Van Diver v. Nagy

• Decision Date: 08 December 2020
• Docket Number: Case Number 20-11340
• Parties: JERRY VAN DIVER, Petitioner, v. NOAH NAGY and HEIDI WASHINGTON, Respondents.
• Court: U.S. District Court — Eastern District of Michigan

JERRY VAN DIVER, Petitioner, v. NOAH NAGY and HEIDI WASHINGTON, Respondents.

Case Number 20-11340

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 8, 2020

Honorable David M. Lawson

OPINION AND ORDER DENYING PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION AND DISMISSING HABEAS CORPUS PETITION WITH PREJUDICE

Petitioner Jerry Van Diver, a Michigan prisoner, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. Van Diver also seeks injunctive relief, contending that he has "properly framed his pleading as a civil rights action 'in the alternative,'" based on conditions in prison that violate his federal constitutional rights. Pet. at 6, 11, ECF No. 1, PageID.6, 11. He contends that the violation of his rights results from the confluence of his personal physical health, the congregant living conditions in prison, and the inadequate measures taken by the respondents in response to the novel coronavirus.

Van Diver is a 69-year-old prisoner serving a life sentence for murder. He currently is incarcerated at the G. Robert Cotton Correctional Facility in Jackson, Michigan, which is designated as JCF by the Michigan Department of Corrections (MDOC). Respondent Noah Nagy is the warden. Respondent Heidi Washington is Director of the MDOC. In his habeas petition and in a motion for a temporary restraining order, Van Diver seeks temporary release from custody on his own recognizance because, in his opinion, the coronavirus disease (COVID-19) poses a substantial risk to his health and life.

On August 13, 2020, the Court denied Van Diver's motion for a temporary restraining order, construed the motion as a motion for a preliminary injunction, and directed the respondents to file an answer to the motion for a preliminary injunction. The respondents have filed their answer, and according to them, Van Diver has failed to establish a basis for granting a preliminary injunction. Van Diver has filed a reply to the response in which he reiterates most of the arguments he asserted in his petition and motions. However, the Court agrees with the respondents that Van Diver is not likely to succeed on the merits of his deliberate-indifference claim; he has not shown that he will suffer irreparable injury absent the Court's intervention; and both the public interest and that of MDOC weigh against granting an injunction. For similar reasons, Van Diver has failed to show that his right to substantive due process is being violated or that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Therefore, the Court will deny the motion for a preliminary injunction and dismiss the habeas petition with prejudice.

I. Background

Van Diver is an African American who was born on July 6, 1951. He is serving a life sentence without the possibility of parole for first-degree murder, but the habeas petition does not challenge Van Diver's conviction or the validity of the state court's judgment of sentence. Instead, he alleges in his habeas petition, in his motion for injunctive relief, and in a supplemental motion for injunctive relief that his continued confinement in prison puts him at risk of contracting COVID-19 and of becoming ill or dying because he shares toilets, sinks, phones, and showers with other prisoners, eats in a communal space, and has close contact with many other prisoners and correctional officers. He maintains that he has an increased risk of contracting COVID-19 due to his age and his chronic illnesses, which include diabetes, Hepatitis C, and heart disease. Van Diverargues that his continued detention violates the Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution. He seeks temporary release from confinement during the COVID-19 pandemic due to the substantial risk that COVID-19 allegedly poses to his health.

II. Discussion

In another case spawned by the pandemic, the United States Court of Appeals for the Sixth Circuit recently explained that, when determining whether to grant a preliminary injunction,

"[a] district court must balance four factors . . . : '(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.' " Am. Civil Liberties Union Fund of Mich. v. Livingston County, 796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th Cir. 2012)). "These factors are not prerequisites, but are factors that are to be balanced against each other." Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002).

Wilson v. Williams, 961 F.3d 829, 836-837 (6th Cir. 2020); accord Perez-Perez v. Adducci, , 459 F. Supp. 3d 918, 924 (E.D. Mich. 2020), appeal filed, (6th Cir. July 10, 2020).

A. Likelihood of Success on Merits

The likelihood of success on the merits often will be the determinative factor in an assessment of a motion for a preliminary injunction, and "the party seeking a preliminary injunction bears the burden of justifying such relief." Wilson, 961 F.3d at 837 (citations omitted). The likelihood of success on the merits is not established by showing "a mere possibility of success." Six Clinics Holding Corp. v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (citing Mason County Med. Ass'n v. Knebel, 563 F.2d 256, 261 n.4 (6th Cir. 1977)). But "it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation." Ibid. (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)).

Whether one views the initiating document in this case as a habeas corpus petition under 28 U.S.C. § 2241 or a civil rights complaint under 42 U.S.C. § 1983, Van Diver must establish a violation of his rights emanating from the Constitution or laws of the United States. 28 U.S.C. § 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States"); 42 U.S.C. § 1983 (providing a cause of action against state actors for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws"). He brings his claim under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution, arguing that his continued confinement during the COVID-19 pandemic violates his Fifth Amendment rights either because he has been exposed to COVID-19 or because his exposure to the virus is imminent. He further alleges that, despite the precautionary measures taken by MDOC, "he is not ensured anything close to 'reasonable safety'" because of his underlying health conditions.

The Due Process Clause of the Fifth Amendment "appl[ies] only to actions of the federal government — not to those of state or local government," Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001), and Van Diver is seeking relief from state officials. The Due Process Clause of the Fourteenth Amendment, however, states that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. The Clause affords incarcerated individuals the right to adequate shelter and safe living conditions. Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 847-48 (6th Cir. 2002).

Van Diver has health concerns, and the Sixth Circuit generally applies the same standard to a claim challenging adequacy of medical care brought by incarcerated individuals under the Fourteenth Amendment's substantive due process clause as it does for a challenge under the Eighth Amendment. Cooper v. Montgomery Cty., Ohio Sheriff's Dep't, 768 F. App'x 385, 391 (6th Cir.2019) (citing Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001), and Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)). Court decisions interpreting the Eighth Amendment, therefore, provide useful guidance.

1. Eighth Amendment Framework

It is well established that "[w]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing." Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation omitted). "The Constitution 'does not mandate comfortable prisons,' but neither does it permit inhumane ones . . . .'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citation omitted).

The applicable test has two elements. Ibid. at 834. First, the prisoner must demonstrate that the deprivation alleged is "objectively, 'sufficiently serious.'" Ibid. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). "For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Ibid. Second, the prisoner must demonstrate that a prison official had a "sufficiently culpable state of mind." Ibid. (citing Wilson v. Seiter, 501 U.S. at 297). "In prison-conditions cases that state of mind is one of 'deliberate indifference' to inmate health or safety." Ibid. This element can be proven by circumstantial evidence from which the fact finder can conclude that the state actor perceived the risk and then disregarded the risk, Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001), or "from the very fact that the risk was obvious." Terrance, 286 F.3d at 843.

a. Objective Component

This Court recently acknowledged that, "[n]o one can deny that the health risks caused by the [coronavirus] pandemic are grave." Toma v. Adducci, No. 20-11071, 2020 WL 2832255, at *4 (E.D. Mich. May...