Davis v. Brown

• Decision Date: 03 October 2022
• Docket Number: 2:21-cv-171
• Parties: EARL DEMETRIUS DAVIS, Plaintiff, v. MICHAEL BROWN et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

EARL DEMETRIUS DAVIS, Plaintiff, v. MICHAEL BROWN et al., Defendants.

No. 2:21-cv-171

United States District Court, W.D. Michigan, Northern Division

October 3, 2022

OPINION

Maarten Vermaat United States Magistrate Judge

This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No 5.)

This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C §§ 1915(e) and 1915A(b) and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). Service of the complaint on the named defendant(s) is of particular significance in defining a putative defendant's relationship to the proceedings.

“An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff's claims before service, creates a circumstance where there may only be one party to the proceeding-the plaintiff-at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov't, 212 Fed.Appx. 418 (6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”).

Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case ....” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way that they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent from the defendants[; h]owever, because they had not been served, they were not parties to the action at the time the magistrate entered judgment.”).^[1]

Under the 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 Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's 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 Plaintiff's complaint for failure to state a claim.

Discussion

I. Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. The events about which he complains occurred at that facility. Plaintiff has been incarcerated for virtually all of his adult life. His “earliest release date”-the date he will first become eligible for parole-is April 15, 2052. See MDOC Offender Tracking Information System (OTIS) https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=222490 (last visited Sept. 13, 2022).

Plaintiff's allegations center on the COVID-19 pandemic. His allegations track back to December 1, 2019, when the Center for Disease Control and Prevention (CDC) and other organizations “discovered” the COVID-19 virus. Plaintiff sues Michigan Governor Gretchen Whitmer and the Director of the State Department of Health Services Joneigh Khalidun; MDOC Director Heidi Washington, MDOC Deputy Director Kenneth McKee, MDOC Director of Health Care Services Marti Kay Sherry, and MDOC Director of Legal Affairs/Grievance Coordinator Richard Russell; KCF Warden Michael Brown, KCF Deputy Warden Bruce Biggers, and KCF Grievance Coordinator Melissa Gustafson; MDOC Health Care Contractor Corizon Healthcare, Inc. (Corizon) and Corizon's Chief Executive Officer Kathy Witty; Contracted KCF/Corizon Physician Timothy Stallman; MDOC Food and Hygiene Vendors Keefe Group, Inc. and its subsidiary Access Securpak, Inc. (Access); NxGen MDX, Inc. (NEXT-GEN); NEXT-GEN's Lab Proofer Jacqueline Peacock; and Curative Labs, Inc. and its Chief Executive Officer Carmen McIntyre.^[2]

Plaintiff provides a history of the first few months of the pandemic and its impact on prisons generally and Michigan prisons specifically. He relies on affidavits and news reports that relate to other cases. Plaintiff alleges that the entire group of Defendants or subgroups of Defendants took initial actions in response to the pandemic. For example, Plaintiff alleges:

¶ 25. Disturbingly, in EXHIBIT D GRETCHEN, KHALIDUN, WASHINGTON, MCKEE, SHERRY, CORIZON and WITTY sent PLAINTIFF (all) an email falsely stating They were: “leading the nation when it comes to consistent testing”, outrageously only when “symptoms” arise, which was when COVID-19 was reeking [sic] havoc for deaths.

¶ 30. As a result of not testing, WASHINGTON, MCKEE, BROWN AND SHERRY intentionally deceived PLAINTIFF even after 3 known deaths, when BROWN had been secretly allowing [angry] resistant an[d] knowingly ill staff to enter with only temperatures checked ....

¶ 33.... DEFENDANTS [issued] “homemade masks” . . . with KHALIDUN, WASHINGTON, MCKEE, SHERRY, CORIZON and WITTY agreeing . . . even when Dr. Rick Bright of BARDA had “500 million N95” available for PLAINTIFF.

¶ 48.... BROWN an[d] the DEFENDANTS can maintain communilizing [sic] to inflict Plaintiff with COVID-19 under Their “version” of a “Herd Immunity” strat[eg]y without testing and treatments for irreparable harm and inevitable death.

¶ 51. The DEFENDANTS in ¶ 44 [WASHINGTON, MCKEE, SHERRY, CORIZON, WITTY, NEXT-GEN, STALLMAN and PEACOCK] . . . avoided the effective an[d] more costly “Serology Test” which ca[ll]ed for using a “tea spoon” of PLAINTIFF'S “saliva” or direct “blood” for an accuracy of “99.8%” versus the nasal [swab's] “20%” falsity to cause “deaths.”

(Compl., ECF No. 1, PageID.10-15 (capitalization in original).)

Plaintiff then leaps ahead from the Defendants' general response to the pandemic during the spring of 2020 to the specific events that occurred at KCF during October and November of 2020. Plaintiff points to two events at the end of October that he suggests brought the virus into KCF: (1) the school principal was visibly ill yet continued to be permitted into the facility; and (2) COVID-positive prisoners were transferred from the Marquette Branch Prison to KCF.

Plaintiff alleges that he was tested for COVID-19 infection on November 16, 2020, and two days later the negative test result was released. Then, Plaintiff and 80 other prisoners were moved to the gym area. (Compl., ECF No. 1, PageID.17-18.) Plaintiff contends that area had been previously occupied by COVID-19 positive prisoners and that the port-a-potty toilets located there had not been emptied before Plaintiff's group was moved into the gym. Plaintiff posits that he was infected with the COVID-19 virus by splashing from the toilets. After some time in the gym, the next week, Plaintiff tested positive for COVID-19 infection.

Based on the alleged facts, Plaintiff raises eleven claims for relief. In Count I, Plaintiff alleges that Defendant Whitmer, Khalidun, Washington, McKee, Brown, Sherry, Russell and Stallman have violated state constitutional provisions. In Count II, Plaintiff alleges that Defendants Whitmer, Khalidun, Washington, McKee, Brown, Sherry, and Stallman violated Michigan statutes and that Defendants Corizon, Witty, Stallman, McIntyre, and Peacock acted arbitrarily in following “protective PD's,” which the Court interprets to mean policy directives. In Count III, Plaintiff sues the same Defendants that he references in Court II for violating state statutes and federal regulations regarding disclosure of medical records. In Count IV, Plaintiff alleges that Defendants Corizon, Witty, NEXT-GEN, Peacock, Curative, McIntyre, Whitmer, Khalidun, Washington, McKee, Brown, Sherry, Russell, and Stallman violated state health care laws and released confidential information in violation of state law. In Count V, Plaintiff alleges that Defendants Whitmer, Khalidun,...