Preventing COVID-19 in Jails: Analyzing the Sixth Circuit’s Decision in Cameron v. Bouchard

Photo by Agnese Kisune on Unsplash

Sarah Simon, Associate Member, University of Cincinnati Law Review

I. Introduction

Approximately 160,000 inmates and employees have tested positive for COVID-19 and over 1,002 have died from COVID-19 as of August 21, 2020.[1] However, this number is likely an underestimate because prisons and jails are not testing every inmate and do not test those who die after displaying signs of the virus.[2] According to the Centers for Disease Control and Prevention (“CDC”), about 50% of jails and prisons with COVID-19 cases were not among inmates but among employees, which means employees are bringing the virus in.[3] This post will analyze a recent Sixth Circuit case and argue the court should have responded differently to COVID-19.[4]

Part II will focus on a Cameron v. Bouchard at the district court level.[5] Part III will list the criteria that inmates must meet from Farmer v. Brennan.[6]  Part IV will look at Wilson v. Williams which the Sixth Circuit relied on in Cameron.[7]  Part V will summarize how the Sixth Circuit ruled in Cameron on appeal.[8] Part VI argues that Wilson and Cameron were distinct and therefore, the Sixth Circuit should have reached different conclusions. Then Parts VI and VII discuss how courts should address COVID-19 in jails and conclude with guidance for courts.

II. Background on Cameron v. Bouchard

In April, five inmates at Oakland County Jail in Michigan filed a class action suit and habeas petition in Cameron v. Bouchard.[9] The plaintiffs alleged jail officials violated their Eighth Amendment right, which protects inmates from cruel and unusual punishment, by being “deliberately indifferent” to the risk of COVID-19.[10] The inmates filed a preliminary injunction asking the Court require officials take specific actions to improve the cleanliness at the jail.[11]

The district court granted the inmates preliminary injunction.[12] The injunction mandated that jail officials make the inmates’ requested sanitation changes to lower the risk of COVID-19 at the jail.[13] Specifically, officials had to provide inmates with bars of individual hand soap and towels, disinfectant wipes or spray in each cell, and masks.[14] The injunction also stipulated that jail officials must ensure: (a) inmates clean their cells with sanitizing supplies daily, (b) employees wear personal protective equipment, (c) employees wash their hands with soap and water or use hand sanitizer, (d) spacing of at least six feet where feasible, (e) a protocol is made for inmates to report symptoms of COVID-19, (f) inmates with visible signs of the virus are tested, (g) sick inmates are quarantined, and (h) employees are trained to recognize symptoms.[15]

III. The Farmer v. Brennan Criteria in Cameron

In June, jail officials at the Michigan jail filed an emergency motion to stay the preliminary injunction and the Sixth Circuit Court of Appeals agreed to consider the injunction.[16]

A court must balance four factors in determining whether to grant a preliminary injunction: ‘(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.’[17]

The first factor for inmates questioning confinement conditions hinges on two criteria from the 1994 Supreme Court case, Farmer v. Brennan.[18] First, inmates must demonstrate that the circumstances of jail or prison pose a considerable risk of severe harm.[19] Second, inmates have to prove that the officials were aware of the unsafe conditions, but intentionally ignored the risk these conditions posed.[20] In Farmer, the Supreme Court underscored that the Constitution requires the government to “provide humane conditions” for the incarcerated.[21] This includes taking reasonable steps to assure that the inmates are not in harm’s way.[22] The court looked to Wilson v. Williams to determine if the inmates had met the Farmer requirements.[23]

IV. Wilson v. Williams

The Sixth Circuit compared the actions taken by jail officials in Cameron to those taken by prison officials in Wilson, an earlier Sixth Circuit case.[24] In Wilson, prisoners alleged that prison officials violated their Eighth Amendment right by not preventing COVID-19.[25] At the start of the opinion, the court acknowledged the dangers of COVID-19, and cited the CDC recommendations which call for additional space between people, mask-wearing, and increased handwashing.[26] The Sixth Circuit found that the prisoners met the first criteria from Farmer because they had shown a risk of severe harm, but not the second because they had not proved that officials knew of the risk of harm and chose to ignore it.[27]

Inmates failed on the second criteria because the court found that officials “responded reasonably” to prevent the spread of COVID-19.[28] The court listed the actions officials took to contain the spread of the virus, which included separating those who showed symptoms, stopping group meetings, testing inmates for COVID-19, disinfecting high-traffic areas, providing inmates with cleaning supplies for their cells, and supplying inmates and employees with masks.[29] Since the officials took these steps, the court found that they had not violated the inmates Eighth Amendment rights.[30]

V. Cameron v. Bouchard on Appeal

In Cameron, the Sixth Circuit found that under the second Farmer criteria, the inmates had not shown that jail officials acted with reckless indifference to the threat of COVID-19 because the officials took “reasonable steps” to stop it.[31] The court listed the steps officials took: (a) giving employees a flyer about correct cleaning procedures to prevent COVID-19 from spreading, (b) closing the jail to visitors, (c) screening newly arrested inmates for COVID-19, (d) separating new arrestees for 14 days, (e) separating inmates with signs of COVID-19, (f) ending group activities, (g) cleaning cells more often, and (h) offering COVID-19 testing for all inmates.[32]

Although the Sixth Circuit compared Wilson to the facts of Cameron, the two cases have a crucial difference: factual disputes. In Wilson, there were no factual disputes over the actions taken. The inmates argued that the officials had not done enough, and the court found that the officials had.[33] Unlike Wilson, Cameron had several factual disputes. The inmates alleged that the high-traffic areas were not sanitized often, they were not provided with enough soap, and that staff did not normally wear masks.[34] Officials disputed this and claimed that the inmates were untrustworthy due to their criminal past.[35]

The Sixth Circuit ignored the inmate’s allegations that officials had only taken steps for the court scheduled inspection and noted, “plaintiff’s argument at most shows that defendants’ response was imperfect.”[36] Even though the district court had already assessed the credibility of both parties and found for the inmates, the Sixth Circuit found for the officials and overturned the injunction.[37] Chief Judge Cole dissented and said, “it is not generally the role of an appellate court to resolve the discrepancies in the parties’ factual accounts; that is the district court’s job.”[38]

VI. Discussion

The Sixth Circuit did not respond properly to the inmate’s concerns in Cameron. The court should not have dismissed the inmate’s allegations as showing that the “defendants’ response was imperfect.”[39]  An imperfect response in a pandemic has serious consequences. COVID-19 has brought to light how much the actions of one person affect another. The virus is extremely contagious and those infected can spread the virus without knowing they have it.

Jails and prisons are not insulated from the virus. As the CDC said, employees are bringing the virus into jails and prisons.[40] Jail officials should recognize this and take steps to assure employees are doing everything they can to limit the spread of the virus. Therefore, officials should have implemented the changes that the inmates requested because they have a vested interest in taking care of their staff and inmates. However, when officials failed to recognize the urgency posed by COVID-19, the responsibility fell on the courts.

The Constitution protects inmates from cruel and unusual punishment. Overcrowded jails and prisons foster the spread of COVID-19. Subjecting the incarcerated to a deadly virus is cruel and unusual punishment. Older inmates and those with pre-existing conditions are particularly vulnerable to the virus. The district court and the Sixth Circuit agreed that inmates had shown the first prong from Farmer was met because COVID-19 posed a considerable risk of severe harm.

The Supreme Court created the Farmer requirements in 1994, when a virus that spreads as easily as COVID-19 was unimaginable. Due to the current pandemic, the Supreme Court should update the second prong of Farmer. The prong should be met if officials are not taking all the possible steps to limit the virus, instead of requiring inmates to prove that officials were aware of the risks and disregarded them. Although Farmer is not equipped to deal with a pandemic, the Sixth Circuit could have simply followed the district court’s finding that the inmates had met the second prong.

The Sixth Circuit should not have disturbed the lower court’s finding on the second Farmer prong and ruled that inmates had not shown that the officials were “deliberately indifferent.”[41] As the appellate court, the Sixth Circuit cannot assess the parties’ credibility because this is a factual finding. Lower courts determine the facts, then apply the law. Appellate courts decide if the lower court properly applied the law to the facts and cannot overstep the lower court’s role as the factfinder. The Sixth Circuit overstepped its authority when it looked at the facts and concluded that jail officials were more credible and inmates had not satisfied the second prong of Farmer by proving officials were “deliberately indifferent.”

The Sixth Circuit had a chance to protect the safety of inmates and society in Cameron but chose not to. COVID-19 is inescapable in jails and prisons. Inmates can spread the virus to other inmates and staff. Jails and prisons are not isolated from society, and outbreaks in these institutions cannot be ignored. These outbreaks can easily spread to surrounding communities. Society has a vested interest in caring for the incarcerated and the pandemic has highlighted the need to assure that jails and prisons are humane. The inmates in Cameron made reasonable requests. The majority of which should have already been implemented to limit the spread of COVID-19, according to the CDC.[42]

If the Sixth Circuit had not disturbed the district court’s finding, it would have applied the remaining three factors to determine if the preliminary injunction should be affirmed. On the second factor, the inmates would suffer irreparable harm without the injunction because the risks posed by COVID-19 are exacerbated by the close quarters of incarceration.[43] Third, the injunction would not harm officials nor the public by requiring safety measures that would help both of these groups.[44] Fourth, an injunction would serve the public’s interest in health and safety.[45] Therefore, implementing preventative measures by granting the injunction would help protect not only the jail staff but also society at large from the virus.

VII. Conclusion

COVID-19 can spread quickly in prisons and courts have the power to prevent it through injunctions. Failing to prevent the spread of the virus is cruel and unusual punishment. In Cameron, the Sixth Circuit should not have inquired into the factual disputes. Instead, it should have addressed the other three factors and found that the district court was correct to grant the plaintiffs preliminary injunction. The Court had a unique opportunity to protect the health and safety of inmates and society but chose not to.

[1] Equal Just. Initiative,, Equal Just. Initiative (Aug. 21, 2020).

[2] Id. 

[3] Megan Wallace, et al.,, Centers for Disease Control and Prevention (May 15, 2020).

[4] Cameron v. Bouchard, No. 20-1469, 2020 U.S. App. LEXIS 21480, at *9 (6th Cir. 2020).

[5] Cameron v. Bouchard, No. 20-10949, 2020 U.S. Dist. LEXIS 89083, at *3 (E.D. Mich. 2020).

[6] Farmer v. Brennan, 511 U.S. 825, 832 (1994).

[7] Wilson v. Williams, 961 F.3d 829, 832 (6th Cir. 2020).

[8] Cameron, 2020 U.S. App. LEXIS 21480 at *9.

[9] Cameron, 2020 U.S. Dist. LEXIS 89083 at *3.

[10] Id. at *32.

[11] Id. at *4.

[12] Id. at *80.

[13] Id.

[14] Id. at *80-81.

[15] Id. at *83-84.

[16] Cameron v. Bouchard, No. 20-1469, 2020 U.S. App. LEXIS 21480, at *9 (6th Cir. 2020).

[17] Id. (quoting Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015)).

[18] Farmer v. Brennan, 511 U.S. 825, 832 (1994).

[19] Id. at *834.

[20] Id.

[21] Id. at *832.

[22] Id.

[23] The Sixth Circuit heard Wilson v. Williamsone month earlier on June 9, 2020; Cameron v. Bouchard, No. 20-1469, 2020 U.S. App. LEXIS 21480, at *14 (6th Cir. 2020); Wilson v. Williams, 961 F.3d 829, 832 (6th Cir. 2020).

[24] Wilson, 961 F.3d at *832.

[25] Id. at *833.

[26] Id.

[27] Id. at *840.

[28] Id.

[29] Id. at *841.

[30] The Sixth Circuit listed other circuits which had ruled that comparable steps constituted an appropriate response to the threat of COVID-19, including the Eleventh Circuit in Swain v. Junior and the Fifth Circuit in Valentine v. Collier; id.

[31] Cameron v. Bouchard, No. 20-1469, 2020 U.S. App. LEXIS 21480, at *21 (6th Cir. 2020).

[32] Id. at *13.

[33] Id.

[34] Id. at *16.

[35] Cameron v. Bouchard, No. 20-10949, 2020 U.S. Dist. LEXIS 89083, at *56 (E.D. Mich. 2020).

[36] Id. at *17.

[37] Id. at *77.

[38] Id. at *22 (Cole, J., dissenting).

[39] Cameron, 2020 U.S. App. LEXIS 21480 at *17.

[40] Wallace, supra note 3.

[41] Cameron, 2020 U.S. App. LEXIS 21480 at *21.

[42] Wallace, supra note 3.

[43] Cameron, 2020 U.S. App. LEXIS 21480 at *9.

[44] Id.

[45] Id.


  • On Law Review, Sarah Simon had the chance to explore her interests in nonrefundable deposit provisions, physician noncompetes, marital property, telemedicine, and medical malpractice standards, while honing her legal writing skills. Sarah hopes to become a transactional attorney and looks forward to perfecting her writing.

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