Charest v. Ivey

• Docket Number: Civil Action 20-0214-TFM-N
• Decision Date: 16 March 2022
• Parties: PATRICK J. CHAREST, Plaintiff, v. GOVERNOR KAY IVEY and WARDEN MARY COOK, Defendants.
• Court: U.S. District Court — Southern District of Alabama

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PATRICK J. CHAREST, Plaintiff, v. GOVERNOR KAY IVEY and WARDEN MARY COOK, Defendants.

Civil Action No. 20-0214-TFM-N

United States District Court, S.D. Alabama, Southern Division

March 16, 2022

REPORT AND RECOMMENDATION

KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

Plaintiff an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C § 1983.^[1] This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). Presently, before the Court is Defendants' motion for summary judgment.^[2] (Doc. 35). For the reasons set forth below, Defendants' motion for summary judgment is GRANTED, and Plaintiffs action is DISMISSED in its entirety.

I. Complaint.

Plaintiff Patrick Charest is currently in custody of the Alabama Department of Corrections ("ADOC") and incarcerated at G.K. Fountain Correctional Facility ("Fountain"), in H-Dormitory. Plaintiff is suing Alabama Governor, Kay Ivey, and Fountain's Warden, Mary Cooks, for their failure to protect him and other inmates by not providing preventative supplies, services and testing for COVID-19, for their deliberate indifference to imminent physical danger/death of COVID-19, and claims that 28 U.S.C. § 2244 violates the First and Fourteenth Amendments of U.S. Constitution. (Doc. 1 at 11).

In his complaint, filed April 7, 2020, Charest broadly alleges he is a "sitting duck" waiting to contract COVID-19 because Fountain has active COVID-19 cases and no testing or means for Plaintiff to request testing. (Id. at 8). He alleges the "ADOC defendants" are acting with deliberate indifference in refusing to test and remove inmates who have shown symptoms of COVID-19, i.e., sick, coughing, feverish. (Id.). Furthermore, "ADOC defendants" are lying to families and the public that they are bleaching and cleaning the prison and providing COVID-19 sanitation supplies, sprays, ample soap, disinfectant, masks, and shields. (Id.). Charest claims that based on his age of 63-years-old and his "infirmities", he and other inmates are in imminent danger of serious physical injury -namely death. (Id. at 5-6). Specifically, Charest alleges:

• His dorm (which houses 75 to 125 inmates) has no cleaning supplies to kill COVID-19, despite his request for such on April 7, 2020. (Id. at 5)

• There is no cleaning done to the kitchen tables, floors, and utensils that are left unattended and no hand-sanitizer distributed during the three meals he eats with 75 to 100 other inmates. (Id.).

• Six-foot social distancing is not enforced by "ADOC defendants" and inmates congregate during meals, recreation, and in their housing. (Id.).

• "ADOC defendants" do not test inmates who have flu-like symptoms, such as a running nose, running eyes, cramps, and fever, and inmates around him are coughing, sneezing, and smoking. (Id.).

• Transfers of inmates among prisons are still permitted, as well as allowing free-world people and other officers to enter Fountain without wearing protective gear (gloves, masks). (Id. at 6).

• "ADOC defendants" "suggest" inmates "practice social distancing, preventiveness, but refuse [to] supply [him and] (others) with CDC recommended supplies (adequate soap, disinfectant] spray, [and] bleaching materials[] to clean [his] living area, or tables, benches in TV area or chow hall-during - after feeding (3 x a day)!!!" (Id. at 6).

Plaintiff also alleges that between March 18, 2020 and March 23, 2020, when the CDC (Centers for Disease Control and Prevention) made announcements, he requested from Defendant Cooks and other officers a bleach disinfectant for the small (12 x 20 foot) law library. (Id. at 4). After a few days, Captain Knight brought a small bottle of Lysol wipes, and a few days later, she told Plaintiff to stop writing and asking for anything else. (Id.). Subsequently, on April 7, 2020, Plaintiff wrote a letter thanking them and asking for the "same protection" in his dorm, H-Block, but none came. (Id. at 5). He also requested hand-sanitizers be distributed during the three meals he eats with 75 to 100 other inmates. (Id.). Furthermore, inmate McConico requested a typewriter from Captain Knight, and Captain Knight "screamed" for him to get six feet away from her. (Id. at 4).

Charest further challenges the constitutionality of 28 U.S.C. § 2244 because he contends that it violates his First and Fourteenth Amendment rights, i.e., this statute denies access to courts, is cruel and unusual punishment, and is a deprivation of his due process and equal protection rights. (Id. at 8-9). Section 2244 prevents him from re-filing a second habeas petition unless there is a new rule of law or he is actually innocent. (Id. at 9). Plaintiff was not sentenced to death, but in light of COVID-19 and his prior medical condition and age, "ADOC defendants" are being deliberately indifferent in their efforts to protect him from it. (Id.). He claims when Congress enacted §2244, it failed to provide a remedy for relief from unconstitutional detention that is the result of a medical emergency or a public danger such as COVID-19. (Id.). Thus, this section deprives him of his constitutional rights arbitrarily. (Id. at 10).

Charest seeks a declaratory judgment and preliminary injunctive relief (previously denied) for the alleged violations of his constitutional rights.^[3] (Id. at 13).

II. Motion for Summary Judgment.

Defendants Governor Ivey and Warden Cooks have Answered the Plaintiffs suit denying the allegations asserted against them and filed a Special Report in support of their denial. (Doc. 25). Defendants argue in their joint Special Report that Plaintiff has failed to make a case for deliberate indifference with respect to the Alabama Department of Corrections' response to the COVID-19 pandemic at Fountain.^[4] (Doc. 25). Namely, Defendants claim that Plaintiff has failed to allege how COVID-19 presents a substantial risk of serious harm to Charest, personally, nor that Defendants knew of such serious risk and disregarded the risk with a sufficiently culpable state of mind. (Id. at 3-4). Moreover, Defendants assert that they have recognized the danger created by COVID-19 and have reasonably responded to the risks, taking "numerous steps to protect inmates and staff from exposure to COVID-19", including:

a. Educating inmates and staff through oral and written communication, including signage, about symptoms of COVID-19, proper hygiene practices, and social distancing;

b. Encouraging inmates and staff to engage in proper hygiene practices and social distancing;

c. Providing and restocking antibacterial soap in bathrooms and housing areas and hand sanitizer in main hallways and dining areas to allow frequent hand-washing, [but not in housing units and recreational areas due to the potential for misuse in creating drinking alcohol];

d. Continuing medical appointments such as chronic care clinics and sick-call appointments;

e. Suspending copays for inmates seeking medical services;

f. Implementing intensified cleaning and disinfecting procedures;

g. Suspending the intake of new inmates and, when restarted, ensuring an appropriate quarantine and screening before transferring the new intakes from a temporary intake facility to a permanent intake facility;

h. Performing verbal screening and temperature checks for all person entering the facility and, if a person has a temperature over 100.4 degrees Fahrenheit or other symptoms of COVID-19, denying the person entry into the facility;

i. Implementing social distancing strategies;

j. Providing two (4) masks to each inmate, along with instructions on wearing, cleaning, and caring for the masks;

k. Providing masks and gloves to administrative and correctional staff, along with instructions on wearing, cleaning, and caring for the masks;

l. Providing personal protective equipment, including masks and gloves, to medical and mental-health staff, along with instruction on wearing, cleaning, and caring for the masks;

m. Implementing a quarantine or medical isolation plan for any inmate or staff who tests positive for COVID-19 or is suspected or having or being exposed to COVID-19;

n. Monitoring inmates for symptoms of COVID-19 such as cough and shortness of breath or at least two (2) of fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell; and

o. Testing and isolating inmates with symptoms of COVID-19 or contact with a person testing positive for or suspected of having COVID-19.

(Id. at 5-7).^[5] Defendants further rely on their record responses, primarily Defendants' Opposition to Plaintiffs Motion for Preliminary Injunction, which includes declarations under penalty of perjury of Defendant Mary Cooks, Associate Commissioner for Health Services for the ADOC Ruth Naglich, and Dr. Hugh Hood, in support of their denial of the allegations against them.

Defendants maintain (through the sworn declaration of Ruth Naglich Associate Commissioner for Health Services) that the ADOC began planning early in March 2020 for COVID-19.^[6] (Doc. 13-2 at 3). At the facility level, ADOC and Wexford Health Sources, Inc. ("Wexford") (which is contracted to provide medical services to inmates in the custody of the ADOC) created Pandemic Planning Teams that included Warden Cooks, Health Service Administrator, Office of Health Services ("OHS") Regional Associate Director of Health Services, Medical Director of the facility, and others such as the Facility Food Service Manager and Facility Maintenance. (Id. at 4-5). Its planning entailed assessing the levels of correctional and medical staff needed; determining locations for quarantining inmates; evaluating supplies of personal protection equipment, soap, paper ...