Hollins v. Watson

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KEANDRE HOLLINS, Plaintiff, v. RICHARD WATSON, TRINITY SERVICE GROUP, DR. DAVID MARCOWITZ, Defendants.

No. 21-cv-161-JPG

United States District Court, S.D. Illinois

April 5, 2023

MEMORANDUM AND ORDER

J PHIL GILBERT DISTRICT JUDGE

This matter comes before the Court on a motion to dismiss filed by defendant Dr. David Marcowitz, the medical director of the St. Clair County Jail (“Jail”), pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim (Doc. 97). Plaintiff Keandre Hollins has responded to the motion (Doc 100), and Dr. Marcowitz has replied to that response (Doc 103).

I. Background

Hollins filed this civil rights action pro se pursuant to 42 U.S.C. § 1983 for constitutional deprivations that occurred during his detention at the Jail. He alleges that defendant St. Clair County Sheriff Richard Watson and Trinity Service Group were responsible for unhealthy and unsafe conditions of confinement in the Jail during the COVID-19 pandemic (Counts 1 and 2).

Hollins also alleges that Dr. Marcowitz behaved unreasonably and/or with deliberate indifference to his health needs because he did not take sufficient steps to prevent, diagnose, and contain the coronavirus (Count 3) and because he failed to provide Hollins with adequate medical care when he contracted the disease (Count 4). He specifically points to Dr. Marcowitz's refusal to test him for COVID-19 on a number of occasions, to provide personal protective equipment (“PPE”) for Jail inmates, and to test and separate actually or potentially infected inmates from others. He asserts that these failures resulted in an outbreak of 300 COVID-positive inmates and 3 inmate deaths by January 2021.

He asserts that in so acting, the defendants violated either his Fourteenth Amendment due process rights or his Eighth Amendment right to be free from cruel and unusual punishment, depending on whether he was a convicted inmate or a pretrial detainee at the time.

Dr. Marcowitz now argues that the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d to 247d-10 (“PREP Act”), immunizes him from suit and from liability for Hollins's claims. See 42 U.S.C. § 247d-6d(a)(1). Hollins argues that Dr. Marcowitz is not covered by PREP Act immunity because he is alleged to have withheld COVID-19 countermeasures rather than to have deployed them.

II. Standards for Dismissal

Dr. Marcowitz relies on Rule 12(b)(1) and Rule 12(b)(6) as justifying dismissal of the claims against him.

Rule 12(b)(1) permits dismissal of claims for lack of subject matter jurisdiction. Where the subject matter jurisdiction challenge is based on the sufficiency of the factual allegation in the complaint, those allegations and reasonable inferences drawn from those facts are viewed in the light most favorable to the plaintiff. Patel v. City of Chi., 383 F.3d 569, 572 (7th Cir. 2004). When jurisdiction is questioned, plaintiff bears the burden of proving that jurisdiction exists. Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003).

The purpose of a motion to dismiss filed pursuant to Rule 12(b)(6) is to decide the adequacy of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). The complaint must allege enough factual information to “state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim is plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff need not plead detailed factual allegations, but he must provide “more than labels and conclusions, and a formulaic recitation of the elements.” Twombly, 550 U.S. at 570. When considering a Rule 12(b)(6) motion to dismiss, the Court accepts well-pleaded facts as true and draws all reasonable inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 879 (7th Cir. 2012).

III. Discussion

A. Facts Alleged

Viewing all factual allegations and reasonable inferences in Hollins's favor, the Complaint establishes the following relevant facts as to his claims against Dr. Marcowitz.

Dr. Marcowitz provided medical services to the inmates at the Jail when the COVID-19 pandemic was raging, and Hollins alleges he took inadequate steps to prevent, diagnose, and contain the virus. Dr. Marcowitz refused to adequately test inmates for COVID-19. Hollins also claims he provided staff, but not inmates, with PPE like masks and gloves, and he did not order that inmates arriving at the Jail be tested and separated from other inmates. Hollins claims that Dr. Marcowitz's failures led to an outbreak of the disease. When Hollins reported symptoms of COVID-19 to Dr. Marcowitz and requested testing for the virus, Dr. Marcowitz denied several of his requests. When Hollins eventually tested positive, Dr. Marcowitz did not ensure his condition was appropriately monitored by temperature checks or treated with medication.

B. PREP Act Immunity

The Court starts with a look at the contours of PREP Act immunity. The PREP Act, passed in 2005, provides that “a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure” if the Secretary of the Department of Health and Human Services (“Secretary”) declares a public health emergency, recommends those particular countermeasures, and specifically states that the PREP Act immunity is in effect with respect to those countermeasures. 42 U.S.C. § 247d-6d(a)(1) & (b)(1). The scope of this immunity is broad in that it includes any type of physical, mental, or emotional loss or property damages that has “a causal relationship with the administration to or use by an individual of a covered countermeasure.” 42 U.S.C. § 247d-6d(a)(2). The PREP Act goes on to define “covered countermeasure,” “covered person,” and other terms used in the statute. 42 U.S.C. § 247d-6d(i). The sole exception to this immunity is for an exclusively federal PREP Act cause of action for wrongful death or serious injury caused by willful misconduct. 42 U.S.C. § 247d-6d(d)(1) & (e).

On March 10, 2020, the Secretary declared a public health emergency due to the COVID-19 pandemic and recommended specific “covered countermeasures” and the conditions for their administration. See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed.Reg. 15,198, 2020 WL 1245193 (Mar. 17, 2020) (the “Declaration”). “Covered countermeasures” are “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such product.” Declaration § 6, 85 Fed.Reg. 15198-01, 15202. The Declaration, or a later amendment, was in place at all times relevant to this lawsuit.

Hollins does not contest that Dr. Marcowitz was a “covered person” under the PREP Act and that “covered countermeasures” included the types of products and activities he accuses Dr. Marcowitz of failing to use-PPE for inmates, COVID-19 testing, and isolation or segregation of potentially or actually infected inmates.^[1] Hollins and Dr. Marcowitz disagree, however, about whether Hollins's alleged injury was “caused by, arising out of, relating to, or resulting from the administration to or the use by an individual” of a covered countermeasure. 42 U.S.C. § 247d-6d(a)(1) (emphasis added). Dr. Marcowitz argues that his management of COVID-19 countermeasures at the Jail fell within the ambit of “administration” of covered countermeasures, so he is immune from lawsuits about that “administration.” Hollins, on the other hand, asserts exactly the opposite-that Dr. Marcowitz did not administer countermeasures to or use countermeasures on him at the Jail in the sense that he did not give or do anything to Hollins-so PREP Act immunity does not apply. In other words, Hollins's claims are premised on the nonuse of countermeasures, not their administration or use as contemplated under the PREP Act.

C. “The Administration to or the Use by an Individual”

The Courts and the Secretary often differ on what the statute means by “the administration to or the use by an individual” of a covered countermeasure. The Secretary announced his expansive view in the Declaration itself, which defined “administration” as “physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures.” Declaration § IX, 85 Fed.Reg. 15198-01, 15202 (emphasis added). Thus, the Declaration envisions “administration” to include management decisions about operating systems and programs to deliver, distribute, and dispense covered countermeasures. In fact, the Fourth Amendment to the Declaration, dated December 3, 2020, expressly declared that PREP Act immunity could apply to prioritization or purposeful allocation decisions not to administer a covered countermeasure to an individual if the reason for...