UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

JOSEPH BROWN,

Plaintiff, Case No. 1:22-cv-131

v. Hon. Hala Y. Jarbou

MICHIGAN DEPARTMENT OF CORRECTIONS,

Defendant. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under

. Plaintiff previously sought and was granted leave to proceed in forma pauperis. (ECF No. 4.) Under the Prison Litigation Reform Act,

Stat. 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.

(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,

(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez,

(1992). Applying these standards, the Court will dismiss Plaintiff’s complaint on grounds of immunity and for failure to state a claim. Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Oaks Correctional Facility (ECF) in Manistee, Manistee County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues the MDOC as the sole Defendant. Plaintiff’s complaint is scant. He references intentional infliction of emotional distress and

an Eighth Amendment violation. (ECF No. 1, PageID.2.) He asserts that he has “consistently on more than one incident experience[d] intentional, emotional pain from multiple angles.” (Id.) Plaintiff asserts that he tested positive for COVID-19 on January 24, 2022. (Id.) He reported his symptoms to staff and was placed in quarantine for sixteen days. (Id.) Plaintiff references Brown v. Tribble, No. 1:21-cv-675 (W.D. Mich.), as a pending case involving a time when he was provided the wrong medication.1 (Id.) Plaintiff asks that “these factual allegations be investigated from a[n] understanding point[] of view.” (Id.) Plaintiff seeks declaratory relief, as well as compensatory and punitive damages. (Id., PageID.3.) Immunity As noted supra, Plaintiff has named the MDOC as the sole Defendant in this action.

Plaintiff, however, may not maintain a § 1983 action against the MDOC. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman,

, 98–101 (1984); Alabama v. Pugh,

(1978); O’Hara v.

1 In an opinion and judgment entered on February 7, 2022, the Court dismissed Plaintiff’s amended complaint in Brown v. Tribble for failure to state a claim. See Brown v. Tribble, No. 1:21-cv-675 (W.D. Mich.) (ECF Nos. 21, 23.) Wigginton,

(6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan,

(1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan,

(6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held that the MDOC

is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v. Michigan,

(6th Cir. 2013); Diaz v. Mich. Dep’t of Corr.,

(6th Cir. 2013); McCoy v. Michigan,

, 653–54 (6th Cir. 2010). In addition, the State of Michigan (acting through the MDOC) is not a “person” who may be sued under § 1983 for money damages. See Lapides v. Bd. of Regents,

(2002) (citing Will v. Mich. Dep’t of State Police,

(1989)); Harrison,

. Plaintiff, therefore, cannot maintain his suit against the MDOC. Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). While a

complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly,

; Ashcroft v. Iqbal,

(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,

. “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,

. 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,

(quoting Twombly,

). “[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,

(quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

, 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)(1) and 1915(e)(2)(B)(i)). To state a claim under

, 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,

(1988); Street v. Corr. Corp. of Am.,

(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,

(1994). Notwithstanding the fact that Plaintiff cannot maintain his suit against the MDOC on

grounds of immunity, Plaintiff’s complaint is simply devoid of any allegations that state a plausible constitutional claim for relief. Plaintiff vaguely references violations of his Eighth Amendment rights. (ECF No. 1, PageID.2.) Specifically, Plaintiff maintains that he tested positive for COVID- 19 on January 24, 2022, and was placed in quarantine for sixteen days. (Id.) 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,

, 345–46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and wanton infliction of pain.” Ivey v. Wilson,

(6th Cir. 1987) (per curiam) (quoting Rhodes,

). The deprivation alleged must result in the denial of the “minimal civilized measure of life’s necessities.” Rhodes,

; see also Wilson v. Yaklich,

, 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,

(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,

. “Routine discomfort is ‘part of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian,

(1992) (quoting Rhodes,

). As a consequence, “extreme deprivations are required to make out a conditions-of-confinement claim.”

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,

, 479–80 (6th Cir. 2010) (citing Farmer v. Brennan,

(1994) (applying deliberate indifference

standard to medical claims)); see also Helling v. McKinney,

(1993) (applying deliberate indifference standard to conditions of confinement claims)). The deliberate-indifference standard includes both objective and subjective components. Farmer,

; Helling, 509 U.S. at 35–37. To satisfy the objective prong, an inmate must show “that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer,

. Under the subjective prong, an official must “know[] of and disregard[] an excessive risk to inmate health or safety.”

. “[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.”

. “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.”

. “[P]rison 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.”

. The Sixth Circuit has recognized that a plaintiff may satisfy the objective prong for

purposes of an Eighth Amendment claim by alleging conditions that could facilitate COVID-19 transmission within a prison and the health risks posed by the virus, certainly at least with respect to medically vulnerable inmates. See Wilson v. Williams,

, 840 (6th Cir. 2020). Plaintiff, however, fails to allege that he is medically vulnerable. Furthermore, Plaintiff fails to allege any conditions at ECF that facilitated COVID-19 transmission within the facility. Plaintiff’s scant allegations about testing positive for COVID-19 and being placed in quarantine simply fail to satisfy the objective prong of the deliberate indifference test. Moreover, Plaintiff fails to allege facts suggesting that the MDOC and its staff disregarded the risk posed by COVID-19 or failed to take steps to address that risk. See

at 843–44. Indeed, Plaintiff’s allegation that he was placed in quarantine suggests that staff at ECF took affirmative action to place those inmates who tested

positive in quarantine. While the Court is sympathetic to Plaintiff’s concern about COVID-19, he has failed to allege any facts suggesting that the MDOC and its staff were deliberately indifferent to his health and safety. Therefore, he fails to state an Eighth Amendment claim based upon his exposure to the COVID-19 virus. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed on grounds of immunity and failure to state a claim, under

(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

(a)(3). See McGore v. Wrigglesworth,

(6th Cir. 1997). Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States,

(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,

, unless Plaintiff is barred from 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

(g). A judgment consistent with this opinion will be entered.

Dated: March 4, 2022 /s/ Hala Y. Jarbou HALA Y. JARBOU UNITED STATES DISTRICT JUDGE