Petition for Writ of Certiorari — Jason L. Sanders, Petitioner v. Matt Macauley, Warden, et al.

Supreme Court briefAug 30, 2022

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Case: 22-1502

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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

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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NOT RECOMMENDED FOR PUBLICATION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.

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-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

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-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

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-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

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-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

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-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

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-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

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-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-

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-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

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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.)

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.,

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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.

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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”).

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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.

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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

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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

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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

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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))).

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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

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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.

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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,

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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.

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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

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