Case 1:15-cv-00359-PLM Doc #1 Filed 04/02/15 Page 1 of 22 Page ID#1
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DORN, versus

Plaintiff,

MICHIGAN DEPARTMENT OF CORRECTIONS ("MDOC"),
HARESH PANDYA, individually and in his official capacity as the Regional Medical Officer for the Southern Region of MDOC,
JEFFREY STIEVE, individually and in his official capacity as the Chief Medical Officer of the MDOC,
THOMAS FINCO, individually and in his official capacity as Correctional Facilities Administration Deputy Director of the MDOC,
DANIEL H. HEYNS, individually and in his official capacity as Director of the MDOC, and
BILL SCHUETTE, in his official capacity as Attorney General of Michigan,

CASE NO.

__

JURY TRIAL DEMANDED
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
MONEY DAMAGES

Defendants.

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Chris E. Davis (P52159) Mark A. Cody (P42695) MICHIGAN PROTECTION AND ADVOCACY SERVICE, INC. 4095 Legacy Parkway, Suite 500 Lansing, Michigan 48911-4263 Phone: (517) 487-1755 E-Mail: cdavis@mpas.org E-Mail: mcody@mpas.org Attorneys for Plaintiff

Kyle A. Palazzolo Scott A. Schoettes LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, IL 60603-6208 Phone: (312) 663-4413 E-Mail: kpalazzolo@lambdalegal.org sschoettes@lambdalegal.org Attorneys for Plaintiff

Plaintiff JOHN DORN, ("DORN") by and through his attorneys, files this Complaint against Defendants MICHIGAN DEPARTMENT OF CORRECTIONS ("MDOC"); HARESH PANDYA, individually and in his official capacity as the Regional Medical Officer for the Southern Region of the MDOC; JEFFREY STIEVE, individually and in his official capacity as the Chief Medical Officer of the MDOC; THOMAS FINCO, individually and in his official capacity as Correctional Facilities Administration ("CFA") Deputy Director of the MDOC; DANIEL H. HEYNS, individually and in his official capacity as Director of the MDOC; and BILL SCHUETTE, in his official capacity as Attorney General of Michigan, (collectively "Defendants"); and alleges as follows:

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INTRODUCTION 1. This is an action brought under Title II of the Americans with
Disabilities Act ("ADA") (42 U.S.C. § 12131 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794 et seq.), and 42 U.S.C. §§ 1983 and 1988 to redress the deprivation of rights secured by the laws and Constitution of the United States.
2. As explained more fully below, this action stems from Defendants' enforcement of Michigan Policy Directive 03.04.120(NN)-(QQ) (the "Policy Directive") and the corresponding Michigan statute, MCl 791.267(3) (the "Statute"), which disproportionately and unlawfully discriminate against incarcerated individuals living with HIV.
3. As a direct result of Defendants' enforcement of the Policy Directive and Statute, Dorn, because of his HIV-positive status, was subjected to drastically more severe punishment after allegedly engaging in sexual conduct with another prisoner.
4. This punishment included an indefinite period of administrative segregation that ultimately lasted nearly one year; a heightened security classification; transfer to remote MDOC facilities in the Upper Peninsula; loss of a paid work assignment where he had substantial freedom and responsibility; loss of access to the law library, despite having an active
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pending appeal that he was pursuing pro se; loss of educational and religious programming, some of which factored into his parole determination; inability to access the telephone on a daily basis; removal of personal property within his cell; and much more as set forth below.
JURISDICTION AND VENUE 5. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the laws and Constitution of the United States. 6. This Court has personal jurisdiction over Defendants because they are domiciled in the State and/or have otherwise made and established contacts with the State sufficient to permit the exercise of personal jurisdiction over them. 7. Venue is proper in the Western District of Michigan, Southern Division, pursuant to 28 U.S.C. § 1391(b)(1) and (2) because at least some Defendants reside in this district, and because a substantial part of the events that give rise to Dorn's claims occurred in Montcalm County, Michigan.
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Plaintiff 8.

PARTIES Since 1992, John Dorn has been living with HIV. At all times

relevant to this action, his HIV was well-controlled by treatment. For more

than ten years, his HIV viral load had been undetectable, which means the

amount of HIV in his blood was so low, it could not reliably be measured by

standard viral load tests. A person with an undetectable viral load has an

extremely low-possibly nonexistent-risk of transmitting HIV to others. At

all times relevant to this action, Dorn was incarcerated within the MDOC.

On October 18, 2014, he was released on parole.

Defendants 9. Defendant MDOC is the Michigan state agency responsible for

the supervision and custody of approximately 43,000 incarcerated people.

Another approximately 73,000 people on parole or probation are under its

supervision. MDOC operates 33 correctional facilities throughout Michigan

that house people under MDOC's supervision and custody. MDOC's

administrative offices are located in the City of Lansing, Ingham County,

Michigan.

10. Defendant Pandya is sued individually and in his official

capacity as the Regional Medical Officer for the Southern Region of the

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MDOC. Pursuant to the Policy Directive, he was responsible for the initial determination of whether Dorn's conduct could transmit HIV.
11. Defendant Stieve is sued individually and in his official capacity as the Chief Medical Officer of the MDOC. Pursuant to the Policy Directive, he was responsible for reviewing Defendant Pandya's determination and making a subsequent determination of whether Dorn should be reclassified to administrative segregation.
12. Defendant Finco is sued individually and in his official capacity as CFA Deputy Director of the MDOC. Pursuant to the Policy Directive, he was responsible for reviewing Defendant Pandya's determination and making a subsequent determination of whether Dorn should be reclassified to administrative segregation.
13. Defendant Heyns is sued individually and in his official capacity as Director of the MDOC. In his official capacity, Defendant Heyns is responsible for the overall administration of the MDOC, including the implementation and enforcement of the Policy Directive and the Statute and the actions of the above-listed Defendants, all of whom violated Dorn's rights under the laws and Constitution of the United States.
14. Defendant Schuette is sued in his official capacity as Attorney General of Michigan. In his official capacity, Schuette has broad
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responsibility for the enforcement of State laws, and he has a duty to defend State policies and laws including the Policy Directive and the Statute.
15. All of the above Defendants, and those subject to their supervision, direction, and control, intentionally performed, participated in, aided and/or abetted in some manner, the acts alleged herein, and/or proximately caused the harm alleged herein.
STATEMENT OF FACTS 16. In April 2012, the time of the incident underlying this case, Dorn was a model prisoner. His security classification was Level I, the lowest of five possible classifications, which range from Level I to Level V. 17. Dorn was incarcerated at Carson City Correctional Facility in Montcalm County, a facility that exists primarily to house Level I and Level II prisoners. 18. The prison was near his hometown, which allowed his elderly mother, other family, and friends to visit easily. 19. Dorn had a paid work assignment within the facility earning $1.31 per day, which also provided substantial responsibility and freedom to move throughout the facility.
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20. Dorn was housed in an open dormitory setting, and with some limitations, he could interact with other prisoners 24 hours per day. He could also participate in individual or group outdoor recreation 14 hours per day; participate in individual or group indoor activities 18 hours per day; attend educational and religious programming in a group setting; eat in the dining hall with other individuals; shower on a daily basis; use telephones on a daily basis; use a kiosk to send and receive mail on a daily basis; send uncensored mail; have visitation with family and friends that included limited physical contact; possess and use personal property, including his typewriter, television, and music player; and have full commissary privileges, which allowed him to purchase extra food items.
21. Dorn also had direct access to the prison law library and general library seven days per week for several hours at a time. Dorn was housed at the Carson City facility specifically to provide him with direct access to a law library, and he was afforded extra library time because he had an active appeal that he was pursuing pro se.
22. In April 2012, Dorn had approximately two years left until he would be eligible for parole, and he had a high probability of parole based on MDOC guidelines.
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Darn Is Accused of Engaging in Sexual Conduct 23. On April 20, 2012, two prisoners alleged that they observed
Dorn and another prisoner, Jerry Piotter, Jr., ("Piotter") engage in
consensual oral sex.' Dorn allegedly was the insertive partner and did not
ejaculate. The two accusers and Piotter gave written statements to MDOC personnel testifying to the alleged conduct.
24. That same day, April 20, 2012, a memorandum was drafted by MDOC personnel reclassifying Dorn to administrative segregation. The memorandum stated, falsely, that Dorn "has been found guilty of an offense relating to PO 03.04.120," and was signed by Defendants Pandya, Stieve, and Finco. Each Defendant authorized Dorn's placement in administrative segregation.
25. Dorn was immediately placed in administrative segregation, where he lost all of the privileges described above. Piotter, in contrast, awaited his hearing in only a Level II area.
26. On May 2, 2012, Piotter recanted and told MDOC personnel that he had only made the original statement against Dorn out of fear of the other two prisoners who had made the accusations.
1 Dorn has consistently maintained that no sexual conduct occurred, but for purposes of this Complaint, he is not challenging the underlying charge itself.
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27. On May 8, 2012, Dorn and Piotter finally received perfunctory hearings, during which both men were found guilty of engaging in sexual conduct. Dorn was punished with ten days detention and twenty days loss of privileges, while Piotter received no detention and thirty days loss of privileges. This was the full extent of Piotter's punishment for the alleged incident.
28. On May 10, 2012, Dorn was brought before the Security Reclassification Committee, where his reclassification to administrative segregation was affirmed indefinitely because of his HIV-positive status. One week later, on May 17, 2012, he was transferred to administrative segregation at a new facility, Oaks Correctional, while Piotter remained at Carson City.
29. While in administrative segregation, Dorn was confined to his cell 23 hours per day for five days a week, and the full 24 hours per day the other two days of the week. Dorn was restrained in handcuffs, leg shackles and/or belly chains, and he was escorted on a tether by at least two officers armed with Tasers any time that he was out of his cell. He was limited to a one-hour exercise period in an outdoor chain link cage five days per week.
30. While in administrative segregation, Dorn was not permitted to use the telephone except for verified family emergencies; he could not
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send email or uncensored mail; he was limited to non-contact family visits; he was limited to three showers per week, each no longer than five minutes in duration; he could not leave his cell for meals; and he was not permitted to purchase additional food.
31. While in administrative segregation, Dorn was also not permitted to have direct access to the prison law library, the general library, or any group activities, programs, or services, including education and religious programming.
32. Dorn remained In administrative segregation for nearly a full year, until April 2013.
33. Upon his release from administrative segregation, Dorn did not return to Carson City, but rather to the Level V area (the most restrictive security classification) at Baraga Correctional. Baraga Correctional is located in Baraga County, near the western edge of the Upper Peninsula.
34. Dorn was again confined to a single-occupancy cell, identical to administrative segregation cells, for 23 hours per day, seven days per week, with a one hour exercise period each day. He was not permitted to eat in the dining hall with other prisoners, he had limited access to personal property, and he had only limited non-contact visitation.
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35. While classified as a Level V prisoner, Dorn had limited interaction with other prisoners and could be disciplined simply for talking or gesturing to others. Dorn had limited access to the prison law library and general library, and there was often a waiting list to attend the general library. Throughout this period as a Level V prisoner, Dorn had limited access to programs or services, including those that were required for parole considerations.
36. In February 2014, Dorn was transferred to the Level IV area at Alger Correctional, where he remained until just prior to his parole in October 2014. Alger is also located in the Upper Peninsula. Restrictions on Level IV prisoners are only slightly relaxed as compared to Level V and are much stricter than for a Level I prisoner.
37. After being transferred to the facilities in the Upper Peninsula at heightened security classification levels, Dorn did not receive a visitor for nearly two years, which was in stark contrast to his time at Carson City where he often saw his elderly mother, other family, and friends.
38. Dorn's placement in administrative segregation and heightened security classification resulted in substantial emotional and psychological trauma, including bouts of depression and thoughts of suicide.
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The Policy Directive and Statute 39. The stated purpose of Policy Directive 03.04.120 is to "reduce
and control the transmission of serious communicable blood borne
infections and diseases." The provisions at issue in this case specifically
state:
Misconduct Guilty Findings - HIV
NN. Wardens shall ensure that timely reports of prisoners at their respective facilities who have been found guilty of any of the following misconduct violations are provided to the Health Unit Manager:
2. Sexual Misconduct or Sexual Assault, or an attempt to commit either, which involves even the slightest sexual penetration.
00. It will be presumed to be behavior which could transmit HIV if the behavior involved actual or attempted sexual penetration ...
PP. If it is determined that the behavior could transmit HIV ... the CFA Deputy Director and the Chief Medical Officer shall be informed in writing of the incident and shall review the case to determine if the prisoner should be classified to administrative segregation. If the prisoner is classified to administrative segregation, s/he shall not subsequently be reclassified without prior authorization by the CFA Deputy Director after consultation with the Chief Medical Officer.
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40. The Statute, Mel 791.267(3), similarly provides for administrative segregation when an HIV-positive prisoner engages in specific actions, stating:
If a prisoner receives a positive test result [for HIV] and is subsequently subject to discipline by the department for sexual misconduct that could transmit HIV, illegal intravenous use of controlled substances, or assaultive or predatory behavior that could transmit HIV, the department shall house that prisoner in administrative segregation, an inpatient health care unit, or a unit separate from the general prisoner population, as determined by the department. 41. Both on their face and as applied to Dorn, the Policy Directive and the Statute leave HIV-positive prisoners at the mercy of prison officials, who can place them in administrative segregation indefinitely without any determination that the alleged conduct presented any significant risk of HIV transmission.
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No Justification Exists for the Disparate Treatment of Dorn and Similarly Situated Prisoners
42. Under the ADA and Rehabilitation Act, discrimination against people living with HIV can only be justified by safety concerns after an individualized assessment based on objective medical evidence demonstrating that a significant risk of transmission exists.
43. Dorn received no such individualized assessment, and indeed, neither the Policy Directive nor the Statute contemplates one.
44. Moreover, assuming the alleged sexual conduct took place, Dorn posed essentially no risk of HIV transmission. Dorn's risk of transmitting HIV through the alleged incident is all but impossible for two independent but interrelated reasons: first, oral sex-particularly oral sex without ejaculation-poses little to no risk of HIV transmission; second, an undetectable viral load transforms the extremely low risk of transmission via oral sex to merely a theoretical possibility. Together, these facts establish that Dorn posed essentially no risk of HIV transmission.
45. Defendants cannot reasonably claim to have undertaken a meaningful individualized assessment of Dorn's risk profile before they consigned Dorn to administrative segregation.
46. Defendants' actions were not based on objective evidence, but rather the Policy Directive subsection OO's statement that "[ilt will be
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presumed to be behavior which could transmit HIV if the behavior involved actual or attempted sexual penetration."
47. The scientific consensus points overwhelmingly to the conclusion that Dorn's conduct entailed virtually no risk of HIV transmission.
48. The harsh punishments Defendants inflicted substantially injured him without protecting or enhancing the health or safety of others, or serving any other legitimate purpose.
49. Dorn demands a jury trial on all issues so triable. CAUSES OF ACTION
FIRST CLAIM FOR RELIEF (Against All Defendants) Violation of the Americans with Disabilities Act 42 U.S.C. § 12101 et seq. 50. Dorn realleges and incorporates, as though fully set forth herein, each and every allegation contained above.
51. Title II of the ADA, 42 U.S.C. § 12132, states that "no qualified
individual with a disability shall, by reason of such disability, be excluded from the participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity."
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52. As an inmate within an MDOC facility, Dorn was a "qualified individual" under Title II of the ADA.
53. Dorn is an individual with a disability based on his HIV-positive status.
54. Defendants violated Dorn's rights under Title II of the ADA by subjecting him to discrimination on the basis of his HIV-positive status as set forth above.
55. The conduct in which Dorn allegedly engaged did not present a direct threat to the health or safety of others as defined under the ADA.
56. Dorn did not receive an individualized assessment in any meaningful sense of the term; the scientific evidence overwhelmingly suggests that he posed (and still poses) little to no risk to others; and any remote or theoretical risk that he may pose certainly does not rise to the level of "significant."
57. Thus, Defendants have violated the Americans with Disabilities Act.
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SECOND CLAIM FOR RELIEF (Against All Defendants)
Violation of the Rehabilitation Act 29 U.S.C. § 794
58. Dorn realleges and incorporates, as though fully set forth herein, each and every allegation contained above.
59. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, states
that "no otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
60. As an inmate within an MDOC facility, Dorn was an "otherwise qualified individual" under the Rehabilitation Act.
61. Dorn is an individual with a disability based on his HIV-positive status.
62. The Michigan Department of Corrections receives federal financial assistance.
63. Defendants violated Dorn's rights under Section 504 of the Rehabilitation Act by subjecting him to discrimination on the basis of his HIV-positive status as set forth above.
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64. The conduct in which Dorn allegedly engaged did not present a direct threat to the health or safety of others as defined under the Rehabilitation Act.
65. Dorn did not receive an individualized assessment in any meaningful sense of the term; the scientific evidence overwhelmingly suggests that he poses little to no risk to others; and any remote or theoretical risk that he may pose certainly does not rise to the level of "significant. "
66. Thus, Defendants have violated the Rehabilitation Act. THIRD CLAIM FOR RELIEF
(Against Defendants Pandya, Stieve, Finco, Heyns, and Schuette) Deprivation of Due Process U.S. Const. Amend. XIV
(42 U.S.C. § 1983) 67. Dorn realleges and incorporates, as though fully set forth herein, each and every allegation contained above. 68. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall "deprive any person of life, liberty, or property, without due process of law." 69. Dorn has suffered substantial deprivations of liberty as set forth above, including, but not limited to, the loss of his ability to earn a livelihood while in prison, the loss of his ability to interact with other prisoners during
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the period that he was in administrative segregation, the loss of his ability to see his family and friends since he was transferred to the Upper Peninsula, the various infringements on his day-to-day liberty resulting from his higher security classification, and the reduction of his chances of parole.
70. He has suffered all of these deprivations in the name of prison security and the risk that he will transmit HIV, without having a meaningful opportunity to present evidence on his likelihood of transmitting HIV. He has thus been deprived of substantial elements of his liberty without due process of law.
71. It is impermissibly overbroad for the MDOC to presume that any person living with HIV accused of sexual conduct presents a health or safety risk if the act involves any form of penetration.
72. Thus, Defendants, acting under color of state law, deprived Dorn of rights secured by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution in violation of 42 U.S.C. §
1983.
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PRAYER FOR RELIEF WHEREFORE, Dorn respectfully requests that this Court enter judgment: A. Declaring that the provisions and enforcement by Defendants of MDOC Policy Directive 03.04.120(NN)-(QQ) and MCl 791.267(3) violate Dorn's rights under the Americans with Disabilities Act, the Rehabilitation Act, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; B. Permanently enjoining enforcement by Defendants of MDOC Policy Directive 03.04.120(NN)-(QQ) and MCl 791.267(3); C. Awarding Dorn all actual damages including, but not limited to, lost wages and emotional distress; D. Awarding Dorn damages for violation of his constitutional rights; E. Awarding Dorn punitive damages to the extent permitted by law:, F. Awarding Dorn costs, expenses, and reasonable attorneys'
fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and,
G. Granting such other and further relief as the Court deems just and proper.
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DATED: April 2, 2015
* Motions for admission pending

Respectfully submitted,
lsI Chris E. Davis MICHIGAN PROTECTION AND ADVOCACY SERVICE, INC. 4905 Legacy Parkway, Suite 500 Lansing, MI 48911-4264 (517) 487-1755 (Tel.) cdavis@mpas.org P52159
Kyle A. Palazzolo* Scott A. Schoettes* LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, IL 60603-6208 (312) 663-4413 (Tel.) kpalazzolo@lambdalegal.org sschoettes@lambdalegal.org
ATTORNEYS FOR PLAINTIFF

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 Case 1:15-cv-00359-PLM Doc #16 Filed 06/01/15 Page 1 of 1 PageID #97

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DORN,

)

Plaintiff,

)

)

-v-

)

)

MICHIGAN DEPARTMENT OF CORRECTIONS, )

ET AL.,

)

Defendants.

)

____________________________________)

No. 1:15-cv-359 HONORABLE PAUL L. MALONEY

ORDER DISMISSING AS MOOT DEFENDANTS’ MOTION TO DISMISS

On May 7, 2015, Defendants filed a motion to dismiss. (ECF No. 13.) On May 27, Plaintiff filed

a First Amended Complaint. (ECF No. 15.) The amended complaint was timely filed under Rule

15(a)(1)(B) of the Federal Rules of Civil Procedure.

When filed, an amended complaint supercedes the original complaint, which becomes a nullity. See

Drake v. City of Detroit, 266 F.App’x 444, 448 (6th Cir. 2008); Klyce v. Ramirez, 852 F.2d 568, 1988

WL 74155, at *3 (6th Cir. July 19, 1998) (per curiam) (unpublished table opinion) (collecting cases from

other circuits). An amended complaint filed after a motion to dismiss has been filed renders the motion to

dismiss moot. See Bancoult v. McNamara, 214 F.R.D. 5, 13 (D.D.C. 2003) (“Because the original

complaint now is superceded by the amended complaint, the court denies without prejudice all pending

motions pertaining to the original complaint.”).

Therefore, Defendants’ motion to dismiss (ECF No. 13) is DISMISSED AS MOOT. IT IS SO

ORDERED.

Date: June 1, 2015

/s/ Paul L. Maloney Paul L. Maloney Chief United States District Judge

 
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DORN, versus

Plaintiff,

MICHIGAN DEPARTMENT OF CORRECTIONS ("MDOC"),
HARESH PANDYA, individually and in his official capacity as the Regional Medical Officer for the Southern Region of MDOC,
JEFFREY STIEVE, individually and in his official capacity as the Chief Medical Officer of the MDOC,
THOMAS FINCO, individually and in his official capacity as Correctional Facilities Administration Deputy Director of the MDOC,
DANIEL H. HEYNS, individually and in his official capacity as Director of the MDOC, and
BILL SCHUETTE, in his official capacity as Attorney General of Michigan,

CASE NO.1: 15-cv-359 HON.PAULL.MALONEY
JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF AND
MONEY DAMAGES

Defendants.

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Chris E. Davis (P52159) Mark A. Cody (P42695) MICHIGAN PROTECTION AND ADVOCACY SERVICE, INC. 4095 Legacy Parkway, Suite 500 Lansing, Michigan 48911-4263 Phone: (517) 487-1755 E-Mail: cdavis@mpas.org E-Mail: mcody@mpas.org Attorneys for Plaintiff

Kyle A. Palazzolo Scott A. Schoettes LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, IL 60603-6208 Phone: (312) 663-4413 E-Mail: kpalazzolo@lambdalegal.org sschoettes@lambdalegal.org Attorneys for Plaintiff

Plaintiff JOHN DORN, ("DORN") by and through his attorneys, files this First Amended Complaint against Defendants MICHIGAN DEPARTMENT OF CORRECTIONS ("MDOC"); HARESH PANDYA, individually and in his official capacity as the Regional Medical Officer for the Southern Region of the MDOC; JEFFREY STIEVE, individually and in his official capacity as the Chief Medical Officer of the MDOC; THOMAS FINCO, individually and in his official capacity as Correctional Facilities Administration ("CFA") Deputy Director of the MDOC; DANIEL H. HEYNS, individually and in his official capacity as Director of the MDOC; and BILL SCHUETTE, in his official capacity as Attorney General of Michigan, (collectively "Defendants"); and alleges as follows:

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INTRODUCTION 1. This is an action brought under Title II of the Americans with
Disabilities Act ("ADA") (42 U.S.C. § 12131 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794 et seq.), and 42 U.S.C. §§ 1983 and 1988 to redress the deprivation of rights secured by the laws and Constitution of the United States.
2. As explained more fully below, this action stems from Defendants' enforcement of Michigan Policy Directive 03.04.120(NN)-(QQ) (the "Policy Directive") and the corresponding Michigan statute, MCl 791.267(3) (the "Statute"), which disproportionately and unlawfully discriminate against incarcerated individuals living with HIV.
3. As a direct result of Defendants' enforcement of the Policy Directive and Statute, Dorn, because of his HIV-positive status, was subjected to drastically more severe punishment after allegedly engaging in sexual conduct with another prisoner.
4. This punishment included an indefinite period of administrative segregation that ultimately lasted nearly one year; a heightened security classification; transfer to remote MDOC facilities in the Upper Peninsula; loss of a paid work assignment where he had substantial freedom and responsibility; loss of access to the law library, despite having an active
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pending appeal that he was pursuing pro se; loss of educational and religious programming, some of which factored into his parole determination; inability to access the telephone on a daily basis; removal of personal property within his cell; and much more as set forth below.
JURISDICTION AND VENUE 5. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the laws and Constitution of the United States. 6. This Court has personal jurisdiction over Defendants because they are domiciled in the State and/or have otherwise made and established contacts with the State sufficient to permit the exercise of personal jurisdiction over them. 7. Venue is proper in the Western District of Michigan, Southern Division, pursuant to 28 U.S.C. § 1391(b)(1) and (2) because at least some Defendants reside in this district, and because a substantial part of the events that give rise to Dorn's claims occurred in Montcalm County, Michigan.
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Plaintiff 8.

PARTIES Since 1992, John Dorn has been living with HIV. At all times

relevant to this action, his HIV was well-controlled by treatment. For more

than ten years preceding the events at issue in this case, his HIV viral load

had been undetectable, which means the amount of HIV in his blood was

so low, it could not reliably be measured by standard viral load tests. A

person with an undetectable viral load has an extremely low-possibly

nonexistent-risk of transmitting HIV to others. At all times relevant to this

action, Dorn was incarcerated within the MDOC. On October 18, 2014, he

was released on parole.

Defendants 9. Defendant MDOC is the Michigan state agency responsible for

the supervision and custody of approximately 43,000 incarcerated people.

Another approximately 73,000 people on parole or probation are under its

supervision. MDOC operates 33 correctional facilities throughout Michigan

that house people under MDOC's supervision and custody. MDOC's

administrative offices are located in the City of Lansing, Ingham County,

Michigan.

10. Defendant Pandya is sued individually and in his official

capacity as the Regional Medical Officer for the Southern Region of the 5

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MDOC. Pursuant to the Policy Directive, he was responsible for the initial determination of whether Dorn's conduct could transmit HIV.
11. Defendant Stieve is sued individually and in his official capacity as the Chief Medical Officer of the MDOC. Pursuant to the Policy Directive, he was responsible for reviewing Defendant Pandya's determination and making a subsequent determination of whether Dorn should be reclassified to administrative segregation.
12. Defendant Finco is sued individually and in his official capacity as CFA Deputy Director of the MDOC. Pursuant to the Policy Directive, he was responsible for reviewing Defendant Pandya's determination and making a subsequent determination of whether Dorn should be reclassified to administrative segregation.
13. Defendant Heyns is sued individually and in his official capacity as Director of the MDOC. In his official capacity, Defendant Heyns is responsible for the overall administration of the MDOC, including the implementation and enforcement of the Policy Directive and the Statute and the actions of the above-listed Defendants, all of whom violated Dorn's rights under the laws and Constitution of the United States.
14. Defendant Schuette is sued in his official capacity as Attorney General of Michigan. In his official capacity, Schuette has broad
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responsibility for the enforcement of State laws, and he has a duty to defend State policies and laws including the Policy Directive and the Statute.
15. All of the above Defendants, and those subject to their supervision, direction, and control, intentionally performed, participated in, aided and/or abetted in some manner, the acts alleged herein, and/or proximately caused the harm alleged herein.
STATEMENT OF FACTS 16. In April 2012, the time of the incident underlying this case, Dorn was a model prisoner. His security classification was Level I, the lowest of five possible classifications, which range from Level I to Level V. 17. Dorn was incarcerated at Carson City Correctional Facility in Montcalm County, a facility that exists primarily to house Level I and Level II prisoners. 18. The prison was near his hometown, which allowed his elderly mother, other family, and friends to visit easily. 19. Dorn had a paid work assignment within the facility earning $1.31 per day, which also provided substantial responsibility and freedom to move throughout the facility.
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20. Oorn was housed in an open dormitory setting, and with some limitations, he could interact with other prisoners 24 hours per day. He could also participate in individual or group outdoor recreation 14 hours per day; participate in individual or group indoor activities 18 hours per day; attend educational and religious programming in a group setting; eat in the dining hall with other individuals; shower on a daily basis; use telephones on a daily basis; use a kiosk to send and receive mail on a daily basis; send uncensored mail; have visitation with family and friends that included limited physical contact; possess and use personal property, including his typewriter, television, and music player; and have full commissary privileges, which allowed him to purchase extra food items.
21. Oorn also had direct access to the prison law library and general library seven days per week for several hours at a time. Oorn was housed at the Carson City facility specifically to provide him with direct access to a law library, and he was afforded extra library time because he had an active appeal that he was pursuing pro se.
22. In April 2012, Oorn had approximately two years left until he would be eligible for parole, and he had a high probability of parole based on MOOC guidelines.
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Dorn Is Accused of Engaging in Sexual Conduct 23. On April 20, 2012, two prisoners alleged that they observed
Dorn and another prisoner, Jerry Piotter, Jr., ("Piotter") engage in consensual oral sex.' Dorn allegedly was the insertive partner and did not ejaculate. The two accusers and Piotter gave written statements to MDOC personnel testifying to the alleged conduct.
24. That same day, April 20, 2012, a memorandum was drafted by MDOC personnel reclassifying Dorn to administrative segregation. The memorandum stated, falsely, that Dorn "has been found guilty of an offense relating to PO 03.04.120," and was signed by Defendants Pandya, Stieve, and Finco. Each Defendant authorized Dorn's placement in administrative segregation. Upon information and belief, the April 20, 2012 memorandum remains in Dorn's prison records to this day.
25. Dorn was immediately placed in administrative segregation, where he lost all of the privileges described above. Piotter, in contrast, awaited his hearing in only a Level" area.
1 Dorn has consistently maintained that no sexual conduct occurred, but for purposes of this Complaint, he is not challenging the underlying charge itself.
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26. On May 2, 2012, Piotter recanted and told MDOC personnel that he had only made the original statement against Dorn out of fear of the other two prisoners who had made the accusations.
27. On May 8, 2012, Dorn and Piotter finally received perfunctory hearings, during which both men were found guilty of engaging in sexual conduct. Dorn was punished with ten days detention and twenty days loss of privileges, while Piotter received no detention and thirty days loss of privileges. This was the full extent of Piotter's punishment for the alleged incident.
28. On May 10, 2012, Dorn was brought before the Security Reclassification Committee, where his reclassification to administrative segregation was affirmed indefinitely because of his HIV-positive status. Upon information and belief, Dorn's prison records reflect his reclassification for violating MDOC Policy Directive 03.04.120 to this day.
29. One week later, on May 17, 2012, he was transferred to administrative segregation at a new facility, Oaks Correctional, while Piotter remained at Carson City.
30. While in administrative segregation, Dorn was confined to his cell 23 hours per day for five days a week, and the full 24 hours per day the other two days of the week. Dorn was restrained in handcuffs, leg shackles
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and/or belly chains, and he was escorted on a tether by at least two officers armed with Tasers any time that he was out of his cell. He was limited to a one-hour exercise period in an outdoor chain link cage five days per week.
31. While in administrative segregation, Dorn was not permitted to use the telephone except for verified family emergencies; he could not send email or uncensored mail; he was limited to non-contact family visits; he was limited to three showers per week, each no longer than five minutes in duration; he could not leave his cell for meals; and he was not permitted to purchase additional food.
32. While in administrative segregation, Dorn also was not permitted to have direct access to the prison law library, the general library, or any group activities, programs, or services, including education and religious programming.
33. Dorn remained In administrative segregation for nearly a full year, until April 2013.
34. Upon his release from administrative segregation, Dorn did not return to Carson City, but rather to the Level V area (the most restrictive security classification) at Baraga Correctional. Baraga Correctional is located in Baraga County, near the western edge of the Upper Peninsula.
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35. Dorn was again confined to a single-occupancy cell, identical to administrative segregation cells, for 23 hours per day, seven days per week, with a one-hour exercise period each day. He was not permitted to eat in the dining hall with other prisoners, he had limited access to personal property, and he had only limited, non-contact visitation.
36. While classified as a Level V prisoner, Dorn had limited interaction with other prisoners and could be disciplined simply for talking or gesturing to others. Dorn had limited access to the prison law library and general library, and there was often a waiting list to attend the general library. Throughout this period as a Level V prisoner, Dorn had limited access to programs or services, including those that were required for parole considerations.
37. In February 2014, Dorn was transferred to the Level IV area at Alger Correctional, where he remained until just prior to his parole in October 2014. Alger is also located in the Upper Peninsula. Restrictions on Level IV prisoners are only slightly relaxed as compared to Level V and are much stricter than for a Levell prisoner.
38. After being transferred to the facilities in the Upper Peninsula at heightened security classification levels, Dorn did not receive a visitor for
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nearly two years, which was in stark contrast to his time at Carson City where he often saw his elderly mother, other family, and friends.
39. Dorn's placement in administrative segregation and heightened security classification resulted in substantial emotional and psychological trauma, including bouts of depression and thoughts of suicide. To this day, he continues to suffer emotional distress as a result of Defendants' conduct. The Policy Directive and Statute
40. The stated purpose of Policy Directive 03.04.120 is to "reduce and control the transmission of serious communicable blood borne infections and diseases." The provisions at issue in this case specifically state:
Misconduct Guilty Findings - HIV NN. Wardens shall ensure that timely reports of prisoners at their respective facilities who have been found guilty of any of the following misconduct violations are provided to the Health Unit Manager:
2. Sexual Misconduct or Sexual Assault, or an attempt to commit either, which involves even the slightest sexual penetration.
00. It will be presumed to be behavior which could transmit HIV if the behavior involved actual or attempted sexual penetration ...
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PP. If it is determined that the behavior could transmit HIV ... the CFA Deputy Director and the Chief Medical Officer shall be informed in writing of the incident and shall review the case to determine if the prisoner should be classified to administrative segregation. If the prisoner is classified to administrative segregation, s/he shall not subsequently be reclassified without prior authorization by the CFA Deputy Director after consultation with the Chief Medical Officer.
41. The Statute, MCl 791.267(3), similarly provides for
administrative segregation when an HIV-positive prisoner engages in
specific actions, stating:
If a prisoner receives a positive test result [for HIV] and is subsequently subject to discipline by the department for sexual misconduct that could transmit HIV, illegal intravenous use of controlled substances, or assaultive or predatory behavior that could transmit HIV, the department shall house that prisoner in administrative segregation, an inpatient health care unit, or a unit separate from the general prisoner population, as determined by the department.
42. Both on their face and as applied to Dorn, the Policy Directive
and the Statute leave HIV-positive prisoners at the mercy of prison officials,
who can place them in administrative segregation indefinitely without any
determination that the alleged conduct presented any significant risk of HIV
transmission.
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No Justification Exists for the Disparate Treatment of Dorn and
Similarly Situated Prisoners 43. Under the ADA and Rehabilitation Act, discrimination against
people living with HIV can only be justified by safety concerns after an individualized assessment based on objective medical evidence demonstrating that a significant risk of transmission exists.
44. Dorn received no such individualized assessment, and indeed, neither the Policy Directive nor the Statute contemplates one.
45. Moreover, assuming the alleged sexual conduct took place, Dorn posed essentially no risk of HIV transmission. Dorn's risk of transmitting HIV through the alleged incident is all but impossible for two independent but interrelated reasons: first, oral sex-particularly oral sex without ejaculation-poses little to no risk of HIV transmission; second, an undetectable viral load transforms the extremely low risk of transmission via oral sex to merely a theoretical possibility. Together, these facts establish that Dorn posed essentially no risk of HIV transmission.
46. Defendants cannot reasonably claim to have undertaken a meaningful individualized assessment of Dorn's risk profile before they consigned Dorn to administrative segregation.
47. Defendants' actions were not based on objective evidence, but rather the Policy Directive subsection ~O's statement that "[i]t will be
15

Case 1:15-cv-00359-PLM Doc #15 Filed 05/27/15 Page 16 of 22 PageID #90
presumed to be behavior which could transmit HIV if the behavior involved actual or attempted sexual penetration."
48. The scientific consensus points overwhelmingly to the conclusion that Dorn's conduct entailed virtually no risk of HIV transmission.
49. The harsh punishments Defendants inflicted substantially injured him without protecting or enhancing the health or safety of others, or serving any other legitimate purpose.
50. Dorn demands a jury trial on all issues so triable. CAUSES OF ACTION
FIRST CLAIM FOR RELIEF (Against Defendants, MDOC and Pandya, Stieve, Finco, Heyns, and
Schuette in their official capacities) Violation of the Americans with Disabilities Act
42 U.S.C. § 12101 et seq. 51. Dorn realleges and incorporates, as though fully set forth herein, each and every allegation contained above. 52. Title II of the ADA, 42 U.S.C. § 12132, states that "no qualified individual with a disability shall, by reason of such disability, be excluded from the participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity."
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53. As an inmate within an MDOC facility, Dorn was a "qualified individual" under Title II of the ADA.
54. Dorn is an individual with a disability based on his HIV-positive status.
55. Defendants violated Dorn's rights under Title II of the ADA by subjecting him to discrimination on the basis of his HIV-positive status as set forth above.
56. The conduct in which Dorn allegedly engaged did not present a direct threat to the health or safety of others as defined under the ADA.
57. Dorn did not receive an individualized assessment in any meaningful sense of the term; the scientific evidence overwhelmingly suggests that he posed (and still poses) little to no risk to others; and any remote or theoretical risk that he may pose certainly does not rise to the level of "significant."
58. Thus, Defendants have violated the Americans with Disabilities Act.
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SECOND CLAIM FOR RELIEF (Against Defendants, MDOC and Pandya, Stieve, Finco, Heyns, and
Schuette in their official capacities) Violation of the Rehabilitation Act
29 U.S.C. § 794 59. Dorn realleges and incorporates, as though fully set forth herein, each and every allegation contained above. 60. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, states that "no otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 61. As an inmate within an MDOC facility, Dorn was an "otherwise qualified individual" under the Rehabilitation Act. 62. Dorn is an individual with a disability based on his HIV-positive status. 63. The Michigan Department of Corrections receives federal financial assistance. 64. Defendants violated Dorn's rights under Section 504 of the Rehabilitation Act by subjecting him to discrimination on the basis of his HIV-positive status as set forth above.
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65. The conduct in which Dorn allegedly engaged did not present a direct threat to the health or safety of others as defined under the Rehabilitation Act.
66. Dorn did not receive an individualized assessment in any meaningful sense of the term; the scientific evidence overwhelmingly suggests that he poses little to no risk to others; and any remote or theoretical risk that he may pose certainly does not rise to the level of "significant. "
67. Thus, Defendants have violated the Rehabilitation Act. THIRD CLAIM FOR RELIEF
(Against Defendants Pandya, Stieve, Finco, and Heyns in both their official and individual capacities, and Schuette in
his official capacity only) Deprivation of Due Process
U.S. Const. Amend. XIV
(42 U.S.C. § 1983) 68. Dorn realieges and incorporates, as though fully set forth herein, each and every allegation contained above. 69. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall "deprive any person of life, liberty, or property, without due process of law." 70. Dorn has suffered substantial deprivations of liberty as set forth above, including but not limited to the loss of his ability to earn a livelihood
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while in prison, the loss of his ability to interact with other prisoners during the period that he was in administrative segregation, the loss of his ability to see his family and friends since he was transferred to the Upper Peninsula, the various infringements on his day-to-day liberty resulting from his higher security classification, and the reduction of his chances of parole.
71. He has suffered all of these deprivations in the name of prison security and the risk that he will transmit HIV, without having a meaningful opportunity to present evidence on his likelihood of transmitting HIV. He has thus been deprived of substantial elements of his liberty without due process of law.
72. It is impermissibly overbroad for the MDOC to presume that any person living with HIV accused of sexual conduct presents a health or safety risk if the act involves any form of penetration.
73. Thus, Defendants, acting under color of state law, deprived Dorn of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
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PRAYER FOR RELIEF WHEREFORE, Dorn respectfully requests that this Court enter judgment: A. Declaring that the provisions and enforcement by Defendants of MDOC Policy Directive 03.04.120(NN)-(QQ) and MCl 791.267(3) violate Dorn's rights under the Americans with Disabilities Act, the Rehabilitation Act, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; B. Permanently enjoining enforcement by Defendants of MDOC Policy Directive 03.04.120(NN)-(QQ) and MCl 791.267(3); C. Ordering Defendants to expunge Dorn's prison records to remove any reference to a violation of MDOC Policy Directive 03.04.120 and ensure that if Dorn is re-incarcerated he would not face a heightened security classification as a result of the incident underlying this case; D. Awarding Dorn all actual damages including, but not limited to, lost wages and emotional distress; E. Awarding Dorn damages for violation of his constitutional rights; F. Awarding Dorn punitive damages to the extent permitted by law',
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G. Awarding Dorn costs, expenses, and reasonable attorneys'
fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws;
and, H. Granting such other and further relief as the Court deems just
and proper.

DATED: May 27,2015

Respectfully submitted,
/s/ Chris E. Davis MICHIGAN PROTECTION AND ADVOCACY SERVICE, INC. 4905 Legacy Parkway, Suite 500 Lansing, MI 48911-4264 (517) 487-1755 (Tel.) cdavis@mpas.org P52159
Kyle A. Palazzolo Scott A. Schoettes LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, IL 60603-6208 (312) 663-4413 (Tel.) kpalazzolo@lambdalegal.org sschoettes@lambdalegal.org
ATTORNEYS FOR PLAINTIFF

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 Case 1:15-cv-00359-PLM ECF No. 25 filed 06/06/17 PageID.193 Page 1 of 22

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DORN,
Plaintiff,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,
Defendants. __________________________________/

CASE NO. 1:15-CV-359 HON. PAUL L. MALONEY

OPINION Plaintiff John Dorn was an inmate in the Michigan Department of Corrections (“MDOC”). During his incarceration, Dorn—an inmate infected with human immunodeficiency virus (“HIV”)— engaged in a sexual act with another prisoner, in violation of MDOC policy. As a result, he was placed in administrative segregation. Dorn brings an action alleging violations under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 794, and the Fourteenth Amendment’s Due Process Clause. Dorn seeks declaratory, injunctive, and monetary relief for the alleged violations. Defendants Pandya, Finco, Stieve, and Heyns are sued in their individual and official capacities. Defendant Schuette is sued in his official capacity. Defendants Finco, Heyns, Pandya, Schuette, and MDOC have filed a motion to dismiss for lack of jurisdiction and for failure to state a claim (ECF No. 16), and Defendant Stieve has also filed a motion to dismiss for lack of jurisdiction and for failure to state a claim (ECF No. 20). Plaintiff has filed a response (ECF No. 22), and Defendants have filed a reply (ECF No. 23). Upon

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careful review of the record, the Court has decided that the motion can be resolved without oral argument. See W.D. Mich. LCivR 7.3(d). For the reasons that follow, Defendants’ motions are granted in part and denied in part.
I. The MDOC has five security classifications for inmates, which range from Level I, the lowest, to Level V, the highest. Originally, Dorn’s security classification was Level I. As a lowsecurity inmate, Dorn enjoyed privileges like a paid work assignment, interaction with other inmates throughout the day, individual or group outdoor recreation, educational and religious programs, communal dining, daily shower, telephone, mail, and law library access, limited-physical-contact visits with family and friends, possession and use of personal property in his dormitory, and full commissary privileges. (Pl.’s Br. 2, ECF No. 22, PageID.159.) Michigan law requires placement in administrative segregation when an HIV-positive prisoner engages in specific actions: If a prisoner receives a positive test result [for HIV] and is subsequently subject to discipline by the [MDOC] for sexual misconduct that could transmit HIV, illegal intravenous use of controlled substances, or assaultive or predatory behavior that could transmit HIV, the department shall house that prisoner in administrative segregation, an impatient health care unit, or a unit separate from the general prisoner population, as determined by the department. Mich. Comp. Laws § 791.267(3). Likewise, the MDOC has created a policy based on these statutory requirements. This policy seeks to “reduce and control the transmission of serious communicable blood borne infections and diseases[ ]” like HIV. (Am. Compl. ¶ 40, ECF No. 15, PageID.87 (quoting Policy Directive 03.04.120 (OO).) It presumes that “actual or attempted sexual penetration” is behavior that could transmit HIV. (Id. (quoting Policy Directive 03.04.120 (OO).) If a prisoner
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is found guilty of behavior that could transmit HIV, the “CFA Deputy Director and the Chief Medical Officer shall be informed in writing of the incident and shall review the case to determine if the prisoner should be classified to administrative segregation.” (Id. at PageID.88 (quoting Policy Directive 03.04.120 (PP).) When a prisoner is placed in administrative segregation, he “shall not subsequently be reclassified without prior authorization by the CFA Deputy Director after consultation with the Chief Medical Officer. (Id. (quoting Policy Directive 03.04.120 (PP).)
On April 20, 2012, two other prisoners allegedly saw Dorn and another inmate engage in oral sex. Dorn alleges that, on the same day, Defendants Pandya, Stieve, and Finco signed a memorandum classifying him to administrative segregation. (Id. at ¶ 24, PageID.83.) After a hearing on May 8, 2012, Dorn was found guilty of engaging in sexual conduct with another inmate. (Id. at ¶ 27, PageID.84.) On May 10, 2012, Dorn had a hearing before the Security Reclassification Committee “where his reclassification to administrative segregation was affirmed indefinitely because of his HIV-positive status” for violating MDOC Policy Directive 03.04.120. (Id. at ¶ 28, PageID.84.) Dorn remained in administrative segregation for nearly a year. (Id. at ¶ 4, PageID.77.) Then, he was placed in a Level V area for approximately ten months until he was transferred to a Level IV area for eight months before being paroled in October 2014. (Id. at ¶¶ 34-37, PageID.8586.)
Dorn alleges that his administrative-segregation conditions were extremely restrictive. He also alleges that the conditions in Level V and IV general population were similarly restrictive. Because of his placement in administrative segregation, Dorn argues that he lost all of his Level I privileges, and was confined to his cell for 23 hours per day for five days a week and for the full 24 hours per day for the remaining two days of the week. (Id. at ¶ 30, PageID.84.) In contrast, the other
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inmate accused of engaging in sexual conduct with Dorn lost privileges for 30 days and remained in the Level I facility. (Id. at ¶ 27, PageID.84.) Dorn also alleges that his sexual act with the other inmate presented “essentially no risk of HIV transmission” because he engaged in “oral sex without ejaculation” and his “undetectable viral load transforms the extremely low risk of transmission via oral sex to merely a theoretical possibility.” (Id. at ¶ 45, PageID.89.)
II. A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)). Although a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The Court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has now ‘show[n]’– that the pleader is entitled to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). In ruling on a Rule 12(b)(6) motion to dismiss, the Court may only consider “the [c]omplaint
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and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the [c]omplaint and are central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
III. A. Defendants are entitled to sovereign immunity for the official capacity due process claims Dorn seeks relief from Defendants Finco, Heyns, Pandya, Schuette, and Stieve for Defendants’ alleged deprivation of due process under 42 U.S.C. § 1983.1 The Eleventh Amendment bars suits against a state and its departments or agencies in federal court. “There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless [the State] has consented to the filing of such a suit.” Alabama v. Pugh, 438 U.S. 781, 782 (1978) (citing Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459 (1945); Worcester Cnty. Trust Co. v. Riley, 302 U.S. 292 (1937)). Sovereign immunity also extends to any suit brought by a private party where the payment of liability must be made from the public treasury. Edelman, 415 U.S. at 663; see also Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’” (quoting Land v. Dollar, 330 U.S. 731, 738 (1947)). “‘[W]hen the action
1 Dorn seeks monetary damages from Defendants Finco, Heyns, Pandya, and Stieve in their individual and official capacities, but only seeks damages from Defendant Schuette in his official capacity.
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is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.’” Id. (quoting Ford Motor Co., 323 U.S. at 464). Because “a suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the official’s office . . . it is no different from a suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal citations omitted). Sovereign immunity also bars requests for injunctive relief. Cory v. White, 457 U.S. 85, 90-91 (1982); cf. Ex Parte Young, 209 U.S. 123 (1908) (noting an exception where the suit seeks prospective injunctive relief against a state official in his or her official capacity).
But Eleventh Amendment immunity is not absolute. There are two circumstances in which an individual may sue a state: waiver or abrogation. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999) (internal citations omitted). First, a state may waive sovereign immunity by consenting to the suit. Clark v. Barnard, 108 U.S. 436, 44748 (1883). The State has not consented to Dorn’s suit, so it has not waived sovereign immunity here. Second, Congress may abrogate sovereign immunity and authorize a suit through its power to enforce the Fourteenth Amendment—an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. College Sav. Bank, 527 U.S. at 670 (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)). Although Congress provided for a cause of action for constitutional violations under § 1983, the Supreme Court has explained, “we simply are unwilling to believe . . . that Congress intended by the general language of § 1983 to override the tradition sovereign immunity of the States.” Id. at 341. Because Defendants Finco, Heyns, Pandya, and Schuette are sued in their official capacities as state officials, they are entitled to sovereign immunity
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for the due process claims under § 1983. B. Defendants are also entitled to sovereign immunity for the ADA and RA claims Dorn also brings claims under the ADA and the RA against Defendants MDOC, Pandya,
Stieve, Finco, Heyns, and Schuette, in their official capacities. RA claims “substantively mirror those brought under the [ADA].” Roetter v. Mich. Dep’t of Corr., 456 F. App’x 566, 569 (6th Cir. 2012) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996)). Title II of the ADA addresses discrimination in public services, which includes state correctional facilities. Prisoners can bring ADA claims under Title II, and “insofar as Title II creates a private cause of action for damages against the State for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in original). Thus, the Court must first determine whether Defendants’ conduct actually violates the due process clause.
Due-process concerns arise where the State “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Defendants argue that Dorn has acknowledged that the administrative segregation conditions were not much different from the Level IV and Level V general population conditions. (ECF No. 18, PageID.111-12; ECF No. 22, PageID.161.) However, Dorn alleges that the administrative segregation conditions were significantly more restrictive than the Level I general population conditions. (ECF No. 22, PageID.165-68.) He also alleges that the indefinite length of time in administrative segregation was atypical. (Id.)
Before a prisoner is placed in administrative segregation, there is a whole raft of judicial-type protections available to Michigan prisoners during major misconduct hearings: the accused prisoner
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must receive “an evidentiary hearing without undue delay,” be given “reasonable notice” of the hearing, receive “an opportunity to present evidence” and to present “oral and written arguments on issues of fact,” and be allowed to submit “rebuttal evidence” to the evidence against him. Peterson v. Johnson, 714 F.3d 905, 912 (6th Cir. 2013) (quoting Mich. Comp. Laws § 791.252(a), (b), (d), (e)). Further, the evidence at the hearing may be admitted only on essentially the same evidentiary standard used for all Michigan administrative hearings, any objections to the evidence’s admissibility must be resolved and explained on the record, and all admitted evidence must be made part of the record. Id. (citing Mich. Comp. Laws § 791.252(g), (h)). Also, the presiding hearing officer must be an attorney, can “administer an oath or affirmation to a witness” and “take depositions” as a part of his fact-finding role, must be impartial and must recuse if the accused files a motion successfully showing bias, must abstain from ex-parte communications with the accused prisoner and the accusing Department of Corrections staff, and must make an official record of the hearing at which he presides. Id. (citing Mich. Comp. Laws §§ 791.251(6); 791.252(f), (i), (j); 791.253). The hearing officer must also conclude the process by issuing a written final decision that is based solely on the preponderance of the evidence in the record, and that decision must be immediately mailed to the accused prisoner. Id. (citing Mich. Comp. Laws § 791.252(k)). If the prisoner disagrees with the final decision, he has a right to appeal it within the agency and then, if still displeased, to state court. Id. (citing Mich. Comp. Laws §§ 791.254, 791.255).
MDOC policy calls for administrative segregation when a prisoner satisfies two conditions: (1) HIV infection and (2) guilty of sexual misconduct. Dorn and his sexual partner both received hearings with the aforementioned protections and were found guilty; neither one has had the charges overturned at a rehearing or in a state-court action. Prior to Dorn’s transfer to administrative
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segregation, he received judicial-like process at his misconduct hearing. In Dorn’s complaint, he alleges that on the same day of his alleged sexual misconduct–April 20, 2012–MDOC staff wrote a memorandum reclassifying Dorn to administrative segregation, before he was found guilty at his hearing on May 8, 2012. (Am. Compl ¶¶ 24, 27, ECF No. 15, PageID.83-84.) Dorn further alleges that, on May 10, 2012, the security reclassification committee affirmed Dorn’s reclassification to administrative segregation indefinitely because of his HIV-positive status. (Id. at ¶ 28, PageID.84.)
The Due Process Clause “does not protect every change in the conditions of confinement having an impact on a prisoner.” see also Meachum v. Fano, 427 U.S. 215, 225 (1976). A prisoner is entitled to due process protections only when a deprivation “will inevitably affect the duration of his sentence” or imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87. But “[a]n inmate has no liberty interest in remaining free of disciplinary or administrative segregation, as such segregation does not impose an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Jones v. Waller, No. 98-5739, 1999 WL 313893, at *1 (6th Cir. May 4, 1999) (quoting Sandin, 515 U.S. at 484); see also Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997), cert. denied, 118 S. Ct. 136 (1997); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995).
Even when an inmate’s detention in administrative segregation is continued past the date when the inmate should have been released, administrative segregation does not create a liberty interest such that a prison official’s failure to release an inmate would amount to a procedural due process violation. Id. (citing Mackey, 111 F.3d at 463). Moreover, “courts should be hesitant to find a liberty or property interest in state-created correctional policies.” Id. (citing Sandin, 515 U.S. at 483-84). “Placement in [administrative] segregation is not ‘the type of atypical, significant
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deprivation in which a State might conceivably create a liberty interest.’” Id. (citing Sandin, 515 U.S. at 486 and Rimmer-Bey, 62 F.3d at 791). Likewise, “an increase in security classification . . . does not constitute an atypical and significant hardship.” Harbin-Rey v. Rutter, 420 F.3d 571, 577 (6th Cir. 2005) (internal quotation marks omitted); see also Meachum, 427 U.S. at 225. Nor does an inmate have a constitutional right to be placed in a specific security classification. Id. (citing Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)).
But the “duration of prison discipline [also] bears on whether a cognizable liberty interest exists.” Harden-Bey v. Rutter, 524 F.3d 789, 793-94 (6th Cir. 2008) (limiting the application of Jones). This Court must consider whether the nature of Dorn’s placement in administrative segregation together with its duration creates a cognizable liberty interest, and if so, whether the State has given Dorn the protection to which he is due. Id.
In Harden-Bey, the prisoner had been in administrative segregation for three years, and his confinement was “indefinite.” Id. at 794. Similarly, Dorn argues that his “punishment included an indefinite period of administrative segregation that ultimately lasted nearly one year[.]” (Am. Compl. ¶ 4, ECF No. 15, PageID.77.) Dorn also alleges that he was transferred to administrative segregation at a new facility, was confined to his cell for 23 or 24 hours per day, was restrained in handcuffs, leg shackles, and/or belly chains, and was escorted on a tether by at least two officers any time that he was out of his cell. (Id. at ¶ 30, PageID.84-85.) Upon release from administrative segregation, Dorn was placed in Level V at the Baraga Correctional Facility in the Upper Peninsula for approximately 10 months. (Id. at ¶ 34, PageID.85.) Afterward, he was transferred to the Level IV area at the Alger Correctional Facility, which was also located in the Upper Peninsula. (Id. at ¶ 37, PageID.86.) Although Dorn alleges that he was placed in administrative segregation indefinitely, he ultimately
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remained there for less than a year. This is significantly less time than the inmates’ placement in Harden-Bey and Jones, whose confinement lasted for three years and two and a half years respectively.
The “nature and duration of an inmate’s segregation may affect whether the State has implicated a liberty interest that warrants due-process protection[,]” as well as the State’s rules governing the imposition of the deprivation. Harden-Bey, 524 F.3d at 795. Although Dorn compares his conditions in Level I to his conditions in administrative segregation and Levels IV and V to argue that he suffered an atypical and significant hardship, he cites no authority in support. In contrast, the Seventh Circuit has opined that the proper inquiry is “whether the actual conditions of [the plaintiff’s] lengthy segregation [were] harsher than the conditions found in the most restrictive prison in Wisconsin.” Marion, 559 F.3d at 699. In his complaint, Dorn admits that the conditions for Levels IV and V were similar to the conditions of administrative segregation. (Am. Compl. ¶¶ 30-37, ECF No. 15, PageID.84-86.)
Further, in Sandin, the Supreme Court compared the conditions of the prisoner’s disciplinary confinement to the conditions of administrative segregation and protective custody. It held that placement in disciplinary segregation did not present the type of atypical, significant deprivation that implicated a protected liberty interest for three reasons: (1) the prisoner’s “disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody”; (2) the prisoner’s “confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction”; and (3) the prisoner’s segregation did not “inevitably affect the duration of his sentence.” Harden-Bey, 524 F.3d at 792 (citing Sandin, 515 U.S. at 486-87).
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To contrast, in Wilkinson v. Austin, the Supreme Court held that Ohio’s “Supermax” prison (“OSP”) imposed an typical and significant hardship, which implicated an inmate’s liberty interest. Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005). The Supreme Court looked at the conditions imposed–1 hour a day for exercise and a prohibition on cell-to-cell conversation–to note that “these conditions would apply to most solitary confinement facilities.” Id. at 224. The Court noted two added components of OSP: indefinite placement and parole disqualification. Id. “While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together, they impose an atypical and significant hardship within the correctional context. It follows that [the inmates] have a liberty interest in avoiding assignment to OSP.”
Similarly, because Dorn alleges that he was placed indefinitely in administrative segregation and his parole eligibility was affected, he is arguably entitled to due process protections.2 As an initial matter, the administrative segregation conditions represent those which would apply to most solitary confinement facilities. But, like in Wilkinson, Dorn received an indefinite placement in administrative segregation, which the Supreme Court noted was “[u]nlike the 30-day placement in Sandin.” Id. at 223. Dorn also argues that his “opportunity for parole was substantially diminished.” (Pl.’s Resp. 13, ECF No. 22, PageID.170.) Taking the factual allegations in Dorn’s complaint as true, he has pleaded facts that permit a plausible inference of an atypical and significant hardship.
When a liberty interest has been established, the question becomes whether the inmate was afforded sufficient protection of that liberty interest. Matthews v. Eldridge, 424 U.S. 319, 332-33 (1976). “Due process, however, requires only that a prisoner receive notice of the hearing, an
2 Several courts have found that indefinite confinements may implicate a liberty interest. HardenBey, 524 F.3d at 795; Lindamood, 2010 WL 605285, at *5; Lebron, 2011 WL 3704067, at *1.
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opportunity (when consistent with institutional safety and correctional goals) to call witnesses and present documentary evidence in his defense, and a written statement by the factfinder of the evidence relied on and the reason for the action.” Lebron v. Conroy, No. 4:11-cv-0784, 2011 WL 3704067, at *4 (N.D. Ohio Aug. 23, 2011) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)); see also Matthews, 424 U.S. at 334 (noting that the “fundamental requirement of procedural due process is the right to be heard ‘at a meaningful time and in a meaningful manner’”) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Due process does not guarantee that Dorn will receive the result he desires; it only gives him notice and an opportunity to be heard concerning his placement in administrative segregation. Dorn had a hearing; he received notice and was given an opportunity to present evidence and witnesses, and to contest his misconduct ticket. Dorn alleges that prison officials drafted a memorandum reclassifying Dorn to administrative segregation on the date of the alleged sexual misconduct so he received only a perfunctory hearing. (Am. Compl. ¶¶ 24, 28, ECF No. 15, PageID.83-84.) But the alleged memorandum alone does not permit the Court to draw a reasonable inference that Dorn was denied a meaningful opportunity to be heard.
Once an inmate is placed in administrative segregation, “[p]rison officials must engage in some sort of periodic review of the confinement of such inmates.” Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983), abrogated on other grounds by Sandin, 515 U.S. at 484. “This review will not necessarily require that prison officials permit the submission of any additional evidence or statements.” Id. But the decision to continue confinement must be supported by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). This requirement balances the procedural rights of the prisoner against the need of prison officials to have freedom to operate their facilities on a dayto-day basis. Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012). Thus, Dorn was entitled to
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a periodic review of his confinement, supported by some evidence or indicia of reliability. Id. at 484-85.
MDOC policy requires a commission to periodically review confinement status at least weekly during the first two months of segregation and at least every 30 calendar days thereafter until the prisoner is reclassified to general population status. MDOC Policy Directive 04.05.120 § BBB. When a prisoner receives administrative or punitive segregation for more than 30 consecutive days, the Warden must approve so in writing. MDOC Policy Directive 04.05.120 § EEE. And the Warden must personally interview any prisoners who have been confined in administrative or punitive segregation for six continuous months. MDOC Policy Directive 04.05.120 § FFF. A prisoner shall be reclassified from administrative segregation only with the approval of the commission and the concurrence of the Warden. MDOC Policy Directive 04.05.120 § HHH. Dorn does not allege or argue that he did not receive this periodic review of his status. He was released from administrative segregation and placed in Level V and then Level IV general population, presumably as a result of this periodic review. Dorn has not alleged any facts to show that his due process rights were violated during the time he was kept in administrative segregation. Without an actual due process violation, the ADA and RA do not abrogate state sovereign immunity. Thus, Defendants are entitled to sovereign immunity on the ADA and RA claims as well.
C. Some of Dorn’s requests for declaratory and injunctive relief are moot Article III of the United States Constitution limits federal court jurisdiction to a case or controversy. U.S. Const. Art. III, § 2. “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). “Indeed, if a case becomes moot, it does not satisfy the ‘case or controversy’
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requirement of Article III, . . . and the federal courts are powerless to decide it.” Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986) (citing SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 407 (1972) and United States v. City of Detroit, 720 F.2d 443, 448 (6th Cir. 1983)).
There is an exception to the mootness doctrine when issues are capable of repetition yet evade review. However, “[t]he exception applies only where the challenged conduct is of limited duration, too short to be litigated prior to its cessation, and there is a reasonable expectation that the complaining party will be subjected to the same conduct again.” Freshour v. Ammer, 880 F.2d 1321 (6th Cir. 1989) (unpublished table opinion) (citing Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Mere speculation that an issue may recur is not enough: “there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (citing Weinstein, 423 U.S. at 149).
A prisoner’s transfer to a new prison generally moots that prisoner’s claims for injunctive relief related to the conditions at the first prison. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (finding that a prisoner’s request for injunctive relief from prison inspection of his mail was moot because he had been transferred to a different facility that did not search his mail). But that rule might not apply where the complained-of restriction follows the prisoner after he is transferred. Colvin v. Caruso, 605 F.3d 282, 295-96 (6th Cir. 2010).
Plaintiff seeks declaratory judgment that “the provisions and enforcement by Defendants of MDOC Policy Directive 03.04.120(NN)-(QQ) and [Mich. Comp. Laws §] 791.267(3) violate Dorn’s rights under the [ADA], the [RA], and the Due Process Clause[.]” (Am. Compl. 21, ECF No. 15, PageID.95.) He also seeks to enjoin the State’s enforcement of the policy and the statute, and requests that any reference to the policy be expunged from his prison file. (Id.)
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The Declaratory Judgment Act provides that in a case of actual controversy, a competent court may “declare the rights and other legal relations” of a party “whether or not further relief is or could be sought.” 28 U.S.C. § 2201; Public Service Comm. of Utah v. Wycoff, 344 U.S. 237, 241 (1952). “[T]he granting of a declaratory judgment rests in the ‘sound discretion’ of the court[.]” Grand Trunk Western R.R. Co. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984). The two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. Id. (citing E. BORCHARD, DECLARATORY JUDGMENTS 299 (2d ed. 1941)). “It follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed.” Id.
Similarly, there are several factors that the Court must consider before issuing a declaratory ruling: (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata;” (4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is a better or more effective remedy. Id. at 326 (internal citation omitted).
Dorn argues that he has standing because of continuing, present adverse effects. (Pl.’s Resp. 5-6, ECF No. 22, PageID.162-63.) He asserts that he suffers from continuing emotional distress, and that his request for prison-record expungement show that he has a concrete and continuing injury. (Id. at PageID.63.) Dorn claims that his emotional distress stems, in part, from the fact that his
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prison records continue to state that he was found guilty of violating the policy. (Id.) He also seeks to expunge his records so that if he is re-incarcerated, he would not face a heightened security classification as a result of the incident underlying the case. (Id.) Dorn also argues that he may be subjected to the policy again if he is re-incarcerated. But this potential future harm is too speculative. See City of Los Angeles v. Lyons, 461 U.S. 95, 103-04 (1983) (noting that allegations of potential future harm were too speculative to establish the existence of a present, live controversy for declaratory or injunctive relief).
Further, Dorn is no longer subject to the MDOC policy or statute because he was paroled on October 18, 2014. (Am. Compl. ¶ 8, ECF No. 15, PageID.79.) A declaratory action here would not settle the controversy nor would it serve a useful purpose in clarifying the legal relations in issue. Also, the use of a declaratory action would likely increase friction between federal and state courts and improperly encroach upon state jurisdiction. Dorn had an opportunity to appeal the administrative segregation decision to the Michigan state courts, but he chose to file a federal lawsuit instead. A declaratory judgment will not terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. Nor will an injunction because Dorn is no longer incarcerated. In addition, a declaratory judgment would resolve the exact same question as the merits of Dorn’s suit. The more effective remedy is for the Court to resolve the case on the merits. Moreover, Dorn’s claim is not one that evades review; “the capable-of-repetition doctrine applies only in exception situations, and generally on where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.” Lyons, 461 U.S. at 109 (citing DeFunis v. Odegaard, 416 U.S. 312, 319 (1974)). As such, the Court will not grant Dorn’s request for declaratory and injunctive relief as to the statute and MDOC policy.
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However, Dorn has standing for his expungement request. See Hewitt v. Helms, 482 U.S. 755, 766 n.1 (1987) (“Petitioners have offered no authority, nor can they, for the remarkable proposition that the request for expungement of respondent’s record became moot upon his parole. Nor, since the expungement would have depended upon the finding that respondent’s due process rights were violated, have they explained how the request for declaratory relief supposedly became moot.”). Dorn’s release from prison has not mooted his requested relief, so this claim will remain.
D. Defendant Schuette is entitled to dismissal from suit Dorn’s only allegations against Defendant Schuette arise from his “broad responsibility for the enforcement of State laws, and [his] duty to defend State policies and laws including the Policy Directive and the Statute.” (Id. at ¶ 14, PageID.81.) Dorn generally alleges that Defendant Schuette and those subject to his supervision, direction and control, “intentionally performed, participated in, aided and/or abetted in some manner, the acts alleged [in the complaint], and/or proximately caused the harm alleged herein.” (Id. at ¶ 15.) Dorn does not include any specific factual allegations that Defendant Schuette was involved in any of the actions that allegedly violated Dorn’s rights. Dorn argues that he seeks prospective relief with respect to the enforcement of the statute, which expressly dictates the requirements of the MDOC policy. (Pl.’s Resp. 20, ECF No. 22, PageID.177.) “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The factual allegations must explicitly allege personal involvement. “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
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Thus, conclusory, unsupported allegations of constitutional deprivation do not satisfy this requirement. Id.; see also Ana Leon T v. Federal Reserve Bank, 823 F.3d 928, 930 (6th Cir. 1987); Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Although the Court must take all of the factual allegations in the complaint as true when reviewing a motion to dismiss, it is not bound to accept as true a legal conclusion couched as a factual allegation. Id.
When a plaintiff seeks to challenge the constitutionality of a state law through prospective injunctive relief, an exception to sovereign immunity applies. Ex Parte Young, 209 U.S. at 161. An attorney general, under his power existing at common law and by virtue of state statutes, has a general duty imposed upon him, which includes the right and the power to enforce the statutes of the state, including the statute in question, if constitutional. Id. But “general authority to enforce the laws of the state is not sufficient.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1048 (6th Cir. 2016). Absent enforcement or threatened enforcement by Defendant Schuette, the Eleventh Amendment bars an action against him. Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1414 (6th Cir. 1996). Ex Parte Young only “abrogates a state official’s Eleventh Amendment immunity when a suit challenges the constitutionality of a state official’s action.” (Id. at 1415) (internal citations omitted) (emphasis in original).
Dorn argues that his assertion that Defendant Schuette has broad responsibility for the enforcement of state law and a duty to defend state policies and laws is not a mere legal conclusion disguised as a factual allegation. However, Dorn does not allege any specific facts to plausibly show that Defendant Schuette was responsible for the enforcement of the statute and MDOC policy against
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Dorn. In fact, those responsible for enforcing the policy are the other named defendants in the case. Nor is there is an “imminent threat” of enforcement. McNeilus Truck & Mfg., Inc. v. Ohio ex rel. Montgomery, 226 F.3d 429, 437 (6th Cir. 2000). Defendant Schuette is not a necessary party to the action. Thus, Dorn has failed to allege claims against Defendant Schuette that are plausible on their face.
E. The Court cannot properly determine whether Defendants are entitled to qualified immunity at this stage
Qualified immunity is an affirmative defense that extends to government officials performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). Government officials acting within the scope of their authority are entitled to qualified immunity as long as their conduct does “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818. It protects “all but the plainly incompetent or those who knowingly violate the law.” Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007).
The Sixth Circuit applies a two-part test to determine whether a government official is entitled to the defense of qualified immunity: (1) whether the plaintiff has shown a violation of a constitutionally-protected right; and, if so, (2) whether that right was clearly established such that a reasonable official would have understood that his behavior violated that right. Shehee v. Luttrell, 199 F.3d 295, 299-300 (6th Cir. 1999). The purpose of the clearly-established prong is to ensure that officials are on notice that their alleged conduct was unconstitutional. Baynes v. Cleveland, 799 F.3d 600, 610 (6th Cir. 2015) (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The salient question is “‘whether the state of the law [at the time of the action giving rise to the claim] gave respondents fair warning that their alleged treatment of [the plaintiff] was unconstitutional.’” Id. (quoting Hope, 536
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U.S. at 741). In other words, “in the light of pre-existing law the unlawfulness must be apparent.” Hope, 536 U.S. at 739 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
After a defendant raises a qualified-immunity defense, the burden shifts to the plaintiff to demonstrate that the government official violated a right that was so clearly established “that every ‘reasonable official would have understood that was he [was] doing violate[d] that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson, 483 U.S. at 640). At a minimum, to survive a motion to dismiss on qualified-immunity grounds, a plaintiff “must allege facts that ‘plausibly mak[e] out a claim that the defendant’s conduct violated a constitutional right that was clearly established at the time, such that a reasonable officer would have known that his conduct violated that right.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). “Although an officer’s entitlement to qualified immunity is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal under Rule 12.” Wesley v. Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015); see also Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Village Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring) (observing that the fact-intensive nature of qualified immunity makes it “difficult for a defendant to claim qualified immunity on the pleadings before discovery” (emphasis in original)). Given the factintensive nature of the qualified-immunity analysis here, the Court cannot conduct such analysis prior to discovery.
IV. In sum, Defendants are entitled to sovereign immunity on the official-capacity due process claims. Because Dorn has not sufficiently alleged facts to permit the Court to make a plausible inference of an actual due process violation, Defendants Pandya, Stieve, Finco, and Heyns are
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entitled to sovereign immunity for the RA and ADA claims as well. The Court will not order declaratory or injunctive relief because Dorn’s claims are moot except for his expungement request. Also, because Dorn does not state a claim against Defendant Schuette, he will be dismissed from the suit. Finally, in light of the fact-intensive nature of qualified immunity analysis, the Court will reserve judgment on the merits of that issue until some discovery has taken place.

DATE: June 6, 2017

/s/ Paul L. Maloney Paul L. Maloney United States District Court Judge

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 Case 1:15-cv-00359-PLM ECF No. 88 filed 11/06/18 PageID.486 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICJITGAN
SOUTHERN DIVISION

JOHNDORN,
Plaintiff,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS ("MDOC"); HARESH PANDYA, individually and in his official capacity as the Regional Medical Officer for the Southern Region ofMDOC; JEFFREY STIEVE, individually and in his official capacity as the ChiefMedical Officer ofthe MDOC; THOMAS FINCO, individually and in his official capacity as Correctional Facilities Administration Deputy Director of the MDOC; and DANIEL H. HEYNS, individually and in his official capacity as Director oftheMDOC,
Defendants.

Case NO. 1:15-cv-359 SETTLEMENT AGREEMENT

SETTLEMENT AGREEMENT
I. PARTIES
This Settlement Agreement ("Agreement") is made between Jolm Dorn ("Mr. Dorn" or "Plaintiff') and the Michigan Department of Corrections ("MDOC"), Haresh Pandya, Jeffrey Stieve, Thomas Pineo, and Daniel H. Heyns (collectively, "Defendants"). Mr. Dorn and Defendants are referred to collectively herein as the "Parties."
II. RECITALS
On April2, 2015, Mr. Dorn filed a complaint in the United States District Court for the Western District ofMichigan, Darn v. Michigan Department ofCorrections, et. a/., Case No. I :15-cv-359 (PLM), and on May 27, 2015, Plaintiff filed his First Amended Complaint (the "Amended Complaint"), alleging that Defendants' enforcement of Michigan Department of Corrections Policy Directive 03.04.120, Control of Communicable Bloodborne Diseases (the

Case 1:15-cv-00359-PLM ECF No. 88 filed 11/06/18 PageID.487 Page 2 of 5
"Policy Directive"), and the corresponding Michigan statute, MCL 791.267(3) (the "Statute") violate Title II of the Americans Disabilities Act ("ADA") (42 U.S.C. § 12131 et seq.) and Section 504 ofthe Rehabilitation Act of 1973 (29 U.S.C. § 794 et seq.) because they unlawfully discriminate against incarcerated people living with HIV. Plaintiffalso alleged violations of 42 U.S.C.§§ 1983 and 1988 for deprivation of rights secured by the laws and Constitution ofthe United States. For all claims, he is seeking declaratory and injunctive relief, and money damages. Plaintiff challenges the Policy Directive on its face and as applied to him. Defendants deny all allegations of wrongdoing.
Having engaged in discussions, the Parties believe that it is in their best interests to settle and resolve this matter. The execution of this Agreement shall not be construed as an admission by either party of any wrongdoing or any liability of any kind, all liability and wrongdoing being expressly denied.
Therefore, in consideration of the covenants set forth in this Agreement, the Parties settle their dispute on the following terms and conditions:
III. TERMS OF SETTLEMENT
A) The Michigan Department of Corrections shall pay the sum of$150,000.00 to Plaintiff John Dom. Said payment shall be made payable to John Dorn.
B) The Michigan Department of Corrections shall implement revisions to the Michigan Department of Corrections Policy Directive 03.04.120 sections 03.04.120(LL)(2), 03.04.120(00), and 03.04.120(PP) as set forth in Attaclunent A to this Agreement.
C) The Michigan Deprutment of Corrections agrees to supplement Plaintiff's records with a memorandum stating that if the Policy Directive 03.04.120(NN)-(QQ) as amended had been applied to Mr. Dorn's conduct in 2012, he would not have been reclassified to a higher level of security.
D) The Michigan Department of Corrections agrees to review the circumstances of other individuals living with HIV who are currently subject to a higher classification pursuant to the Policy Directive, within 30 days ofthe signing of this Agreement, and to reconsider the placement of such individuals under the Policy Directive as revised by this Agreement.
IV. RELEASE
A) Subject to the terms set forth herein, by signing this Agreement, the Parties intend that it shall be a full and final accord and satisfaction and release fi·om all allegations and claims asserted in the Amended Complaint.
2

Case 1:15-cv-00359-PLM ECF No. 88 filed 11/06/18 PageID.488 Page 3 of 5
B) As consideration for such payments and non-monetary relief described herein, Plaintiff John Dorn shall file a stipulation of dismissal of Darn v. Michigan Department of Corrections, et. al., 1:15-cv-359 (PLM) with prejudice pursuant to Fed. R. Civ. P. 41.
C) In consideration of the Terms of Settlement outlined in Section III above, Plaintiff releases and discharges the Defendants fi·om all claims, debts, wages, demands, rights, liens, charges, lawsuits, and causes of action, and shall not further prosecute, shall not in the future prosecute, and shall not bring or cause to be brought any claim or action against the Defendants, either legal or equitable, federal or state, based upon any theory, including but not limited to claims under the United States or Michigan Constitutions; 42 U.S.C. § 1983, as amended; Title VII of the Civil Rights Act of 1964, as amended; Michigan's Elliott-Larson Civil Rights Act, as amended; the Americans With Disabilities Act, as amended; §504 of the Rehabilitation Act, as amended; the Michigan Persons With Disabilities Civil Rights Act, as amended; Michigan common law or doctrines, in law or equity, or any other causes of action relating to the incident described in the complaint filed in this matter whether known or unknown to the undersigned, or that accrue after this agreement by reason of any existing facts, !mown or unknown, in favor of the undersigned against the Defendants.
D) Plaintifffuither agrees that the $150,000.00 payment described in Section III(A) above shall be subject to any offset for liens which the Michigan Department of Treasury is empowered to exercise, for such things as outstanding state income taxes. The State of Michigan waives any right to collect any portion of the settlement amount under the State Correctional Facilities Reimbursement Act, MCL 800.401, et seq.
E) Plaintiff is not relying upon any statement or representation by the Defendants. Plaintiff acknowledges that he understands that this is a final disposition of all disputes as to any legal or equitable liability of Defendants as the nature and extent of injuries, losses and damages, which Plaintiff has or may have sustained arising out of this action. Plaintiff acknowledges that this compromise settlement is mutual, final and conclusive, and binding by the undersigned and the Defendants.
F) Plaintiff represents that he has had adequate time to review the terms ofthis Release with his attorneys, that he understands all of its provisions, and that he is voluntarily entering into this release.
G) Plaintiff understands that the cost of litigation m·ising out of this matter, including all costs, interest, and attorney fees are included herein. h1 other words, the settlement mnount includes all interest, costs, and attorneys' fees, as well as any claimed dmnages.
H) The execution of this release shall not be construed as an admission by either pmty of any wrongdoing or any liability of any kind, all liability and wrongdoing being expressly denied.
V. SUCCESSORS AND ASSIGNS
3

Case 1:15-cv-00359-PLM ECF No. 88 filed 11/06/18 PageID.489 Page 4 of 5
This Agreement shall be binding on the Parties and their respective officers, agents, administrators, successors, assignees, heirs, executors, trustees, attorneys, consultants, and any committee or arrangement of creditors organized with respect to the affairs of any such party.
VI. REPRESENTATIONS AND WARRANTIES
A) No modification or waiver ofany ofthe terms ofthis Agreement, including but not limited to the changes to Defendants' policies required under the tenns ofthis Agreement, shall be valid unless in writing and executed with the same formality as this Agreement.
B) The consideration recited in this Agreement is the only consideration for this agreement, and no representations, promises, or inducements have been made to the Parties, or any of their representatives, other than those set forth in this Agreement.
C) In the event that two or more counterparts of this Agreement are executed, all such counterparts shall collectively constitute the same instrument.
D) Each party to this Agreement shall complete, execute, or cause to be executed, such further documents as are necessaq to cany out the expressed intent and purpose of this Agreement.
E) This Agreement constitutes a single integrated agreement expressing the entire agreement of the Parties, and there are no other agreements, written or oral, express or implied, between the PaTties, except as set forth in this Agreement.
F) Unless expressly stated otherwise in this Agreement, the terms, conditions, and provisions ofthis Agreement are governed by and interpreted under the laws ofthe state of Michigan and, where applicable, of the United States.
G) The Parties acknowledge and agree that, because they have carefully read, reviewed, and considered the terms ofthis Agreement and have had full opportunity to obtain legal advice from counsel of their choice in connection with this Agreement, any ambiguities contained herein shall not be construed against any party.
H) Should any provision ofthis Agreement be held invalid or unenforceable, such holding shall not invalidate the whole ofthis Agreement, but the Agreement shall be construed as if it did not contain the invalid or unenforceable part, and the rights and obligations of the Parties shall be construed and enforced accordingly.
4

Case 1:15-cv-00359-PLM ECF No. 88 filed 11/06/18 PageID.490 Page 5 of 5

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 Case 1:15-cv-00359-PLM ECF No. 88-1 filed 11/06/18 PageID.491 Page 1 of 7

MICHIGAN DEPARTMENT OF CORRECTIONS
POLICY DIRECTIVE
SUBJECT
CONTROL OF COMMUNICABLE BLOODBORNE DISEASES

EFFECTIVE DATE
06/25/12

NUMBER
03.04.120

SUPERSEDES
03.04.120 (07/19/10)

AUTHORITY

MCL 408.1001 et seq.; 333.5129, 333.5131,

333.5133, 791.267, 791.267b

PAGE

1 OF 7

POLICY STATEMENT:

The Department shall take reasonable steps to reduce and control the transmission of serious communicable bloodborne infections and diseases.

RELATED POLICY:

03.04.110

Control of Communicable Diseases

POLICY:

DEFINITIONS

A.

Bloodborne Pathogen - A microorganism present in human blood which can infect and cause disease in

persons exposed to the blood. These pathogens include the Human Immunodeficiency Virus (HIV),

Hepatitis B Virus (HBV), and Hepatitis C Virus (HCV).

B.

Medical Provider - A qualified health professional who is a physician, physician assistant, or nurse

practitioner.

C.

Occupational Exposure - An eye, mouth, other mucous membrane or non-intact skin contact with

human blood or other potentially infectious materials, or such contact resulting from the piercing of the

mucous membrane or skin barrier, that results from the performance of an employee's duties.

D.

Offenders - Prisoners, probationers in the Special Alternative Incarceration Program (SAI), and parolees

in a residential reentry program facility.

E.

Qualified Health Professional - A health care professional licensed by the State of Michigan or, if

licensure is not required, certified to practice within the scope of his or her training.

GENERAL INFORMATION

F.

Bloodborne infections and diseases such as HIV, HBV, and HCV are not transmitted by casual contact.

Such infections and diseases are transmitted only by direct inoculation from an infected individual.

UNIVERSAL PRECAUTIONS

G. The observance of universal precautions is important in the control of all bloodborne infections and diseases, including HIV, HBV, and HCV. The objective of universal precautions is to isolate blood and other potentially infectious materials. The practice of universal precautions treats all persons as if they are infected with a communicable bloodborne pathogen and isolates their blood and other potentially infectious materials. This is necessary since it is not possible to be certain who is infected.

H.

Staff shall observe universal precautions at all times to reduce the risk of contact with blood, semen,

vaginal fluid, or other potentially infectious material and to prevent injury from potentially contaminated

sharps. Such precautions are especially important in uncontrolled or emergency situations due to the

potential increased risk of such contact or injury.

Case 1:15-cv-00359-PLM ECF No. 88-1 filed 11/06/18 PageID.492 Page 2 of 7

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
06/25/12

NUMBER
03.04.120

PAGE 2 OF 7

EXPOSURE CONTROL PLAN

I.

The Administrator of the Bureau of Health Care Services (BHCS) shall ensure an Exposure Control

Plan is maintained. The Plan shall identify ways to minimize or eliminate occupational exposures, as

required pursuant to the Michigan Occupational Safety and Health Act (MIOSHA), being MCL 408.1001

et seq., and the MIOSHA standard for bloodborne infectious diseases, being Administrative Rule

325.70001 - 325.70018. The Plan shall specifically address the following:

1.

Necessary personal protective clothing and equipment, including content of blood spill kits,

which must be available for use within the Department, to whom such items shall be made

available, and under what circumstances they must be used.

2.

Identification of employees eligible to receive the HBV vaccine due to potential increased risk of

sustaining an occupational exposure by virtue of their work responsibilities.

3.

Requirements to be met prior to assigning prisoners or staff to clean up blood spills, including

training and vaccinations.

J.

The BHCS Administrator shall ensure that the Exposure Control Plan is reviewed at least annually and

that any recommended changes are incorporated, as required. The BHCS Administrator also shall

ensure that the Exposure Control Plan is made available to all facility heads and to other administrators

affected by the Plan.

K.

Each facility head shall designate an Exposure Control Plan Coordinator to monitor and ensure

compliance with the Exposure Control Plan. The Coordinator also shall be responsible for maintaining

a site specific plan based on the model provided in the Exposure Control Plan; the site specific plan

shall be reviewed at least annually and recommended changes incorporated, as required. The

Coordinator shall promptly notify the facility head of any areas of non-compliance with the plans and

suggest corrective action to be taken. The Coordinator also shall serve as liaison with the Infectious

Disease Control Committee.

EDUCATIONAL PROGRAMS

L.

There shall be comprehensive communicable bloodborne infection educational programs for staff and

prisoners. The programs shall be coordinated and monitored by the Infectious Disease Coordinator in

BHCS in collaboration with the Department of Community Health and the Training Division, Operations

Support Administration, and the Operations Division, Correctional Facilities Administration (CFA). The

Infectious Disease Coordinator shall work with the Department of Community Health to assure full

utilization of that Department's expertise and education materials.

M. Educational programs for staff shall include, at a minimum, a general explanation of communicable bloodborne infections and modes of transmission, practices that will reduce or eliminate occupational exposures, and procedures to follow if an occupational exposure occurs.

N.

Educational programs for prisoners shall include, at a minimum, a multi-media program for use in

reception facilities and as part of each institution's orientation program. The education program shall

include a general explanation of communicable bloodborne infections as well as information on modes

of transmission and risk reduction. This information also shall be provided to prisoners both verbally

and in writing at the time of the prisoner’s annual health care screening and prior to discharge or

release on parole.

ACTION TO BE TAKEN IN RESPONSE TO OCCUPATIONAL EXPOSURE

O. A person who is exposed to blood or other potentially infectious materials in a manner which could transmit a communicable bloodborne pathogen should promptly cleanse the exposed areas and obtain first aid. Exposed areas other than the eye should be cleansed with soap and water or a waterless hand sanitizer; eyes should be flushed only with water (no soap) or a portable eyewash solution.

Case 1:15-cv-00359-PLM ECF No. 88-1 filed 11/06/18 PageID.493 Page 3 of 7

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
06/25/12

NUMBER
03.04.120

PAGE 3 OF 7

Employees shall immediately report the exposure to his/her supervisor, who shall immediately refer the employee to an occupational or emergency health care clinic to ensure any necessary treatment may begin as soon as possible after the exposure. An exposed offender shall be immediately referred to an appropriate health care clinic.

P.

The Warden and Regional Medical Officer, and the Chief Medical Officer and FOA Deputy Director for

FOA offenders, shall promptly review any occupational exposures to ensure appropriate corrective

action is taken. They shall also promptly review and respond appropriately to reports submitted by staff

in which transmission of a bloodborne infection is a staff concern. Offenders known to be engaged in

high risk behavior shall be appropriately counseled and security classification and other aspects of

supervision altered as appropriate.

EMPLOYEES AND COMMUNICABLE BLOODBORNE INFECTIONS

Q. The fact that an employee has a communicable bloodborne infection shall not itself be a consideration in appointment, promotion, or other condition of employment, except that BHCS employees with such infections whose duties involve invasive procedures may be required to take appropriate extra precautions when performing certain procedures and may be restricted from performing certain procedures.

R.

Employees who perform invasive procedures are encouraged to learn whether they have a

communicable bloodborne infection. If infected, they shall periodically consult their personal physicians

regarding the need for modification of their clinical practice and shall inform their supervisor if there is a

risk of compromised patient care. If there is such a risk, the clinical practice shall be modified to the

degree necessary to eliminate the risk.

S.

Employees shall not be excused from working with or caring for offenders with a communicable

bloodborne infection or from working with such employees.

HIV Testing of Employees

T.

An employee may request to be tested for HIV at the Department's expense by submitting the request

in writing to his/her human resource office. The employee shall not be required to provide a reason for

the request. The human resource office shall refer the employee to an appropriate health care clinic for

the testing.

HBV Vaccine for Employees

U.

The HBV vaccine, including any required booster vaccinations, shall be offered to eligible employees,

as identified in the Exposure Control Plan, within ten calendar days of the employee beginning

employment. This also shall apply to an employee who becomes eligible for the HBV vaccine due to a

change in his/her assignment. An eligible employee who declines the vaccination but subsequently

requests it shall be offered the vaccine within 30 calendar days of the request. The vaccine may be

administered by a BHCS qualified health professional, a local occupational health clinic or public health

department, or the employee's personal physician. The Department shall pay the cost, if any, of

administering the vaccine.

V.

The appropriate Human Resource Office shall provide the Vaccine Information Statement for Hepatitis

B form (DCH-0450) to each eligible employee prior to the vaccination being offered. Employees must

sign the Employee Hepatitis B Vaccine Consent/Declination Form (CHJ-263) to document whether they

have consented to or declined the vaccination. The signed form shall be retained in the employee's

medical file.

HBV VACCINE FOR PRISONERS

W. All newly committed prisoners and those returned to a reception facility or other CFA institution from community status shall be offered the HBV vaccine by BHCS staff, unless it is documented that the

Case 1:15-cv-00359-PLM ECF No. 88-1 filed 11/06/18 PageID.494 Page 4 of 7

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
06/25/12

NUMBER
03.04.120

PAGE 4 OF 7

prisoner has already been vaccinated or has HBV. A prisoner who initially declines the vaccination may subsequently request it. The vaccination shall be provided only upon order of a medical provider. If the prisoner withdraws his/her request for the HBV vaccine, the vaccine shall not be administered.

TESTING AND COUNSELING OF OFFENDERS FOR COMMUNICABLE BLOODBORNE INFECTIONS

Testing

X.

All newly committed prisoners and those returned to a reception facility or other CFA institution from

community status, who were not in secure confinement in a jail or other correctional facility, shall be

tested for HIV by a BHCS qualified health professional within 14 calendar days after arrival unless the

prisoner either has a prior documented positive test result or was tested within the three months

preceding arrival by order of the sentencing court and the test result accompanies the prisoner. In such

cases, a confirmatory test shall be offered to the prisoner, but the prisoner is not required to submit to

the testing. In all other cases, a prisoner who declines testing shall be managed as set forth in

PD 03.04.110 "Control of Communicable Diseases" until s/he submits to testing.

Y.

All newly committed prisoners and those returned to a reception facility or other CFA institution from

community status shall be screened for HCV risk factors by a BHCS qualified health professional within

14 calendar days after arrival unless the prisoner has a prior documented positive HCV test result.

Each prisoner identified with HCV risk factors shall be offered HCV testing, and tested if requested by

the prisoner, during this same time period. A prisoner who refuses to be screened shall be managed as

set forth in PD 03.04.110 "Control of Communicable Diseases" until s/he submits to screening.

Z.

All prisoners shall be tested for HIV, and screened for HCV risk factors, by a BHCS qualified health

professional prior to release on parole or discharge unless the prisoner was previously tested and/or

screened, or was not required to be tested and/or screened, under Paragraph X or Y. Each prisoner

screened for and identified with HCV risk factors shall be tested for HCV prior to release on parole or

discharge. If a prisoner declines required screening or testing prior to release on parole, the Office of

the Parole Board shall be notified and the prisoner shall not be paroled. If the prisoner subsequently

agrees to the screening or testing, the Office of the Parole Board shall be notified and shall determine if

the parole will be reinstated. If a prisoner declines required screening or testing prior to discharge,

appropriate health care staff shall notify the BHCS Administrator or designee through the appropriate

chain of command. The BHCS Administrator or designee shall consult with the CFA Deputy Director

and the Administrator of the Office of Legal Affairs, as appropriate, for direction on how to proceed.

AA. Offenders shall be tested for HIV, HBV, and HCV whenever determined to be medically indicated by a medical provider.
BB. An offender may request to be tested for HIV but such testing shall be conducted only upon an order of a medical provider and shall not be ordered more than once per twelve-month period. The offender may withdraw his/her request at any time.
CC. Offenders may be tested on a strictly voluntary basis for periodic anonymous surveys, as authorized by the BHCS Administrator.
DD. Appropriate counseling shall be provided to offenders prior to HCV antibody screening and prior to HIV or HBV testing. At a minimum, this shall include information regarding treatment, transmission, and protective measures to be taken. Offenders also shall be given the "Important Health Information" (DCH-0675) pamphlet developed by the Department of Community Health prior to screening and testing. The Infectious Disease Coordinator shall be responsible for advising the Department of Community Health when there are changes which must be incorporated into the pamphlet to accurately reflect Department policy or procedures.
EE. An offender shall be advised of his/her screening and test results at an individual, confidential health care visit. If the screening or test results are negative, the visit shall be conducted by a qualified health professional. If the screening or test results are positive, the visit shall be conducted by a medical

Case 1:15-cv-00359-PLM ECF No. 88-1 filed 11/06/18 PageID.495 Page 5 of 7

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
06/25/12

NUMBER
03.04.120

PAGE 5 OF 7

provider. Offenders who test positive shall be provided a recommendation to seek follow-up medical attention if appropriate based on the test result.

Testing of Offender Pursuant to Employee Request

FF. If an employee, including an individual under contract to the Department, sustains a percutaneous (i.e., effected or performed through the skin), mucous membrane, or open wound exposure to the blood or body fluids of an offender, the employee may request that the offender be tested for HIV, HBV, and/or HCV infections. To request such testing, the employee shall complete an Employee Request for HIV/HBV/HCV Testing of Potential Exposure Source form (CHJ-405) and submit it to the appropriate Warden, FOA Deputy Director, or designee within 72 hours after the exposure occurs. The employee shall not include information that would identify the offender on the form.

GG. The Warden, FOA Deputy Director, or designee shall immediately review the request and any other relevant documentation to determine whether there is reasonable cause to believe that the exposure incident occurred as described. The Employee Request for HIV/HBV/HCV Testing of Potential Exposure Source form and the finding as to whether there is reasonable cause to believe the exposure incident occurred as described shall be immediately forwarded to the Regional Medical Officer. The basis for any finding that the incident did not occur as described shall be fully explained. Whether HIV, HBV, or HCV infection could have been transmitted as a result of the exposure incident shall not be addressed.

HH. The Regional Medical Officer shall review the Employee Request for HIV/HBV/HCV Testing of Potential Exposure Source form immediately upon receipt and determine whether there is reasonable cause to believe that the employee sustained a percutaneous, mucous membrane, or open wound exposure. This determination shall be based on the findings by the Warden, FOA Deputy Director, or designee as to whether the exposure incident occurred and, if different than as described by the employee, how the exposure incident occurred.

II.

If the Regional Medical Officer determines that the employee sustained a percutaneous, mucous

membrane, or open wound exposure to the blood or other potentially infectious body fluids of the

offender, the offender shall be requested to consent to testing unless already known to be positive. An

offender who consents to testing shall be tested as requested by the employee within five business

days. If a probationer or parolee does not consent, the case shall be referred to the BHCS Administrator.

The BHCS Administrator or designee shall contact the Administrator of the Office of Legal Affairs who

shall in turn contact the Department of Attorney General if it is necessary to obtain a court order to

conduct the testing. Since it is not necessary to obtain the consent of a prisoner prior to testing, a

prisoner shall be tested as requested by the employee within five business days even if s/he does not

consent.

JJ. The employee or, upon the employee's request, his/her primary care physician or other health professional shall be notified of the test results, or known positive status, within two business days after the test results are obtained or the positive status becomes known by the Regional Medical Officer or the Chief Medical Officer. An Employee Request for HIV/HBV/HCV Testing of Potential Exposure Source form (CHJ-415) shall be used to provide this information and to notify the employee of the confidentiality requirements set forth in state law. The form shall not include any information that would identify the prisoner who was tested.

KK. If the Regional Medical Officer determines that the employee did not sustain a percutaneous, mucous membrane or open wound exposure to the blood or other potentially infectious body fluids of a prisoner, the employee shall be notified of this determination and how this determination was reached within two business days of the determination. The Response to Employee Request for HIV/HBV/HCV Testing of Potential Exposure Source form shall be used to notify the employee of this information.

Counseling

LL. An offender who tests positive for a communicable bloodborne infection shall be provided written and

Case 1:15-cv-00359-PLM ECF No. 88-1 filed 11/06/18 PageID.496 Page 6 of 7

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
06/25/12

NUMBER
03.04.120

PAGE 6 OF 7

verbal post-test counseling, which shall include the following information:

1.

The limitations of the test, the methods of transmission, available treatment, and risk reduction

both while incarcerated and after release.

2.

If HIV positive, that s/he will be classified to administrative segregation if s/he is subsequently

found guilty of any of the misconducts identified in Paragraph NN, and it is determined that

behavior presented a significant risk of HIV transmission.

3.

If HIV positive, that the law requires that s/he inform any future sexual partner that s/he tested

positive before engaging in sexual relations.

The prisoner shall receive this counseling before medical clearance is granted to transfer the prisoner to a facility in a different BHCS region.

MANAGEMENT OF OFFENDERS WITH COMMUNICABLE BLOODBORNE INFECTIONS

MM. Offenders with a communicable bloodborne infection are eligible for any housing, work, or school assignment or other program which their behavior and health allows, except that a prisoner shall not be assigned to work in a health service area. For example, a prisoner with a communicable bloodborne infection may work in a food service area unless s/he also has a condition which should disqualify anyone from working with food or food contact surfaces, such as cuts, sores, and dermatitis (above the torso), diarrhea, uncontrolled cough, runny nose, and poor general hygiene.

Misconduct Guilty Findings - HIV

NN. Wardens shall ensure that timely reports of prisoners at their respective facilities who have been found guilty of any of the following misconduct violations are provided to the Health Unit Manager:

1.

Substance Abuse involving the use of a syringe or needle;

2.

Sexual Misconduct or Sexual Assault, or an attempt to commit either, which involves even the

slightest sexual penetration;

3.

Assault and Battery, Assault Resulting in Serious Physical Injury, Fighting, or Threatening

Behavior which involves serious injury or an attempt to seriously injure.

OO. If the prisoner who received the misconduct is HIV positive, the Health Unit Manager shall timely report the incident to the Assistant Chief Medical Officer (ACMO) The ACMO and the on-site physician shall each review the actual misconduct report(s) and other pertinent information, including the per-act risk of the sexual activity at issue and any other risk reduction measures, such as medications to achieve a suppressed viral load, to certify whether the prisoner’s behavior presented a significant risk of HIV transmission. The date of the misconduct and the determination of whether or not the behavior presented a significant risk of HIV transmission shall be documented in the prisoner's health record.

PP. If it is determined, as set forth in paragraph OO, that the behavior presented a significant risk of HIV transmission could transmit HIV and the prisoner received post-test counseling required pursuant to Paragraph LL prior to engaging in the behavior, the CFA Deputy Director upon consultation with the Chief Medical Officer shall be informed in writing of the incident and shall review the case to determine if the prisoner should be classified to administrative segregation. If the prisoner is classified to administrative segregation, s/he shall not subsequently be reclassified without prior authorization by the CFA Deputy Director after consultation with the Chief Medical Officer. Such prisoners may be placed in health care inpatient units if necessary to receive medical care, including mental health care.

QQ. If a prisoner classified to administrative segregation pursuant to Paragraph PP is paroled or discharged while on that status, s/he shall be classified to administrative segregation status if s/he is returned to a CFA facility for any reason, including for a new conviction, unless the CFA Deputy Director authorizes other placement.

Case 1:15-cv-00359-PLM ECF No. 88-1 filed 11/06/18 PageID.497 Page 7 of 7

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
06/25/12

NUMBER
03.04.120

PAGE 7 OF 7

REPORTING/DISCLOSING INFORMATION ON COMMUNICABLE BLOODBORNE INFECTIONS
RR. As is the case with all medical information, the results of tests for communicable bloodborne infections and information regarding any person's HIV, HBV, or HCV status, including employees and offenders, shall not be disclosed to anyone other than the person tested except as authorized by Department policy or state law. An employee who receives confidential information on an offender's HIV, HBV, or HCV status pursuant to Paragraphs FF through KK of this policy may disclose the information to others to the extent necessary to obtain medical care or prevent further transmission. Unauthorized disclosure of information on any person's HIV, HBV, or HCV status by an employee may result in discipline pursuant to PD 02.03.100 "Employee Discipline".
SS. All new offender cases of HIV or AIDS in a CFA or FOA facility shall promptly be reported to the Regional Medical Officer. The medical service provider shall complete any forms or reports required by the Centers for Disease Control (CDC) and promptly submit them to the Michigan Department of Community Health. A copy shall be filed in the offender's health record. The BHCS Administrator shall designate staff to assist local public health officials in obtaining any information needed from the offender to facilitate required partner notification.
TT. A victim or person with whom an offender engaged in sexual penetration or sexual contact, or who was exposed to a body fluid during the course of the crime, shall be notified of the offender's HIV, HBV, and/or HCV status as ordered by a court. Such court orders shall be sent to the BHCS Administrator.
UU. If an offender with a communicable bloodborne infection dies and the physician who signs the death certificate has knowledge of the infection, the physician shall ensure the funeral director or his/her agent is notified before the body is released of appropriate infection control precautions to be taken.
VV. If an offender with a communicable bloodborne infection is transferred to a correctional facility, hospital, or clinical facility not operated by the Department, the medical provider shall provide all relevant health care information to the receiving facility's health care staff for use in continuing health care.
PROCEDURES
WW. The FOA Deputy Director shall ensure that procedures are developed as necessary to implement requirements set forth in this policy directive for FOA facilities; Wardens and the appropriate Regional Health Administrator shall ensure that joint procedures are similarly developed for CFA institutions. Procedures shall be completed within 60 calendar days after the effective date of the policy directive. This requirement includes ensuring that their existing procedures are revised or rescinded, as appropriate, if inconsistent with policy requirements or no longer needed.
AUDIT ELEMENTS
XX. A Primary Audit Elements List has been developed and is available on the Department’s Document Access System to assist with self audit of this policy, pursuant to PD 01.05.100 "Self Audit of Policies and Procedures".

APPROVED: DHH 06/07/12

 
 United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:15-cv-00359-PLM

Dorn v. Michigan Department of Corrections et al Assigned to: District Judge Paul L. Maloney Cause: 42:12133 Americans with Disabilities Act Enforcement

Date Filed: 04/02/2015 Date Terminated: 11/14/2018 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

plaintiff John Dorn

represented by Anthony C. Pinggera Lambda Legal Defense and Education Fund, Inc. 4221 Wilshire Blvd., Ste. 280 Los Angeles, CA 90010 (213) 382-7600 Email: apinggera@lambdalegal.org ATTORNEY TO BE NOTICED

Kara Nicole Ingelhart Lambda Legal Defense and Education Fund, Inc. 105 W Adams St., Ste. 2600 Chicago, IL 60603 (312) 663-4413 Email: kingelhart@lambdalegal.org ATTORNEY TO BE NOTICED

Kyle Anthony Palazzolo Lambda Legal Defense and Education Fund, Inc. 105 W Adams St., Ste. 2600 Chicago, IL 60603 (312) 663-4413 Email: kpalazzolo@lambdalegal.org TERMINATED: 07/06/2017 ATTORNEY TO BE NOTICED

Richard Saenz Lambda Legal Defense and Education Fund, Inc.

V.
defendant
Michigan Department of Corrections

120 Wall St., 19th Fl. New York, NY 10005 (212) 809-8585 Email: rsaenz@lambdalegal.org ATTORNEY TO BE NOTICED
Scott A. Schoettes Lambda Legal Defense and Education Fund, Inc. 105 W Adams St., Ste. 2600 Chicago, IL 60603 (312) 663-4413 Email: sschoettes@lambdalegal.org ATTORNEY TO BE NOTICED
Chris Emerson Davis Michigan Protection & Advocacy Service Inc. (Lansing) 4095 Legacy Pkwy., Ste. 500 Lansing, MI 48911 (517) 487-1755 Fax: (517) 487-0827 Email: cdavis@mpas.org ATTORNEY TO BE NOTICED
represented by Clifton B. Schneider G. Robert Cotton Correctional Facility 3500 N Elm Ave. Jackson, MI 49201 (517) 780-6388 Email: schneiderc1@michigan.gov ATTORNEY TO BE NOTICED
Denise C. Barton MI Dept Attorney General (Employ,Elect,Torts) Public Employment, Elections and Torts Division 525 W. Ottawa, 3rd Fl. P.O. Box 30758 Lansing, MI 48909

defendant
Haresh Pandya individually and in his official capacity as the Regional Medical Officer forr the Southern Region of MDOC

(517) 373-6434 Email: AG-PEET@michigan.gov ATTORNEY TO BE NOTICED
Michael Richard Dean Michigan Department of Attorney General Civil Litigation, Employment & Elections 525 W Ottawa St. P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Email: deanm2@michigan.gov ATTORNEY TO BE NOTICED
Scott Allen Mertens Mertens and Clement, PLLC 321 W Lake Lansing Rd. East Lansing, MI 48823 517-373-6434 Fax: 517-373-2454 Email: mertenss@michigan.gov ATTORNEY TO BE NOTICED
represented by Clifton B. Schneider (See above for address) TERMINATED: 02/28/2018 ATTORNEY TO BE NOTICED
Denise C. Barton (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe Michigan Department of Attorney General Civil Litigation, Employment & Elections 525 W Ottawa St. P.O. Box 30736 Lansing, MI 48909 (517) 333-0306 Fax: (517) 333-0319 Email: powed1@michigan.gov

defendant Jeffrey Stieve individually and in his official capacity as the Chief Medical Officer of MDOC
defendant Thomas Finco individually and in his official capacity as Correctional Facilities Administration Deputy Director of MDOC

ATTORNEY TO BE NOTICED
Michael Richard Dean (See above for address) ATTORNEY TO BE NOTICED
Scott Allen Mertens (See above for address) ATTORNEY TO BE NOTICED
represented by Clifton B. Schneider (See above for address) TERMINATED: 02/28/2018 ATTORNEY TO BE NOTICED
Denise C. Barton (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) ATTORNEY TO BE NOTICED
Michael Richard Dean (See above for address) ATTORNEY TO BE NOTICED
Scott Allen Mertens (See above for address) ATTORNEY TO BE NOTICED
represented by Clifton B. Schneider (See above for address) TERMINATED: 02/28/2018 ATTORNEY TO BE NOTICED
Denise C. Barton (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) ATTORNEY TO BE NOTICED

defendant Daniel H. Heyns individually and in his official capacity as Director of MDOC
defendant Bill Schuette in his official capacity as Attorney General of Michigan TERMINATED: 06/06/2017

Michael Richard Dean (See above for address) ATTORNEY TO BE NOTICED
Scott Allen Mertens (See above for address) ATTORNEY TO BE NOTICED
represented by Clifton B. Schneider (See above for address) TERMINATED: 02/28/2018 ATTORNEY TO BE NOTICED
Denise C. Barton (See above for address) ATTORNEY TO BE NOTICED
Douglas G. Powe (See above for address) ATTORNEY TO BE NOTICED
Michael Richard Dean (See above for address) ATTORNEY TO BE NOTICED
Scott Allen Mertens (See above for address) ATTORNEY TO BE NOTICED
represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/02/2015

# Docket Text
1 COMPLAINT For Declaratory And Injunctive Relief And Money Damages against All Defendants filed by John Dorn (Davis, Chris) Modified text on 4/2/2015 (ald). (Entered: 04/02/2015)

04/02/2015

FILING FEE PAID re 1 by plaintiff John Dorn in the amount of $400, receipt number 0646-3165538 (Davis, Chris) (Entered: 04/02/2015)

04/02/2015 2 NOTICE that this case has been assigned to Chief Judge Paul L. Maloney (ald) (Entered: 04/02/2015)

04/02/2015

SUMMONS NOT ISSUED none provided (ald) (Entered: 04/02/2015)

04/02/2015 3 PROPOSED SUMMONS to be issued re 1 (Davis, Chris) (Entered: 04/02/2015)

04/03/2015

4 SUMMONS ISSUED as to defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette, Jeffrey Stieve (ns) (Entered: 04/03/2015)

04/10/2015 5 SUMMONS returned executed; Daniel H. Heyns served on 4/9/2015, answer due 4/30/2015 (Davis, Chris) (Entered: 04/10/2015)

04/10/2015

6 SUMMONS returned executed; Thomas Finco served on 4/9/2015, answer due 4/30/2015 (Davis, Chris) Modified text on 4/10/2015 (ns). (Entered: 04/10/2015)

04/10/2015

7 SUMMONS returned executed; Michigan Department of Corrections served on 4/9/2015, answer due 4/30/2015 (Davis, Chris) Modified text on 4/10/2015 (ns). (Entered: 04/10/2015)

04/10/2015

8 SUMMONS returned executed; Bill Schuette served on 4/9/2015, answer due 4/30/2015 (Davis, Chris) Modified text on 4/10/2015 (ns). (Entered: 04/10/2015)

04/13/2015 9 SUMMONS returned executed; Haresh Pandya served on 4/9/2015, answer due 4/30/2015 (Davis, Chris) (Entered: 04/13/2015)

04/16/2015 10 SUMMONS returned executed; Haresh Pandya served on 4/16/2015, answer due 5/7/2015 (Davis, Chris) (Entered: 04/16/2015)

04/30/2015

(NON-DOCUMENT) ATTORNEY APPEARANCE of Clifton B. Schneider on behalf of defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette (Schneider, Clifton) (Entered: 04/30/2015)

04/30/2015

11 PROPOSED ORDER regarding Extending Date to Respond to Complaint by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette (Schneider, Clifton) (Entered: 04/30/2015)

04/30/2015 12 STIPULATION AND ORDER extending deadline to respond to complaint; deadline for defendants Michigan Department of Corrections,

Pandya, Finco, Heyns, and Schuette to file response extended to 5/7/2015; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr) (Entered: 04/30/2015)

05/07/2015

13 MOTION to dismiss for lack of jurisdiction and for failure to state a claim by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette; (Schneider, Clifton) (Entered: 05/07/2015)

05/07/2015

14 BRIEF in support of MOTION to dismiss for lack of jurisdiction and for failure to state a claim 13 filed by Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette (Schneider, Clifton) (Entered: 05/07/2015)

05/27/2015

15 FIRST AMENDED COMPLAINT For Declaratory and Injunctive Relief and Money Damages against All Defendants filed by John Dorn (Davis, Chris) Modified text on 5/28/2015 (clp). (Entered: 05/27/2015)

06/01/2015

16 ORDER dismissing as moot 13 motion to dismiss; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, cmc) (Entered: 06/01/2015)

06/08/2015

17 MOTION to dismiss for lack of jurisdiction and for failure to state a claim by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette; (Schneider, Clifton) (Entered: 06/08/2015)

06/08/2015

18 BRIEF in support of MOTION to dismiss for lack of jurisdiction and for failure to state a claim 17 filed by Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette (Schneider, Clifton) (Entered: 06/08/2015)

06/09/2015 19 SUMMONS returned executed; Jeffrey Stieve served on 6/6/2015, answer due 6/29/2015 (Davis, Chris) (Entered: 06/09/2015)

06/10/2015

(NON-DOCUMENT) ATTORNEY APPEARANCE of Kyle Anthony Palazzolo on behalf of plaintiff John Dorn (Palazzolo, Kyle) (Entered: 06/10/2015)

06/10/2015

(NON-DOCUMENT) ATTORNEY APPEARANCE of Scott A. Schoettes on behalf of plaintiff John Dorn (Schoettes, Scott) (Entered: 06/10/2015)

06/23/2015

(NON-DOCUMENT) ATTORNEY APPEARANCE of Clifton B. Schneider on behalf of defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette, Jeffrey Stieve (Schneider, Clifton) (Entered: 06/23/2015)

06/23/2015

20 MOTION to dismiss for lack of jurisdiction and for failure to state a claim by defendant Jeffrey Stieve; (Schneider, Clifton) (Entered: 06/23/2015)

06/23/2015

21 BRIEF in support of MOTION to dismiss for lack of jurisdiction and for failure to state a claim 20 filed by Jeffrey Stieve (Schneider, Clifton) (Entered: 06/23/2015)

07/06/2015

22 RESPONSE in opposition to MOTION to dismiss for lack of jurisdiction and for failure to state a claim 20 ; MOTION to dismiss for lack of jurisdiction and for failure to state a claim 17 filed by John Dorn (Palazzolo, Kyle) Modified text on 7/7/2015 (clp). (Entered: 07/06/2015)

07/22/2015

23 REPLY to response to motion 20 , 17 filed by Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Bill Schuette, Jeffrey Stieve (Schneider, Clifton) (Entered: 07/22/2015)

07/22/2015

24 (DISREGARD) CERTIFICATE OF SERVICE (Schneider, Clifton) Modified text on 7/22/2015; docketed in wrong case per ECF Help Desk call (bd). (Entered: 07/22/2015)

06/06/2017 25 OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 06/06/2017)

06/06/2017

26 ORDER granting in part 17 and 20 defendants' motions to dismiss; dismissing plaintiff's claims 1, 2, and 3 against defendants Pandya, Finco, Stieve, Heyns, and the MDOC; plaintiff's requests for declaratory and injunctive relief as to enforcement of MDOC policy and statue at issue are moot; dismissing defendant Schuette without prejudice; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 06/06/2017)

06/29/2017

27 ANSWER to Amended Complaint 15 with affirmative defenses and jury demand by Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve (Schneider, Clifton) (Entered: 06/29/2017)

07/06/2017

28 UNOPPOSED MOTION to withdraw as attorney by Kyle A. Palazzolo by plaintiff John Dorn; (Palazzolo, Kyle) (Entered: 07/06/2017)

07/06/2017

29 ORDER granting 28 motion to withdraw as attorney; attorney Kyle A. Palazzolo granted leave to withdraw as counsel for plaintiff; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 07/06/2017)

07/11/2017 30 ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 8/17/2017 at 09:30 AM at 174 Federal Building,

Kalamazoo, MI before District Judge Paul L. Maloney; status report due by 8/14/2017; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 07/11/2017)

08/14/2017 31 JOINT STATUS REPORT (Davis, Chris) (Entered: 08/14/2017)

08/17/2017

32 MINUTES of scheduling conference held before District Judge Paul L. Maloney (Court Reporter: Kathleen Thomas) (Judge Paul L. Maloney, acr) (Entered: 08/17/2017)

08/21/2017

33 CASE MANAGEMENT ORDER:completion of discovery by 3/1/2018; settlement conference set for 3/21/2018 at 02:00 PM at 740 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; dispositive motions by 5/1/2018; final pretrial conference set for 10/9/2018 at 09:30 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; jury trial set for 10/30/2018 at 08:45 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) Modified text on 8/21/2017, under the directive of chambers (mg). (Entered: 08/21/2017)

08/31/2017 34 MOTION for reconsideration re 26 , 25 Opinion and Order by plaintiff John Dorn; (Schoettes, Scott) (Entered: 08/31/2017)

08/31/2017

35 BRIEF in support of MOTION for reconsideration re 26 , 25 Opinion and Order 34 filed by John Dorn (Schoettes, Scott) (Entered: 08/31/2017)

09/18/2017

36 DISCLOSURE STATEMENT re Rule 26(A)(1) Initial Disclosures by defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve (Schneider, Clifton) Modified text on 9/18/2017 (ns). (Entered: 09/18/2017)

09/18/2017

37 CERTIFICATE OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve re Disclosure Statement 36 (Schneider, Clifton) (Entered: 09/18/2017)

09/18/2017 38 CERTIFICATE OF SERVICE by plaintiff John Dorn for Rule 26(a)(1) Disclosure Statement (Schoettes, Scott) (Entered: 09/18/2017)

10/13/2017

(NON-DOCUMENT) ATTORNEY APPEARANCE of Kara Nicole Ingelhart on behalf of plaintiff John Dorn (Ingelhart, Kara) (Entered: 10/13/2017)

10/17/2017

(NON-DOCUMENT) ATTORNEY APPEARANCE of Richard Saenz on behalf of plaintiff John Dorn (Saenz, Richard) (Entered: 10/17/2017)

11/03/2017

39 CERTIFICATE OF SERVICE by plaintiff John Dorn regarding plaintiff's first set of interrogatories, first set of requests for admissions, and first set of requests for production of documents (Davis, Chris) Modified text on 11/6/2017 (mg). (Entered: 11/03/2017)

12/06/2017

40 CERTIFICATE OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve for responses to plaintiff's interrogatories, requests for admissions and request to produce (Schneider, Clifton) (Entered: 12/06/2017)

12/15/2017 41 CERTIFICATE OF SERVICE by defendant Daniel H. Heyns for responses to interrogatories (Schneider, Clifton) (Entered: 12/15/2017)

12/18/2017

42 UNOPPOSED MOTION for extension of time to provide expert disclosures and resulting modification of case management order by plaintiff John Dorn; (Attachments: # 1Brief in Support, # 2 Proposed Order, # 3 Certificate of Service) (Schoettes, Scott) (Entered: 12/18/2017)

12/18/2017

43 CERTIFICATE regarding compliance with LCivR 7.1(d) re UNOPPOSED MOTION for extension of time to provide expert disclosures and resulting modification of case management order 42 filed by John Dorn (Schoettes, Scott) (Entered: 12/18/2017)

12/29/2017

44 AMENDED CASE MANAGEMENT ORDER: discovery deadline 5/1/2018; dispositive motion deadline 7/2/2018; settlement conference set for 5/23/2018 at 02:00 PM at 740 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; final pretrial conference set for 1/7/2019 at 10:00 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; jury trial set for 1/29/2019 at 08:45 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 12/29/2017)

02/22/2018 45 CERTIFICATE OF SERVICE by plaintiff John Dorn for Expert Report of Paul Benson, D.O. (Schoettes, Scott) (Entered: 02/22/2018)

02/23/2018 46 CERTIFICATE OF SERVICE by plaintiff John Dorn for Expert Report of Paul Benson, D.O. (Saenz, Richard) (Entered: 02/23/2018)

02/26/2018 47 CERTIFICATE OF SERVICE by plaintiff John Dorn for Expert Report of Paul Benson, D.O. (Schoettes, Scott) (Entered: 02/26/2018)

02/28/2018

(NON-DOCUMENT) ATTORNEY APPEARANCE of Denise C. Barton on behalf of defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve (Barton, Denise) (Entered: 02/28/2018)

02/28/2018 48 ATTORNEY SUBSTITUTION adding attorney Douglas G. Powe in the place of Clifton B. Schneider (Powe, Douglas) (Entered: 02/28/2018)

03/19/2018

49 PROPOSED ORDER regarding To Amend Date for The Disclosure of Defendants' Experts by defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve (Powe, Douglas) (Entered: 03/19/2018)

03/26/2018 50 STIPULATION of Protective Order by plaintiff John Dorn (Schoettes, Scott) (Entered: 03/26/2018)

03/27/2018 51 PROTECTIVE ORDER; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 03/27/2018)

03/27/2018

52 ORDER to respond; Defendant to file a response by 4/17/2018; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 03/27/2018)

04/04/2018

53 SECOND AMENDED CASE MANAGEMENT ORDER:completion of discovery by 7/2/2018; settlement conference set for 7/12/2018 at 02:00 PM at 740 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; dispositive motions by 8/10/2018; final pretrial conference set for 1/7/2019 at 10:00 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; jury trial set for 1/29/2019 at 08:45 AM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 04/04/2018)

04/17/2018

54 RESPONSE in opposition to MOTION for reconsideration re 26 , 25 Opinion and Order 34 filed by Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve (Barton, Denise) (Entered: 04/17/2018)

04/24/2018

55 ORDER granting in part 34 motion for reconsideration; plaintiff's Rehabilitation Act claim is reinstated; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 04/24/2018)

05/08/2018

56 ANSWER to first amended complaint 15 for Declaratory and Injunctive Relief and Money Damages with affirmative defenses and certificate of service by Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve (Barton, Denise) Modified text on 5/9/2018 (mg). Modified text on 5/21/2018 (mg). (Entered: 05/08/2018)

05/18/2018

57 ANSWER to Amended Complaint 15 with affirmative defenses by Michigan Department of Corrections (Barton, Denise) (Entered: 05/18/2018)

05/24/2018

58 PROOF OF SERVICE by defendant Michigan Department of Corrections for Response to Request for Admissions (Barton, Denise) (Entered: 05/24/2018)

05/29/2018 59 AMENDED ANSWER to complaint 56 filed by defendant Jeffrey Stieve (Barton, Denise) (Entered: 05/29/2018)

05/29/2018

60 AMENDED ANSWER to complaint 56 filed by defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya (Barton, Denise) (Entered: 05/29/2018)

05/30/2018

61 PROOF OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve for document production (Barton, Denise) (Entered: 05/30/2018)

05/30/2018 62 PROOF OF SERVICE by plaintiff John Dorn for Notice of 30(b)(6) Deposition (Saenz, Richard) (Entered: 05/30/2018)

05/31/2018

63 CERTIFICATE OF SERVICE by plaintiff John Dorn for Subpeona to Testify in a Civil Action of Thomas Finco (Saenz, Richard) (Entered: 05/31/2018)

05/31/2018

64 CERTIFICATE OF SERVICE by plaintiff John Dorn for Subpeona to Testify in a Civil Action of Daniel Heyns (Saenz, Richard) (Entered: 05/31/2018)

06/01/2018

65 PROOF OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve for Lay and Expert Witness Interrogatories and Requests for Production of Documents to Plaintiff (Barton, Denise) (Entered: 06/01/2018)

06/06/2018 66 PROOF OF SERVICE by plaintiff John Dorn for Subpoena on Jeffrey Stieve (Davis, Chris) (Entered: 06/06/2018)

06/07/2018 67 PROOF OF SERVICE by plaintiff John Dorn for Subpoena to Testify in a Civil Action of Haresh Pandya (Ingelhart, Kara) (Entered: 06/07/2018)

06/08/2018

68 PROOF OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Haresh Pandya, Jeffrey Stieve for Amended Response to Requests for Admissions (Barton, Denise) (Entered: 06/08/2018)

06/19/2018

(NON-DOCUMENT) ATTORNEY APPEARANCE of Anthony C. Pinggera on behalf of plaintiff John Dorn (Pinggera, Anthony) (Entered: 06/19/2018)

06/19/2018

69 PROOF OF SERVICE by plaintiff John Dorn for Plaintiffs first set of interrogatories (Saenz, Richard) Modified text on 6/20/2018 (mg). (Entered: 06/19/2018)

06/19/2018

70 PROOF OF SERVICE by plaintiff John Dorn for Plaintiffs first set of requests for admission to all defendants (Saenz, Richard) Modified text on 6/20/2018 (mg). (Entered: 06/19/2018)

06/19/2018

71 PROOF OF SERVICE by plaintiff John Dorn for Plaintiffs first set of requests for production of documents to all defendants (Saenz, Richard) Modified text on 6/20/2018 (mg). (Entered: 06/19/2018)

06/29/2018 72 STIPULATED MOTION for extension of time to complete discovery by plaintiff John Dorn; (Schoettes, Scott) (Entered: 06/29/2018)

07/03/2018

73 STIPULATION AND ORDER amending case management order; discovery deadline extended to 8/16/2018; dispositive motion deadline extended to 9/24/2018; settlement conference rescheduled to 8/22/2018 at 2:00 p.m.; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 07/03/2018)

07/18/2018

(NON-DOCUMENT) ATTORNEY APPEARANCE of Michael Richard Dean on behalf of defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve (Dean, Michael) (Entered: 07/18/2018)

07/18/2018

74 PROOF OF SERVICE by plaintiff John Dorn for John Dorns Notice of Deposition of Defendants Michigan Department of Corrections et al. Pursuant to Federal Rule of Civil Procedure 30(b)(6) (Saenz, Richard) (Entered: 07/18/2018)

07/18/2018

75 CERTIFICATE OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve for requests for admission(Barton, Denise) (Entered: 07/18/2018)

07/26/2018

76 PROOF OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve for Response to Plaintiff's Request for Production of Documents (Barton, Denise) Modified text on 7/27/2018 (ems). (Entered: 07/26/2018)

08/03/2018

(NON-DOCUMENT) ATTORNEY APPEARANCE of Scott Allen Mertens on behalf of defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve (Mertens, Scott) (Entered: 08/03/2018)

08/03/2018

77 PROOF OF SERVICE by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve for Notice of Deposition of Paul Benson, D.O. (Mertens, Scott) (Entered: 08/03/2018)

08/15/2018

78 NOTICE rescheduling hearing that was previously set for August 22, 2018;settlement conference set for 8/28/2018 at 09:00 AM at 601 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; (Magistrate Judge Phillip J. Green, jkw) (Entered: 08/15/2018)

08/23/2018

79 NOTICE rescheduling hearing that was previously set for August 28, 2018;settlement conference set for 10/1/2018 at 09:00 AM at 601 Federal Building, Grand Rapids, MI before Magistrate Judge Phillip J. Green; (Magistrate Judge Phillip J. Green, jkw) (Entered: 08/23/2018)

09/11/2018 80 STIPULATION of Fourth Amended Case Management Order by plaintiff John Dorn (Saenz, Richard) (Entered: 09/11/2018)

09/17/2018

81 STIPULATION AND ORDER settlement conference remains scheduled for 10/1/2018; dispositive motion deadline extended to 10/24/2018; final pretrial conference rescheduled for 5/20/2019 at 9:00 a.m.; jury trial is rescheduled to 6/11/2019 at 8:45 a.m.; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 09/17/2018)

10/01/2018

82 MINUTES held before Magistrate Judge Phillip J. Green of settlement conference;Conference adjourned;some remaining terms to be resolved by the parties; Defendants must submit response to Plaintiff regarding policy changes by Friday, October 5, 2018; Counsel is instructed to complete the process and report the status to the Court by Wednesday, October 10, 2018. (Portions Digitally Recorded) (Magistrate Judge Phillip J. Green, ald) (Entered: 10/01/2018)

10/11/2018

83 ORDER requiring dismissal papers from Counsel for Settlement to be submitted by 10/25/2018; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw) (Entered: 10/11/2018)

10/23/2018

84 PROPOSED STIPULATION and ORDER Extending Dispositive Motion Deadline by defendants Thomas Finco, Daniel H. Heyns, Michigan Department of Corrections, Haresh Pandya, Jeffrey Stieve (Mertens, Scott) (Entered: 10/23/2018)

10/25/2018 85 FIRST MOTION for extension of time to file settlement documents by plaintiff John Dorn; (Saenz, Richard) (Entered: 10/25/2018)

10/31/2018

86 ORDER holding in abeyance 85 motion for extension of time; plaintiff shall file within seven days a certificate of concurrence; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw) (Entered: 10/31/2018)

11/01/2018

87 PROPOSED STIPULATION and ORDER Extending Time to File Settlement Documents by plaintiff John Dorn (Saenz, Richard) (Entered: 11/01/2018)

11/06/2018 88 NOTICE OF SETTLEMENT AGREEMENT (Attachments: # 1 Attachment A) (Saenz, Richard) (Entered: 11/06/2018)
11/14/2018 89 STIPULATION of dismissal by plaintiff John Dorn (Saenz, Richard) (Entered: 11/14/2018)