Petition for Writ of Certiorari — Steven Trapp, Petitioner v. Erica Huss, Warden, et al.

KQ K^

J/ O' O' O'

no. AL23M

IN THE SUPREME COURT OF THE UNITED STATES

STEVEN J. TRAPP ■ PETITIONER,

VS.

Supreme Court, U.S.

FILED

ERICA HUSS, ET AL - RESPONDENT.

OCT 0 6 2022

OFFICE OF THE CLERK

On Petition for Writ of Certiorari to the

U.S. Sixth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

BY-

Steven J. Trapp* #770672

Petitioner in propria persona

Marquette Branch Prison

1960 U.S. Highway 41 South

Marquette, Michigan 49855

* NOTICE: This document was prepared with the assistance of a non-attorney prisoner assigned to

the Legal Writer Program with the Michigan Department of Corrections.

QUESTION PRESENTED FOR REVIEW

I. Should this court grant this writ of certiorari where the sixth circuit court err in

not overturning the district court’s dismissal of petitioner’s complaint, for failure to

state a claim, when the facts stated within the complaint and grievances were

enough for the complaint to continue?

II. Should this court grant this writ of certiorari where only after Petitioner was

allowed to catch COVID-19 does Respondents decide to enforce a mandatory

Departmental Office Memorandum, which went into effect on April 8, 2020, and

does the constitutional violation no longer exist because Respondents decided to

enforce the DOM after the violation?

1

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

u

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.............................................

1

LIST OF PARTIES...................................................................................

n

TABLE OF CONTENTS.........................................................................

in

INDEX TO APPENDICES......................................................................

IV

TABLE OF AUTHORITIES....................................................................

.V

OPINIONS BELOW................................................................................

1

STATEMENT OF JURISDICTION........................................................

.2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

A. Constitutional Provisions:

.3

I.

STATEMENT OF THE CASE AND RELEVANT FACTS..............................

4

II.

RELEVANT FACTS.......................................................................................

4

III.

SUMMARY OF ARGUMENT.......................................................................

6

REASONS FOR GRANTING THE WRIT..............................................................

.7

I. THIS COURT SHOULD GRANT THIS WRIT OF CERTIORARI

WHERE THE SIXTH CIRCUIT COURT ERRED IN NOT

OVERTURNING THE DISTRICT COURT’S DISMISSAL OF

PETITIONER’S COMPLAINT, FOR FAILURE TO STATE A CLAIM,

WHEN THE FACTS STATED WITHIN THE COMPLAINT AND

GRIEVANCES WERE ENOUGH FOR THE COMPLAINT TO

CONTINUE............................................................................................................

7

a. Argument:.....................................................................................................................

7

b. Constitutional Right:......................................................................................................

8

1. Objective Prong:............................................................................................................

12

2. Subjective Prong:...........................................................................................................

13

II. THIS COURT SHOULD GRANT THE WRIT OF CERTIORARI WHERE

ONLY AFTER PETITIONER WAS ALLOWED TO CATCH COVID-19 DOES

RESPONDENTS

DECIDE

TO

ENFORCE

A

MANDATORY

DEPARTMENTAL OFFICE MEMORANDUM, WHICH WENT INTO

EFFECT ON APRIL 8, 2020, DOESn’t NULLIFY THE CONSTITUTIONAL

VIOLATION BECAUSE RESPONDENTS DECIDED TO ENFORCE THE

DOM AFTER THE VIOLATION.............................................................................

18

a. Argument:.....................................................................................................................

18

CONCLUSION.........................................................................................................

22

in

INDEX TO APPENDICES

APPENDIX A- U.S. District Court’s Dismissal for Failure to State a Claim, Dated

August 24, 2021

APPENDIX B- U.S. Sixth Circuit Court of Appeals’ Denial, Dated May 5, 2022

APPENDIX U U.S. Sixth Circuit Court of Appeals’ Denial of a Request for

Rehearing En Banc, Dated July 14, 2022

APPENDIX D- Declaration of Steven Trapp

APPENDIX E: DOM 2020-30R6

APPENDIX F- Policy Directive 03.04.110 “Control of Communicable Diseases”

APPENDIX G: Policy Directive 01.04.110 “Administrative Rules, Policies and

Procedures”

IV

TABLE OF AUTHORITIES

Pages

Cases

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

7

BellAtl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,

167 L. Ed. 2d 929 (2007).................................................................

7

Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970,

128 L. Ed. 2d 811 (1994)...........................................

9, 12, 13, 18

Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)

10, 20

Haines v. Kerner, 404 U.S. 519, 520-521, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)

21

Helling v. McKinney, 509 U.S. 25, 33-34, 113 S. Ct. 2475,

125 L. Ed. 2d 22 (1993)..........................................................

9, 18, 20

Hewitt v. Helms, 459 U.S. 460, 471*472, 103 S. Ct. 864,

74 L. Ed. 2d 675 (1983)..............................................

19, 21

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)..........................................

8

Hill v. Whitmer, 471 F. Supp. 3d 803, 805-06 (W.D. Mich. July 9, 2020)......

10

Hutto v. Finney, 437 U.S. 678, 682, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978)

9, 18

Ivey v. Wilson,832 F.2d 950, 954 (6th Cir. 1987).................................................

8, 9

Mingus v. Butler, 591 F.3d 474, 479*80 (6*h Cir. 2010).....................................

9

Rhodes v. Chapman, 452 U.S. 337, 345*46, 101 S. Ct. 2392,

69 L. Ed. 2d 59 (1981)...............................................................

Wilson v. Comm 'r ofSocial Security, 378 F3d 541, 545 (6th Cir. 2004)

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

Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998)

Youngbergv. Romeo, 457 U.S. 307, 315*316, 102 S. Ct. 2452,

73 L. Ed. 2d 28, (1982).................................................................

v

8, 10, 20

15

10, 19

8

10, 20

Statutes

28 U.S.C. §1254(1).

2

28U.S.C. § 1746

22

28 U.S.C. §§ 1915A(b)(l) mA 1915(e)(2)(B)(i).

8

1,4

42 U.S.C. §1983

Other Authorities

Director’s Office Memorandum (DOM) 2020-30R6

Policy Directive 03.04.110 “Control of Communicable Diseases”.

5, 14

14

Policy Directive 01.04.110 “Administrative Rules, Policies and Procedures” ...v, 15, 1

Rules

8

Fed. R. Civ. P. 8(a)(2)

Constitutional Provisions

United States Constitutional Eighth Amendment

vi

passim

OPINIONS BELOW

The August 24, 2021, order of the Michigan U.S. District Court denying

Petitioner’s 42 U.S.C. § 1983, for failure to state a claim. (Appendix, Michigan U.S.

District Court's Dismissal for Failure to State a Claim, Dated August 24, 202f). The

May 5, 2022, U.S. Sixth Circuit Court of Appeals denial of Petitioner’s appeal.

(Appendix B, U.S. Sixth Circuit Court ofAppeals'Denial, Dated May 5, 2022). Lastly

the July 14, 2022, U.S. Sixth Circuit Court of Appeals’ Denial of a Request for

Rehearing En Banc. (Appendix C, U.S. Sixth Circuit Court ofAppeals’ Denial of a

Request for Rehearing En Banc, Dated July 14, 2022).

1

STATEMENT OF JURISDICTION

Petitioner seeks review of the July 14, 2022, opinion of the U.S. Sixth Circuit

Court of Appeals’ Denial of a Request for Rehearing En Banc. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

A. Constitutional Provisions:

U.S. CONST. AMEND. VIII: EXCESSIVE BAIL, FINES, PUNISHMENTS.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

TITLE 42, SECTION 1983, UNITED STATES CODE:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, or any State or Territory or the District of Columbia, subjects, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a judicial officer

for an act or omission taken in much officer's judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was violated or declaratory relief was

unavailable. For the purpose of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to be a statute of the

District of Columbia.

3

I.

STATEMENT OF THE CASE AND RELEVANT FACTS

Steven J. Trapp, (known hereafter as “Petitioner”) in propria persona, states

the following in support of his application.

The Petitioner is presently incarcerated within the Michigan Department of

Corrections and is being housed at the Marquette Branch Prison, located at 1960

U.S. Highway 41 South, Marquette Michigan 49855.

On August 10, 2021, Petitioner filed suit against Respondent [known

hereafter as “Respondent”] Erica Huss and Unknown Party #1, Health Care Unit

Manager pursuant to 42 U.S.C. § 1983, for violating Petitioner’s U.S. Constitutional

Eighth Amendment rights, by failing to take necessary steps to protect him from

the COVID-19 deadly contagious disease.

On August 24, 2021, the Court dismissed the action with prejudice for failure

to state a claim. Though, the court did determine that “Although the Court

concludes that Petitioner’s claims are properly dismissed, the Court does not

conclude that any issue Petitioner might raise on appeal would be frivolous.”

On November 19, 2021, Magistrate Judge, Maarten Vermaat, granted in

forma pauperis, but ordered Petitioner to pay an initial partial filing fee dealing

with his notice of appeal. Which Petitioner paid.

II.

RELEVANT FACTS

On October 5, 2020, the entire Marquette Branch Prison (MBP) was placed

on lockdown because, in the middle to end of September, prisoners from another

prison were brought to MBP who were infected with COVID-19. (Appendix D\

4

Declaration ofSteven Trapp, f 6).

In August 27, 2020, Director’s Office Memorandum (DOM) 2020*30R6, which

has been superseded many of times since it first came out, directed the Respondent

of the necessary procedures that were to be followed to protect staff and prisoners

from COVID-19. This included isolation of all prisoners that tested positive for

COVID'19 and those that were within close proximity, 6 feet to an infected person

for more than 15 minutes.

It should be noted that though the Respondents were aware of the DOM, for

it was e-mailed directly to their offices from the Director’s Office in Lansing,

Petitioner was not. This was because MBP was hit the hardest with COVID-19

during the months of October and November of 2020. NO access was given to the

law library, and it took weeks before any type of legal material was starting to be

passed out, but to get any legal materials a prisoner had to know the exact name of

the legal authority and the complete citation or he would be denied anything.

Petitioner did not know the DOM even existed at the time he wrote to Respondents

or filed his grievances. The law library shut its doors on October 5, 2020 and did not

re-open until December 21, 2020, thus Petitioner had no way of knowing the DOM

existed. {AppendixD, ff 10, 12-if).

On October 26, 2020, Petitioner wrote to Respondents about being left in an

open cell environment with COVID-19 positive prisoners, which these prisoners

were left in their cell and never isolated. Because of Respondent’s failure to protect

Petitioner from a deadly contagious disease, as Policy Directives state must be done,

5

he then caught COVID-19, and instead of being isolated and treated for it, he was

left in his open bar cell in pain and to suffer from the effects of COVID-19.

{Appendix D, ff 2, 8, if).

Petitioner filed the necessary grievances, with what little knowledge he

retains about doing such things, and then filed his civil litigation on the

Respondents’ for violating his Eighth Amendment rights. Petitioner is not learned

in either administrative or civil law, which can be seen by his complaint and

grievances, though he did have a little help with the later from another prisoner

who gave him information that should be included within the body of the grievance.

(Appendix D, ff 13, l3).

III.

SUMMARY OF ARGUMENT

Petitioner raises two arguments for this Court to consider: the district court

erred in dismissing Petitioner’s complaint for failure to state a claim when the facts

stated within the complaint and grievances were enough for the complaint to

continue forward and the Respondents to be served for violating his United States

Constitutional Eighth Amendment rights.

Any additional facts are retained infra.

6

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT THIS WRIT OF CERTIORARI

WHERE THE SIXTH CIRCUIT COURT ERRED IN NOT

OVERTURNING THE DISTRICT COURT’S DISMISSAL OF

PETITIONER’S COMPLAINT, FOR FAILURE TO STATE A CLAIM,

WHEN THE FACTS STATED WITHIN THE COMPLAINT AND

GRIEVANCES WERE ENOUGH FOR THE COMPLAINT TO

CONTINUE.

a. Argument:

To avoid dismissal for failure to state a claim, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868

(2009). “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.” Id.

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 At! Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d

929 (2007). While a complaint need not contain detailed factual allegations, a

plaintiffs allegations must include more than labels and conclusions. Twombly, 550

U.S. at 555; Iqbal, 556 U.S. at 678. The court must determine whether the

complaint contains “enough facts to state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570. Although the plausibility standard is not

equivalent to a “‘probability requirement,’ ... it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “[W]here

7

the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that

the pleader is entitled to relief” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.

8(a)(2)}'', see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that

the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on

initial review under 28 U.S.C. §§ 1915A(b)(l) zxA 1915(e)(2)(B)(i).

Plaintiff alleges that Respondents have violated his rights under the United

States Constitution’s Eighth Amendment against cruel and unusual punishment

and knowingly failed to protect him from a deadly contagious disease.

b. Constitutional Right:

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, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981). The

Amendment, therefore, prohibits conduct by prison officials that involves the

“unnecessary and wanton infliction of pain.” Ivey v. Wilson,832 F.2d 950, 954 (6th

Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged

must result in the denial of the “minimal civilized measure of life’s necessities.”

Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 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

8

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.

In order for a prisoner to prevail on an Eighth Amendment 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, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (applying deliberate

indifference standard to medical claims)).

In Helling v. McKinney, 509 U.S. 25, 33*34, 113 S. Ct. 2475, 125 L. Ed. 2d 22

(1993), the Court held'

We have great difficulty agreeing that prison authorities may not

be deliberately indifferent to an inmate’s current health problems

but may ignore a condition of confinement that is sure or very

likely to cause serious illness and needless suffering the next

week or month or year. In Hutto v. Finney,; 437 U.S. 678, 682, 57

L. Ed. 2d 522, 98 S. Ct. 2565 (1978), we noted that inmates in

punitive isolation were crowded into cells and that some of them

had infectious maladies such as hepatitis and venereal disease.

This was one of the prison conditions for which the Eighth

Amendment required a remedy, even though it was not alleged

that the likely harm would occur immediately and even though

the possible infection might not affect all of those exposed. . .. Nor

can we hold that prison officials may be deliberately indifferent to

the exposure of inmates to a serious, communicable disease on the

ground that the complaining inmate shows no serious current

symptoms.

The Amendment, as we have said, requires that inmates be

furnished with the basic human needs, one of which is

“reasonable safety.” DeShaney, supra, at 200. It is “cruel and un­

usual punishment to hold convicted criminals in unsafe

conditions.” Youngbergv. Romeo, 457 U.S. 307, 315*316, 73 L. Ed.

9

2d 28, 102 S. Ct. 2452 (1982). It would be odd to deny an

injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing

yet had happened to them. The Courts of Appeals have plainly

recognized that a remedy for unsafe conditions need not await a

tragic event. Two of them were cited with approval in Rhodes v.

Chapman, 452 U.S. 337, 352, n. 17, 69 L. Ed. 2d 59, 101 S. Ct.

2392 (1981). Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), held

that inmates were entitled to relief under the Eighth Amendment

when they proved threats to personal safety from exposed

electrical wiring, deficient firefighting measures, and the

mingling of inmates with serious contagious diseases with other

prison inmates.

Further, in Hill v. Whitmer, 471 F. Supp. 3d 803, 805-06 (W.D. Mich. July 9,

2020) (citing Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020)) the Court agreed with

a prior Sixth Circuit’s ruling dealing with exposure to COVID-19. The Wilson v.

Williams, case seems to be the standard for rejecting such claims[T]he 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. In the opinion, the Sixth Circuit found that the

plaintiffs ... had easily satisfied the objective component of an

Eighth Amendment claimIn assessing the objective prong, we ask whether petitioners

have provided evidence that they are “incarcerated under

conditions posing a substantial risk of serious harm.” 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 COIVD19 are significant.” The infection and fatality rates at Elkton

have borne out the serious risk of COVID-19, 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 medicallyvulnerable subclass’s health risks, presents a substantial

risk that petitioners at Elkton will be infected with COVID19 and have serious health effects as a result, including, and

10

up to, death. Petitioners have put forth sufficient evidence

that they are “incarcerated under conditions posing a

substantial risk of serious harm.”

The Sixth Circuit went on to address the subjective prong of an

Eighth Amendment claim, noting that the pertinent question was

whether the BOP’s actions demonstrated deliberate indifference

to the serious risk of harm posed by COVID-19 in the prison.

There is no question that the BOP was aware of and understood

the potential risk of serious harm to inmates at Elkton through

exposure to the COVID-19 virus. As of April 22, fifty-nine inmates

and forty-six staff members tested positive for 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.” The

BOP acknowledged the risk from COVID-19 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.” The BOP contends that it has acted “assiduously to

protect inmates from the risks of COVID-19, to the extent

possible.” 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; limit[ing]staff and visitors and subjecting] them to

enhanced screening; clean[ing]common areas and giving]

inmates disinfectant to clean their cells; providing] inmates

continuous access to sinks, water, and soap; educat[ing]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. 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. 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

11

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, {internal citations omitted).

The Eighth Amendments deliberate indifference framework includes both an

objective and subjective prong. Farmer, 511 U.S. at 834. 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 “knowD of and disregard!] an excessive risk to inmate health

or safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say

that acting or failing to act with deliberate indifference to a substantial risk of

serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Id.

at 836. “[Plrison officials who actually knew of a substantial risk to inmate health

or safety may be found free from liability if they responded reasonably to the risk,

even if the harm ultimately was not averted.” Id. at 844. They failed to responded

reasonably in Petitioner’s case.

1. Objective Prong:

There is no question that Respondent was aware of and understood the

potential risk of serious harm to Petitioner and other inmates at MBP through

exposure to the COVID-19 virus.

12

Petitioner is being held in an open cell environment. There are 3 levels in

each Housing Unit, “Base”, “First” and “Second” galleries. There is approximately 6

to 8 inches between one cell to the next on each gallery, with only cell bars in the

front of the cell. There is a catwalk on First and Second galleries, that is

approximately 4-foot-wide with a hand rail on it to prevent a person from falling off

the galleries. Otherwise, it is open air in front of the cells for around 30 foot to the

wall. If someone coughs, sneezes, or yells out of the cell bars at the front of his cell,

any surrounding prisoners are exposed to those germs. Those prisoners that lock

underneath Second, on First and Base, are exposed to everyone’s germs that are

above them and to the sides of them. Because MBP houses mentally ill prisoners

[around 80%], the vast majority of prisoners stand at their cell bars yelling to each

other, for they are confined in their cells for around 22 hours a day, with nothing

else to do but yell to one another to pass time, for MBP is a punishment only

facility, in the Level 5 facility section. {Appendix D, J 2).

Therefore, “he is incarcerated under conditions posing a substantial risk of

serious harm” Farmer; 511 U.S. at 834, due to exposure to other prisoners’ germs

containing COVID-19.

2. Subjective Prong:

Petitioner does not dispute that the MDOC created a procedure to try and

prevent the spread of COVID-19, but, that Respondents refused to abide/enforce the

procedures which lead to Petitioner and other prisoners at MBP becoming infected

with COVID-19. {AppendixD, ff 9, 19).

13

Heidi Washington, the Director of the Michigan Department of Corrections

came out with a Director’s Office Memorandum (DOM) 2020-30R6, in August 27,

2020, which has been superseded many of times since the MBP outbreak in 2020. It

directed the Respondents of the necessary procedures that are to be followed to

protect staff and prisoners from COVID-19. {See Appendix E, DOM2020m30Rd).

As part of the DOM, it statesThe MDOC is taking many steps to protect staff and prisoners

from the spread of COVID-19, including developing isolation

areas to place and treat prisoners who have tested positive for

COVID-19 or who are under investigation for having COVID-19,

as well as those who have had close contact with a known-positive

COVID-19 individual. This DOM outlines the precautions staff

shall take to help prevent COVID-19 from spreading. (Appendix

E, pg. 1, f 1).

Further, all prisoners and staff alike were to be screened before being allowed

to enter MBP. {Appendix E, pg. 2).

Prisoners that tested positive shall be placed into isolation areas, {Appendix

E' pg. 2), along with any prisoners under investigation for COVID-19, because of

close contact. {Appendix E, pg. 3).

Any prisoner shall have his property withheld because of the virus may be

lying dormant. {Appendix E, pg. 3-4).

Further, a system was already in effect, and had been since May 1, 2015, on

how to handle and control communicable diseases. See Policy Directive (PD)

03.04.110 “Control of Communicable Diseases'’. {Appendix F, Policy Directive

03.04.110 Control of Communicable Diseases).

Under PD 03.04.110 f Hstates14

Control measures which should be considered include isolation of

prisoner cases, immunization programs, elimination of

nonemergency prisoner transfers, reassignment of pregnant or

other “at risk” staff, partner notification and follow up, and

notification of staff, visitors and prisoners. . ..

Being that “[i]t is an elemental principal of administrative law that agencies

are bound to follow their own regulations,” Wilson v. Comm'r ofSocial Security, 378

F3d 541, 545 (6th Cir. 2004), and per PD 01.04.110 “Administrative Rules, Policies

and Procedures'’ f U, which states:

The Manager of the Policy Section shall ensure that all new or

revised Department administrative rules, policy directives,

DOMs, variances, and operating procedures issued by the

Director are promptly entered onto DAS. The Manager of the

Policy Section also shall ensure that notice of each new or revised

rule, policy directive, DOM, or operating procedure issued by the

Director is sent to Department employees with Department e*

mail. All Department employees are responsible for reviewing

updated administrative rules, policy directives, operating

procedures, and DOMs. Wardens and other administrators shall

confirm that their employees have reviewed all new and revised

administrative rules, policy directives, variances, DOMs, and

operating procedures by having them complete the read and sign

in Attachment A. Notice shall also be sent to appropriate

collective bargaining units, and, for non-exempt policy directives

and operating procedures, to courts and other governmental

agencies requesting notification.

(See Appendix G, Policy Directive 01.04.110 “Administrative Rules, Policies and

Procedures’).

Therefore, the Respondents cannot say they were unaware of the DOM or PD

mandating what was required of them in how to deal with COVID-19, they just

chose not to do it.

In the middle of September 2020, an incident took place at Kinross

15

Correctional Facility (KCF), located in Kincheloe Michigan. Around 103 prisoners

were transferred to MBP from KCF, and housed within C-unit. At least 2 prisoners

were known to have COVID'19. (AppendixD, f 3).

These prisoners were given all their property and were taken into another

Unit, D'Unit, to take their showers around other prisoners that they should not

have been in contact with or allowed to breath out the virus into the air for the noninfected prisoner to breath in and become exposed. These prisoners were also given

general population yard, where they would intermix with the correction officers that

worked the yard area, whom in turn, worked with the rest of the prisoners at MBP.

The prisoners that were exposed in D-Unit, were moved to either G or B Units when

released from D'Unit, which in turn, spread the virus to both of those units. These

action were in direct violation of DOM 2020-30R6, where no property was supposed

to have been given to the prisoners, they were supposed to have been isolated, and

though they were to be allowed yard, it should not have been with staff members

that would in turn intermix with the rest of the general population at MBP.

(Appendix D, f 4).

At the end of September of 2020, two prisoners in G'Unit had COVID'19. One

locked in the area of Second gallery cell 1, and the other locked in the area of First

gallery cell 34. These prisoners were left in their cells for almost 2 days, even after

it was known they had COVID'19. When they were taken out and isolated, all the

prisoners that locked around them were never isolated, which every prisoner

around them was exposed to the virus and ended up being the first large groups of

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prisoners that tested positive for COVID-19 and spread the virus to the rest of the

prison population. (Appendix D, f S).

Prisoners are fed within their cells on plastic trays that are passed out by

other prisoners that are assigned as Kitchen Porters. These same kitchen porters

were allowed to continue to pass out prisoners’ meal trays up until MBP was finally

locked down because of the wide spread outbreak of COVID-19. This took place

around October 5, 2020. Yet, even after this time frame, grounds workers and unit

porters were still allowed to come out and work, which spread the virus around to

other prisoners. {AppendixD, f f).

On October 8, 2020, because of Respondents’ refusing to enforce and follow

\

the DOM and PD, and immediately isolate any positive COVID-19 prisoners and

isolate anyone that had close contact with them, Petitioner tested positive for

COVID-19 and was subject to painful headaches; body aches; muscle pain and

cramps; breathing problems, shortness of breath which exists to this date; elevated

heart rate; no taste or smell, which has not fully come back; the loss of weight,

because of loss of appetite; and high fevers. The pain and suffering, which did not

become permanent, lasted for around 2 to 3 weeks. {AppendixD, ff 8, 11, 18).

Petitioner has stated a US. Constitutional Eighth Amendment violation of

deliberate indifference by the Respondents which allowed Petitioner to be subjected

to cruel and unusual punishment where he was allowed, by the Respondent’s

intentional inactions to fallow the procedures and policies, to be subjected to the

exposure of COVID-19. “[I]t is enough that the official acted or failed to act despite

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his knowledge of a substantial risk of serious harm.” Farmer; 511 U.S. at 842.

II. THIS COURT SHOULD GRANT THE WRIT OF CERTIORARI

WHERE ONLY AFTER PETITIONER WAS ALLOWED TO CATCH

COVID-19 DOES RESPONDENTS DECIDE TO ENFORCE A

MANDATORY DEPARTMENTAL OFFICE MEMORANDUM, WHICH

WENT INTO EFFECT ON APRIL 8, 2020, DOESN’T NULLIFY THE

CONSTITUTIONAL VIOLATION BECAUSE RESPONDENTS DECIDED

TO ENFORCE THE DOM AFTER THE VIOLATION.

a. Argument:

In Helling v. McKinney, 509 U.S. 25, 33-34 (1993), the Court heldWe have great difficulty agreeing that prison authorities may not

be deliberately indifferent to an inmate’s current health problems

but may ignore a condition of confinement that is sure or very

likely to cause serious illness and needless suffering the next

week or month or year. In Hutto v. Finney, 437 U.S. 678, 682, 57

L. Ed. 2d 522, 98 S. Ct. 2565 (1978), we noted that inmates in

punitive isolation were crowded into cells and that some of them

had infectious maladies such as hepatitis and venereal disease.

This was one of the prison conditions for which the Eighth

Amendment required a remedy, even though it was not alleged

that the likely harm would occur immediately and even though

the possible infection might not affect all of those exposed. . .. Nor

can we hold that prison officials may be deliberately indifferent to

the exposure of inmates to a serious, communicable disease on the

ground that the complaining inmate shows no serious current

symptoms.

On April 8, 2020 a DOM dealing with COVID-19 come out making it

mandatory for the Respondents to enforce criteria within it to ensure the protection

of prisoners and staff alike at all prisons in Michigan. The DOMs are sent directly

to the warden, Respondent Huss, to enforce them and ensure that her staff abide by

the DOM. PD 01.04.110 “Administrative Rules, Policies and Procedures” f U,

statesThe Manager of the Policy Section shall ensure that all new or

revised Department administrative rules, policy directives,

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DOMs, variances, and operating procedures issued by the

Director are promptly entered onto DAS. The Manager of the

Policy Section also shall ensure that notice of each new or revised

rule, policy directive, DOM, or operating procedure issued by the

Director is sent to Department employees with Department email. All Department employees are responsible for reviewing

updated administrative rules, policy directives, operating

procedures, and DOMs. Wardens and other administrators shall

confirm that their employees have reviewed all new and revised

administrative rules, policy directives, variances, DOMs, and

operating procedures by having them complete the read and sign

in Attachment A. Notice shall also be sent to appropriate

collective bargaining units, and, for non-exempt policy directives

and operating procedures, to courts and other governmental

agencies requesting notification. (Appendix 0)

In Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), the U.S. Sixth Circuit

found that after prisoners were subject to COVID-19 and then the BOP came out

with preventive measures to protect prisoners and staff alike, defendants were not

deliberately indifferent to the plaintiffs wellbeing and no constitutional violation

transpired.

If the defendants would have been told, in advance, to enforce the necessary

measures to protect the prisoners and refused to do so, would the U.S. Sixth Circuit

Court still have ruled in the defendants’ favor, or found an Eighth Amendment

violation in the petitioner’s favor? That is the question Petitioner is presenting to

this Court.

In Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S. Ct. 864, 74 L. Ed. 2d 675

(1983), dealing with a correctional facility when “[i]t has used language of an

unmistakable mandatory character, requiring that certain procedures ‘shall,’ ‘will

or ‘must’ be employed.”

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In Petitioner’s case, the preventive measures were already in place, the

warden was personally given notice of what she “MUST” Id. at 471*472, do months

in advance, yet, Respondent Huss refused to implement the mandatory procedures

until after Respondent Huss allowed the virus to spread throughout the prison

system. Only then did Respondent Huss start to pass out face masks, additional

cleaning supplies, soaps, etc. She was well aware of the virus being at the facility in

September 14, 2020, from when the infected prisoners were transferred in from

another facility. If Respondent Huss would have been enforcing the DOM from the

time she was told to do so, in April of 2020, then the prisoners that were transferred

to Marquette Branch Prison would have been isolated from any other prisoners and

staff, and Petitioner would not have been forced to live inches away from a known

infected prisoner who was allowed to infect Petitioner with the virus.

The Amendment, as we have said, requires that inmates be

furnished with the basic human needs, one of which is

“reasonable safety.” DeShaney, supra, at 200. It is “cruel and un­

usual punishment to hold convicted criminals in unsafe

conditions.” Youngbergv. Romeo, 457 U.S. 307, 315*316, 73 L. Ed.

2d 28, 102 S. Ct. 2452 (1982). It would be odd to deny an

injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing

yet had happened to them. The Courts of Appeals have plainly

recognized that a remedy for unsafe conditions need not await a

tragic event. Two of them were cited with approval in Rhodes v.

Chapman, 452 U.S. 337, 352, n. 17, 69 L. Ed. 2d 59, 101 S. Ct.

2392 (1981). Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), held

that inmates were entitled to relief under the Eighth Amendment

when they proved threats to personal safety from exposed

electrical wiring, deficient firefighting measures, and the

mingling of inmates with serious contagious diseases with other

prison inmates.

Helling, 509 U.S. at 34.

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The fact is, when Respondents started enforcing the mandatory language of

the DOM, after the Respondents allowed the virus to spread and infect prisoners

and staff alike, it did not cure the constitutional violation that Respondents allowed

to transpire.

Thus, enforcing the safety precaution after the fact does not cure

intentionally allowing “inmates with serious contagious diseases with other prison

inmates.” Id. Thus, as indicated within the body of the above claim, Petitioner did

state an Eighth Amendment claim.

Reading the grievance and the complaint in the light most favorable to

Petitioner, he did state a claim which relief could have been granted upon. Though

an untrained prisoner used the word “negligent” in his grievance, the arguments

show that the issue and violation were of a constitutional nature, and should have

been viewed as such. For if law was so easy that anyone understood the twists and

turns of it, then there would be no use for law schools or attorneys. A person would

be able to just walk into the courtroom and argue common sense and it would be

enough. But, that is not the judiciary system. Attorneys train for years to get a

basic grasp of the law and how to properly argue something. This is why a pro se

plaintiff is held to a lessor standard than an attorney. Haines v. Kerner, 404 U.S.

519, 520-521, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).

As for the “respondent-superior theory,” Respondent Huss is the person that

must be held accountable for her actions when Respondent Huss was directly told

how to handle COVID-19 in mandatory language, Hewitt, 459 U.S. at 471-472, and

then chose to not do it. She is the direct Respondent in this matter, and not under a

21

“respondent-superior theory.”

CONCLUSION

Petitioner, Steven J. Trapp, respectfully requests that this Court grant this

petition for a writ of certiorari and any other relief that it deems is just and proper

in this case.

Respectfully submitted,

Executed on-

Steven J. Tra^p^f70672

In propria persona

Marquette Branch Prison

1960 U.S. Highway 41 South

Marquette, Michigan 49855

DECLARATION

I, Steven J. Trapp, Petitioner swears, with his signature below, that the

forgoing is true and accurate pursuant to 28 U.S.C. § 1746.

Executed on: f

i

%'3i-2ZSteven J Tf^p"

In propria persona

22