Plaintiffs” will refer to all Plaintiffs except for Plaintiff Sanders.
24
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.434 Filed 04/21/22 Page 25 of 49
A.
Eighth Amendment
Plaintiffs allege that Defendants Macauley, Walzach, Hadden, Stuntman, Healthcare Unit
Manager Unknown Part(y)(ies) #1, and Healthcare Unit Supervisor Unknown Part(y)(ies) #2
violated their Eighth Amendment rights.
The Eighth Amendment imposes a constitutional limitation on the power of the states to
punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. VWson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal
civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also VWson v. Yaklich, 148
F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations
of essential food, medical care, or sanitation” or “other conditions intolerable for prison
confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
Plaintiffs contend that Defendants violated their Eighth Amendment rights under different
theories. First, Plaintiffs assert that Defendant Macauley restricted prisoners who were
quarantining or positive with COVID-19, which therefore constituted cruel and unusual
punishment. Second, Plaintiffs allege that Defendants Healthcare Supervisor Unknown
Part(y)(ies) #1 and Healthcare Manager Unknown Part(y)(ies) #2 did not conduct health care
rounds on COVID-negative prisoners in violation of the Eighth Amendment. Finally, Plaintiffs
argue that Defendants were deliberately indifferent to the risk posed to them by the COVID-19
pandemic.
25
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.435 Filed 04/21/22 Page 26 of 49
1.
Exercise yard privileges and access to IBC 300 building
Plaintiffs allege that Defendant Macauley enforced restrictions on quarantining and
COVID-positive prisoners that limited the time they could exercise in the prison yard and that
precluded them from going to the IBC 300 building. They allege that those policies constitute cruel
and unusual punishment. To the extent that Plaintiffs claim that Defendant Macauley’s
enforcement of these policies violated the Eighth Amendment, their allegations fail to state a claim.
“Routine discomfort is ‘part of the penalty that criminal offenders pay for their offenses
against society.5” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes* 452 U.S. at 347).
As a consequence, “extreme deprivations are required to make out a conditions-of-confinement
claim.” Id. Restrictions that are “restrictive or even harsh,” but are not cruel and unusual under
contemporary standards, are not unconstitutional. Rhodes, 452 U.S. at 347. “To move beyond the
pleading stage . . . , an inmate must allege that he has been deprived ‘of the minimal civilized
measure of life’s necessities.5” Harden-Bey v. Rutter, 524 F.3d 789 (6th Cir. 2008) (quoting
Rhodes* 452 U.S. at 347).
Neither temporarily reducing Plaintiffs’ recreation time nor temporarily denying access to
the IBC 300 building deprived Plaintiffs of the minimal civilized measure of life’s necessities.
Plaintiffs utterly fail to explain why their restriction from IBC 300 building constitutes
cruel and unusual punishment in violation of the Eighth Amendment. They simply conclude that
the restriction violates their constitutional rights.19 However, conclusory allegations of
19 To the extent that Plaintiffs suggest some denial of mental health services, they again fail to state
a claim. They allege neither that any Plaintiff has required mental health services nor that any
Plaintiff was refused mental health services. The MDOC policies in force at the time specifically
state that “[psychological services shall continue to be provided as necessary” to prisoners in
isolation. See COV1D-19 Director’s Office Memorandum 2021-26R12, at 8. Plaintiffs allegations
do not suggest that Defendants failed to comply with that policy.
26
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.436 Filed 04/21/22 Page 27 of 49
unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See
Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555.
Additionally, any reduction in Plaintiffs’ exercise time while isolating is simply too brief
to deprive them of the minimal civilized measure of life’s necessities. Plaintiffs allege that they
were not exposed to COVID-19 until at least December 16,2021. Plaintiffs purportedly all signed
the complaint on December 25, 2021. (Compl., ECF No. 1, PageID.14—18.) Consequently, the
allegations suggest that they were in an isolation unit for less than two weeks at the time they filed
their complaint. “[T]otal or near-total deprivation of exercise or recreational opportunity, without
penological justification, violates Eighth Amendment guarantees.” Rodgers v. Jabe, 43 F.3d 1082,
1086 (6th Cir. 1995) (quoting Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983)); see also
Argue v. Hofmeyer, 80 F. App’x 427 (6th Cir. 2003). Defendant Macauley’s enforcement of
policies appears reasonable in trying to limit the spread of COVID-19 within the prison. For this
reason, the enforcement of the policy appears to have a penological justification.
But Plaintiffs’ claims fail for other reasons. It is well established that allegations about
temporary inconveniences do not demonstrate that the conditions fell beneath the minimal
civilized measure of life’s necessities as measured by a contemporary standard of decency. Dellis
v. Corr. Corp. of Am, 257 F.3d 508, 511 (6th Cir. 2001); see also J.P. v. Taft, 439 F. Supp. 2d
793, 811 (S.D. Ohio 2006). Plaintiffs’ reduction in their time to use the prison yard for a few weeks
in December 2020 and January 2021 describes nothing more than a temporary inconvenience.
Moreover, Plaintiffs do not allege that their cells were too small to permit additional exercise or
that they suffered any ill effects from the temporary limitation on their yard privileges. See, e.g.,
May v. Baldwin, 109 F.3d 557, 565-66 (9th Cir. 1997) (holding that denial of out-of-cell exercise
for 21 days did not rise to Eighth Amendment violation); Knight v. Armontrout, 878 F.2d 1093,
27
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.437 Filed 04/21/22 Page 28 of 49
1096 (8th Cir. 1989) (“Denial of recreation for a short period, per se, is not a constitutional
violation.”); Davenport v. DeRobertis, 844 F.2d 1310 (8th Cir. 1988) (upholding a 90-day
segregation threshold before five hours of weekly out-of-cell exercise is required), cited with
approval in Pearson v. Ramos, 237 F.3d 881, 884-85 (7th Cir. 2001); Harrisv. Fleming, 839 F.2d
1232, 1236 (7th Cir. 1988) (holding that there was no Eighth Amendment violation when the
plaintiff was held in segregation without outdoor exercise for 28 days).
Thus, for all the reasons discussed above, Plaintiffs fail to state an Eighth Amendment
claim for restrictions on exercise time and access to the IBC 300 building.
2.
Health care rounds on quarantine/isolation unit
Plaintiffs’ next Eighth Amendment claim asserts that Defendants Healthcare Supervisor
Unknown Part(y)(ies) #1 and Healthcare Manager Unknown Part(y)(ies) #2 did not conduct
regular rounds on the Unit 5 to check the health of those prisoners without COVID-19. To be sure,
MDOC’s COVID-19 policies restrict staff from entering isolation areas. SeeCOVID-l 9 Director’s
Office Memorandum (DOM) 2021-26R12, at 8. However, there are no allegations that any
Defendant refused to respond to any healthcare needs. In short, no Plaintiff has alleged facts
suggesting that the failure to conduct regular healthcare rounds subjected him to “unnecessary and
wanton infliction of pain,” Estellev. Gamble, 429 U.S. 97, 103 (1976), or that he was exposed to
conditions below “contemporary standards of decency,” Hudson, 503 U.S. at 8. Consequently,
Plaintiffs fail to state an Eighth Amendment claim against Defendants Healthcare Supervisor
Unknown Part(y)(ies) #1 and Healthcare Manager Unknown Part(y)(ies) #2 for not conducting
regular health care rounds on a COVID-19 isolation unit.
3.
Risks of COVID-19
Plaintiffs also allege that they were incarcerated under conditions that put them at risk of
contracting COVID-19. Reading Plaintiffs’ complaint with all due liberality, see Haines, 404 U.S.
28
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.438 Filed 04/21/22 Page 29 of 49
at 520, Plaintiffs contend that Defendants failed generally to prevent an outbreak of COVID-19 on
Unit 5 at IBC because they did not order mandatory testing for all IBC staff before entering the
facility. Plaintiffs assert that Defendants failed to enforce staff PPE requirements, failed to provide
additional PPE for porters to change into after entering cells of COVID-positive prisoners, and
failed to provide PPE for COVID-negative prisoners on Unit 5. Plaintiffs further aver that
Defendant Macauley did not provide prisoners bleach to clean their cells, and he permitted
COVID-negative prisoners to use the showers after COVID-positive prisoners without “properly
sanitizing] . . . .” (Compl., ECF No. 1, PageID.10.) Plaintiffs allege that Defendants housed
prisoners who had tested positive for COVID-19 on the same unit, and in the same cell, as those
prisoners who had not tested positive for COVID-19. Finally, Plaintiffs contend that Defendant
Stuntman twice entered Unit 5 while positive with COVID-19.
In order for a prisoner to prevail on an Eighth Amendment deliberate indifference claim,
he must show that he faced a sufficiently serious risk to his health or safety and that the defendant
official acted with ‘“deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d
474, 479-80 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (applying
deliberate indifference standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35
(1993) (applying deliberate indifference standard to conditions of confinement claims). The
deliberate-indifference standard includes both objective and subjective components. Farmer, 511
U.S. at 834; Helling, 509 U.S. at 35-37. To satisfy the objective prong, an inmate must show “that
he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at
834. Under the subjective prong, an official must “know[] of and disregard[] an excessive risk to
inmate health or safety.” Id. at 837. “[P]rison officials who actually knew of a substantial risk to
29
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.439 Filed 04/21/22 Page 30 of 49
inmate health or safety may be found free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted.” Id. at 844.
a.
Objective prong
In a 2020 case brought by federal prisoners under 28 U.S.C. § 2241, the Sixth Circuit
addressed the issue of whether the Bureau of Prisons (BOP) violated the Eighth Amendment rights
of medically vulnerable inmates at the Elkton Federal Correctional Institution by failing to
adequately protect them from COVID-19 infection. VWson v. Wiliams, 961 F.3d 829
(6th Cir. 2020). In the opinion, the Sixth Circuit found that the plaintiffs in Wlson had easily
satisfied the objective component of an Eighth Amendment claim:
The COVID-19 virus creates a substantial risk of serious harm leading to
pneumonia, respiratory failure, or death. The BOP acknowledges that “[t]he health
risks posed by COVID-19 are significant.” CA6 R. 35, Appellant Br., PagelD 42.
The infection and fatality rates at Elkton have borne out the serious risk of COV1D19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in
conjunction with Elkton’s dormitory-style housing—which places inmates within
feet of each other—and the medically-vulnerable subclass’s health risks, presents a
substantial risk that petitioners at Elkton will be infected with COVID-19 and have
serious health effects as a result, including, and up to, death. Petitioners have put
forth sufficient evidence that they are “incarcerated under conditions posing a
substantial risk of serious harm.” Farmer, 511 U.S. at 834.
Id. at 840.
However, the Sixth Circuit issued Wlson in the first few months of the COVID-19
pandemic, and much changed between June 2020 and December 2021. By early 2021, the FDA
authorized for emergency use three different COVID-19 vaccines.20 See Does v. Mills, 595 U.S.
, 142 S. Ct. 17,21 (2021) (Gorsuch, J., dissenting) (dissenting from the denial of an application
20 By the end of January 2022, the FDA fully approved of two out of the three vaccines. See FDA,
Coronavirus (COVID-19) Update: FDA Take Key Action by Approving Second COVID-19
Vaccine (Jan. 31, 2022), https://www.fda.gov/news-events/press-announcements/coronaviruscovid-19-update-fda-takes-key-action-approving-second-covid-l 9-vaccine.
30
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.440 Filed 04/21/22 Page 31 of 49
for injunctive relief and noting that the COVID-19 situation had changed between 2020 and late
2021). During 2021, MDOC gave prisoners an opportunity to get vaccinated, and many prisoners
seized the opportunity. By January 7, 2022, 68 percent of MDOC prisoners were fully vaccinated.
See Emergency Order under MCL 333.2253 - Requirements for Prisons (Jan. 13, 2022),
https://www.michigan.gOv/documents/coronavirus/MDHHS_Prison_Requirements_Order_Jan._
13_2022_-_FINAL_745729_7.pdf. The FDA has further approved or authorized treatments for
those who fall ill with COVID-19. See FDA, Know Your Treatment Options for COVID-19 (Jan.
27,
2022),
https://www.fda.gov/consumers/consumer-updates/know-your-treatment-options-
covid-19. Put simply, COVID-19 did not pose the same risk to prisoners in late 2021 that it did 18
months earlier in the summer of 2020 when the Sixth Circuit issued VMIson.
Nonetheless, at this stage in the proceedings, the Court will adhere to the standard set forth
by the Sixth Circuit in VMIson. Under that precedent, a medically vulnerable plaintiff may satisfy
the objective prong by alleging conditions that could facilitate COVID-19 transmission within a
prison and the health risks posed by the virus. Plaintiffs allege conditions that could facilitate
COVID-19 transmission within their prison, but they do not clearly state that they suffer from any
conditions that make them medically vulnerable. Yet, at this early stage, the Court concludes that
Plaintiffs allege facts sufficient to satisfy the objective prong of the deliberate indifference test.
b.
Subjective prong
Notwithstanding Plaintiffs’ ability to satisfy the objective prong, they fail to allege facts
sufficient to satisfy the subjective prong of the deliberate indifference test in any of their claims.
The Sixth Circuit went on in VMIson to address the subjective prong of an Eighth Amendment
claim, noting that the pertinent question was whether the BOP’s actions demonstrated deliberate
indifference to the serious risk of harm posed by COVID-19 in the prison.
31
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.441 Filed 04/21/22 Page 32 of 49
There is no question that the BOP was aware of and understood the potential risk
of serious harm to inmates at Elkton through exposure to the COVID-19 virus. As
of April 22, fifty-nine inmates and forty-six staff members tested positive for
COVID-19, and six inmates had died. “We may infer the existence of this
subjective state of mind from the fact that the risk of harm is obvious.” Hope v.
Pelzer, 536 U.S. 730, 738 (2002). The BOP acknowledged the risk from COVID19 and implemented a six-phase plan to mitigate the risk of COVID-19 spreading
at Elkton.
The key inquiry is whether the BOP “responded reasonably to th[is] risk.” Farmer,
511 U.S. at 844. The BOP contends that it has acted “assiduously to protect inmates
from the risks of COVID-19, to the extent possible.” CA6 R. 35, Appellant Br.,
PagelD 42. These actions include
implementing] measures to screen inmates for the virus; isolating] and
quarantining] inmates who may have contracted the virus; limiting]
inmates’ movement from their residential areas and otherwise limiting]
group gatherings; conducting] testing in accordance with CDC guidance;
limiting] staff and visitors and subjecting] them to enhanced screening;
cleaning] common areas and giv[ing] inmates disinfectant to clean their
cells; providing] inmates continuous access to sinks, water, and soap;
educating] staff and inmates about ways to avoid contracting and
transmitting the virus; and providing] masks to inmates and various other
personal protective equipment to staff.
Id. at 42-43.
The BOP argues that these actions show it has responded reasonably to the risk
posed by COVID-19 and that the conditions at Elkton cannot be found to violate
the Eighth Amendment. We agree.
Here, while the harm imposed by COVID-19 on inmates at Elkton “ultimately [is]
not averted,” the BOP has “responded reasonably to the risk” and therefore has not
been deliberately indifferent to the inmates’ Eighth Amendment rights. Farmer,
511 U.S. at 844. The BOP implemented a six-phase action plan to reduce the risk
of COVID-19 spread at Elkton. Before the district court granted the preliminary
injunction at issue, the BOP took preventative measures, including screening for
symptoms, educating staff and inmates about COVID-19, cancelling visitation,
quarantining new inmates, implementing regular cleaning, providing disinfectant
supplies, and providing masks. The BOP initially struggled to scale up its testing
capacity just before the district court issued the preliminary injunction, but even
there the BOP represented that it was on the cusp of expanding testing. The BOP’s
efforts to expand testing demonstrate the opposite of a disregard of a serious health
risk.
Id. at 840-41.
32
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.442 Filed 04/21/22 Page 33 of 49
In its decision, the Sixth Circuit recognized that other Sixth Circuit decisions have found
similar responses by prison officials and medical personnel, such as cleaning cells, quarantining
infected inmates, and distributing information about a disease in an effort to prevent spread, to be
reasonable. Id. at 841 (citing V\fooler v. Hickman Cnty., 377 F. App’x 502, 506 (6th Cir. 2010);
Rouster v. Cnty. of Saginaw, 749 F.3d 437,448^19 (6th Cir. 2014); Harrison v. Ash, 539 F.3d 510,
519-20 (6th Cir. 2008); Rhinehart v. Scutt, 894 F.3d 721, 740 (6th Cir. 2018)). The VUIson Court
also noted that other circuits had concluded that similar actions by prison officials demonstrated a
reasonable response to the risk posed by COV1D-19:
In Swain [v. Junior], the Eleventh Circuit granted a stay of a preliminary injunction
pending appeal on state inmates’ Eighth Amendment claims. 958 F.3d [1081,] 1085
[(11th Cir. 2020) (per curiam)]. The Eleventh Circuit held that “the inability to take
a positive action likely does not constitute ‘a state of mind more blameworthy than
negligence,’” and “the evidence supports that [Metro West Detention Center
(“MWDC”) is] taking the risk of COV1D-19 seriously.” Id. at 1088-90 (citation
omitted). In response to the pandemic in early March, MWDC began “cancelling
inmate visitation; screening arrestees, inmates, and staff; and advising staff of use
of protective equipment and sanitation practices” and, after reviewing further CDC
guidance, began “daily temperature screenings of all persons entering Metro West,
established] a ‘COVID-19 Incident Command Center and Response Line’ to track
testing and identify close contacts with the virus, developed] a social hygiene
campaign, and mandate[d] that staff and inmates wear protective masks at all
times.” Id. at 1085-86. The Eleventh Circuit held that, because MWDC “adopted
extensive safety measures such as increasing screening, providing protective
equipment, adopting [physical] distancing when possible, quarantining
symptomatic inmates, and enhancing cleaning procedures,” MWDC’s actions
likely did not amount to deliberate indifference. Id. at 1090.
Similarly, the Fifth Circuit granted stays of two preliminary injunctions in
Valentine [v. Collier, 956 F.3d 797 (5th Cir. 2020) (per curiam),] and Marlowe [v.
LeBlanc, No. 20-30276, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) (per curiam)].
In Valentine, inmates at Texas’s Wallace Pack Unit filed a class action suit against
the Texas Department of Criminal Justice (“TDCJ”) alleging violations of the
Eighth Amendment. 956 F.3d at 799. In response to the COVID-19 pandemic,
TDCJ had taken preventative measures such as providing “access to soap, tissues,
gloves, [and] masks,” implementing “regular cleaning,” “quarantining] of new
prisoners,” and ensuring “[physical] distancing during transport.” Id. at 802. The
Fifth Circuit determined that the district court applied the wrong legal standard by
“collapsing] the objective and subjective components of the Eighth Amendment
inquiry” by “treating inadequate measures as dispositive of the Defendants’ mental
33
Case l:22-cv-00018-PLM-PJG
ECF No. 20, PagelD.443 Filed 04/21/22 Page 34 of 49
state” under the subjective prong and held that “accounting for the protective
measures TDCJ has taken” the plaintiffs had not shown deliberate indifference. Id.
at 802-03. In Marlowe, the Fifth Circuit relied on its reasoning in Valentine and
again reiterated that there was “little basis for concluding that [the correctional
center’s] mitigation efforts,” which included “providing prisoners with disinfectant
spray and two cloth masks[,] . .. limiting the number of prisoners in the infirmary
lobby[,] and painting markers on walkways to promote [physical] distancing,” were
insufficient. 2020 WL 2043425, at *2-3.
VWson, 961 F.3d at 841^12.
After reviewing the cases, the VMIson Court held that even if the BOP’s response to
COVID-19 was inadequate, it took many affirmative actions, not only to treat and quarantine
inmates who had tested positive, but also to prevent widespread.transmission of COVID-19. The
Court held that because the BOP had neither disregarded a known risk nor failed to take steps to
address the risk, it did not act with deliberate indifference in violation of the Eighth Amendment.
Id. at 843-44.
In addition, in Cameron v. Bouchard, 818 F. App’x 393 (6th Cir. 2020), the Court relied
on VMIson to find that pretrial detainees in the Oakland County Jail were unlikely to succeed on
the merits of their Eighth and Fourteenth Amendment claims. The plaintiffs in Cameron claimed
that jail officials were deliberately indifferent to the substantial risk of harm posed by COVID-19
at the jail. The district court initially granted a preliminary injunction requiring the defendants to
“(1) provide all [j]ail inmates with access to certain protective measures and medical care intended
to limit exposure, limit transmission, and/or treat COVID-19, and (2) provide the district court and
Plaintiffs’ counsel with a list of medically vulnerable inmates within three business days.” Id. at
394. However, following the decision in VMIson, the Court granted the defendants’ renewed
emergency motion to stay the preliminary injunction, finding that the preventative measures taken
by the defendants were similar to those taken by officials in VWson and, thus, were a reasonable
response to the threat posed by COVID-19 to the plaintiffs. Id. at 395. Subsequently, in an
34
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.444 Filed 04/21/22 Page 35 of 49
unpublished opinion issued on July 9, 2020, the Sixth Circuit vacated the injunction. Cameron v.
Bouchard, 815 F. App’x 978 (6th Cir. 2020).
(1)
General COVID-19 risks
In the instant case, Plaintiffs claim that Defendants’ handling of the COVID-19 crisis at
IBC violated their Eighth Amendment rights. Plaintiffs reference the MDOC’s COVI D-19 DOMs.
(See Compl., ECF No. 1, PageID.3.) The MDOC issued its first COVID-19 DOM on April 8,
2020. See MDOC DOM 2020-30 (eff. Apr. 8, 2020) (mandating multiple protective measures
including the wearing of masks by prisoners and staff, screening of all individuals before entering
prison facilities, keeping of social distance, restricting visits and phone calls, and limiting transfers
and cell moves). The MDOC issued eight revised DOMs during the remainder of 2020, and 12
more revised DOMs in 2021 before the start of the allegations in the complaint.
The DOMs set forth specific details about protective measures to be taken in all MDOC
facilities: describing the types of PPE to be worn by staff and when; setting screening criteria for
individuals entering facilities; setting social distancing requirements; establishing isolation areas
and practices for isolation; setting practices for managing prisoners under investigation for
COVID-19; modifying how personal property is managed; setting requirements for jail transfers;
outlining communication adjustments and video visitation; upgrading hygiene, health care, and
food service policies; setting protocols for COVID-19 testing of prisoners; and making other
necessary adjustments to practices to manage the pandemic.
Plaintiffs’ own allegations describe several steps that Defendants Macauley, Healthcare
Supervisor Unknown Part(y)(ies) #1, and Healthcare Manager Unknown Part(y)(ies) #2 took to
comply with the DOMs. Defendants clearly tested prisoners for COVID-19. (See Compl., ECF
No. 1, PageID.5.) Plaintiffs further acknowledge that Defendants isolated COVID-positive
prisoners and those who had come in close contact with COVID-positive individuals. (See id.,
35
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.445 Filed 04/21/22 Page 36 of 49
PageID.5-6.) Defendants restricted from moving around the facility the COVID-positive and
close-contact prisoners. (See id., PageID.6, 7.) Defendants employed multiple porters to wipe
down and sterilize surfaces at the prison. (See id., PageID.6.) Defendants posted “multiple signs
and posters” informing that the wearing of PPE was required. (See id., PageID.8.) Clearly, by
Plaintiffs’ own admission, Defendants have taken extensive steps to address the risk posed by
COVID-19 to inmates at IBC.21 As noted by the Sixth Circuit in WIson, such actions demonstrate
the opposite of a disregard of a serious health risk. Wlson, 961 F.3d at 841; see also Dykes-Bey v.
Washington, No. 21-1260, 2021 WL 7540173, at *3 (6th Cir. Oct. 14, 2021).
Therefore, Plaintiffs fail to state an Eighth Amendment claim against Defendants
Macauley, Healthcare Supervisor Unknown Part(y)(ies) #1, and Healthcare Manager Unknown
Part(y)(ies) #2 for their failure to prevent a COVID-19 outbreak on Unit 5 at IBC.
Moreover, Plaintiffs’ argument that Defendants Macauley, Healthcare Supervisor
Unknown Part(y)(ies) #1, and Healthcare Manager Unknown Part(y)(ies) #2 should have
mandated testing for all MDOC staff similarly fails to state a claim. As an initial issue, the
allegations related to the purported failure to test for COVID-19 at IBC are vague. Perhaps
Plaintiffs argue that all IBC staff should be tested before entering the facility each day? Or do
Plaintiffs contend that IBC staff who work on isolation units should frequently be tested? Or is
there some other argument Plaintiffs intend to make? The complaint appears to invite the Court to
conceive of some way in which a failure to test for COVID-19 may satisfy the subjective prong of
the deliberate indifference test and to then adopt that conception. But Plaintiffs’ claim must be
more than conceivable, it must be plausible to survive dismissal. SeeTworrbly, 550 U.S. at 570.
21 Notably, Plaintiffs also complain above that Defendants took excessive steps to address the risk
posed by COVID-19 by limiting exercise time and access to the IBC 300 building.
36
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.446 Filed 04/21/22 Page 37 of 49
Furthermore, a focus on an individual decision or policy, such as testing, “ignores the ‘key
inquiry”5 in the subjective prong analysis of a deliberate indifference claim, which is “whether the
defendants ‘responded reasonably to the risk.”5 Dykes-Bey, No. 21-1260, 2021 WL 7540173, at
*3 (quoting VM Ison, 961 F.3d at 840^1); see also Young v. VUlitmer, No. 21-2648, slip order at 5
(6th Cir. Apr. 5, 2022) (same).
More importantly, the Sixth Circuit has previously rejected deliberate-indifference claims
like Plaintiffs’ that argue that prison staff must test for COVID-19.22 See Dykes-Bey, 2021 WL
7540173, at *1-3. Therefore, Plaintiffs fail to allege facts sufficient to satisfy the subjective prong
in a claim related to Defendants’ failure to test 1BC staff for COVID-19.
(2)
Bleach, showers, and PPE availability
Plaintiffs allege that Defendant Macauley “order[ed] the denial of prisoners ... to use
bleach to spray their cells” (Compl., ECF No. 1, PageID.9), “order[ed] to place positive COVID
prisoners in the shower and then negative COVID prisoners in the same showers” (id., PageID.10).
and “deni[ed] . . . P.P.E. for negative COVID-19 prisoners” on the lower level of B Wing (id.;
PageID.11).
22 Perhaps Plaintiffs labor under the false impression that COVID-19 testing kits were readily
available. That has not been the case. The nation faced several shortages of testing kits during late
2021. See, e.g., Rebecca Heilweil, Howomicron broke Covid-19 testing: Rapid tests are sold out
everywhere, and help might not come until next year, https://www.vox.com/recode/2021/
12/21/22848286/omicron-rapid-test-covid-19-antigen, Vox (Dec. 21, 2021, 4:01 PM EST)
(“Rapid antigen tests are out of stock at many drug stores, and lines for PCR tests stretch around
the block in cities across the United States.”).
Those facts are so well-known to persons outside of prison and such a fundamental part of the
experience of virtually every American during the rapid spread of the omicron variant that they
might be proper subjects for judicial notice under Rule 201 of the Federal Rules of Evidence.
Nonetheless, the information in the preceding paragraph plays no role in the Court’s decision.
Instead, this information merely provides context and additional information to prisoners who are
incarcerated amidst the ongoing pandemic. Cf. United States V. Matha/vs, 846 F. App’x 362, 364
n.3 (6th Cir. 2021) (stating that “[providing context when context matters is not misplaced”).
37
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.447 Filed 04/21/22 Page 38 of 49
Notwithstanding Plaintiffs’ failure to explain when or in what manner Defendant
Macauley, as warden of IBC, issued the purported orders or denied PPE, the allegations fail to
state a claim. Plaintiffs omit any explanation of why their prison showers and prison cells posed
any specific risk to COVID-negative prisoners. They offer no explanation why showers required
“power washing]” (id., PageID.6), or why prisoners needed additional PPE or cleaning products
for their cells. Any threat appears purely speculative. Further, as to the PPE and bleach, Plaintiffs
do not allege that they lacked any masks or cleaning supplies. They appear instead to contend that
Defendant Macauley refused to supply the PPE and cleaning products that they preferred.23
Plaintiffs do not allege that they faced an increased risk of contracting COVID-19 when using the
PPE and cleaning solution provided to them, nor do they allege facts demonstrating that Defendant
Macauley knew of and disregarded any such risk. Moreover, it is clear that any risk was not so
obvious as to permit the inference that Defendant Macauley was aware of it at the time. See Hope,
536 U.S. at 738. Therefore, Plaintiffs fail to allege facts sufficient to satisfy the subjective prong
in a claim related to the purported orders denying bleach, denying PPE, and directing showering.
SeeFarmer, 511 U.S. at 837.
(3)
PPE for porters
Plaintiffs also allege that Defendants Macauley, Walzach, Hadden, Healthcare Supervisor
Unknown Part(y)(ies) #1, and Healthcare Manager Unknown Part(y)(ies) #2 violated the Eighth
Amendment because they did not provide custody staff and porters additional PPE to wear into
the cells of COVID-negative prisoners after porters wore their PPE to enter cells of COVID-
23 As noted above, Plaintiff Sanders, the purported lead Plaintiff, had a mask that he previously
kept in his pocket. See Sanders V, 2021 WL 5997284, at *7. In his earlier litigation, Sanders has
also indicated that IBC provided a sodium-based cleaning solution instead of bleach. See, e.g.,
Sanders 1, 2020 WL 5757387, at * 1. The Court refers to Plaintiff Sanders’ earlier actions merely
to support that the vagueness of and gaps within Plaintiffs’ instant allegations may be intentional.
38
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.448 Filed 04/21/22 Page 39 of 49
positive prisoners. Plaintiffs again fail to explain the specific risk posed, in this case by custody
staff and porters wearing PPE in COVID-negative prisoners’ cells after wearing the same PPE into
the COVID-positive prisoners’ cells. Again, any specific risk appears purely speculative. Plaintiffs
do not allege that they faced an increased risk of contracting COVID-19 due to the PPE practices
employed by custody staff and porters, nor do Plaintiffs allege facts demonstrating that Defendants
Macauley, Walzach, Hadden, Healthcare Supervisor Unknown Part(y)(ies) #1, or Healthcare
Manager Unknown Part(y)(ies) #2 knew of and disregarded any such risk. Certainly, any purported
risk was not so obvious as to permit the inference that Defendants Macauley, Walzach, Hadden,
Healthcare Supervisor Unknown Part(y)(ies) #1, or Healthcare Manager Unknown Part(y)(ies) #2
was aware of it at the time. See Hope, 536 U.S. at 738. Consequently, Plaintiffs fail to allege facts
sufficient to satisfy the subjective prong in a claim related to the failure to provide additional PPE
to custody staff and porters. See Farmer, 511 U.S. at 837.
(4)
Shared unit and cells
Plaintiffs allege that Defendants Macauley, Walzach, Hadden, Healthcare Supervisor
Unknown Part(y)(ies) #1, and Healthcare Manager Unknown Part(y)(ies) #2 housed prisoners who
tested positive for COVID-19 on the same unit as prisoners who had not. Plaintiffs further allege
that Defendant Macauley “place[d] . . . COVlD[-]positive prisoners in cells with ‘close contact’
prisoners . . ..” (Compl., ECF No. 1, PageID.12.)
Plaintiffs’ allegations that Defendants housed prisoners who tested positive for COVID-19
on the same unit as those who had not tested positive fails to state a claim. The complaint alleges
that the prisoners who tested positive for COVID-19 were placed in “the first 7 or 8 cells” of the
lower level of B Wing. (Id., PagelD.6.) While unclear, the complaint appears to further allege that
exposed prisoners who had not tested positive were placed elsewhere on the lower level of B Wing,
and Defendants designated the lower level of B Wing an isolation area. The complaint does not
39
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.449 Filed 04/21/22 Page 40 of 49
even explain which category Plaintiffs fall into: COVID-positive, exposed, or unexposed. Even if
the Court were to assume that some or all Plaintiffs were exposed or unexposed, the allegations
clearly suggest that Defendants took action to isolate prisoners who tested positive in seven or
eight cells at the end of the wing. Defendants also quarantined exposed prisoners from the rest of
the prison population. As stated above, such actions demonstrate the opposite of a disregard of a
serious health risk. VMIson, 961 F.3d at 841. The complaint utterly fails to explain why placement
of exposed prisoners on the same unit as COVID-positive prisoners show that any Defendant knew
of and disregarded an excessive risk. Therefore, Plaintiffs may not maintain an Eighth Amendment
claim against Defendants Macauley, Healthcare Supervisor Unknown Part(y)(ies) #1, and
Healthcare Manager Unknown Part(y)(ies) #2 for housing prisoners who tested positive for
COV1D-19 on the same unit as those who had not. See Farmer, 511 U.S. at 837.
Similarly, Plaintiffs’ purported Claim 12b, which seeks relief for “Defendant Macauley’s
placement of COVID[-]positive prisoners in cells with ‘close contact’ prisoners” fails to state a
claim. (Comp!., ECF No. 1, PageID.12.) First, because the complaint offers no other allegation
related to this claim, Plaintiffs fail to provide enough facts for the Court to reasonably infer that
Defendant Macauley violated their Eighth Amendment rights. See Iqbal, 556 U.S. at 679. The
complaint does not explain, for example, whether the alleged COVID-positive prisoners had tested
positive at the time when placements were made or whether substantial time had passed since the
prisoners had tested positive. In short, Plaintiffs have alleged facts suggesting only the mere
possibility that Defendant Macauley violated the Eighth Amendment. Plaintiffs’ allegations
therefore fail to state a claim. See Iqbal, 556 U.S. at 678.
Moreover, the complaint does not explain Defendant Macauley’s suggested personal
involvement, as the warden of the prison, in the cell placements of any particular prisoner. Even if
40
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.450 Filed 04/21/22 Page 41 of 49
the Court were to assume that Defendant Macauley personally decided or approved of cell
placements, Plaintiffs have not shown that Defendant Macauley knew any prisoner’s COVID-19
status to indicate that Macauley knew of a risk to any Plaintiffs health or safety. Plaintiffs
therefore fail to state an Eighth Amendment claim against Defendant Macauley for a second
reason. See Farmer, 511 U.S. at 837.
(5)
Officer Stuntman’s visits
Plaintiffs contend that Defendant Stuntman twice visited Unit 5 in December 2021 in
violation of the Eighth Amendment. Other than Stuntman passing out Christmas gifts to all of the
Unit 5 Plaintiffs, the complaint alleges only that Stuntman “was positive of COVID-19” when he
passed out the gifts (Compl., ECF No. 1, PageID.5), that Stuntman returned to the unit the
following Monday, and that Stuntman purportedly “was reminded that he was positive of
COVID-19” when he returned (id., PagelD.5, 11).
Plaintiffs have offered stunningly little information about Defendant Stuntman’s purported
illness. They fail to indicate whether Stuntman ever tested positive for COVID-19, when he
learned that he tested positive for COVID-19, when and if he tested negative before returning to
work, whether he was ever symptomatic, whether he visited the entire unit when he returned to
work or only the COVID-positive area, which Plaintiffs he came into close contact with and
whether they were sick at the time, where he went within Unit 5, how long he spent on Unit 5
while purportedly positive, or the answers to myriad other questions that could provide context to
their claim. In short, Plaintiffs apparently seek to exploit the ambiguity created by the absence of
allegations to fabricate plausibility of their claim. But ambiguity does not support a claim, factual
allegations do.
Unfortunately for Plaintiffs, the complaint’s factual allegations are simply too scarce.
Plaintiffs must plead enough factual content to permit the Court to draw a reasonable inference
41
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.451 Filed 04/21/22 Page 42 of 49
that Defendant Stuntman violated the Eighth Amendment. See Iqbal, 556 U.S. at 679. Plaintiffs
have not done so here. Therefore, the Court must dismiss their Eighth Amendment claim against
Defendant Stuntman.
B.
Fourteenth Amendment Equal Protection Clause
Plaintiffs assert that Defendant Macauley discriminated against them because he
purportedly permitted other COVID-negative prisoners to access the IBC 300 building, which
includes the “law library, chapel, school, barber, psych service[s] and other program building
services,” but Macauley did not provide the same access to the prisoners isolating on Unit 5.
(Compl., ECF No. 1, PageID.11-12.) Although Plaintiffs refer to “due process,” their allegations
of discrimination appear to raise an Equal Protection Clause claim.24
The Equal Protection Clause prohibits discrimination by government actors which either
burdens a fundamental right, targets a suspect class, or intentionally treats one differently than
others similarly situated without any rational basis for the difference. Rondigo, L.L.C. v. Twp. of
Richmond, 641 F.3d 673, 681-82 (6th Cir. 2011); Radvansky v. City of Olmsted Falls, 395 F.3d
291, 312 (6th Cir. 2005). A state practice generally will not require strict scrutiny unless it
interferes with a fundamental right or discriminates against a suspect class of individuals. Mass.
Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
24 To the extent Plaintiffs intend to raise a separate substantive due process claim, their claim again
fails because it is properly brought as an Equal Protection Clause claim. See Albright v. Oliver,
510 U.S. 266, 269 (1994) (“Where a particular [a]mendment ‘provides an explicit textual source
of constitutional protection’ against a particular sort of government behavior, ‘that [a]mendment,
not the more generalized notion of “substantive due process,” must be the guide for analyzing
these claims.’” (quoting Grahamv. Connor, 490 U.S. 386, 394 (1989))).
42
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.452 Filed 04/21/22 Page 43 of 49
Plaintiffs’ allegations neither implicate a fundamental right nor state that they are members
of a suspect class. Plaintiffs instead appear to contend that they have been treated differently from
others similarly situated without any rational basis for the difference.
To prove an equal protection claim in a class-of-one case, Plaintiffs must demonstrate
“intentional and arbitrary discrimination” by the state; that is, they must demonstrate that they
“ha[ve] been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Vill. of VMIIowbrook v. Olech, 528 U.S. 562, 564
(2000); see also Nordlinger v. Hahn, 505 U.S. 1, 10-11 (1992); United States v. Green, 654 F.3d
637, 651 (6th Cir. 2011). A plaintiff “must overcome a ‘heavy burden’ to prevail based on the
class-of-one theory.” Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012) (citing
TriHealth, Inc. v. Bd. of Corrm’rs, Hamilton Cnty., 430 F.3d 783, 791 (6th Cir. 2005)). “Unless
carefully circumscribed, the concept of a class-of-one equal protection claim could effectively
provide a federal cause of action for review of almost every executive and administrative decision
made by state actors.” Loesel, 692 F.3d at 462 (quoting Jennings v. City of Sillwater, 383 F.3d
1199, 1210-11 (10th Cir. 2004)).
The threshold element of an equal protection claim is disparate treatment. Scarbrough v.
Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006); Ctr. for Bio-Ethical Reform, Inc.
v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (“To state an equal protection claim, a plaintiff
must adequately plead that the government treated the plaintiff ‘disparately as compared to
similarly situated persons and that such disparate treatment either burdens a fundamental right,
targets a suspect class, or has no rational basis.’” (quoting Club Italia Soccer & ShortsOrg., Inc.
v. Charter Twp. Of Shelby, 470 F.3d 286, 298 (6th Cir. 2006))). “‘Similarly situated’ is a term of
art—a comparator. . . must be similar in ‘all relevant respects.’” Paterek v. Vill. of Armada, 801
43
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.453 Filed 04/21/22 Page 44 of 49
F.3d 630, 650 (6th Cir. 2015) (quoting United Statesv. Green, 654 F.3d 637,651 (6th Cir. 2011));
see also Nordlinger, 505 U.S. at 10; Tree of Life Christian Sch. v. City of Upper Arlington, 905
F.3d 357, 368 (6th Cir. 2018) (“A plaintiff bringing an equal protection claim must be ‘similarly
situated’ to a comparator in ‘all relevant respects.’”).
Plaintiffs have failed to allege any facts to demonstrate that comparators were similar in all
relevant respects. Plaintiffs offer only a conclusory statement that “other prisoners” were
“similarly situated,” (Compl., ECF No. 1, PageID.12), to support the contention that they were
similar in all relevant aspects to any prisoners treated differently. But Plaintiffs’ conclusory
allegation does not suffice. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept a
complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements,
supported by mere conclusory statements.”).
Instead, Plaintiffs’ equal protection claim is undermined by their own allegations. Plaintiffs
allege that they were in a prison unit that experienced a COV1D-19 outbreak in December 2021.
In the context of their inability to move about the prison facility, their recent exposure to a
transmissible disease was clearly a relevant characteristic. Yet, Plaintiffs do not allege that any
putative comparators were likewise exposed to COVID-19. Without such an allegation, they fail
to allege that any putative comparator is “similar in ‘all relevant respects.’” S0e Paterek, 801 F.3d
at 650. Consequently, Plaintiffs’ have not identified any others who are “similarly situated.”
Because Plaintiffs have not alleged that Defendants treated them disparately as compared
to others similarly situated, they cannot maintain an equal protection claim. See Ctr. for BioEthical Reform, Inc., 648 F.3d at 379. Accordingly, the Court will dismiss their equal protection
claim.
44
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.454 Filed 04/21/22 Page 45 of 49
C.
First Amendment Free Exercise
Plaintiffs contend that Defendant Macauley violated their First Amendment rights when he
allegedly precluded Unit 5 prisoners from the 1BC 300 building.
The First Amendment provides that “Congress shall make no law respecting an
establishment of religion, of prohibiting the free exercise thereof. . . .” U.S. Const, amend I. The
right to freely exercise one’s religion falls within the fundamental concept of liberty under the
Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Accordingly, state
legislatures and those acting on behalf of a state are “as incompetent as Congress” to interfere with
the right. Id.
While “lawful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights,” inmates clearly retain the First Amendment protection to freely exercise
their religion. See O’ Lone v. Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). To establish
that this right has been violated, a plaintiff must establish (1) that the belief or practice he seeks to
protect is religious within his own “scheme of things,” (2) that his belief is sincerely held, and
(3) that the defendant’s behavior infringes upon this practice or belief. Kent v. Johnson, 821 F.2d
1220, 1224-25 (6th Cir. 1987); see also Flagner v. VWkinson, 241 F.3d 475, 481 (6th Cir. 2001)
(same).
Plaintiffs fail to allege facts necessary to satisfy their initial burden. To be sure, Plaintiffs
allege that, while isolating or quarantining, they lacked access to the IBC 300 building. They also
allege that the IBC 300 building houses a chapel among other services. Yet, conspicuously absent
from the complaint is an allegation that any Plaintiff intended to engage in a practice or belief that
could be interpreted as religious, much less that Defendant Macauley infringed on that practice or
belief. Consequently, Plaintiffs fail to plead enough factual content to permit the Court to draw a
reasonable inference that Defendant Macauley violated their First Amendment rights. See Iqbal,
45
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.455 Filed 04/21/22 Page 46 of 49
556 U.S. at 679. Therefore, the Court must dismiss their First Amendment claim against Defendant
Macauley.
D.
Access to the Courts
Plaintiffs also contend that Defendants Lemke and Ritter failed to process legal mail for
prisoners isolating on Unit 5. Plaintiffs argue that their rights to access the courts have been
infringed in violation of the First and Fourteenth Amendments. Although the complaint is not
clear, Plaintiffs presumably intend to further argue that in closing access to the IBC 300 building,
Defendant Macauley also impeded their access to the courts.
It is well established that prisoners have a constitutional right of access to the courts.
Bounds v. Shnith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states
must protect the right of access to the courts by providing law libraries or alternative sources of
legal information for prisoners. Id. at 817. The Court further noted that in addition to law libraries
or alternative sources of legal knowledge, the states must provide indigent inmates with “paper
and pen to draft legal documents, notarial services to authenticate them, and with stamps to mail
them.” Id. at 824-25. The right of access to the courts also prohibits prison officials from erecting
barriers that may impede the inmate’s access to the courts. See Knop v. Johnson, 977 F.2d 996,
1009 (6th Cir. 1992).
An indigent prisoner’s constitutional right to legal resources and materials is not, however,
without limit. In order to state a viable claim for interference with his access to the courts, a
plaintiff must show “actual injury.” Lewisv. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff
must plead and demonstrate that the shortcomings in the prison legal assistance program or lack
of legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous
legal claim. Lewis* 518 U.S. at 351-53; see also Pilgrimv. Littlefield, 92 F.3d 413, 416 (6th Cir.
46
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.456 Filed 04/21/22 Page 47 of 49
1996). The Supreme Court has strictly limited the types of cases for which there may be an actual
injury:
Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions
to slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378,
391 (6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous
claim. Lewis* 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999)
(discussing that Lewis changed actual injury to include requirement that action be non-frivolous).
In addition, the Supreme Court squarely has held that “the underlying cause of
action ... is an element that must be described in the complaint, just as much as allegations must
describe the official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415
(2002) (citing Lewis* 518 U.S. at 353 & n.3). “Like any other element of an access claim, the
underlying cause of action and its lost remedy must be addressed by allegations in the complaint
sufficient to give fair notice to a defendant.” Id. at 415.
Plaintiffs utterly fail to demonstrate that anyone suffered an actual injury as defined by
Lavis and Thaddeus-X. Consequently, Christopher instructs that their claims must be dismissed.
See 536 U.S. at 415 (“[T]he underlying cause of action ... is an element that must be described in
the complaint.. . .”). The Court will therefore dismiss their access-to-the-courts claims.25
25 As noted in Part III, this is not Plaintiff Sanders’ first attempt to bring a claim in the Western
District of Michigan that prison officials infringed on his access to the courts. Indeed, Sanders
previously challenged Defendant Macauley’s roles in closing the 1BC law library in the fall of
2020 during the COVID-19 pandemic. See Sanders v. V\feishington, No. l:21-cv-54, 2021 WL
47
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.457 Filed 04/21/22 Page 48 of 49
E. Supervisory Liability
To the extent that Plaintiffs’ allegations assert that Defendant Macauley “fail[ed] to enforce
the posted rules/requirements of the staff wearing P.P.E.” (Compl., ECF No. 1, PageID.10), or
assert any residual claims against Defendant Macauley, those allegations appear rooted in their
belief that Macauley failed to properly supervise his subordinates. Government officials may not
be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior or vicarious liability. Iqbal, 556 U.S. at 676; Monel I v. New York City Dep’t of Soc. Servs.,
436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed
constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight,
532 F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The
acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere
failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Sunnmersv. Leis> 368 F.3d 881,
888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor
denied an administrative grievance or failed to act based upon information contained in a
grievance. SeeSheheev. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Iqbal, 556 U.S. at 676. As fully discussed above, Plaintiffs have failed to allege
1049876, at *3-4 (W.D. Mich. Mar. 19, 2021). In that action, Sanders suggested that Defendant
Macauley and another defendant impaired his ability to seek judicial review of a prison misconduct
conviction. That court dismissed the claim because “a petition for judicial review of a misconduct
conviction is not an attack on the prisoner’s conviction or sentence; nor is it a challenge to the
conditions of confinement.” Id. at *4. Importantly, the opinion explained (1) that a plaintiff must
address in his allegations the underlying cause of action and the remedy lost by a defendant’s
conduct and (2) what qualifies as an “actual injury” for an access-to-the-courts claim. In the instant
complaint, Sanders completely ignores the guidance previously given by the court.
48
Case l:22-cv-00018-PLM-PJG ECF No. 20, PagelD.458 Filed 04/21/22 Page 49 of 49
that Defendant Macauley engaged in any active unconstitutional behavior. Accordingly, Plaintiffs
fail to state a claim against him.
Conclusion
The Court will deny Plaintiff Sanders’ pending motions. Further, having conducted the
review required by the Prison Litigation Reform Act, the complaint as to Plaintiff Sanders will be
dismissed as malicious pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C.
§ 1997e(c). The Court also determines that, as to the remaining Plaintiffs, the complaint will be
dismissed pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c), because it fails to state a
claim. The Court must next decide whether an appeal of this action would be in good faith within
the meaning of 28 U.S.C. § 1915(a)(3). SeeMcGorev. VWgglesworth, 114 F.3d 601,611 (6th Cir.
1997). Although the Court concludes that Plaintiffs’ complaint is properly dismissed, the Court
declines to conclude that any issue Plaintiffs might raise on appeal would be frivolous. Coppedge
v. United States* 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal
would not be taken in good faith.
This is a dismissal as described by 28 U.S.C. § 1915(g).
An order and a judgment consistent with this opinion will be entered.
Dated:
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
April 21,2022
49
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.