Worthy #415988 v. Washington et al

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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—
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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
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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.
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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
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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
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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:
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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
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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:
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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.
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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).
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