What is the test for COVID 19 and what is its impact on the Eighth Amendment?

Plaintiff appears to attempt to state three claims under the Eighth Amendment: (1) the posting on his cell door coerced him to take the COVID-19 tests, amounting to excessive force; (2) the 21-day quarantine was excessive; and (3) defendants failed to protect him by exposing him to COVID-19. To state a claim under the Eighth Amendment, a prisoner must allege that objectively he suffered a serious deprivation and that subjectively prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

To state an excessive force claim, plaintiff must allege facts showing that he was subjected to excessive physical force that was applied maliciously and sadistically to cause harm rather than in a good-faith effort to maintain or restore discipline. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (internal quotation omitted).

Plaintiff fails to state a claim for a number of reasons. Plaintiff fails to show that the cell door posting regarding his refusal to take a COVID test was done maliciously to coerce him to take the test rather than for the legitimate purpose of protecting correctional officers and others. Nor has plaintiff shown the testing itself amounted to excessive force. Plaintiff does not explain just what the tests entailed. At least one court has approved testing as invasive as a deep nasal swab. See Wilcox v. Lancour, No. 2:20-cv-0183, 2021 WL 230113 (W.D. Mich. Jan. 22, 2021).

Courts have held that prisons have legitimate reasons to conduct regular testing or prisoners for COVID-19. As explained recently by a Nebraska district court:

Webb v. Johnson, No. 4:21-cv-3042, 2021 WL 2002712, at *6 (D. Neb. May 19, 2021).