Petition for Writ of Certiorari — Troy Chrisman, et al., Petitioners v. Estate of Seth Michael Zakora, et al.

No. _________

In the Supreme Court of the United States

TROY CHRISMAN; MATTHEW HUNTLEY; CHADWICK

MOBLEY; STEVE JOHNSON; BONITA J. HOFFNER; STEVE

RIVARD; HEIDI E. WASHINGTON; RUSSELL RURKA,

PETITIONERS

v.

ESTATE OF SETH MICHAEL ZAKORA; BRANDY ZAKORA,

IN HER CAPACITY AS THE PERSONAL REPRESENTATIVE

OF THE ESTATE OF SETH MICHAEL ZAKORA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Ann M. Sherman

Michigan Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

B. Eric Restuccia

Deputy Solicitor General

Zachary Zurich

Assistant Attorney General

Corrections Division

Attorneys for Petitioners

i

QUESTION PRESENTED

1. Whether a prisoner’s criminal act of voluntarily

ingesting an illegal drug banned within the prison can

give rise to that prisoner’s federal constitutional claim

that under the Eighth Amendment state corrections

officials failed to protect him by not preventing the influx of illegal drugs into the prison or failed to supervise other employees to protect him.

ii

PARTIES TO THE PROCEEDING

Petitioners are Michigan Department of Corrections defendants Troy Chrisman, Matthew Huntley,

Bonita J. Hoffner, Steve Rivard, and Russell Rurka.

Respondents are the Estate of Seth Michael Zakora

and Brandy Zakora, in her capacity as the personal

representative of the Estate of Seth Michael Zakora.

RELATED CASES

Estate of Seth Michael Zakora, et al. v. Troy Chrisman, et al.; United States Court of Appeals for the

Sixth Circuit (21-1620), Opinion issued August 10,

2022, for which the Sixth Circuit entered an order

denying petition for en banc issued October 3, 2022.

Estate of Seth Michael Zakora, et al. v. Troy Chrisman, et al.; United States District Court Western District of Michigan (No. 1:19-cv-01016), Opinion and order issued September 10, 2021, approving and adopting report and recommendation of July 23, 2021.

iii

TABLE OF CONTENTS

Question Presented...................................................... i

Parties to the Proceeding ........................................... ii

Related Cases .............................................................. ii

Table of Authorities ................................................... vi

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional Provision Involved ............................. 1

Introduction ................................................................ 2

Statement of the Case ................................................ 3

A. Relevant facts ................................................. 3

B. District court proceedings.............................. 4

C. Sixth Circuit proceedings .............................. 6

Reasons for Granting the Petition ............................. 9

I.

The court below grievously erred in

concluding that the prisoner’s criminal act of

voluntarily ingesting illegal drugs could

provide the basis for Eighth Amendment

failure-to-protect and failure-to-supervise

claims. ................................................................. 10

II. This case presents a recurring issue of

exceptional importance to the administration

of prisons. ............................................................ 16

Conclusion ................................................................. 20

iv

PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Sixth Circuit

Opinion in 21-1620

Issued August 10, 2022..................................... 1a–51a

United States Court of Appeals

for the Sixth Circuit

Concurring in Part and

Dissenting in Part in 21-1620

Issued August 10, 2022................................... 52a–66a

United States Court of Appeals

for the Sixth Circuit

Judgment in 21-1620

Issued August 10, 2022................................... 67a–68a

United States District Court

Western District of Michigan

Case No. 1:19-cv-01016

Opinion and Order Approving and Adopting

Report and Recommendation

Issued September 10, 2021 ............................. 69a–76a

United States District Court

Western District of Michigan

Case No. 1:19-cv-01016

Report and Recommendation

Issued July 23, 2021 ..................................... 77a–107a

v

United States Court of Appeals

for the Sixth Circuit

Order Denying Petition for

En Banc in 21-1620

Issued October 3, 2022 ............................... 108a–109a

United States Court of Appeals

for the Sixth Circuit

Transcript of Hearing in 21-1620

Hearing Date April 27, 2022 ...................... 110a–143a

United States District Court

Western District of Michigan

Case No. 1:19-cv-01016

First Amended Complaint

Issued December 4, 2019 ............................ 144a–162a

vi

TABLE OF AUTHORITIES

Cases

Bell v. Wolfish,

441 U.S. 520 (1979) ...................................... 16, 19

Blackburn v. Snow,

771 F.2d 556 (1st Cir. 1985) ............................... 18

Block v. Rutherford,

468 U.S. 576 (1984) ...................................... 16, 17

Cruz v. Beto,

405 U.S. 319 (1972) ............................................ 19

DeShaney v. Winnebago County Dep’t of Social

Services,

489 U.S. 189 (1989) ...................................... 11, 13

Estelle v. Gamble,

429 U.S. 97 (1976) ........................................ 11, 15

Farmer v. Brennan,

511 U.S. 825 (1994) ........................................ 9, 11

Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington,

566 U.S. 318 (2012) ............................................ 12

Helling v. McKinney,

509 U.S. 25 (1993) .............................................. 11

Hill v. Koon,

977 F.2d 589 (9th Cir. 1992) .............................. 17

Hudson v. Palmer,

468 U.S. 517 (1984) ............................................ 16

Jones v. North Carolina Prisoners’ Labor Union,

433 U.S. 119 (1977) ............................................ 19

vii

Meachum v. Fano,

427 U.S. 215 (1976) ............................................ 19

Moore v. Hunter,

847 F. App’x 694 (11th Cir. 2021) ...................... 15

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) ............................................ 19

Overton v. Bazzetta,

539 U.S. 126 (2003) ............................................ 16

Prison Legal News v. Sec’y. Fla. Dep’t of Corr.,

890 F.3d 954 (11th Cir. 2018) ............................ 17

Rhodes v. Chapman,

452 U.S. 337 (1981) ............................................ 12

Trop v. Dulles,

356 U.S. 86 (1958) .............................................. 12

Turner v. Safley,

482 U.S. 78 (1987) .............................................. 19

United States v. Millan-Machuca,

991 F.3d 7 (1st Cir. 2021) ................................... 17

United States v. Mills,

66 F. App’x 273 (2d Cir. 2003) ........................... 17

Washington v. Harper,

494 U.S. 210 (1990) ............................................ 19

Statutes

21 CFR 1308.12(c)(9) ................................................ 12

28 U.S.C. § 1254(1) ..................................................... 1

Mich. Comp. Laws § 333.7214(b) ............................. 12

viii

Other Authorities

Chambers 20th Century Online Dictionary ............ 12

Christopher P. Keleher, Judges As Jailers: The

Dangerous Disconnect Between Courts and

Corrections, 45 Creighton L. Rev. 87, 119

(2011) .................................................................. 16

Prisons: Today and Tomorrow 237 (J. Pollock ed.

1997).................................................................... 12

Constitutional Provisions

U.S. Const. amend. VIII ............ i, 1, 2, 4, 9, 10, 11, 14

U.S. Const. amend. XIV .............................................. 4

1

OPINIONS BELOW

The Sixth Circuit’s denial of the Michigan Department of Corrections defendants’ en banc petition, App.

108a–109a, is not reported but is available at 2022 WL

10219849. The Sixth Circuit’s opinion, App. 1a–51a, is

reported at 44 F.4th 452 (6th Cir. 2022). The district

court’s opinion adopting the magistrate judge’s report

and recommendation in full and granting the Michigan Department of Corrections defendants’ motion for

summary judgment, App. 69a–76a, is not reported but

is available at 2021 WL 4129209. The district court

magistrate judge’s report and recommendation, App.

77a–107a, is not reported but is available at 2021 WL

5019034.

JURISDICTION

The court of appeals issued its denial of the en

banc petition on October 3, 2022, and its opinion on

August 10, 2022. Petitioners invoke this Court’s jurisdiction under 28 U.S.C. § 1254(1) by filing the petition

within 90 days of the denial of en banc review.

CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment to the United States Constitution, U.S. Const. amend. VIII, provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

2

INTRODUCTION

Zakora’s death from a drug overdose in a state

prison facility was caused by his own voluntary criminal behavior. That should have been the end of the

qualified immunity inquiry. This kind of criminal act

by a prisoner cannot give rise to a constitutional claim

under the Eighth Amendment for injury caused by the

prisoner’s free decision to use illegal drugs. It would

be a novel right for a prisoner or his estate to benefit

from the prisoner’s own criminal conduct—and one

contrary to every understanding of what the Eighth

Amendment protects against. As the dissent below

noted, “By its terms, the voluntary and illegal nature

of Zakora’s activity pushes the claim outside the

Eighth Amendment’s ambit.” App. 59a. Indeed, despite Zakora’s regrettable death from overdose, corrections officials could not have “inflict[ed] this harm

on Zakora” “when prison rules, state law, and federal

law prohibit it—and Zakora violated those rules and

laws[.]” App. 59a (emphasis in original). The Eighth

Amendment does not cover such a claim.

Yet none of this deterred the majority below from

concluding that the Estate of the prisoner plausibly

alleged constitutional violations for failure to protect

and failure to supervise when he voluntarily ingested

illegal drugs banned by the Michigan prison system

and died as a result. App. 22a–42a.

The majority’s decision places a tremendous

strain on prison administrators to adopt protocols that

immediately respond to every instance of suspected

drug possession and abuse, and on prison employees

to look into their crystal ball and determine when

3

inmates might come to harm from their own voluntary, illegal conduct.

Consider the litany of examples provided by the

dissent in the prison context. Would we hold prison

officials liable for cruel and unusual punishment if a

prisoner is harmed while

●

voluntarily smoking in violation of prison rules,

●

insisting he be housed with a known violent

cellmate,

●

insisting on using hazardous facilities,

●

voluntarily turning down the temperature in

his cell for himself in violation of prison rules,

●

attempting to escape, or

●

injecting himself with an unsanitary needle?

App. 61a. “Asking is answering. The Eighth Amendment does not cover this claim.” App. 61a.

STATEMENT OF THE CASE

A. Relevant facts

In January 2017, three prisoners in Housing Unit

C at Lakeland Correctional Facility suffered drug

overdoses during one weekend. One prisoner suffered

a “possible overdose” Friday evening, January 20,

2022, and was taken to a hospital. Another prisoner

suffered a suspected overdose on Saturday, January

21, 2022, was revived with Narcan and remained in

4

the prison. Inmate Seth Zakora overdosed on Saturday night and died from fentanyl toxicity on Sunday

morning. All three inmates overdosed in separate

rooms of the facility’s Unit C.

According to the amended complaint, the three inmates obtained access to the fentanyl when drug distributors tossed fentanyl-filled basketballs over the

prison fence and yet-to-be-identified individuals recovered the drugs and distributed them to inmates.

B. District court proceedings

Seth Zakora’s mother, Brandy Zakora, on behalf

of the Estate, filed a four-count complaint against

eight Michigan Department of Corrections (MDOC)

employees (two prison guards and six administrators),

four employees of the Michigan State Police, and an

unnamed corrections official. App. 144a–162a.

Count I alleged that MDOC defendants Chrisman, Huntley, Hoffner, Rivard, Washington, and

Rurka failed to protect Zakora from illegal drugs that

entered Lakeland, in violation of Zakora’s Eighth

Amendment rights. Count II alleged that these same

defendants violated Zakora’s Fourteenth Amendment

rights under the state-created-danger doctrine by failing to investigate allegations of drug smuggling.

Count III alleged that MDOC defendants Washington, Rivard, and Hoffner failed to train and supervise

their subordinates with regard to preventing the

smuggling of drugs into the prison, in violation of Zakora’s Fourteenth Amendment rights. Count IV alleged an Eighth Amendment deliberate-indifference

claim against MDOC defendants Johnson and Mobley

for failing to promptly check on Zakora after a

5

prisoner allegedly told them that something was

wrong with Zakora.

Ms. Zakora alleged that high-ranking MDOC officials had longstanding knowledge that illegal drugs

were being smuggled into Michigan’s prisons, including Michigan’s Lakeland facility, the site of her son’s

fatal overdose, yet they took no action to investigate

or stop the illegal drugs from entering the prison. App.

152a–154a. She also alleged that the facility’s warden

and other facility prison officials had specific

knowledge of the drug-smuggling operation yet failed

to investigate or stop drugs from coming into the

prison. App. 151a–154a. She further alleged that

some corrections officials were themselves involved in

the drug smuggling. App. 152a. Ms. Zakora did not allege that her son’s overdose was anything other than

self-induced and accidental. App. 144a–162a.

Ms. Zakora did not oppose the dismissal of Count

II. App. 82a–83a. The magistrate judge recommended

dismissal of all the claims (Counts, I, III, and IV)

against the corrections defendants. App. 78a. Her

analysis noted that the state defendants “raise[d] the

issue of qualified immunity.” App. 83a. The magistrate judge then observed that Ms. Zakora’s case citations were “not directly applicable” before concluding

that she failed to allege a constitutional violation.

App. 94a.

The district court agreed with this recommendation, ruling that the officials won on prong one of the

qualified immunity claim—that no constitutional violation occurred as a matter of law—and holding that

Ms. Zakora’s claims do not state any plausible constitutional violation. App. 71a–73a.

6

C. Sixth Circuit proceedings

Ms. Zakora appealed to the Court of Appeals for

the Sixth Circuit. In a published opinion, the panel

majority affirmed in part and reversed in part the district court’s rulings. The court of appeals held that Ms.

Zakora failed to establish a plausible constitutional

violation with respect to the serious-medical-needs

claim against the two corrections officers as well as

the failure-to-protect claims against MDOC Director

Washington. App. 40a–42a. But the Court permitted

the failure-to-protect and failure-to-supervise claims

against the prison administrators and supervisors to

proceed as cognizable constitutional violations at

prong one of the qualified immunity inquiry. App.

22a–40a. After analogizing Zakora’s voluntary action

to an act of suicide, the majority held that an action

could lie despite Zakora’s voluntary criminal act:

[A]n inmate who suffers a drug overdose will

not automatically lose a failure-to-protect

claim simply because he voluntarily ingested

the drugs. Such a claim is cognizable if the inmate alleges, and ultimately establishes, that

he was at serious risk of injury from the presence of drugs before the injury occurred.

App. 26a.

As to prong two of the qualified immunity inquiry,

the majority held that the state defendants had forfeited the issue by not raising the “clearly established”

prong on appeal, and remanded the issue to the district court to decide it in the first instance after factual

development. App. 51a.

7

Judge Sutton concurred in part and dissented in

part. He concurred in the majority’s ruling holding

that Ms. Zakora failed to establish a plausible constitutional violation with respect to the serious-medicalneeds claim, as well as the majority’s affirmance of the

dismissal of the failure-to-protect claims against the

head of the corrections department. App. 53a. But he

dissented both as to the majority’s holding permitting

the failure-to-protect claim against the prison guards

and administrators and the failure-to-supervise claim

against prison administrators to proceed as a cognizable constitutional violation at prong one of the qualified immunity inquiry, and as to its holding on prong

two of the qualified immunity inquiry, “where the

Court simultaneously says that the defendants forfeited the argument and remands the issue for the district court to decide it in the first instance.” App. 54a

(emphasis added).

As to prong one, Judge Sutton concluded that the

prison officials did not violate the U.S. Constitution.

App. 55a. “By its terms,” he said, “the voluntary and

illegal nature of Zakora’s activity pushes the claim

outside the Eighth Amendment’s ambit.” App. 59a.

And he queried how corrections officials could inflict

this harm on Zakora in violation of the Eighth Amendment, “when prison rules, state law, and federal law

prohibit it—and Zakora violated those rules and

laws[.]” App. 59a.

Judge Sutton explained that “[t]raditional conditions-of-confinement cases arise in a markedly different context” from this case, pointing out a feature of

those cases that is “conspicuously absent in this

case”—namely, the existence of the types of risks “an

8

inmate cannot reasonably be expected to avoid on his

own,” those in which the inmate “has no way out.”

App. 59a–60a. He noted that any risk Zakora incurred

based on “the availability of drugs did not become serious until he chose to use them.” App. 61a.

As to prong two, Judge Sutton opined that the

MDOC defendants had not forfeited their argument

and that the Estate had not even remotely shown that

the law on the books at the time of this incident left

the illegality of the officials’ actions “beyond debate.”

App. 55a–59a, 61a–66a. “Zakora has not identified

any court in the country, anytime anywhere, that has

recognized such a claim. No hints, no dicta, no holdings.” App. 54a. 1 Judge Sutton concluded that because

there was no forfeiture, no constitutional violation

and no clearly established violation, “the prison

guards and administrators should not be subject to liability or, indeed, even the burdens of litigation.” App.

66a (internal quotes and citation omitted).

1 Although the MDOC Defendants agree with Judge Sutton on

these points, they are not raising prong two of the qualified immunity analysis in this petition for certiorari because whether

forfeiture occurred is fact-specific and therefore not cert-worthy.

9

REASONS FOR GRANTING THE PETITION

This case presents a question of exceptional importance—one that will recur. And the answer will

significantly affect the administration of prisons.

This Court should grant the petition to consider

whether a prisoner’s criminal act of voluntarily ingesting an illegal drug banned within the prison can

give rise to a federal constitutional claim that state

corrections officials failed to protect or failed to supervise under the Eighth Amendment.

Resolution of this issue is vital for two reasons.

First, creating a novel right of a prisoner or his

estate to benefit from his own voluntary criminal activity expands the Eighth Amendment—an expansion

that is not only unwarranted but also wholly contrary

to the principles that undergird the Punishment

Clause. Indeed, in the prison context, the Eighth

Amendment protects those who cannot protect themselves or obtain outside aid because of their confinement. Farmer v. Brennan, 511 U.S. 825, 833 (1994). It

is not meant to protect prisoners from their own choice

to engage in voluntary, criminal activity that the

prison system bans.

Second, in combatting the persistent problem of

illegal drugs in prisons, prison officials should not be

subject to liability for failing to guess when an inmate

will choose to engage in the crime of ingesting contraband and incur harm in the process. This creates an

untenable burden for the prison system. It also strips

officials of their reasoned assessment of the appropriate scope and timing of a facility’s response to actual

10

and suspected drug use. Prison officials need latitude

to respond to emergent situations with the judgment

that comes with experience. Knee-jerk lockdowns may

sound appealing as a solution to such prison issues,

but those drastic actions can come at the cost of prisoner morale and safety, as well as the safety of prison

officials themselves.

I.

The court below grievously erred in

concluding that the prisoner’s criminal act

of voluntarily ingesting illegal drugs could

provide the basis for Eighth Amendment

failure-to-protect and failure-to-supervise

claims.

This is not first time a prisoner has died from an

overdose or similar event from the voluntary use of illegal drugs in prison. Yet there does not appear to be

a single case—from any court, from anywhere in the

country—supporting the panel majority’s conclusion

that voluntary ingestion of illegal drugs can provide a

basis for liability. That is because there is no constitutional violation under the Eighth Amendment for any

injury that arises from a prisoner’s voluntary, criminal act of using illegal drugs.

For that reason, the dearth of caselaw is hardly

surprising. As Judge Sutton noted when discussing

prong one of the corrections defendants’ qualified immunity defense, “[t]raditional conditions-of-confinement cases arise in a markedly different context” from

this case. App. 59a.

The types of risks that give rise to Eighth Amendment claims are those “an inmate cannot reasonably

be expected to avoid on his own.” App. 60a. As this

11

Court explained in DeShaney v. Winnebago County

Dep’t of Social Services, 489 U.S. 189, 199–200 (1989),

when the State restrains an individual’s liberty such

that he cannot care for himself, it must provide for his

“basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety.” Id. (internal citations omitted). Failure to do so “transgresses the substantive limits on state action set by the Eighth

Amendment . . .” Id. It is well established, for example, that prison “officials are not free to let the state of

nature take its course,” Farmer, 511 U.S. at 833, and

no one contends that officials can simply ignore an inmate’s serious medical needs, Estelle v. Gamble, 429

U.S. 97, 103 (1976), or physical safety, Helling v.

McKinney, 509 U.S. 25, 31–33 (1993). 2

But in contrast here, Zakora’s conduct of ingesting

illegal contraband was voluntary. There are no allegations that a prison official forced him to take fentanyl;

he chose to do so. The mere fact that he could have

avoided the unfortunate result of his lethal overdose

sets this case apart from the typical conditions-of-confinement case.

And rightly so. The hallmark of the Eighth

Amendment is the prohibition on punishment being

“inflicted.” (U.S. Const. amend. VIII: “Excessive bail

2 The State acknowledges that an Eighth Amendment deliber-

ate-indifference claim may arise in some circumstances in which

state corrections officials fail to act after a prisoner has criminally ingested drugs by failing to provide necessary medical care.

But the Sixth Circuit panel majority correctly found that the

count related to this claim was properly dismissed. App. 42a

(“[N]either [correctional official] were aware that Zakora was suffering from a serious medical condition before he died, and they

acted appropriately once they were made so aware.”).

12

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”) (emphasis

added). Although there is “[n]o static ‘test’ . . . by

which courts determine whether conditions of confinement are cruel and unusual,” it is well accepted that

the Eighth Amendment “ ‘must draw its meaning

from the evolving standards of decency that mark the

progress of a maturing society.’ ” Rhodes v. Chapman,

452 U.S. 337, 346 (1981) (quoting Trop v. Dulles, 356

U.S. 86, 101 (1958) (plurality opinion)). A prisoner’s

own choice to ingest contraband cannot offend evolving standards of decency with respect to that of prison

officials. Too, a punishment that is inflicted is one that

is “lay[ed] on” or “impose[d].” Chambers 20th Century

Online Dictionary. It can hardly be said that a prisoner’s voluntary choice to ingest contraband has been

imposed on him by prison staff or administrators.

The criminal nature of Zakora’s actions also sets

this case apart from the typical conditions-of-confinement case. Drugs like fentanyl are contraband—items

that prison rules prohibit prisoners from having while

detained in prison. See Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 332

(2012) (citing Prisons: Today and Tomorrow 237 (J.

Pollock ed. 1997) (defining contraband as any item

that is possessed in violation of prison rules)). As this

Court has explained, contraband in prison facilities

undermines security, poses a significant danger, and

can create additional problems as currency in a jail’s

culture and underground economy. Id. at 332–33.

Fentanyl is also a schedule II narcotic under both

state and federal law. Mich. Comp. Laws

§ 333.7214(b); 21 CFR 1308.12(c)(9).

13

The panel majority attempts to sidestep these important distinctions by explaining that “[t]he Estate

would have no claim if this were simply a run-of-themill drug overdose case,” but concluding that “the relevant defendants allegedly knew that Zakora was at

risk and ignored that risk,” which makes this case “directly comparable to the suicide ‘deliberate-indifference’ cases where this court has allowed the claim to

proceed beyond the pleading stage.” App. 31a–32a.

But the suicide cases are different in kind from injuries that arise from criminality. Suicide cases are a

species of adequate medical care cases, where “the

Eighth Amendment covers them because an inmate,

isolated from society, ‘must rely on prison authorities’

for treatment.” App. 63a–64a. That’s not the case for

the voluntary ingestion of drugs banned by the prison.

In DeShaney, this Court examined the categorical

distinction between a person taken into state custody

and one who lives in the community. 489 U.S. at 199–

200. In restraining a person’s liberty, the incarceration renders the prisoner “unable to care for himself,”

regarding “food, clothing, shelter, medical care, and

reasonable safety.” Id. at 201. But that is not true for

illegal drugs and the dangers they present. Whereas

Zakora was dependent on the prison for his clothing,

shelter, medical care, and reasonable safety, his ability to protect himself from dangerous drugs remained

within his control. Zakora’s incarceration did not “restrain[ ] [his] freedom to act on his own behalf” to refrain from taking drugs. Id. at 200.

And that is the key. As noted by Judge Sutton in

his dissent, Zakora freely elected to engage in the exact conduct that caused his death, the criminal

14

ingestion of illegal drugs, which violated the rules of

the prison. 3 See App. 61a (“Zakora never argues that

her son consumed fentanyl involuntarily. What was

true outside prison was true inside prison. Any risk

from the availability of drugs did not become serious

until he chose to use them.”). In this way, he was like

any other ordinary resident in Michigan, who generally has no claim of relief against state officials for

their failure to prevent the spread of drugs in the community. The decision to use drugs was Zakora’s and

his alone. That the corrections officials might have

been able to act more quickly or effectively in preventing the spread of drugs in the facility does not give rise

to a claim under the Eighth Amendment. 4

The point at which Zakora required medical care

after ingesting gave rise to the State’s obligation to

render care, but the Sixth Circuit correctly rejected

the claim that corrections officials failed to act to help

him. 5 Thus, Zakora’s position in the prison is fundamentally different from a suicidal prisoner who must

rely on state officials for protection and medical care.

3 There was no claim that corrections officials knew that Zakora

was addicted to drugs to any degree, and no claim was made that

he was unable to voluntarily refrain from consuming the drugs

at issue here.

4 Although the Estate alleges that in the months prior to Zakora’s death, the MDOC “had notice that corrections officers

were smuggling drugs into prisons,” App. 152a, there are no allegations that these officials were engaged in drug smuggling.

And even if there were some corrupt officials, it would not change

the ability of the ordinary resident in the prison “community” to

refrain from voluntary ingesting illegal drugs.

5 See n 2 above.

15

Moreover, the Corrections officials did not have

advanced knowledge in any event. Courts look to see,

for example, whether there has been a history with

suicide attempts, severe mental health issues, suicide

threats, or the exhibiting of suicidal tendencies. E.g.,

Moore v. Hunter, 847 F. App’x 694, 697 (11th Cir.

2021) (“ ‘[F]ailure to prevent suicide has never been

held to constitute deliberate indifference’ ” where a

prison official has no knowledge of an inmate’s suicidal tendencies) (internal citation omitted). That is

because “[i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. Prison officials

cannot be held liable for not guessing when a prisoner

will overdose on contraband drugs.

Here, it is undisputed that there had not been

overdoses in the prison or the unit prior to the weekend of Zakora’s fatal overdose, App. 116a; there is

nothing in the complaint to indicate that Zakora was

on a drug watch, App. 144a–162a; and the close-intime nature of the other two non-fatal weekend overdoes is also undisputed. In short, “the voluntary and

illegal nature of Zakora’s activity pushes the claim

outside the Eighth Amendment’s ambit.” App. 59a.

The majority’s decision below greatly and wrongly

expands the reach of the Eighth Amendment. And it

leaves prison administrators guessing and vulnerable

when they inevitably cannot predict and prevent the

risks flowing from drugs and all other voluntary and

illegal contraband in the prison setting.

16

II. This case presents a recurring issue of

exceptional

importance

to

the

administration of prisons.

Unquestionably, “[d]rug and alcohol abuse by

prisoners is unlawful and a direct threat to legitimate

objectives of the corrections system, including rehabilitation, the maintenance of basic order, and the prevention of violence in the prisons.” Overton v.

Bazzetta, 539 U.S. 126, 129 (2003). Unfortunately,

within the “volatile ‘community’ ” of a prison, Hudson

v. Palmer, 468 U.S. 517, 526 (1984), there is a demand

for illegal drugs, and the drugs find their way in, despite prison officials’ efforts to curb their availability.

Misuse of contraband drugs in our country’s prisons is not new. Regrettably, it is commonplace. This

Court has long noted that “[d]rug smuggling and drug

use in prison are intractable problems.” Overton, 539

U.S. at 134; see also Bell v. Wolfish, 441 U.S. 520, 559

(1979) (noting that “[a] detention facility is a unique

place fraught with serious security dangers,” and that

“[s]muggling of . . . drugs . . . is all too common an

occurrence.”); Block v. Rutherford, 468 U.S. 576, 588–

89 (1984) (“We can take judicial notice that the unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country.”); Hudson, 468 U.S. at 527 (taking judicial notice

that the introduction of drugs and other contraband

into the prison premises “is one of the most perplexing

problems of prisons today”). See also Christopher P.

Keleher, Judges As Jailers: The Dangerous Disconnect

Between Courts and Corrections, 45 Creighton L. Rev.

87, 119 (2011) (recounting that drug trade in prison

“was – and still is – big business,” that the “money and

17

power at stake is staggering,” and that “gangs parlay

intake search restrictions into fortunes”).

This Court and lower courts across the nation

have recognized the varied and often ingenious ways

inmates smuggle in illegal drugs. Here it was purported to be by means of drug-filled basketballs hurled

over the yard fence, a tactic that is not unique to Michigan facilities. See United States v. Millan-Machuca,

991 F.3d 7, 15 (1st Cir. 2021) (explaining that drugs

are often smuggled in by visitors to prisons, generally

concealed in body cavities, or by “pitch-ins”–packages

that accomplices on the outside literally “pitched” over

the prison walls, retrieved from prison yards, and sold

to other inmates). Other facilities have encountered

similarly creative methods. See, e.g., Block, 468 U.S.

at 586–87 (noting that contact visits “open the institution to the introduction of drugs” and that “identification of those inmates who have propensities for. . .

drug smuggling is a difficult if not impossible task.”);

Prison Legal News v. Sec’y. Fla. Dep’t of Corr., 890

F.3d 954, 958 (11th Cir. 2018) (discussing inmates

who abuse correspondence privileges by using their

stamps as a currency in the underground prison economy to buy drugs); United States v. Mills, 66 F. App’x

273, 275 (2d Cir. 2003) (discussing an inmate who

used his children to his own criminal advantage by insisting that children accompany his drug-smuggling

mother on visits in order to create a distraction); Hill

v. Koon, 977 F.2d 589, *1 (Table) (9th Cir. 1992), as

amended on denial of reh’g (Dec. 18, 1992) (noting that

visitors often place drugs in sandwich baggies and

tubes before inserting them into their body cavities,

then remove the drugs in a prison restroom and pass

them to the inmates during some sort of diversion,

18

whereby the inmates then insert the drugs into their

anal cavities and transport them inside the prison.);

Blackburn v. Snow, 771 F.2d 556, 574 (1st Cir. 1985)

(noting that visitors can easily conceal drugs “in

countless ways and pass them to an inmate unnoticed

by even the most vigilant observers.”)

In the midst of such challenges, the panel majority

decision below has now created an impossible standard for prison officials, potentially holding them liable

for not immediately initiating an investigation and

eradicating all drugs in the prison or in a particular

unit whenever there is a suspected drug overdose.

Here, for example, the majority below apparently

expected prison officials to initiate a drug smuggling

investigation, and possibly, a lockdown and disruptive

cell search following two suspected drug overdoses—

one occurring on Friday night, the second occurring on

Saturday morning, when most prison administrators

and officials qualified to conduct investigations of

drug overdoses are not working and when the results

of drug testing had not yet been received—and to

eradicate all drugs in Zakora’s unit (and perhaps, the

entire prison), before Zakora’s voluntary ingestion of

illegal narcotics on the same Saturday night.

Until now, inmates have not asserted that their

voluntary illegal ingestion of contraband was someone

else’s problem. Nor, until now, has any court held that

the resultant harm of such voluntary behavior was a

type of punishment inflicted on them by prison officials as a condition of their confinement.

Should the unwarranted specter of litigation like

this linger in prison officials’ minds, they will be

19

forced to adjust prison policies in an attempt to meet

the impossible task of foretelling harm from the voluntary use of illegal drugs—for example, by completely locking down a unit or even a whole prison, or

immediately initiating a disruptive and costly search

of individual cells each of the inevitably frequent

times an inmate may have ingested illegal drugs or

overdosed. In a vacuum, immediate measures, even in

response to illegal activity, might seem prudent. But

in the difficult job of managing a prison, these actions,

performed prematurely, have consequences that go

well beyond cost—including disruption, security risks,

and impact on morale of prisoners and staff.

It is for precisely reasons such as these that this

Court has often emphasized that prison authorities’

resolution of the problems of prison administration

should be accorded deference by the courts. See, e.g.,

Washington v. Harper, 494 U.S. 210, 223–24 (1990);

Turner v. Safley, 482 U.S. 78, 84–86 (1987); O’Lone v.

Estate of Shabazz, 482 U.S. 342, 349 (1987); Bell, 441

U.S. at 547; Jones v. North Carolina Prisoners’ Labor

Union, 433 U.S. 119, 128 (1977); Meachum v. Fano,

427 U.S. 215, 228–29 (1976); Cruz v. Beto, 405 U.S.

319, 321 (1972). Indeed, “[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all

of which are peculiarly within the province of the legislative and executive branches of government.”

Turner, 482 U.S. at 84–85; Bell, 441 U.S. at 547–48

(1979) (“Such considerations are peculiarly within the

province and professional expertise of corrections officials. . . .”) (cleaned up).

20

In sum, the panel decision below improperly expands the scope of the Eighth Amendment and sets up

prison officials for failure in the ongoing, nationwide

battle against drugs in our prisons.

CONCLUSION

For these reasons, this Court should grant the

petition.

Respectfully submitted,

Ann M. Sherman

Michigan Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

B. Eric Restuccia

Deputy Solicitor General

Zachary Zurich

Assistant Attorney General

Corrections Division

Dated: JANUARY 2023

Attorneys for Petitioners