Marlowe v. LeBlanc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CHRISTOPHER MARLOWE CIVIL ACTION

VERSUS

JAMES LEBLANC, ET AL. NO.: 18-63-BAJ-EWD

RULING AND ORDER

Before the Court is Plaintiff’s Motion for Temporary Restraining Order

and/or Emergency Motion for Temporary Release (Doc. 93). Plaintiff has filed

an Amended Memorandum in Support (Doc. 100), a Response (Doc. 102), and a Post-

Hearing Reply (Doc. 110). Defendants filed an Opposition (Doc. 101) and Sur-Reply

Memorandum in Opposition (Doc. 108). For the reasons stated herein, Plaintiff’s

Motion (Doc. 93) is GRANTED IN PART and DENIED IN PART.

I. FACTS

Plaintiff seeks emergency relief authorizing his temporary supervised release,

or other appropriate but unspecified forms of relief, while the spread of the COVID-

19 virus remains a threat within the Louisiana Department of Corrections system.

(Doc. 100 at p. 1). The Court notes that both the President of the United States and

the Governor of Louisiana have declared a state of emergency in response to this

pandemic1. As a diabetic, Plaintiff alleges that he is especially vulnerable to

1 See, Proclamation Declaring a National Emergency Concerning the Novel Coronavirus Disease

(COVID-19) Outbreak issued March 13, 2020 by President Donald J. Trump. See also, Declaration of

experiencing complications associated with the virus, which is actively circulating at

the Rayburn Correctional Center (“Rayburn”), where he is assigned. (Id. at 1).

According to the evidence presented at the hearing on the Motion, at least 25 people

within the facility, including 23 inmates, have tested positive for COVID-19. (Doc.

110, at p. 1).

Plaintiff originally filed this action in 2018, alleging that Defendants, staff at

the Elayn Hunt Correctional Center, exhibited deliberate indifference towards his

medical needs and provided constitutionally deficient meal service that resulted in

Plaintiff developing diabetes and that the failure to adequately treat his illness later

exacerbated the symptoms. (Doc. 1, at ¶4). Plaintiff filed Amended Complaints, which

Defendants have moved to dismiss. See (Doc. 84). While this case was pending,

Plaintiff was transferred to the Rayburn. He now brings the instant Motion for

Temporary Restraining Order and/or Emergency Motion for Temporary Release (Doc.

93).

The Court held a status conference on April 3, 2020 (Doc. 95) and an

evidentiary hearing on April 7, 2020 (Doc. 109). Additionally, both parties have filed

numerous memoranda to keep the Court apprised of evolving conditions at the

facility.

In his Amended Memorandum in Support (Doc. 100), Plaintiff alleges that his

medical condition places him “at extreme risk to develop life-threatening

complications should he contract COVID-19.” (Doc. 100 at p. 2). He argues that the

Public Health Emergency in Response to COVID-19 issued March 11, 2020 by Governor John Bel

Edwards.

primary steps recommended by the Governor to limit the spread of COVID-19 have

not been and cannot be meaningfully implemented within the Department of

Corrections because prisoners are housed in compact and confined spaces. Id. In his

memorandum, Plaintiff alleges that he shares a dormitory with approximately 78

other inmates who sleep in bunk rows and share five toilets. (Doc. 110–1 at p. 56).

During the evidentiary hearing, Plaintiff provided testimony about numerous

common areas used by the prisoners, including a common water fountain, microwave

ovens, telephones, and a common cafeteria. Id. at 56-61. He also testified that many

prisoners do not take social-distancing measures seriously, that the Warden arranged

for social distance markers to be removed from the floors, and that he had received

no official guidance concerning social-distancing measures from prison officials. Id.

at 64. As noted, at least 23 offenders at Rayburn have tested positive for COVID-19.

(Doc. 110, at p. 1).

In opposition, Defendants allege that they are protected by Eleventh

Amendment immunity and that the Plaintiff fails to sufficiently plead a claim of

unconstitutional conditions. (Doc. 108, at p. 2). Defendants additionally argue that

the Federal Rules of Civil Procedure do not allow a Plaintiff to request new relief or

a new cause of action by way of the filing of a TRO, that Plaintiff lacks standing, and

that Plaintiff failed to fully exhaust administrative remedies, which is typically a

prerequisite to bringing a prisoner claim in federal court. See (Doc. 101).

II. LEGAL STANDARD

To obtain injunctive relief by way of a Temporary Restraining Order, Plaintiff

must establish: (1) a substantial likelihood of prevailing on the merits; (2) a

substantial threat of irreparable injury if the injunction is not granted; (3) that the

threatened injury outweighs any harm that will result to the non-movant if the

injunction is granted; and (4) that the injunction will not disserve the public interest.

See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).

III. DISCUSSION

A. Jurisdiction

As an initial matter, the Court reviews its jurisdiction to consider the Motion.

Defendants allege that it is improper for Plaintiff to allege new claims, not included

in the initial complaint, through the filing of this TRO. While Defendants are correct

that Plaintiff’s Second Amended Complaint (Doc. 64) does not specifically address the

outbreak of the novel coronavirus, it is fully premised upon Plaintiff’s diabetes

diagnosis and the prison facility’s alleged inability to effectively provide medical care

related to it.2 Plaintiff has been moved to another facility, but remains within the

custody of the Louisiana Department of Corrections, a named Defendant. An

enhanced risk of contracting COVID-19 due to his condition, while not foreseeable at

the time Plaintiff originally filed this lawsuit, stems from the same factual nexus as

the original and amended Complaints.

2 The underlying Complaint is premised upon allegations against personnel at the Elayn Hunt

Correctional Center who allegedly contributed to Plaintiff’s diagnosis of diabetes.

In addition to the factual similarities, the Court finds that it serves the

interests of judicial economy to adjudicate the instant Motion within this ongoing

case. The Court is sufficiently familiar with the claims and defenses asserted by the

Parties and finds that an efficient resolution is warranted by the adjudication of the

Motion by this Court, given the unique circumstances.

Next, the Court shall consider Plaintiff’s standing to bring this claim.

Defendants argue that Plaintiff has failed to allege an injury in fact because the

potential harms complained of (contracting coronavirus and experiencing

complications associated with it) are not sufficiently likely due to the procedures

implemented at Rayburn to prevent the spread of COVID-19. (Doc. 101 at p. 5–6).

However, the Court notes that when this Motion was filed, only two inmates had

tested positive for COVID-19. As of April 13, 2020, less than two weeks later, that

number had escalated to 25 infections among inmates and staff. (Doc. 110, at p. 1).

As noted, the exponential growth of the novel coronavirus has resulted in

emergency declarations by the President and the Governor, as well as governors of

numerous other states. Due to the nature of this virus, the Court finds that the risk

of contracting the virus in a prison environment, where at least 23 inmates have

already tested positive, poses a sufficiently high risk, rendering this matter ripe for

adjudication even though Plaintiff has not contracted the virus. The United States

Supreme Court has held that the risk of contracting a serious disease may indeed

constitute an unsafe, life-threatening condition that violates the Eighth Amendment.

Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22 (1993).

Further, the Supreme Court held that it would “be odd to deny an injunction to

inmates who plainly proved an unsafe, life-threatening condition in their prison on

the ground that nothing yet had happened to them.” Id. With the clear danger posed

by COVID-19 in the Rayburn facility, Plaintiff has adequately demonstrated

standing.

Regarding Defendants’ assertion that Plaintiff failed to exhaust the

administrative remedies available to him, Plaintiff admits that he did not exhaust

administrative remedies and did not file a request to initiate the Administrative

Remedy Procedure (ARP) related to this claim until April 7, 2020, after filing the

instant Motion. (Doc. 102–2, at p. 2). Plaintiff initially contended that he could not

file a claim because he lacked access to a computer and the ARP process had been

closed because it was “non-essential.”3 (Doc. 102 at 5).

Generally, under the Prison Labor Reform Act (“PRLA”), pre-litigation

exhaustion of available administrative remedies is mandatory for any suits brought

under § 1983 by prisoners. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 988,

152 L. Ed. 2d 12 (2002); see also 42 U.S.C. § 1997e(a). Despite the strict approach

required within this Circuit concerning PLRA exhaustion requirements, the United

States Court of Appeals for the Fifth Circuit has recognized that a district court must

afford a prisoner an opportunity to show that he has either exhausted the available

administrative remedies or that he should be excused from complying with them.

3 Warden Robert Tanner testified at the hearing that this was not the case, and that ARP requests

would be processed within 48 hours.

Johnson v. Ford, 261 F. App'x 752, 755 (5th Cir. 2008) (holding that, while the facts

presented in that case did not justify excusal, PLRA exhaustion requirements may be

excused where dismissal would be “inefficient and would not further the interests of

justice or the purposes of the exhaustion requirement”).

Here, the statutory 30-day period to adjudicate Plaintiff’s administrative claim

will not expire until May 7, at which point Defendants contend the Court may then

properly hear this matter if it is not satisfactorily resolved through administrative

proceedings sooner. Because of the nature of COVID-19, especially considering its

ability to spread with great rapidity among densely populated communities, like

prisons, the Court must reject Defendants plea and find that the interests of justice

demand action by the Court on an emergency basis.4 Further, the Court is vested

with a traditional equitable power to issue injunctions to prevent irreparable injury,

pending such exhaustion of administrative remedies. Johnson v. Ford, 261 F. App'x

752, 755 (5th Cir. 2008); Jackson v. D.C., 254 F.3d 262, 268 (D.C. Cir. 2001). Due to

the important implications of this case to the Plaintiff, the Court shall exercise its

authority while the administrative proceedings brought by Plaintiff are still under

review by prison authorities.

4 The Centers for Disease Control and Prevention (CDC) issued specific guidelines pertaining to the

spread of COVID-19 within correctional and detention facilities. The CDC explained that it was issuing

guidance because detention facilities have a heightened risk for the spread of COVID-19 due to

offenders living within congregate environments, the inability to leave, staff ingress and egress,

transfers between facilities, and more. See CDC Interim Guidance on Management of Coronavirus

Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), at

https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.

Lastly, sovereign immunity does not apply to Defendants with respect to the

relief requested in the instant Motion. It is axiomatic that state officials acting in

their official capacity can nonetheless be sued for prospective injunctive relief to

correct ongoing violations of federal law. Saahir v. Estelle, 47 F.3d 758, 761 (5th Cir.

1995), citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105, 104 S.

Ct. 900, 910, 79 L. Ed. 2d 67 (1984). Here, Plaintiff seeks relief based on alleged

ongoing violations of the Eighth Amendment of the United States Constitution. Thus,

this Court is appropriately vested with jurisdiction to consider the claim.

B. Request for Relief

Plaintiff’s claim arises under the Eight Amendment, which, as he notes, may

hold an official liable for “deliberate indifference.” (Doc. 110, at p. 2). The Court has

held conferences, conducted an evidentiary hearing and reviewed several filings in

this case that all demonstrate the officials at Rayburn have taken numerous steps to

implement policies to contain the spread of COVID-19 during these challenging

times. While the number of infected inmates has grown, so too have the protective

measures implemented at Rayburn by the DOC in response. Indeed, the demands

made upon corrections officials in their effort to contain the spread of this pandemic

within their facilities is unprecedented.

Robert Tanner, the warden at Rayburn, testified that meetings are held at

least three times weekly to assess the facility’s response to the coronavirus, often

resulting in daily changes. (Doc. 110–1, at p. 26). He further testified that

quarantined offenders receive masks, as do staff members and offenders assigned to

the kitchen, laundry, the infirmary, and anyone the medical director deems should

wear a mask. (Doc. 110–1, at p. 33). Masks are also provided when “medically

necessary.”5 Warden Tanner admitted that all offenders in the institution could be

provided with a mask, if necessary. Id. at 33–34. Additionally, the guidelines provided

by the DOC list numerous precautions being taken to handle the COVID-19 outbreak

within the prison system. Such guidelines are applicable at Rayburn. Inmates who

are asymptomatic, but have been in close contact with an inmate or employee

confirmed or suspected to have COVID-19, are required to be quarantined for a

minimum of 14 days. (Doc. 108–1, at p. 9). Defendants assert that these measures

are adequate to protect Plaintiff from contracting the disease.

However, Plaintiff’s credible testimony paints a very different picture. For

example, Plaintiff testified that the common water fountain in his dormitory is not

wiped clean after each use by the inmates. He also testified that telephones in the

dormitory are spaced a mere 12 inches apart and that no prisoner separation

procedures have been implemented in the area of the telephones. The microwave

ovens made available to the offenders are not regularly cleaned and disinfected. Also,

no procedures have been implemented to avoid chokepoints in the walkways in the

dormitory. According to the Plaintiff, foot traffic often results in offenders and staff

“almost touching” each other. During mealtimes, inmates allegedly stand in line in

the cafeteria in a heel-to-toe fashion to receive meals. After receiving their meals,

inmates sit directly next to one another at tables in the cafeteria. More troubling is

5 This term was not defined by the Defendants.

the Plaintiff’s testimony that the inmates who serve the food only occasionally wear

face masks in a proper manner while serving food. And the computers used by the

inmates to communicate with family members and attorneys are not cleaned or

sanitized after each use.

Plaintiff contends that Rayburn has struggled to sufficiently execute its own

policies. Plaintiff’s uncontroverted testimony has adequately demonstrated that,

under the circumstances, his Eighth Amendment claim will likely prevail on the

merits. Deliberate indifference is “a stringent standard of fault, requiring proof that

a municipal actor disregarded a known or obvious consequence of his action.” Board

of County Com’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).

Of particular concern to the Court is the fact that there remain several

instances in which Plaintiff is seemingly unable to properly protect himself from

infection, despite efforts currently being taken by the facility. For example, Plaintiff

testified that while in his bunk, he is capable of touching his bunk neighbor if he

reaches to his left. (Doc. 110-1, at p. 55). Also, as a diabetic, he must frequently visit

the infirmary for testing and treatment. He alleges that he is required to wait in line

at the infirmary in a “shoulder-to-shoulder” manner, thereby increasing the risk of

contracting COVID-19. Id, at 69.

The most recent policy statements provided by the Defendants, which include

the DOC Medical Division’s COVID-19 Guidance (the Policy) issued April 6, 2020,

lists several requirements that Defendants do not appear to be following, thereby

exposing Plaintiff to an unreasonable risk of serious harm. For example, the Policy

requires routine and frequent cleaning of high-touch surfaces and shared resident

equipment. Such cleaning must be conducted using EPA-registered hospital-grade

disinfectants. (Doc. 108–1 at p. 2). On April 13, Plaintiff reported that he had received

a spray-bottle to clean high-touch surfaces as contemplated. See (Doc. 112). However,

a few days later, Plaintiff notified the Court that the bottle was often empty. (Doc.

113, at p. 3). He also informed the Court of several other shortcomings. For example,

he alleges that two medical orderlies who work in the infirmary that he regularly

visits have not worn the proper personal protective equipment recommended for

protection of themselves or others who utilize the services of the infirmary. Id.

Plaintiff has also allegedly witnessed officers and cafeteria workers wearing PPE

incorrectly with their noses exposed from the masks. Id.

It would appear, therefore, that despite taking some steps to deter the spread

of the virus, Rayburn has not effectively implemented the DOC policies that require

staff members and orderlies to wear masks and other PPE to protect the prison

population, including the Plaintiff. (Doc. 108–1 at p. 12–14). The prison has also failed

to meaningfully implement social-distancing procedures and other measures aimed

at thwarting the spread of the coronavirus. Although the DOC policy defines “social

distancing,” it does not require that it be implemented at Rayburn or any other DOC

facilities. Id. at 5. The Court finds it troubling that DOC officials, at least at Rayburn,

have apparently disregarded the importance of social distancing in preventing the

spread of this unique disease, when numerous public health officials, and the

Governor of Louisiana, have consistently urged the residents of the state to observe

such measures to slow the spread of the illness.6 Defendants’ failure to implement

their own internal protective policies may itself entitle Plaintiff to relief from the

Court. See Johnson v. Epps, 479 F. App'x 583, 590 (5th Cir. 2012) (holding that an

inmate sufficiently stated a claim for deliberate indifference where prison officials

adopted a policy mandating more sanitary procedures, but failed to enforce the

policy).

Accordingly, the Court finds that Plaintiff has shown a substantial likelihood

of prevailing on the merits of this Motion. He has also demonstrated a sufficiently

substantial threat of irreparable injury if relief is not immediately ordered. The

threatened injury that he has proven outweighs any harm that may result to the

State if the injunction is not granted, and the injunction contemplated herein will not

disserve the public. Accordingly, the Court finds that the Plaintiff has met the

requirements for injunctive relief. See, Ridgely at 734.

C. Remedies

The Court will deny Plaintiff’s request to modify his sentence, to include

temporary release with monitoring conditions. Plaintiff’s sentence was imposed by a

state court, and this Court cannot now conclude that the conditions of confinement,

despite the lack of sufficient precautionary measures, entitles him to immediate

6 The Governor has credited social distancing practices with helping to slow the rate of new COVID-

19 infections within Louisiana. See Gov. Edwards: Social Distancing Working in Coronavirus Fight

(April 10, 2020), available at https://www.kalb.com/content/news/Gov-Edwards-provides-updates-on-

COVID-19-on-Good-Friday-569540141.html. Also, the CDC has observed that the best way to prevent

contracting COVID-19 is to practice social distancing, as well as other preventative measures such as

frequent hand-washing, disinfecting surfaces, and covering one’s mouth and nose. See CDC: How to

Protect Yourself and Others (April 13, 2020), available at https://www.cdc.gov/coronavirus/2019-

ncov/prevent-getting-sick/prevention.html.

release. Therefore, the Court will not disturb the judgment of the sentencing court.

Counsel for the Plaintiff have acknowledged that although officials have

implemented several measures aimed at addressing the prevention of the coronavirus

at Rayburn, more must be done, and some remedy other than Plaintiff’s immediate

release may be appropriate.

Based on the evidence presented and the policies provided by Defendants, the

Court finds that Defendants are capable of providing Plaintiff with the care necessary

to protect him from COVID-19 without requiring relief in the form of temporary

compassionate release during the duration of the COVID-19 crisis. Plaintiff’s request

to modify his sentence is therefore DENIED.

IV. CONCLUSION

Defendants must comply with the Governor’s recommendations and their own

internal policies concerning disinfection of common areas and the wearing of masks

by staff and certain categories of offenders, particularly those who work in the

infirmary and cafeteria where the Plaintiff is assigned. Officials must also implement

reasonable social-distancing measures to limit the spread of COVID-19 to the

Plaintiff.

Accordingly,

IT IS ORDERED that Plaintiff’s Motion for Temporary Restraining

Order and/or Emergency Motion for Temporary Release (Doc. 93) is

GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Defendants shall submit to the Court a

Plan to ensure the implementation of proper hygiene practices in the dormitory in

which Plaintiff is assigned, and to implement social distancing practices to limit the

spread of COVID-19, as recommended by the Center For Disease Control and other

public health authorities, in Plaintiff’s immediate living area, for the protection of the

Plaintiff. Defendants shall also submit a Plan to minimize Plaintiff’s exposure to

possible infected persons while visiting the infirmary and cafeteria areas of the

prison.

IT IS FURTHER ORDERED that Defendants shall submit the Plan herein

ordered within 5 days of the date of this Order.

IT IS FURTHER ORDERED that Plaintiff’s request for an Order

authorizing his immediate supervised released is DENIED.

The Parties are advised that the Court may impose additional substantive

precautionary measures following its review and evaluation of the Plan.

Baton Rouge, Louisiana, this 23rd day of April, 2020.

_______________________________________

JUDGE BRIAN A. JACKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA