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

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 C

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”

•V

21-2958

Mr. Steven Trapp

#770672

Marquette Branch Prison

1960 U.S. Highway 41, S.

Marquette, MI 49855

v..

!i

Deborah S. Hunt

Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: July 14, 2022

Mr. Steven Trapp

Marquette Branch Prison

1960 U.S. Highway 41, S.

Marquette, MI 49855

Re: Case No. 21-2958, Steven Trapp v. Erica Huss, et al

Originating Case No.: 2:21-cv-00185

Dear Mr. Trapp,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Beverly L. Harris

En Banc Coordinator

Direct Dial No. 513-564-7077

Enclosure

No. 21-2958

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STEVEN TRAPP,

Plaintiff-Appellant;

v.

)

)

)

)

)

Jul 14, 2022

DEBORAH S. HUNT, Clerk

ORDER

ERICA HUSS, WARDEN, ET AL.,

Defenclants-Appellees.

)

)

)

BEFORE: SUHRHEINRICH, GILMAN, and KETHLEDGE, Circuit Judges.

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case 2:21-cv-00185-PLM-MV

ECF No. 8, PagelD.33

Filed 08/24/21

Page 1 of 1

UNITED STATES DIS TRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

Steven Trapp,

Plaintiff,

Case No. 2:21 -cv-185

v.

Honorable Paul L. Maloney

Erica Huss et al.,

Defendants.

JUDGMENT

In accordance with the opinion issued this date:

IT IS ORDERED that Plaintiffs action is DISMISSED WITH PREJUDICE for

failure to state a claim pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and 42 U.S.C. § 1997e(c).

Certified

By

Dated:

August 24, 2021

-k.

ue Copy

/s/ Paul L. Maloney

XTJeptffy Clerk

^tJ.S. District Court ~

Paul L. Maloney

United States District Mfeflern Dist. of Michigan

Date

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

STEVEN TRAPP #770672

Plaintiff,

Case No. 2:21-cv-185

v.

. Hon. Maarten Vermaat

ERICA HUSS.et al.,

Defendants.

NOTICE TO PLAINTIFF REGARDING CONSENT

This notice is to inform you that your case was filed on August 10, 2021 and has been

assigned to Magistrate Judge Maarten Vermaat. In accordance with the provisions of 28

U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, you are hereby notified that the

United States magistrate judges of this district court may, upon your consent, conduct any or

all proceedings in this case, including a jury trial and entry of a final judgment. If you

consent, any appeal from a judgment entered by a magistrate judge shall be taken directly to

the United States Court of Appeals for this judicial circuit in the same manner as an appeal

from any other judgment of a district court.

Magistrate judges have greater flexibility in their schedules than district judges, who have

heavy criminal caseloads that take priority over civil trials. Accordingly, the magistrate

judges are generally able to schedule prisoner civil rights cases for jury trial much sooner,

and they are able to provide firm trial dates. Magistrate judges are experienced trial judges

who handle a great number of prisoner civil rights cases.

Your decision to consent to the dispositive jurisdiction of a United States magistrate judge is

entirely voluntary. If you do not consent to a magistrate judge, the case wiil be randomly

assigned to a district judge. The magistrate judge already assigned to this case would

continue to decide all pretrial matters and would handle all dispositive motions by report and

recommendation.

CLERK OF COURT

Dated: August 10, 2021

By:

/s/ S. Kivela

Deputy Clerk

The below JPay message was sent to MBP prisoners today, September 27, 2021.

•

Effective tomorrow, September 28,2021, MBP will begin (rapid) antigen testing all staff and

prisoners weekly, regardless of vaccination status. Testing will be conducted a minimum of two

weekly cycles and will continue until no positives have been detected for at least 14 days.

The mass testing for staff and prisoners is because the facility's wastewater has been being

tested weekly by Northern Michigan University's Biology Department since late July as part of a

county wide research study to aid in the early detection of COVID-19. Last week, for the first

time since the wastewater sampling began in late July, the level of COVID-19 virus detected in

MBP's wastewater sample exceeded the study's testing threshold; therefore, it has been

suggested that staff and prisoners at the facility submit to mass testing.

Mass testing for staff and prisoners at MBP will be each Tuesday and Wednesday beginning this

week (September 28 and 29).

NMU's Research Team will also be taking additional wastewater samples to coincide with the

facility's testing dates to further assist with their research study.

The increased community spread throughout the state has already made the Department more

cautious about transferring prisoners, so although the facility is not on outbreak status, very few

transfers are likely to be approved.

1

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Case 2:21-cv-00185-PLM-MV ECF No. 12, PagelD.40 Filed 09/20/21 Page 1 of 2

United States Oistrict Court for the Western

District of Michigan

FILED - MQ

September 20, 2021 9:45 AM

Clerk of Cout

U.S. CWSTWCT COURT

WESTERN OISTRICT OF MICHIGAN

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Case 2:21-cv-00185-PLM-MV ECF No. 7, PagelD.26 Filed 08/24/21 Page lot 7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

Steven Trapp,

Plaintiff,

v.

Case No. 2:21-cv-185

Honorable Paul L. Maloney

Erica Husset al.,

Defendants.

OPINION

This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.

Under the Prison Litigation Reform Act, Pub. L.No. 104-134, llOStat. 1321 (1996) (PLRA), the

Court is required 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 these

standards, the Court will dismiss Plaintiffs complaint for failure to state a claim.

Discussion

I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections

(MDOC) at the Marquette Branch Prison (MBP) in Marquette, Marquette County, Michigan. The

Case 2:21-cv-00185-PLM-MV ECF No. 7, PagelD.27 Filed 08/24/21 Page 2 of 7

events about which he complains occurred at that facility. Plaintiff sues MBP Warden Erica Huss

and an unknown party (Unknown Party #1) identified as the MBP Health Care Unit Manager.

Plaintiff alleges that on October 26, 2020, he sent kites to Defendants because he

was suffering from COVID-19. Plaintiff complained because he had been given an “M.D.O.C.

update which stated infected prisoners would be separated from non-infected prisoners and sent

down[-]state for medical treatment.” (Compl., ECF No. 1, PageID.3.) That practice, Plaintiff

reports, had been abandoned and, instead, he was left in an open environment where the virus was

easily spread through the entire block by coughs and sneezes.

Plaintiff filed a grievance regarding the matter. (Grievance, ECF No. 1-1.) The

Step 1 response is illegible, but Defendant Huss responded at Step 11. Her response indicates that

the grievance had been rejected at Step I because the grievance related to the entire prison

population rather than specifically to Plaintiff. Plaintiffs grievance presented the same claim he

presents in his complaint. Plaintiff specifically contends in his grievance that he contracted the

virus “[d]ue to the negligence of Warden Huss and the Health Care Unit Manager[.]” {Id.,

PageID.7.)1

Plaintiff seeks $5,000,000 in damages.

II.

Failure to state a claim

A complaint may be dismissed for failure to state“a claim if if fails ‘“to give the

defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell All. 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

Plaintiff repeats his assertion that Defendants were negligent or neglectful in his statement of reasons for appeal at

Step II and Step III of the grievance process. {Id., PageID.8.)

2

'

Case 2:21-cv-00185-PLM-MV ECF No. 7, PagelD.28 Filed 08/24/21 Page 3 of 7

more than labels and conclusions. Twombly, 550 U.S. at 555; 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 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.” Iqbal, 556 U.S. 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.” 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) and 1915(e)(2)(B)(i)).

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. West 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).

III.

Eighth Amendment violation

In his complaint, Plaintiff does not identify the constitutional right that he claims

Defendants violated. In his grievance, however, as part of the Step III appeal statement, Plaintiff

3

Case 2:21-cv-00185-PLM-MV ECF No. 7, PagelD.29 Filed 08/24/21 Page 4 of 7

alleges that Defendants actions (or inactions) constitute cruel and unusual punishment.

(Grievance, ECF No. 1-1, PageID.8.)

• The Eighth Amendment forbids cruel and unusual punishments and, therefore,

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, 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 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 (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 deliberateindifference 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

4

•

Case 2:21-cv-00185-PLM-MV ECF No. 7, PagelD.30 Filed 08/24/21 Page 5 of 7

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. “[I]t, is enough that the official acted or failed to act despite his

knowledge of a substantia] 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. “[PJrison 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.

Plaintiffs allegations, however, do not suffice to show deliberate indifference on

the part of Defendants.

Instead, he specifically alleges that Defendants were negligent.

Allegations of negligence fall short of the deliberate indifference required to state an Eighth

Amendment claim. See Farmer, 511 U.S. at 835 (holding that an Eighth Amendment violation

requires a “state of mind more blameworthy than negligence”).

Moreover, Plaintiff does not make clear how these Defendants are responsible for

the conditions he contends neglected his health and safety. Plaintiff alleges that he contracted the

virus because the MDOC abandoned its initial plan to segregate infected prisoners and send them

elsewhere. He does not tie that abandonment to the actions of either Defendant. Instead, Plaintiff

alleges that he sent a kites to Defendants after he contracted the virus, to no avail; and that

Defendant Huss upheld the rejection of his grievance.

Plaintiff fails to make specific factual allegations against Defendants, other than his

claim that they failed to fix the problems he identified in his kites and grievance. 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; Monell v. New York City Dep’t

5

Case 2:21-cv-00185-PLM-MV ECF No. 7, PagelD.31 Filed 08/24/21 Page 6 of 7

ofSoc. 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; Summers v. 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. See Shehee v. 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. Plaintiff has failed to allege that Defendants

engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim against

them.

Conclusion

Having conducted the review required by the Prison Litigation Reform Act, the

Court determines that Plaintiffs complaint will be dismissed for failure to state a claim, under 28

U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). 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). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). Although the

Court concludes that Plaintiffs claims are properly dismissed, the Court does not conclude that

any issue Plaintiff 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. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing

fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from

6

'

*

Case 2:21-cv-00185-PLM-MV ECF No. 7, PagelD.32 Filed 08/24/21 Page 7 of 7

proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will

be required to pay the $505.00 appellate filing fee in one lump sum.

. This is a dismissal as described by 28 U.S.C. § 1915(g).

A judgment consistent with this opinion will be entered.

Dated:

August 24, 2021

/s/ Paul L. Maloney

Paul L. Maloney

United States District Judge

7

Case 2:21-cv-00185-PLM-MV ECF No. 11, PagelD.38 Filed 09/20/21 Page 1 of 2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

Steven Trapp,

Case No. 2:21-cv-185

Plaintiff,

Honorable Paul L. Maloney

v.

Erica Huss et al.,

Defendants.

DEFICIENCY ORDER FOR NOTICE OF APPEAL

This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The

Court dismissed Plaintiffs action on August 24, 2021 (ECF Nos. 7, 8). Plaintiff has filed a notice

of appeal. The filing fee for an appeal is $505.00. Plaintiff has failed to pay the filing fee or to

apply in the manner required by law to proceed in forma pauperis.

Under the provisions of the Prison Litigation Reform Act, if a prisoner wishes to

proceed in forma pauperis on appeal, the prisoner must file in the district court a motion for leave

to proceed informa pauperis, a certified copy of a prisoner trust account statement, and an affidavit

of indigence. 28 U.S.C. § 1915(a)(2); McGore v. Wrigglesworth, 114 F.3d 601, 609 (6th Cir.

1997), overruled in other part by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). Plaintiff

has failed to file the motion for leave to proceed in forma pauperis, a certified copy of a prisoner

trust account statement, and an affidavit of indigence required to proceed in forma pauperis.

Plaintiff is hereby notified of the foregoing deficiencies.

Plaintiff is informed that within 28 days from the date of this notice he must submit

the $505.00 filing fee or, alternatively, file the required documents to proceed in forma pauperis.

Case 2:21-cv-00185-PLM-MV ECF No. 11, PagelD.39 Filed 09/20/21 Page 2 of 2

See McGore, 114 F.3d at 610. The affidavit must include a statement of all assets Plaintiff

possesses, a statement that Plaintiff is unable to pay the fee or give security therefor, and a

statement of the nature of the appeal. See 28 U.S.C. § 1915(a)(1) and (2). The affidavit must be

in substantial compliance with Form 4 of the Federal Rules of Appellate Procedure. See McGore,

114 F.3d at 610. The trust account statement must be a certified copy and must be for the 6 months

immediately preceding the filing of Plaintiff s notice of appeal. See 28 U.S.C. § 1915(a)(2).

Plaintiff is also notified that if he fails to pay the filing fee or to file the required

documents as described above, the Court of Appeals may dismiss his appeal for failure to prosecute

under Rule 3 of the Federal Rules of Appellate Procedure. See McGore, 114 F.3d at 610. In that

case, this Court will assess the entire filing fee, which will be payable in full regardless of the

previous dismissal. See id.

In addition, the appeal will not be reinstated even if Plaintiff

subsequently pays the filing fee or requests to proceed as a pauper. See id.

Dated:

September 20, 2021

!§! Stltfacwten

Maarten Vermaat

United States Magistrate Judge

SEND REMITTANCES TO:

Clerk, U.S. District Court

399 Federal Bldg.

110 Michigan St., N.W.

Grand Rapids, MI 49503

All checks or other forms of payment shall be payable to “Clerk, U.S. District Court.”

2

To:

Clerk of the Court for

Western District of Michigan

Northern Division

229 Federal Building

P.O. Box 698

Marquette, Michigan 49855

From: Steven J. Trapp #770672

Plaintiff in pro se

Marquette Branch Prison

1960 U.S. Highway 41 South

Marquette, Michigan 49855

Re:

Steven Trapp v. Erica Huss, et al

Sixth Cir. Case No.: 21-2958

Dis. Ct. No.:2:21-cv-00185

Hon. Paul L. Maloney

Dear Clerk;

Enclosed please find the original copy of my Motion to Proceed In Forma Pauperis.

Please file same in accordance with your court rules.

Sincerely,

Date:

j

Steven J. Trapp #

cc:

File

Case 2:21-cv-t)0185-PLM-MV ECF No. 17, PagelD.73 Filed 11/19/21 Page 1 of 3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Steven Trapp,

Plaintiff,

v.

Case No. 2:21 -cv-185

Honorable Maarten Vermaat

Erica f-Iussetai.,

Defendants.

ORDER TO PROCEED IN FORMA PAUPERIS

AND FOR PAYMENT OF FILING FEE ON APPEAL

This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The

Court dismissed Plaintiffs action on August 24, 2021 (ECF Nos. 7, 8). .Plaintiff has sought leave

to proceed in forma pauperis on appeal. The Court has declined to certify that an appeal would

not be taken in good faith. Accordingly, Plaintiff is eligible to proceed on appeal in forma

pauperis. 28 U.S.C. § 1915(a)(3).

The fee for appealing a civil action is $505.00. Plaintiff must pay a portion of the

$505.00 fee as an initial partial filing fee. The initial partial filing fee is 20 percent of the greater

of (a) the average monthly deposit to the prisoner’s account; or (b) the average monthly balance

in the prisoner’s account for the six-month period immediately preceding the filing of the notice

of appeal. 28 U.S.C. § 1915(b)(1); McGore, 114 F.3d at 611. In this case, the average monthly

deposit exceeds the average monthly balance. According to the certified copy of Plaintiff s prison

trust account statement, Plaintiff had an average monthly deposit of $470.39. Twenty percent of

Plaintiffs average monthly deposit is $94.07. Plaintiff shall remit $94.07 as an initial partial filing

fee within 28 days of the date of this order to the address listed at the end of this order. The check

Case 2:21-cv-0O185-PLM-MV EOF No. 17, PagelD.74 Filed 11/19/21 Page 2 of 3

or oilier form of payment shall be payable io “Cleric U.S. District Court” and must indicate the

case number in which the payment is made.

After Plaintiff has paid the initial partial filing fee, Plaintiff must also pay the

remaining amount of the filing fee through monthly payments of 20 percent of the preceding

month’s income credited to Plaintiffs prison trust fund account. See 28 U.S.C. § 1915(b)(2).

These payments will be forwarded by the agency having custody of Plaintiff to the Clerk of this

Court each time the amount in Plaintiffs trust account exceeds $10.00, until the filing fee is paid

in full. See 28 U.S.C. § 1915(b)(2); Hampton v. Hobbs, 106 F.3d 1281, 1284 (6th Cir. 1997). The

check or money order shall be payable to “Clerk, U.S. District Court” and must indicate the case

number in which the payment is made. If the amount in Plaintiffs account is $10.00 or less, no

payment is required for that month. See Hampton, 106 F,3d at 1284-85.

In light of the foregoing, the Court orders the following:

IT IS ORDERED that leave to proceed informa pauperis on appeal is GRANTED

and within 28 days hereof Plaintiff shall pay an initial partial filing fee of $94.07 to the Clerk of

this Court. Plaintiffs failure to comply with this order may result in dismissal of this appeal

without prejudice, however, such a dismissal will not negate Plaintiffs responsibility to pay

the fee.

IT IS FURTHER ORDERED that the agency having custody of Plaintiff shall

collect the remainder of the filing fee. As outlined above, each month that the amount in Plaintiffs

account exceeds $ 10.00, the agency shall collect 20 percent of the preceding month’s income and

remit that amount to the Clerk of this Court. The agency shall continue to collect monthly

payments from Plaintiffs prisoner account until the entire remaining filing fee is paid.

2

•

Case 2:21-cv-00185-PLM-MV ECF No. 17, PagelD.75 Filed 11/19/21 Page 3 of 3

Oatcd:

November 19,2021

/ s/ Sfajactyten fye/matti

Maarten Vermaat

United States Magistrate Judge

SEND REMITTANCES TO:

Clerk, U.S. District Court

399 Federal Bldg.

110 Michigan St., N.W.

Grand Rapids, MI 49503

All checks or other forms of payment shall be payable to “Clerk, U.S. District Court.”

3

To:

Clerk’s Office: Attn: Deborah S. Hunt

United States Court of Appeals

For the Sixth Circuit'

100 East Fifth Street, Room 540

Potter Stewart U.S. Courthouse

Cincinnati, Ohio 45202-3988

From: Steven J. Trapp, Prison No. #770672

Plaintiff-Appellant, Pro Se

Marquette Branch Prison

1960 U.S. Highway 41 South

Marquette, Michigan 49855

Re:

Case No. 21-2958, Steven J. Trapp v. Erica Hass, et al;

Originating Case No. 2:21-cv-185

Dear Ms. Hunt:

Please find for filing the original of Petitioner's Petition for a Hearing Rehearing

En Banc.

Please take note that no defendants were ever served with the complaint being

appealed. Please notify me if these documents are deficient in any way and I will

make any necessary corrections as soon as possible.

Thank you for your cooperation in this matter.

Sincerely,

Date: I

oLX

-i

Steven J. Trapp, Prison No. #770672

Enclosures

cc:

File

21-2958

Mr. Steven Trapp

#770672

Marquette Branch Prison

1960 U.S. Highway 41, S.

Marquette, MI 49855

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

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: May 05, 2022

Mr. Steven Trapp

Marquette Branch Prison

1960 U.S. Highway 41, S.

Marquette, MI 49855

Re: Case No. 21-2958, Steven Trapp v. Erica Huss, et al

Originating Case No.: 2:21-cv-00185

Dear Mr. Trapp,

The Court issued the enclosed Order today in this case.

Sincerely,

s/Antoinette Macon on behalf

of Roy G. Ford, Case Manager

Direct Dial No. 513-564-7016

cc: Mr. Thomas Dorwin

Enclosure

Mandate to issue

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

May 5, 2022

DEBORAH S. HUNT, Clerk

No. 21-2958

STEVEN TRAPP,

Plaintiff-Appellant,

v.

ERICA HUSS, et al.,

Defendants-Appellees.

Before: SUHRHEINRICH, GILMAN, and KETHLEDGE, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Western District of Michigan at Marquette.

THIS CAUSE was heard on the record from the district court and was submitted on the

briefs without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court

is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

NOT RECOMMENDED FOR PUBLICATION

No. 21-2958

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

May 5, 2022

DEBORAH S. HUNT, Clerk

STEVEN TRAPP,

Plaintiff-Appellant,

)

)

)

ERICA HUSS, Warden, et al.,

)

)

)

)

Defendants-Appellees.

)

)

v.

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF

MICHIGAN

ORDER

Before: SUHRHEINRICH, GILMAN, and KETHLEDGE, Circuit Judges.

Steven Trapp, a pro se Michigan prisoner, appeals the district court’s judgment sua sponte

dismissing his 42 U.S.C. § 1983 civil rights complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for

failure to state a claim for relief. 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).

Trapp is incarcerated at Marquette Branch Prison (MBP), which is located in Michigan’s

Upper Peninsula. In August 2021, Trapp, proceeding pro se and in forma pauperis, filed a § 1983

complaint in the district court, claiming that Warden Erica Huss and an unnamed healthcare unit

manager were deliberately indifferent to the risk presented to him by the COVID-19 virus, in

violation of the Eighth Amendment. Trapp alleged that he caught COVID-19 on October 26,2020,

and that, in response, he sent a “kite” to Warden Huss and the healthcare unit manager expressing

“my concerns regarding the COVID-19 outbreak.” As a response to the kite, he received a copy

of an update issued by the Michigan Department of Corrections (MDOC) stating that infected

prisoners would be separated from non-infected prisoners and transferred “down state” for medical

treatment. Trapp claimed that the MDOC abandoned this policy, however, and that he was forced

No. 21-2958

-2to continue living among other prisoners in an open-bar cell where the virus was easily transmitted.

In his internal grievance, Trapp claimed that he contracted COVID-19 “[d]ue to the negligence of

Warden Huss and the Healthcare Unit Manager.” He alleged that he was still being confined in

the same cell block, where he was susceptible to contracting the virus again. Trapp characterized

his treatment as a violation of both prison policy and the Eighth Amendment. Trapp sought $5

million in damages.

Upon initial screening of the complaint under the Prison Litigation Reform Act (PLRA),

see 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c), the district court concluded that Trapp

failed to state an Eighth Amendment deliberate-indifference claim against the defendants because

he alleged only negligence on their part. Moreover, the court found that Trapp had not connected

his illness to any action of the defendants. In that regard, the court observed that Trapp did not

claim that the defendants were responsible for abandoning the policy to isolate infected prisoners

and that he complained to the defendants only after he caught the virus. Finally, the court held

that Trapp could not base his claim on respondeat-superior liability or the denial of his grievance.

Consequently, having found that Trapp failed to allege facts demonstrating that the defendants

engaged in unconstitutional behavior, the district court dismissed his complaint with prejudice.

On appeal, Trapp argues that, taken together, his complaint and grievance sufficiently

stated an Eighth Amendment deliberate-indifference claim. Trapp has also filed an affidavit that

supplies more facts in support of his claim, including allegations that, in September 2020, a group

of prisoners was transferred to MBP from another prison, that at least two of the new prisoners

were infected with COVID-19, and that these prisoners were allowed to commingle with other

prisoners and prison staff, who then transmitted the virus throughout the prison. Trapp claimed

that by not restricting the movement of the infected prisoners, the defendants violated MDOC

Director’s Office Memorandum (DOM) 2020-30R6, which set forth new procedures for

combatting the spread of COVID-19, among them a requirement to isolate prisoners who test

positive for COVID-19 and all other prisoners who were in close proximity to such prisoners for

more than 15 minutes.

No. 21-2958

-3We review de novo a district court’s decision to dismiss a complaint under §§ 1915(e),

1915A, and 1997e. Grinter v. Knight, 532 F.3d 567,571-72 (6th Cir. 2008). The PLRA “requires

district courts to screen and dismiss complaints that are frivolous or malicious, that fail to state a

claim upon which relief may be granted, or that seek monetary relief from a defendant who is

immune from such relief.”

Id. at 572 (citing 28 U.S.C. § 1915A(b)); see also 28 U.S.C.

§ 1915(e)(2)(B). We review the dismissal of claims at screening under the standard set out in

Ashcroft v. Iqbal, 556 U.S. 662 (2009). Hill v. Lappin, 630 F.3d 468,470-71 (6th Cir. 2010). 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.”’ Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “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. To state a claim under § 1983, a plaintiff must allege that (1) a

right secured by the Constitution or a federal statute has been violated, and (2) the violation was

committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). As

a pro se litigant, Trapp is entitled to a liberal construction of his pleadings. See Haines v. Kerner,

404 U.S. 519, 520-21 (1972) (per curiam).

A deliberate-indifference claim under the Eighth Amendment includes both an objective

and a subjective prong: (1) the inmate “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). In Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), we stated that “the objective prong

is easily satisfied” in this context, id. at 840. “The COVID-19 virus creates a substantial risk of

serious harm leading to pneumonia, respiratory failure, or death.” Id.

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

than 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 840-41. And a response may be

No. 21-2958

-4reasonable even if “the harm imposed by COVID-19 on inmates ... ‘ultimately [is] not averted.’”

Id. at 841 (quoting Farmer, 511 U.S. at 844).

We conclude that Trapp failed to plead a plausible deliberate-indifference claim. First,

Trapp failed to state a plausible claim to the extent that he alleged that the defendants negligently

failed to protect him from contracting COVID-19. See Cameron v. Bouchard, 815 F. App’x 978,

984-85 (6th Cir. 2020). Second, as the district court found, Trapp did not plead any facts that

explained how each of the defendants violated his constitutional rights. See Heyne v. Metro.

Nashville Pub. Schs., 655 F.3d 556, 564 (6th Cir. 2011). The mere fact that the defendants

allegedly failed to comply with the new MDOC regulation on isolating infected prisoners is

insufficient to state a cognizable § 1983 claim. See Stanley v. Vining, 602 F.3d 767, 769 (6th Cir.

2010). Third, the district court correctly held that Trapp could not recover against the defendants

under a respondeat-superior theory. See Winkler v. Madison County, 893 F.3d 877, 898 (6th Cir.

2018).

In addition to these overall § 1983 pleading deficiencies, Trapp failed to plead facts that

satisfy the requisite subjective prong of a deliberate-indifference claim. Although Trapp alleged

that the defendants abandoned the policy of transferring infected prisoners out of MBP for medical

treatment, he failed to include other facts demonstrating that the defendants’ overall response to

the risk presented by COVID-19 was unreasonable. Cf Wilson, 961 F.3d at 844 (“[Ojur precedents

do not require that prison officials take every possible step to address a serious risk of harm.”);

Hope v. Warden York Cnty. Prison, 972 F.3d 310, 330 (3d Cir. 2020) (“[A] failure to eliminate all

risk [does not] establish that the Government was deliberately indifferent to [the plaintiffs’] serious

medical needs.”). And inasmuch as Trapp’s complaint indicates that the transfer policy was

promulgated by the MDOC, it is not reasonable to infer that the decision to abandon the policy is

attributable to the defendants.

Trapp’s additional allegations in his affidavit on appeal still do not satisfy the subjective

prong of a deliberate-indifference claim. Trapp criticizes the defendants’ alleged failure to adhere

to an MDOC policy’s requirement to isolate infected prisoners, he does not address the other

mitigation measures outlined in the policy (which he attaches as an exhibit to his brief). These

No. 21-2958

-5policies include requirement for prisoners and staff to wear masks, the implementation of socialdistancing restrictions, the cessation of visitation, the provision of soap and other cleaning

materials to prisoners, and the implementation of COVID-19 testing. In previous cases, we have

concluded that these actions refute any claim that the defendants were deliberately indifferent to

the risk posed by COVID-19. See Dykes-Bey v. Washington, No. 21-1260, 2021 WL 7540173,

at *3 (6th Cir. Oct. 14, 2021); Hill v. Whitmer, 20-1835, 2021 WL 3877920, at *2 (6th Cir.

Apr. 14,2021); Cameron, 815 F. App’x at 985, 988; Wilson, 961 F.3d at 841, 844. Consequently,

affording Trapp an opportunity to amend his complaint would be futile. See Yuhasz v. Brush

Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003).

For these reasons, we AFFIRM the district court’s judgment.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Additional material

from this filing is

available in the

Clerk's Office.