1:23-cv-00574•Worthy #415988 v. Washington et al
Gesamter Gesetzestext
1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JERRY JAMAR WORTHY, Case No. 1:23-cv-574 Plaintiff, Hon. Paul L. Maloney v. HEIDI WASHINGTON, et al., Defendants. / REPORT AND RECOMMENDATION Pro se plaintiff Jerry Jamar Worthy is a prisoner in the custody of the Michigan Department of Corrections (“MDOC”). Plaintiff filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The alleged incidents occurred at Muskegon Correctional Facility (“MCF”). Three defendants remain: MCF Warden Sherry Burt, MCF Deputy Warden D. Steward (named as “Stewart”) and MCF Capt. King. This matter is now before the Court on motions for summary judgment filed by plaintiff (ECF No. 53) and defendants Burt, Steward, and King (ECF No. 62). I. Plaintiff’s allegations The Court summarized plaintiff’s complaint as follows: Plaintiff alleges that each Defendant played some role in failing to protect him from the risk of COVID-19 infection from July 24, 2020, to August 7, 2020, when Plaintiff tested positive for the virus. . . . The crux of Plaintiff’s complaint is that Defendants were responsible for commingling prisoners who presented different levels of risk of infection and, thus, could not be safely housed together. Plaintiff notes that the very first case of COVID-19 was identified on July 24, 2020, or July 27, 2020. (Compl., ECF No. 5, PageID.94.) Up until that point, routine testing had determined that all prisoners tested negative for the virus. (Id., PageID.94, 96.) Plaintiff claims that, by the next day, Defendants started moving inmates from the COVID-positive inmate’s unit— Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 1 of 10
2 unit 2— into Plaintiff’s unit—unit 4. The moved inmates included “COVID-19 POSITIVE” inmates and persons who had close contact with COVID-19 positive inmates. (Id., PageID.93.) Plaintiff seeks a declaration of his legal rights as well as compensatory and punitive damages exceeding $2,000,000.00. Opinion (ECF No. 17, PageID.155-156). After initial review of the complaint, the Court found that, “Plaintiff’s claims against Defendants Burt, Stewart [sic], and King under the Eighth Amendment relating to their deliberate indifference to the risk of COVID-19 infection remain in the case.” Id. at PageID.165. II. Motions for summary judgment A. Legal standard The parties have filed cross-motions for summary judgment. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties’ burden of proof in a motion for summary judgment: The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party’s case. Once the moving party has met its burden of Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 2 of 10
3 production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). B. The Eighth Amendment claim Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983. On initial screening, the Court set forth the legal standard applicable to plaintiff’s Eighth Amendment claim: In Trapp v. Huss, No. 21-2958, 2022 WL 18145300 (6th Cir. May 5, 2022), the Sixth Circuit reviewed the dismissal of an Eighth Amendment claim similar to the claim Plaintiff raises herein. The Trapp panel explained: A deliberate-indifference claim under the Eighth Amendment includes both an objective and a subjective prong: (1) the inmate “is incarcerated under conditions posing a substantial risk of serious harm” (the objective prong), and (2) “the official knows of and disregards an excessive risk to inmate health or safety” (the subjective prong). Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). In Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), we stated that “the objective prong is easily satisfied” in this context, id. at 840. “The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death.” Id. Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 3 of 10
4 The subjective prong, on the other hand, generally requires alleging at least that the defendant “acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. (quoting Farmer, 511 U.S. at 842). The official must have a “state of mind more blameworthy than negligence,” Farmer, 511 U.S. at 835. The key inquiry is whether the defendants “responded reasonably to the risk posed by COVID-19.” Wilson, 961 F.3d at 840-41. And a response may be reasonable even if “the harm imposed by COVID- 19 on inmates . . . ‘ultimately [is] not averted.’” Id. at 841 (quoting Farmer, 511 U.S. at 844). Trapp, 2022 WL 18145300, at *2. Opinion at PageID.160. C. Discussion 1. Objective component Plaintiff met the objective component of an Eighth Amendment claim. It is well- established that, “[t]he COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death.” Wilson, 961 F.3d at 840. It is undisputed that some prisoners incarcerated at MCF tested positive for COVID-19 in July and August 2020. This created a risk of harm for the other inmates at MCF. Here, plaintiff tested positive for COVID-19 on or about August 11, 2020. See Worthy Dep. at p. 46 (ECF No. 63-2, PageID.494). 2. Subjective component Defendants contend that plaintiff cannot establish the subjective component because they responded reasonably to the risk posted by COVID-19. To respond “reasonably” to COVID-19, prison officials are not required to “take every possible step to address a serious risk of harm.” See Wilson, 961 F.3d at 844. Even if the prison officials’ response to COVID-19 was inadequate, the officials did not act with deliberate indifference if they recognized the risk and took affirmative steps to address the crisis such as treating inmates, quarantining inmates, and Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 4 of 10
5 preventing the widespread transmission of COVID-19. See Hill v. Whitmer, 471 F. Supp. 3d 803, 807-08 (W.D. Mich. 2020) (citing Wilson). a. Warden Burt and Deputy Warden Steward’s transfer of the Unit 2 inmates Plaintiff alleged that Warden Burt and Deputy Warden Steward improperly moved COVID-19 positive inmates and “close contact” inmates from Unit 2 into plaintiff’s housing (Unit 4). Plaintiff contends that Burt and Steward had personal knowledge of Director’s Office Memorandum (DOM) 2020-30R3 and MDOC policies which required them “to segregate COVID-19 positive, close contact, P.U.I. [persons under investigation] prisoners from other prisoners negative and to sanitize areas occupied by close-contact prisoners.” Plaintiff’s Brief (ECF No. 55, PageID.318). At his deposition, plaintiff clarified that his claim against Warden Burt involved mixing infected and close contact prisoners from Unit 2 with prisoners in plaintiff’s unit: Warden Sherry Burt violated my Eighth Amendment rights by not following DOM 2020-30R3 and by instructing inmates from within Unit 2, outbreak unit, to be moved into Unit 4 where inmates were negatively tested, the entire population were negatively tested, and allowing these inmates to intermingle and interact in all communal areas within our Unit 4. Worthy Dep. at pp. 91-92 (ECF No. 63-2, PageID.505). In plaintiff’s words, She personally allowed inmates, you know, who were potentially positive for COVID-19 to interact with me. So she personally caused me to contract COVID- 19, potentially. Id. at p. 92, PageID.505. When asked how Deputy Warden Steward violated his Eighth Amendment rights, plaintiff stated, “Essentially the exact same as Defendant Burt.” Id. at p. 94, PageID.506. In addressing the COVID-19 crisis, the MDOC incorporated recommendations from the U.S. Centers for Disease Control and Prevention (CDC) into the DOMs related to Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 5 of 10
6 COVID-19. See CDC (Interim Guidance on Management of Coronavirus Disease 2019 (COVID- 19) in Correctional and Detention Facilities) (March 23, 2020) (ECF No. 63-6); DOM 2020-30 (April 8, 2020) (ECF No. 63-7); DOM 2020-30R3 (May 27, 2020) (ECF No. 5-1); and. DOM 2020-30R4 (August 20, 2020) (ECF No. 63-8). The gist of plaintiff’s claim is that Warden Burt did not “follow[] the steps correctly” when she moved inmates from Unit 2 into Unit 4, i.e., She didn’t -- she didn’t isolate, you know, the close -- the potentially close contact or PUIs that were, you know, within the Unit 2 outbreak unit. She -- she moved these inmates, you know, into Unit 4 as a means to control, as a -- as a preventative measure, or what have you, and it ultimately ballooned into 691 inmates, approximately, contracting COVID-19 there at MCF. See Worthy Dep. at pp. 53-54, PageID.96. It appears that plaintiff’s claim is based on defendants Burt and Steward’s failure to follow that portion of DOM 2020-30R3 regarding “PRISONERS UNDER INVESTIGATION FOR COVID-19”. That section provided as follows: Separate isolation areas shall also be developed for prisoners who are under investigation (PUIs) for having COVID-19 as well as for those who have had close contact with a PUI or known-positive COVID-19 individual (Close Contacts), as necessary. The isolation areas for PUIs shall follow the same criteria as the isolation areas for prisoners with confirmed cases of COVID-19. A PUI shall be placed alone in a cell pending the outcome of their test results. Staff transporting a PUI shall wear the same PPE that is required for transporting a prisoner with confirmed COVID-19. DOM 2020-30R3 at PageID.107. Prior to July 24, 2020, no prisoner or staff member at MCF tested positive for COVID-19. Warden Burt Decl. (ECF No. 63-10, PageID.576). On July 24, 2020, a prisoner in Unit 2 tested positive. Id. “The infected prisoner was immediately quarantined from the rest of the prisoner population and transferred to a different facility.” Id. Warden Burt further stated that: Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 6 of 10
7 5. Following this infected prisoner testing positive for COVID-19 in Unit 2, all other prisoners in Unit 2 were quarantined and tested for COVID-19. 6. Only after these Unit 2 prisoners were cleared by medical personnel were they subsequently moved to different housing units at MCF. 7. No prisoner who tested positive for COVID-19 was ever housed in the same cell with a prisoner who tested negative for COVID-19. 8. Prisoners who were designated as “close contacts” or “persons under investigation” were not moved from their designated quarantine area back to the general population until that prisoner was cleared by medical personnel. Burt Decl. at PageID.576. Warden Burt “never knowingly exposed any prisoner at MCF to COVID-19.” Id. See also, Steward Decl. (ECF No. 63-11) (stating the same facts and that he “never knowingly exposed any prisoner at MCF to COVID-19”). On or about July 25, 2024, plaintiff sent a kite to defendants Burt and Steward posing the question, Why are COVID-19 positive slash close contact, including moving inmates without waiting for their test results, being housed within Unit 4 and also being placed in cells with negative tested inmates? I, Jerry Worthy, 415988, am a negative tested inmate being housed in Unit 4 with COVID-19 inmate -- positive inmates/close contact, and those inmates waiting for their test results that the MCF administration moved outbreak Unit 2 these COVID-19 positive, close contacts and those inmates awaiting their test results are being housed in the same cells as negative tested inmates and are allowed to be in communal areas of Unit 4 unmasked and to use those areas at the same time uninfected inmates are present. The MCF administration is not showing any regard for life at this facility.ꞏ Please help ASAP. Worthy Dep. at pp. 82-83, PageID.503. See Plaintiff’s Brief (ECF No. 55, PageID.319) (stating that plaintiff sent the kite on July 25, 2020); See Plaintiff’s Statement of Undisputed Facts (ECF No. 56, PageID.408) (referring to kites sent). The response to the kite was, “Per MDOC director’s Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 7 of 10
8 office, instructions of COVID-19 or close contact inmates within the facility is properly being administered.” Worthy Dep. at p. 83, PageID.503. Plaintiff does not present evidence to rebut defendants’ declarations or establish that defendants Burt and Steward allowed “potentially positive” prisoners (presumably close contact or PUI prisoners) from Unit 2 to interact with him. Plaintiff made the conclusory statement that unnamed inmates from Unit 2 “verified that they were in contact with the particular inmate in question [i.e., the infected inmate]”. Id. However, plaintiff admitted that he did not see “any paperwork” stating that the Unit 2 inmates who came to Unit 4 “were close contact” or “had COVID-19.” Id. at p. 80, PageID.502. In addition, plaintiff later stated that he did not know for a fact that medical staff declared the moved inmates to be “close contacts.” Id. at p. 83, PageID.503. In short, plaintiff presented no evidence that Warden Burt and Deputy Warden Steward transferred infected or “close contact” inmates from Unit 2 to Unit 4 and allowed the inmates to mingle with the Unit 4 inmates. Furthermore, the record reflects that Warden Burt and Deputy Warden Steward were not deliberately indifferent to plaintiff’s medical needs. The record demonstrates that they recognized the risk of COVID-19 and took affirmative steps to prevent the widespread transmission of the disease, e.g., the infected prisoner from Unit 2 was quarantined, other prisoners in Unit 2 were quarantined and tested for COVID-19, and only Unit 2 prisoners who were cleared by medical personnel were moved to different housing units at MCF . See Wilson, 961 F.3d at 844; Hill, 471 F. Supp. 3d at 807-08. Accordingly, defendants’ motion for summary judgment should be granted as to Warden Burt and Deputy Warden Steward. b. Capt. King and the Chow Hall When asked how Capt. King violated his Eighth Amendment rights, plaintiff stated: Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 8 of 10
9 She violated my Eighth Amendment rights by the right that I had to be protected from communicable or infectious diseases, in allowing inmates within the chow hall or dining hall to be seated within 2 to 4 feet from one another. Worthy Dep. at p. 99, PageID.507. Plaintiff stated that this violated the “6-foot social distancing recommendation” from the CDC. Id. at p. 87, PageID.504. Plaintiff admitted that he never saw Capt. King say “you don’t need to follow that rule”; rather, Capt. King “just didn’t enforce the 6- feet rule.” Id. Plaintiff speculated that this situation could potentially have led to him catching COVID-19, but he did not “know for sure”. Id. at p. 99, PageID.507. Plaintiff does not allege the date of the alleged incident. Capt. King stated that she never knowingly exposed any prisoner at MCF to COVID-19. See King Decl. (ECF No. 63-12, PageID.584). King stated that COVID-19 mitigation measures were used in the dining hall: Meal times for different housing units were staggered to reduce the number of prisoners in the chow hall at a given time. This allowed the chow hall to be divided into two sides, a north side and a south side. While prisoners were eating on the north side, the south side would be cleaned. When prisoners finished eating on the north side, the next group of prisoners would eat on the south side, while the north side was cleaned. This rotation occurred every time a new housing unit ate in the chow hall. Id. at PageID.584-585. The record reflects that Capt. King was not deliberately indifferent to plaintiff’s medical needs. Capt. King recognized the risk of COVID-19 and took affirmative steps to prevent the widespread transmission of the disease in the chow hall. See Wilson, 961 F.3d at 844; Hill, 471 F. Supp. 3d at 807-08. Even if Capt. King’s response was not perfect, it was a significant affirmative step to prevent the widespread transmission of COVID-19 at the chow hall. Accordingly, defendants’ motion for summary judgment should be granted as to Capt. King. Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 9 of 10
10 III. Recommendation For the reasons set forth above, I respectfully recommend that plaintiff’s motion for summary judgment (ECF No. 53) be DENIED, that defendants’ motion for summary judgment (ECF No. 62) be GRANTED, and that this action be DISMISSED. Dated: February 17, 2026 /s/ Ray Kent RAY KENT United States Magistrate Judge ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Case 1:23-cv-00574-PLM-RSK ECF No. 75, PageID.<pageID> Filed 02/17/26 Page 10 of 10
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