Paul L. Maloney, United States District Judge

Andrew Lee-Leo Hill # 197103, St. Louis, MI, pro se.

ORDER

Paul L. Maloney, United States District Judge

This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. This matter is presently before the Court on Plaintiff's motion seeking relief under FED. R. CIV. P. 59(e). Plaintiff seeks to reopen the case, amend the complaint to include new claims, and for a temporary restraining order (ECF No. 10). Plaintiff's complaint was dismissed for failure to state a claim on May 21, 2020 (ECF No. 8 and 9). Plaintiff's initial complaint concerned conditions at the St. Louis Correctional Facility (SLF). As noted by the Court in the May 21, 2020, opinion, Plaintiff is currently confined at the Central Michigan Correctional Facility (STF). Plaintiff now seeks to add claims concerning conditions at STF.

In Plaintiff's motion, he asserts that prisoners who have previously had been infected with COVID-19, but have recovered, are being transferred to STF. Plaintiff states that Defendants cannot be sure that these prisoners are no longer contagious, which places him in danger of contracting COVID-19 in violation of the Eighth Amendment. As the Court discussed in its May 21, 2020, opinion dismissing the action, Plaintiff's allegations do not rise to the level of an Eighth Amendment violation. The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those convicted of crimes. Punishment may not be "barbarous" nor may it contravene society's "evolving standards of decency." Rhodes v. Chapman , 452 U.S. 337, 345-46, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the "unnecessary and wanton infliction of pain." Ivey v. Wilson , 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes , 452 U.S. at 346, 101 S.Ct. 2392 ). The deprivation alleged must result in the denial of the "minimal civilized measure of life's necessities." Rhodes , 452 U.S. at 347, 101 S.Ct. 2392 ; see also Wilson v. Yaklich , 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement." Rhodes , 452 U.S. at 348, 101 S.Ct. 2392 (citation omitted). Moreover, "[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment." Ivey , 832 F.2d at 954.

In order for a prisoner to prevail on an Eighth Amendment claim, he must show that he faced a sufficiently serious risk to his health or safety and that the defendant official acted with " ‘deliberate indifference’ to [his] health or safety." Mingus v. Butler , 591 F.3d 474, 479-80 (6th Cir. 2010) (citing Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (applying deliberate indifference standard to medical claims)); see also Helling v. McKinney , 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (applying deliberate indifference standard to conditions of confinement claims).

In a case decided after the Court's May 21, 2020, opinion, the Sixth Circuit addressed the issue of whether the Bureau of Prisons (BOP) violated the Eighth Amendment rights of medically vulnerable inmates at the Elkton Federal Correctional Institution by failing to adequately protect them from COVID-19 infection. Wilson v. Williams , 961 F.3d 829 (6th Cir. 2020). In the opinion, the Sixth Circuit found that the plaintiffs in Wilson had easily satisfied the objective component of an Eighth Amendment claim:

In assessing the objective prong, we ask whether petitioners have provided evidence that they are "incarcerated under conditions posing a substantial risk of serious harm." Farmer , 511 U.S. at 834, 114 S.Ct. 1970. The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that "[t]he health risks posed by COIVD-19 are significant." CA6 R. 35, Appellant Br., PageID 42. The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP's efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton's dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass's health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are "incarcerated under conditions posing a substantial risk of serious harm." Farmer , 511 U.S. at 834, 114 S.Ct. 1970.

Id. at 840.

The Sixth Circuit went on to address the subjective prong of an Eighth Amendment claim, noting that the pertinent question was whether the BOP's actions demonstrated deliberate indifference to the serious risk of harm posed by COVID-19 in the prison. Id.

There is no question that the BOP was aware of and understood the potential risk of serious harm to inmates at Elkton through exposure to the COVID-19 virus. As of April 22, fifty-nine inmates and forty-six staff members tested positive for COVID-19, and six inmates had died. "We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious." Hope v. Pelzer , 536 U.S. 730, 738, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The BOP acknowledged the risk from COVID-19 and implemented a six-phase plan to mitigate the risk of COVID-19 spreading at Elkton.

The key inquiry is whether the BOP "responded reasonably to th[is] risk." Farmer , 511 U.S. at 844, 114 S.Ct. 1970. The BOP contends that it has acted "assiduously to protect inmates from the risks of COVID-19, to the extent possible." CA6 R. 35, Appellant Br., PageID 42. These actions include

implement[ing] measures to screen inmates for the virus; isolat[ing] and quarantin[ing] inmates who may have contracted the virus; limit[ing] inmates’ movement from their residential areas and otherwise limit[ing] group gatherings; conduct[ing] testing in accordance with CDC guidance; limit[ing] staff and visitors and subject[ing] them to enhanced screening; clean[ing] common areas and giv[ing] inmates disinfectant to clean their cells; provid[ing] inmates continuous access to sinks, water, and soap; educat[ing] staff and inmates about ways to avoid contracting and transmitting the virus; and provid[ing] masks to inmates and various other personal protective equipment to staff.

Id. at 42-43. The BOP argues that these actions show it has responded reasonably to the risk posed by COVID-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment. We agree.

Here, while the harm imposed by COVID-19 on inmates at Elkton "ultimately [is] not averted," the BOP has "responded reasonably to the risk" and therefore has not been deliberately indifferent to the inmates’ Eighth Amendment rights. Farmer , 511 U.S. at 844, 114 S.Ct. 1970. The BOP implemented a six-phase action plan to reduce the risk of COVID-19 spread at Elkton. Before the district court granted the preliminary injunction at issue, the BOP took preventative measures, including screening for symptoms, educating staff and inmates about COVID-19, cancelling visitation, quarantining new inmates, implementing regular cleaning, providing disinfectant supplies, and providing masks. The BOP initially struggled to scale up its testing capacity just before the district court issued the preliminary injunction, but even there the BOP represented that it was on the cusp of expanding testing. The BOP's efforts to expand testing demonstrate the opposite of a disregard of a serious health risk.

Id. at 840-41.

In its decision, the Sixth Circuit noted that other Sixth Circuit decisions have found similar responses by prison officials and medical personnel, such as cleaning cells, quarantining infected inmates, and distributing information about a disease in an effort to prevent spread, to be reasonable. Id. at 841 (citing Wooler v. Hickman Cty. , 377 F. App'x 502, 506 (6th Cir. 2010) ; Rouster v. Cty. of Saginaw , 749 F.3d 437, 448-49 (6th Cir. 2014) ; Harrison v. Ash , 539 F.3d 510, 519-20 (6th Cir. 2008) ; Rhinehart v. Scutt , 894 F.3d 721, 740 (6th Cir. 2018)). The Wilson Court also noted that other circuits had concluded that similar actions by prison officials demonstrated a reasonable response to the risk posed by COVID-19:

In Swain [v. Junior ], the Eleventh Circuit granted a stay of a preliminary injunction pending appeal on state inmates’ Eighth Amendment claims. 958 F.3d [1081] at 1085 [ (11th Cir. 2020) (per curiam) ]. The Eleventh Circuit held that "the inability to take a positive action likely does not constitute ‘a state of mind more blameworthy than negligence,’ " and "the evidence supports that [Metro West Detention Center ("MWDC") is] taking the risk of COVID-19 seriously." Id. at 1088-90 (citation omitted). In response to the pandemic in early March, MWDC began "cancelling inmate visitation; screening arrestees, inmates, and staff; and advising staff of use of protective equipment and sanitation practices" and, after reviewing further CDC guidance, began "daily temperature screenings of all persons entering Metro West, establish[ed] a ‘COVID-19 Incident Command Center and Response Line’ to track testing and identify close contacts with the virus, develop[ed] a social hygiene campaign, and mandate[d] that staff and inmates wear protective masks at all times." Id. at 1085-86. The Eleventh Circuit held that, because MWDC "adopted extensive safety measures such as increasing screening, providing protective equipment, adopting [physical] distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures," MWDC's actions likely did not amount to deliberate indifference. Id. at 1090.

Similarly, the Fifth Circuit granted stays of two preliminary injunctions in Valentine [v. Collier , 956 F.3d 797 (5th Cir. 2020) (per curiam) ] and Marlowe [v. LeBlanc , 810 Fed.Appx. 302 (5th Cir. 2020) (per curiam) ]. In Valentine , inmates at Texas's Wallace Pack Unit filed a class action suit against the Texas Department of Criminal Justice ("TDCJ") alleging violations of the Eighth Amendment. 956 F.3d at 799. In response to the COVID-19 pandemic, TDCJ had taken preventative measures such as providing "access to soap, tissues, gloves, [and] masks," implementing "regular cleaning," "quarantin[ing] of new prisoners," and ensuring "[physical] distancing during transport." Id. at 802. The Fifth Circuit determined that the district court applied the wrong legal standard by "collaps[ing] the objective and subjective components of the Eighth Amendment inquiry" by "treating inadequate measures as dispositive of the Defendants’ mental state" under the subjective prong and held that "accounting for the protective measures TDCJ has taken" the plaintiffs had not shown deliberate indifference. Id. at 802-03. In Marlow e, the Fifth Circuit relied on its reasoning in Valentine and again reiterated that there was "little basis for concluding that [the correctional center's] mitigation efforts," which included "providing prisoners with disinfectant spray and two cloth masks[,] ... limiting the number of prisoners in the infirmary lobby[,] and painting markers on walkways to promote [physical] distancing," were insufficient. 810 Fed.Appx. at 305.

Wilson , 961 F.3d at 841-42.

The Wilson Court stated that even if the BOP's response to COVID-19 was inadequate, it took many affirmative actions to not only treat and quarantine inmates who had tested positive, but also to prevent widespread transmission of COVID-19. The Court held that because the BOP had neither disregarded a known risk nor failed to take steps to address the risk, it did not act with deliberate indifference in violation of the Eighth Amendment. Id. at 842-43. The reasoning in Wilson strongly supports this Court's decision to dismiss the action for failure to state a claim.

In addition, in Cameron, et al. v. Bouchard, et al., No. 20-3447, 818 F. App'x 393, 2020 WL 3100187 (6th Cir. Jun. 11, 2020), the Court relied on Wilson to find that pretrial detainees in the Oakland County Jail were unlikely to succeed on the merits of their Eighth and Fourteenth Amendment claims. The plaintiffs in Cameron claimed that jail officials were deliberately indifferent to the substantial risk of harm posed by COVID-19 at the jail. The district court initially granted a preliminary injunction requiring the defendants to "(1) provide all jail inmates with access to certain protective measures and medical care intended to limit exposure, limit transmission, and/or treat COVID-19, and (2) provide the district court and Plaintiffs’ counsel with a list of medically vulnerable inmates within three business days." Id. at 394, . However, following the decision in Wilson , the Court granted the defendants’ renewed emergency motion to stay the preliminary injunction, finding that the preventative measures taken by the defendants were similar to those taken by officials in Wilson and, thus, were a reasonable response to the threat posed by COVID-19 to the plaintiffs. Id. at 396–97, .

In the instant case, Plaintiff claims that MDOC officials’ handling of the COVID-19 crisis violated his Eighth Amendment rights while he was confined at SLF. The Court reiterates its prior holding that the MDOC has taken extensive measures to limit the threat posed by COVID-19, and the Court incorporates by reference the list of those measures recited in the Court's May 21, 2020, opinion. Further, one day after the Court issued its opinion dismissing the instant action, the MDOC completed the testing of every prisoner in the 29-prison system in less than 15 days. See MDOC Press Release, https://www.michigan.gov/corrections/0,4551,7-119-1441_26969-529997--,00.html (last visited May 26, 2020). Despite that comprehensive testing, the Court notes that, as of the date that this opinion is being written, there have been no confirmed cases of prisoners with COVID-19 at STF. (See https://medium.com/@MichiganDOC/mdoc-takes-steps-to-prevent-spread-of-coronavirus-covid-19-250f43144337 (last visited July 8, 2020)). In addition, the MDOC issued a COVID-19 DOM on April 8, 2020, and issued a revised DOM on the subject on May 26, 2020, see MDOC DOM 2020-30R2 (eff. May 26, 2020), and again on May 27, 2020, see MDOC DOM 2020-30R3 (eff. May 27, 2020) (serially outlining specific precautions to be taken by staff members, including the use of personal protective equipment and hand sanitizer).

Plaintiff does not allege that he has come into contact with any individual who has COVID-19. The MDOC has taken extensive steps to address the risk of COVID-19 to inmates statewide. As noted by the Sixth Circuit in Wilson , such actions demonstrate the opposite of a disregard of a serious health risk. Wilson , 961 F.3d at 841.

Although the Court is sympathetic to Plaintiff's general concern about the COVID-19 virus, he has failed to allege facts showing that Defendants’ handling of the COVID-19 crisis violated his Eighth Amendment rights. Because Plaintiff's proposed amendment would not alter the disposition of this case, his motion to amend and for a temporary restraining order is properly denied as futile.

Accordingly,

IT IS ORDERED that Plaintiff's motion seeking relief under Fed. R. Civ. P. 59(e) (ECF No. 10) is DENIED .