Gumns v. Edwards

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DANIEL GUMNS, MICHAEL VIDEAU,

TREVON WILEY, IAN CAZENAVE,

REGINALD GEORGE, LIONEL CIVIL ACTION NO.

TOLBERT, OTTO BARRERA, KENTRELL

PARKER, MICHAEL ROBINSON, JULIUS

ALLEN, ERNEST ROGERS, ALFOANSO 20-231-SDD-RLB

GARNER, BRADLEY WINTERS,

KENDRICK WILSON, and JAMES

HUGHES, on behalf of themselves and all

similarly situated individuals

VERSUS

JOHN BEL EDWARDS, in his official capacity

as Governor of the State of Louisiana;

LOUISIANA DEPARTMENT OF PUBLIC

SAFETY & CORRECTIONS; JAMES

LEBLANC, in his official capacity as Secretary

of the Department of Safety and Corrections;

JOHN MORRISON, in his official capacity as

Medical Director of the Department of Safety

and Corrections; LOUISIANA

DEPARTMENT OF HEALTH; and

STEPHEN R. RUSSO, in his official capacity

as Interim Secretary of the Louisiana

Department of Health

RULING

This matter is before the Court on the Emergency Motion for Temporary

Restraining Order Enjoining Defendants from Transferring COVID-19 Carriers to

Louisiana State Penitentiary’ filed by Plaintiffs, Daniel Gumns, Michael Videau, Trevon

Rec. Doc. No. 15.

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Wiley, lan Cazenave, Reginald George, Lionel Tolbert, Otto Barrera, Kentrell Parker,

Michael Robinson, Julius Allen, Ernest Roers, Alfoanso Garner, Bradley Winters,

Kendrick Wilson, and James Hughes, on behalf of themselves and all similarly situated

individuals (collectively, “Plaintiffs”).2 Defendants, John Bel Edwards, in his official

capacity as Governor for the State of Louisiana (“Governor Edwards”), the Louisiana

Department of Public Safety & Corrections (“DOC”), Secretary James LeBlanc (“Sec.

LeBlanc’), in his official capacity as Secretary of the Department of Public Safety and

Corrections, Dr. John Morrison, in his official capacity as Medical Director of the

Department of Public Safety and Corrections,? the Louisiana Department of Health

(“LDH”), and Stephen R. Russo (“Russo”), in his official capacity as Interim Secretary of

the Louisiana Department of Health (collectively, “Defendants”) have filed Oppositions*

to Plaintiffs’ motion. The Court held an evidentiary hearing on Plaintiffs’ motion on April

30, 2020, and the Parties submitted Post-Trial briefing.® For the following reasons,

Plaintiffs’ motion shall be denied.

I. BACKGROUND

The subject of Plaintiffs’ motion is the COVID-19 response transfer plan developed

by Defendants, by which COVID-19 positive inmates housed in state and parish jails and

prisons are transferred to Camp J, at Louisiana State Penitentiary at Angola (“LSP”), for

? Plaintiffs have also moved for class certification, which remains pending before the Court. Rec. Doc. No.

although Dr. Morrison’s employment with DOC ceased on April 14, 2020, no defendant has been

substituted for his position, and Dr. Morrison testified at the hearing on this matter.

4 Rec. Doc. Nos. 24, 32, & 38.

5 Rec. Doc. Nos. 47 & 48. Governor Edwards and Russo adopted the brief filed by the DOC Defendants.

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isolation and medical monitoring. Camp J is remotely located in a self-contained cell

block at LSP that was moth-balled by the LSP in 2018.

The COVID-19° pandemic has caused a global crisis and has greatly affected this

country’s prison populations. The parties agree’ that COVID-19 is a viral pandemic that

poses an ongoing threat to the health and safety of all residents of Louisiana and is highly

infectious. The incubation period of COVID-19 is 2 to 14 days. Symptoms of COVID-19

can include fever, cough, chest pain, headache, loss of smell, diarrhea, aches, vomiting,

difficulty breathing, and can result in pneumonia. People positive for COVID-19 can

present with no symptoms, and COVID-19 tests can provide false negatives. People over

the age of 65 are at higher risk of developing serious symptoms if they contract COVID-

19. People with certain pre-existing medical conditions—including chronic lung disease,

asthma, heart conditions, immune deficiencies, severe obesity, diabetes, chronic kidney

disease, liver disease, HIV or AIDS, prolonged use of corticosteroids, cancer, smoking,

and bone marrow or organ transplant—may be at a higher risk of developing serious

symptoms if they contract COVID-19. There is currently no cure or vaccine for COVID-

19, and it can be deadly.

ll. ARGUMENTS

Plaintiffs purport to represent a class defined as: All prisoners and pretrial

detainees who are, or will in the future be, subjected to the medical care policies and

practices of the DOC, and subjected to the DOC’s COVID-19 policies and practices.®

Plaintiffs propose a declaratory and injunctive subclass of all incarcerated individuals who

The Court may refer interchangeably to “COVID-19,” the “coronavirus,” or the “virus.”

7 All stipulated facts are set forth in Rec. Doc. No. 41.

8 Rec. Doc. No. 1, J 208.

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are, or will in the future be, subjected to the medical care policies and practices of the

DOC, and subjected to the DOC’s COVID-19 policies and practices (“Subclass |”).°

Plaintiffs propose a declaratory and injunctive subclass of all individuals being held in pre-

trial detention who are, or will in the future be, subjected to the medical care policies and

practices of the DOC, and subjected to the DOC’s COVID-19 policies and practices

(“Subclass II”).1°

Plaintiffs sued Defendants pursuant to 42 U.S.C. § 1983, alleging that Defendants

have violated the Eighth Amendment rights of Subclasses | & II in their deliberate

indifference to the serious risk of harm posed by COVID-19, and violated the Fourteenth

Amendment rights of Subclass || to reasonably safe living conditions. Plaintiffs contend

LSP is not equipped to treat COVID-19 patients and is incapable of providing adequate

treatment for life-threatening symptoms because it is located over an hour from the

nearest hospital. Plaintiffs also contend that Camp J is unfit for housing healthy inmates,

much less sick inmates, and Defendants’ transfer plan threatens the lives of LSP’s

medically vulnerable population by increasing the risk of transmission of the coronavirus

among LSP’s population."

Defendants oppose Plaintiffs’ motion and defend their transfer plan and the use of

Camp J as an isolation dorm for COVID-19 positive inmates. Defendants offer evidence

that the Camp J isolation plan was developed collaboratively among the Defendants,

related state agencies, and members of law enforcement, and in consultation with CDC

9 Id. at § 209.

10 Id. at | 210.

Plaintiffs’ reliance on this Court’s Text Order in Lewis v. Cain, 15¢cv318-SDD-RLB, Rec. Doc. No. 578, is

misguided and inappropriate. The Court has made no findings in Lewis v Cain regarding the breadth or

scope of medical practices at LSP that the Court may deem constitutionally deficient.

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guidelines. Defendants submit that Camp J is suitable to house and monitor COVID

positive inmates for temporary isolation purposes. Defendants maintain that Plaintiffs’

claims are not justiciable because Plaintiffs failed to exhaust administrative remedies as

required by the Prison Litigation Reform Act (“PLRA”).'? Defendants further maintain that

Plaintiffs have failed to meet the burden for the issuance of a TRO or preliminary

injunction.

lil. EXHAUSTION OF REMEDIES

The Parties dispute whether Plaintiffs in this matter are required to exhaust

administrative remedies under the PLRA. Plaintiffs contend the Administrative Remedy

Procedures (“ARP”) process was suspended by the DOC’s Continuity of Operations Plan

(“COOP’”).'3 At the evidentiary hearing, counsel for Defendant argued that the ARP

deadlines were extended, but exhaustion was still required, and the ARP process is still

available to inmates. Plaintiffs argue that, “[i]n any event, given the imminent risks of

COVID-19 in Louisiana prisons, Plaintiffs cannot be expected to complete a lengthy

exhaustion process.”'4 The Plaintiff's position lacks legal support. In the context of

COVID-19 exigencies, the Fifth Circuit has recently made it clear that there is no

emergency exception or “interest of justice’ exception to the PLRA’s exhaustion

requirement."®

12 42 U.S.C. § 1997e(a).

13 Rec. Doc. No. 26-2, p. 11 (quoting LSP COOP Attachment 8, p. 18).

'4 Id.

Valentine v. Collier, 2020 WL 1934431 (5th Cir. Apr. 22, 2020); Marlowe v. LeBlanc, ---- Fed. Appx. ---,

2020 WL 2043425 (5th Cir. Apr. 27, 2020). Marlowe involved an inmate’s complaints about the prison’s

response to the COVID pandemic. The Fifth Circuit found that: “The district court’s exhaustion analysis

under the Prison Litigation Reform Act runs counter to Supreme Court precedent. The district court

acknowledged that Plaintiff failed to exhaust administrative remedies. It nonetheless excused the plaintiff,

reasoning that ‘the interests of justice’ compelled it to act on an emergency basis. See Johnson v. Ford,

261 F. App'’x 752, 755 (5th Cir. 2008). As this court explained in Valentine, such an approach is out-of-step

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In the present matter, the evidence regarding exhaustion is scant. A strong

argument could be made that Valentine and Marlowe compel dismissal for failure to

exhaust administrative remedies. However, the Defendants’ COOP"* categorizes ARP’s

as “non-essential and suspended.” The Defendants’ contention that the COOP merely

suspended response times is unsupported by the plain language of the COOP."” The

evidence in this case establishes that the DOC was operating pursuant to COOP Level

Red, under which ARP was suspended.

IV. STANDARD FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY

INJUNCTION

Injunctive relief is an extraordinary remedy, to be granted only if Plaintiffs clearly

demonstrate (1) a substantial likelinood of success on the merits, (2) a substantial threat

that Plaintiffs will suffer irreparable injury if the injunction is not granted, (3) that the

threatened injury outweighs the threatened harm to the Defendants, and (4) that granting

the preliminary injunction will not disserve the public interest.'® The purpose of a

temporary restraining order is to “preserve the status quo and prevent irreparable harm

with Supreme Court precedent, Valentine, at *6—7, and this court has disavowed the ‘interests of justice’

exception embraced in Johnson, see Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (holding that

Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998), which Johnson relied on, was “tacitly overruled and is

no longer good law to the extent it permits prisoner lawsuits challenging prison conditions to proceed in the

absence of pre-filing administrative exhaustion”). It must be acknowledged that Superintendent LeBlanc

issued an order on March 23 temporarily suspending the administrative deadlines for replying to grievances,

and such order may have affected the “availability” of exhaustion. But Plaintiff makes no effort to explain

the impact of that order on his refusing to file a grievance or on the way in which it would have been

processed. The record, moreover, indicates that grievances are currently being processed within 48 hours.

Dist. Ct. Order at 6 n.3.”

'6 Exhibit D-3.

'7 Attachment 8 of the DOC’s COOP provides that, during “Level Red” conditions (which is the triggering

event for using Camp J as an isolation site), “[t]he following facility operations will be considered non-

essential and suspended. . . Legal - ARP/Property Claims/Appeals.” /d. Attachment 8, pp. 16-18.

18 Planned Parenthood Ass'n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012)

(quotation and citation omitted); Justin Industries v. Choctaw Securities, L.P., 920 F.2d 262 (5th Cir.1990).

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just so long as is necessary to hold a hearing, and no longer.”'? “Additionally, in

accordance with the Prison Litigation Reform Act (‘PLRA’), preliminary injunctive relief

must be narrowly drawn, extend no further than necessary to correct the violation of the

federal right, and be the least intrusive means necessary to correct the harm.”2°

V. FEDERAL COURTS AND STATE PRISON POLICY, GENERALLY

Federal Courts eschew toward “minimum intrusion into the affairs of state prison

administration; state prison officials enjoy wide discretion in the operation of state penal

institutions.”2". In a case challenging a state prison transfer policy, the Supreme Court

warned against federal courts making decisions regarding “the day-to-day functioning of

state prisons and involve[ing] the judiciary in issues and discretionary decisions that are

not the business of federal judges,”2* noting that “[t]he federal courts do not sit to

supervise state prisons, the administration of which is acute interest to the States.”2°

As this Court held in Lavergne v. Cain, “[w]hen weighing any form of injunctive

relief, federal courts must be mindful not to jump at the chance to take prison

administration into their own hands and out of the hands of the people entrusted with such

tasks by the state.”** Further, “[clourts have recognized that unwarranted intrusions by

19 RW Development, LLC v. Cuningham Group Architecture, Inc., 2012 WL 3258782, at *2 (S.D. Miss. Aug.

8, 2012) (citing Granny Goose Food, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439

(1974); Canal Auth. of State of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974)).

20 Hood v. Vessel, 2013 WL 12121562, at *1 (M.D. La. May 14, 2013) (citing 18 U.S.C. § 3626(a)).

21 Williams v. Edwards, 547 F.2d 1206, 1211-1212 (5th Cir. 1977)(citing Procunier v. Martinez, 416 U.S.

396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974)).

22 Mecham v. Fano, 427 U.S. 215, 228-229 (1976).

3 Id. at 229 (citing Preiser v. Rodriguez, 411 U.S. 475, 491-492, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439

(1973); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Johnson v. Avery,

393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969).

742016 WL 5899972 at *2 (M.D. La. Oct. 7, 2016)(citing Williams v. Edwards, 547 F.2d 1206, 1211-12 (5th

Cir. 1977) (“The Supreme Court has articulated for the federal courts a policy of minimum intrusion into the

affairs of state prison administration; state prison officials enjoy wide discretion in the operation of state

penal institutions.”)).

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the courts can be disruptive to the prison administrators, who are often in the best position

to operate the prison in a fashion that is best for the security of prisoners and outsiders

alike.”25

The Court looks to the Fifth Circuit’s recent decisions in Valentine v. Collier’® and

Marlowe v. LeBlanc,?’ which presented challenges to prison conditions in the context of

the COVID-19 pandemic, to guide its analysis.

Vi. EIGHTH AMENDMENT DELIBERATE INDIFFERENCE TO MEDICAL NEEDS

The Eighth Amendment imposes on prison authorities a duty to protect prisoners.7®

This duty is violated “only when two requirements are met. First, as an objective matter,

the deprivation or harm must be sufficiently serious. Second, the official must have been

deliberately indifferent.”29 To satisfy the first element, “the plaintiff must show an

objectively intolerable risk of harm.”2° The second requirement is subjective and requires

that the plaintiff show the defendant “(1) was aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists; (2) subjectively drew the

inference that the risk existed; and (3) disregarded the risk.”3"

In the context of the request for injunctive relief, the question is whether Plaintiffs

are substantially likely to succeed on their claims that the Defendants’ plan to isolate

COVID-19 positive inmates at Camp J violates the Plaintiffs’ Eighth Amendment and

25 Id. (citing Woodford v. Ngo, 548 U.S. 81, 89 (2006) (discussing the importance of preserving penal

institution's administrative authority)).

26 2020 WL 1934431 (5th Cir. Apr. 22, 2020).

27 2020 WL 2043425 (5th Cir. Apr. 27, 2020).

8 Jason v. Tanner, 938 F.3d 191, 195 (5th Cir. 2019).

29 Id. (cleaned up).

30 Valentine, 2020 WL 1934431, at *3 (quotation marks omitted).

31 Id. (cleaned up).

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Fourteenth Amendment rights.°? For the following reasons, the Court finds that Plaintiffs

have failed to meet their burden.

Vil. FINDINGS OF FACT AND CONCLUSIONS OF LAW?

A. Substantial Likelihood of Success on the Merits

1. Development of the DOC COVID-19 Response and Camp J Transfer Plan

Plaintiffs argue that Defendants’ COVID-19 response plan is nothing more than a

standard flu plan and is not adequately responsive to the specific risks presented by the

virus. The evidence does not support this argument. The record is replete with evidence

of deliberate and thoughtful efforts by the Defendants to develop a response plan for

Louisiana inmates. The evidence revealed considerable time, effort, and collaboration

among the Defendants to develop prophylactic measures for the prison population well

before Louisiana had a single confirmed COVID-19 case.** First, LSP developed a

customized facility plan to address COVID-19,*° suspended visitation, volunteering, tours,

routine transfers from the local level, and postponed special events such as the Angola

spring rodeo.*° The DOC created a COVID-19 webpage and two COVID-19 informational

videos for all offenders, available in both English and Spanish.

On February 28, 2020, Sec. LeBlanc sent a memo to “All DPS&C Staff and All

State Prison Offenders” regarding COVID-19, advising that DOC was “taking precautions

32 See Valentine, 2020 WL 1934431, at *3 (prisoners' entitlement to injunctive relief depends on showing

of deliberate indifference).

33 The Court's factual findings are drawn from all memoranda and attached exhibits submitted by the Parties

and the documentary and testimonial evidence presented and admitted at the TRO/Preliminary Injunction

hearing. The Court has considered all arguments and evidence submitted in connection with this motion,

whether or not specifically addressed herein.

34 Exhibit D-2, p. 12. The first reported COVID-19 case in Louisiana was March 9, 2020. Exhibit D-5.

35 Exhibit D-4.

36 Exhibit D-7.

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and reviewing our preparedness plans to begin now taking steps to prevent the possible

spread and decrease exposure risks.”°” He related personal protection measures

recommended by the CDC; informed offenders that risk screening would start and that

such screening could result in visits being denied; and concluded by stating that DOC

was “reviewing our emergency response plan to ensure that we are prepared should our

preventive measures not be enough to keep us from having a confirmed case.”°®> The

record reflects that Sec. LeBlanc continued to consult with agency representatives and

heads of law enforcement regarding the risk of exposure, obtaining inventory for hygiene

and protection supplies, and suspending visitation and non-emergent transfers.*9

On March 10, 2020, DOC issued Regulation No. HCP26, Health Care Policy -

Infection Control*? which reduced to writing the COVID-19 response. The regulation

directed that DOC, inter alia, establish an incident command team, designate a pandemic

coordinator, maintain adequate supplies (gloves, masks and hand sanitizers, among

others), begin screening, waive healthcare copayment fee for offenders, and ensure that

health care personnel are updated with the latest CDC recommendations.*' Sec. LeBlanc

directed DOC staff that “the health of our agency (staff and population) is important and

our preparedness should not be taken lightly.”42

Within days of the first reported COVID-19 case in Louisiana, DOC’s Medical

Director, Dr. Morrison focused on efforts to “keep the virus from entering our state-run

37 Exhibit D-1.

38 Id.

39 Exhibit D-2.

40 Exhibit D-4.

1 Id.

42 Exhibit D-50, p. 15.

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facilities.”*° The DOC identified quarantine areas,“ and developed criteria for COVID-19

testing of inmates.** Dr. Morrison testified that the DOC did not wait until inmates had

COVID-19 symptoms to test; rather, inmates’ temperatures were checked, and any

inmate with greater than 100° fever was isolated. Dr. Morrison testified that this testing

measure exceeded CDC testing guidelines for prisons.

The record also establishes that, as more data, information, and guidance became

available, Defendants updated its guidance to DOC prisons and staff in accordance with

evolving CDC guidelines, and the agency and DOC doctors continually conferred to

update and adapt DOC’s response plan to the ever-changing situation.** The record

evinces continuous consultations and discussions amongst the Defendants regarding

CDC guidance, protective equipment, and testing.*” The wealth of evidence undermines

Plaintiffs’ claim that the Defendants had only a generic pandemic plan not specifically

responsive to COVID-19.

Dr. John Morrison testified at the TRO/Preliminary Injunction hearing. The Court

accepted Dr. Morrison as a medical expert in the field of surgery and found his testimony

credible. Dr. Morrison testified that, at the onset of the pandemic, he contacted Dr. Alex

Billoux, Assistant Secretary of Health for the LDH, to discuss the impending spread of the

virus. Dr. Morrison testified that he regularly consulted with the LDH and the CDC, and

the documentary evidence submitted by Defendants confirms this fact.*° Each DOC

43 March 12, 2020 e-mail. /d. at p. 16.

44 id. at p. 23.

45 Exhibit D-5, p. 24.

46 Exhibits D-15, D-16, D-17, D-18, D-24, D-50, pp. 35-37, 40, & 43.

47 See Exhibits 25, 26, 29, 30, & 50, pp. 62, 69, 70-73, 81-82, 84-88.

48 See Exhibit D-50. This directly contradicts the attestation of Plaintiffs expert, Dr. Puisis, who attested

that there was no evidence that the Department of Health was involved in the decision to use Camp J as

an isolation facility. Rec. Doc. No. 24, § 16.

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location was asked to review their respective COOPs and were instructed to identify

where and how that facility would isolate COVID positive inmates. Some facilities had

limited isolation capacity, so the DOC determined that it needed an alternative to prevent

local facilities from becoming overwhelmed. The DOC recognized in March that a plan

was needed to prevent overwhelming DOC facilities with less space and resources. As

the DOC was contemplating this problem, Sec. LeBlanc and Dr. Morrison asked Assistant

Warden Nurse Practitioner Tracy Falgout (“Falgout’) and his team to evaluate the

possibility of using Camp J to isolate COVID-19 positive inmates. Ultimately, DOC

developed a plan to move COVID-19 positive inmates to Camp J to serve as disease

prevention for the main prison populations and to curtail the spread of the disease. DOC’s

isolation plan was not unlike the stay-at-home initiatives implemented throughout our

country in an effort to ‘flatten the curve” and prevent overwhelming our hospitals. The

DOC chose to isolate COVID-19 positive inmates in order to protect the general

population and prevent overwhelming local prisons that lacked the capacity to isolate

infected inmates.

Dr. Morrison testified that Camp J was a good solution because it: (1) is isolated

from LSP main prison area; (2) would alleviate the isolation limitations of Louisiana’s

smaller prisons and parish jails; (3) would have a monitoring staff dedicated solely to the

patients at Camp J; (4) could operate as a self-contained prison; (5) would have access

to a dedicated ambulance; and (6) inmate workers at Camp J would remain housed there

and not return daily to LSP general population.

Under the plan, COVID-19 positive inmates transferred to Camp J are isolated in

an open bay dorm called “Bass.” Once an inmate meets the CDC requirements showing

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improvement, the inmate is transferred to a step-down unit, “Gar” (and later “Shark”) to

complete isolation. After continued improvement meeting the CDC criteria, the inmate is

returned to the transferring prison or jail.

The DOC presented evidence that it spent thousands of dollars to provide air

conditioning and other upgrades like new beds for Camp J.*9 The record establishes that

beds in the Bass open bay dorm were placed six feet apart to comply with CDC social

distancing guidelines, and Camp J was thoroughly cleaned prior to occupancy.

In support of the argument that Camp J is constitutionally unsuitable, Plaintiffs

offered the Declaration of Dr. Michael Puisis, an internist who has worked in correctional

medicine for 35 years.°° Most of Dr. Puisis’ Declaration details his opinion that LSP

provides deficient medical care generally, is overpopulated and understaffed, is

comprised largely of vulnerable inmates, and is unprepared and/or unequipped to

address the COVID-19 pandemic.*' Dr. Puisis disagrees with the Camp J transfer and

isolation plan, concluding that the transport process would increase the risk of

transmission and affect not just LSP but the entire parish, and LSP is unable to adequately

provide medical care and monitoring of COVID-19 patients.°* Dr. Puisis attested that

there was no evidence that the Department of Health was involved in the decision to use

Camp J as an isolation facility,°° an attestation that was overwhelmingly contradicted by

the evidence. Dr. Puisis was critical of the transfer plan for failing to address

49 Exhibit D-45.

50 Exhibit P-24. Dr. Puisis has been accepted by this Court in previous cases as an expert in correctional

medicine, and Dr. Puisis has evaluated LSP in the course of other civil rights prison litigation, and he

previously monitored LSP for the Department of Justice. He was not offered or accepted as an expert in

this matter at the hearing.

51 fd. at pp. 1-5.

52 Id. at J 14.

53 Id. at J 16.

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hospitalization or LSP’s capacity to provide appropriate medical care while maintaining

isolation and quarantine,** and for failing to set forth adequate protocols for medical

isolation of Camp J from the rest of LSP.°° Dr. Puisis admitted that LSP’s COVID-19

screening protocols are “consistent with recommendations of the Centers for Disease

Control (CDC) correctional guidelines.”°° Despite this acknowledgment, Dr. Puisis

nevertheless “question[s] the ability to effectively carry out the procedures as stated.”°”

Notably, Dr. Puisis has not been to Camp J since 2018.°8

The Court finds Dr. Puisis’ conclusions general, speculative, not based on firsthand

knowledge of the current conditions or activities in Camp J, and in some instances, refuted

by Defendants’ evidence. By Dr. Puisis’ admission, the screening protocols used to

identify inmates for isolation were consistent with CDC guidelines. The Court finds that

Defendants’ evidence established that the Camp J isolation and step-down protocols

were consistent with available guidance and best practices.

Plaintiffs have failed to present evidence that Defendants developed the transfer

plan with knowing disregard for a serious risk of harm substantially certain to occur. To

the contrary, the Court finds that the plan was carefully developed to limit the impending

harm of the spread of coronavirus throughout all prisons and jails in the state of Louisiana,

and as set forth below, the alleged harm has not materialized.

54 Id. at JJ 18-19.

55 Id. at 20.

56 fd. at 9 11.

57 Id.

58 fd.

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2. The Conditions at Camp J

Plaintiffs ask the Court to find the conditions and care at Camp J so abhorrent as

to be constitutionally infirm. The documentary and testimonial evidence establish the

following. LSP has one entrance. Camp J is located on LSP’s 1,800-acre campus and is

geographically remote from LSP’s main prison camps.°? Camp J is comprised of four

buildings and a nurses’ station. The Defendants offered evidence that “those parts of

Camp J that will house inmates for isolation have been fully climate controlled with central

air conditioning purchased/leased by DOC for these purposes.”©°

Camp J is staffed by Nurse Practitioner Cindy Park (“Park”), two to three registered

nurses, and a respiratory therapist, who was added to the team in the third week of April

2020. Park testified at the hearing, and the Court found her credible and

knowledgeable.®' Park and her team are assigned to work only at Camp J and are

provided full personal protection equipment (“PPE”). Park is in Camp J from 7:30 am until

4:30 pm, Monday through Friday, and she also makes rounds on Saturdays and Sundays.

The nurses at Camp J make rounds every six hours at Bass, and the respiratory therapist

works twelve-hour shifts. The testimony regarding the level of medical monitoring

provided to isolation inmates was corroborated by Plaintiff inmate witnesses Nash and

Cao.

All initial intakes are housed at the Bass unit for early isolation and monitoring.

59 Id, at JJ 10-11.

6° Tracy Falgoust Declaration, Rec. Doc. No. 24-3, J 13.

61 Plaintiffs spend some time attacking Park’s character, calling her “unconcerned” and “cavalier” and

suggesting that her testimony was lacking in candor because it was given in the presence of her

supervisors. Rec. Doc. No. 48, pp. 13-14. The Court observed Park and did not reach these conclusions.

The Court found Park to be credible, honest, and dedicated to caring for those isolating at Camp J.

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Bass is an open dormitory with 41 beds. While there are no physical dividers between the

beds at Bass, the beds are six feet apart. As of the date of the hearing, there were

approximately 40 people housed at Bass. All Bass patients are given masks that are

replaced upon request, and Camp J patients are also provided with bleach and

disinfectant soap. Park testified that social distancing at Bass is “easy to do.”

The Gar step-down unit has eight tiers with thirteen cells to a tier, and one patient

per cell. Shark is another step-down unit with four tiers on one side and one tier on the

opposite side, and patients are housed one per cell. The “far side” of Shark is where

Camp J inmate-workers are housed. There are no call buttons in the cells, and the beds

in the cells are bolted against the walls. Park testified that Shark was opened as a second

step-down unit during the third week of April because Gar was full of recovering patients.

Park testified that she has not observed mold at Camp J.

Putative Class members Paul Nash (“Nash”) and Duong Cao (“Cao”), who were

isolated at Camp J following positive tests for COVID-19, testified before the Court.®

Nash and Cao testified generally that Camp J is dirty, contains mold, has poor ventilation

and some non-functioning toilets, and they have seen rats and spiders in the cells. Some

of this testimony was refuted by the testimony of Cindy Park and photographs submitted

of Camp

Plaintiffs also offered a report by architects who evaluated Camp J before it closed

back in 2018. These architects concluded that Camp J was unsuitable housing for

62 Plaintiffs also called Patrick Courtney to testify. Courtney testified that he was penalized by LSP for

refusing to work at Camp J for fear of contracting the virus. Sec. LeBlanc testified that the disciplinary write-

up for this refusal had been dismissed, he had apologized to Courtney for the write-up, and testified that no

LSP inmates would receive discipline for refusing to work at Camp J.

63 Exhibits D-21 & D-32.

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inmates because of its “remoteness to the main prison, its poor spatial ergonomics, [and]

its unsanitary conditions;"®* however, Plaintiffs admitted that these architects have not

been to Camp J since 2018.

The Court finds that Plaintiffs have failed to establish that the current conditions of

Camp J present an intolerable risk of harm to the inmates temporarily housed there for

limited duration isolation and monitoring. The DOC presented evidence that Camp J

resources were employed to climatize,® clean, and prepare Camp J to function strictly as

a temporary isolation dorm. Ironically, Camp J inmates are provided masks, bleach, and

disinfectant soap - items that were largely unavailable to the general public in early April.

The Court acknowledges that the conditions of Camp J may not be ideal for long-term or

permanent housing; however, considering the purposes for which Camp J is being used,

the conditions of Camp J are not unconstitutional.

Further, the Court draws a significant distinction between housing inmates at

Camp J indefinitely and using Camp J as a temporary isolation dorm. The architect

opinions relied upon by the Plaintiffs as support for their argument that Camp J is

unsuitable for use as housing are irrelevant. Those opinions, rendered in 2018, were

given in the context of re-purposing Camp J for use as assisted living housing for aged

and infirm inmates.®* The Court finds it disingenuous for Plaintiffs to rely on this study

as evidence of deliberate indifference under the very different circumstances presented

64 Exhibit P-27, p. 8.

®5 The evidence of the nature and extent of climatization undertaken to ready Camp J is unclear. The Court

took note of Nurse Practitioner Park testimony that Camp J was not air conditioned. This conflict in the

evidence does not alter the Court’s finding that Camp J is constitutionally adequate to be used for temporary

isolation and medical monitoring.

66 Testimony of Secretary LeBlanc and Dr. Morrison.

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herein.

3. Inadequate Medical Care at Camp J

Plaintiffs also complain that infected inmates at Camp J are not being provided

adequate medical care/monitoring.®” Piggy backing on the claims made in Lewis v Cain,

Plaintiffs argue that the medical care at LSP is constitutionally infirm and thus ill-equipped

to address the medical needs of COVID-19 inmates.®° Pointing to the administration of

oxygen and IV fluids in the Bass dorm at Camp J, Plaintiff's argue that it is being used as

a medical facility. Citing Assistant Warden Terry Falgout’s Declaration that Camp J would

not provide oxygen, IVs, or ventilators,”° Plaintiffs argue that Camp J is being utilized for

medical care that was not part of the Camp J transfer plan.

The evidence established that, as of the date of the hearing, there were three or

four patients in the Bass unit at Camp J on IV fluids and three or four patients receiving

oxygen.” It is true that Falgout attested such treatment would not be provided at Camp

J. However, Warden Falgout also attested that, “[a]Js the COVID crisis presents new

challenges daily, LSP’s response continues to evolve, and LSP staff is prepared to adapt

as necessary.”” The Court does not find this purported “contradiction” as meaningful as

7 Strangely, Plaintiffs’ counsel offers evidence of certain Plaintiffs’ preferences to recover at home or be

treated at the hospital. Such preferences are simply irrelevant in a prison setting. “It is also well established

that an inmate has no constitutional right to have the treatment he prefers or the best medical treatment

available.” Baughman v. Garcia, 254 F.Supp.3d 848 (S.D. Tex. 2017)(citing Estelle, 429 U.S. at 105-06,

97 S.Ct. 285; see also Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir. 1982) (“The Constitution does not

command that inmates be given the kind of medical attention that judges would wish to have for themselves,

nor the therapy that Medicare and Medicaid provide for the aged or the needy.”)).

68 See supra note 11, a class action suit alleging deliberate medical indifference in the care and treatment

of inmates at LSP. The matter is under advisement and the Court has not made findings in Lewis v Cain.

6° See Puisis Declaration, supra note 50.

70 Rec. Doc. No. 24-3, 7 12.

71 Testimony of Nurse Practitioner Park.

72 Id. at J 21.

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Plaintiffs insist, and it does not render Falgout’s Declaration unreliable for lack of

credibility.

Nurse Park likened the administration of oxygen and IV fluids equivalent to

somewhat routine “home therapies.” The Court agrees. Furthermore, the fact that some

patients at Camp J are receiving oxygen or IVs is not an indictment of Defendants’ plan,

nor does it demonstrate that Camp J is being used as a medical treatment facility rather

than for the purpose of isolation and recovery. Indeed, many members of the general

population who test positive for coronavirus are sent home with oxygen or IV medications

to be self-administered.

Park’s testimony established the general medical monitoring procedures taking

place at Camp J. Upon verified proof of a positive COVID-19 test, patients are isolated

in the Bass unit for at least seven days from the date of the positive test. If, at the end of

seven days, patients remain symptomatic, they remain in Bass. Once a Bass patient is

asymptomatic without medication and without fever for three days, the patient moves to

the Gar or Shark step-down units. After a patient completes 14 days in the Gar or Shark

unit, the patient is then re-tested for COVID-19. If a patient has a negative test, he is

tested again, and, if that second test is also negative, the patient is considered

“recovered” and released back to the pre-transfer prison or back into the general

population at LSP.’”° Remarkably, symptomatic prisoners in Louisiana are provided a

minimum of three tests while many symptomatic citizens have been unable to obtain even

one test.

73 Rec. Doc. No. 24-3, J 14; Park testimony.

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Park and her nurses make rounds in Bass at least two times and day and at least

once a day in Gar and Shark, all in compliance with CDC guidelines. The Camp J staff

monitors inmates’ fever, cough, and other symptoms, in accordance with CDC guidelines

for determining when to end medical isolation.”

lf a Camp J inmate’s condition begins to worsen, the patient is transferred to Our

Lady of the Lake (“OLOL”) hospital in Baton Rouge, Louisiana. Additionally, Camp J

enjoys the use of a full-time dedicated ambulance. The Court finds it notable that 40

inmate patients” enjoy a dedicated ambulance. Park testified that, on two occasions,

inmates were transferred to Camp J with symptoms too severe for mere isolation, and

Park appropriately coordinated the transport of these inmates to the hospital.

The testimony of Nash and Cao confirmed the medical monitoring procedures

described by Park. Nash testified that he was moved from Bienville Parish Prison to

Camp J in April after developing coronavirus symptoms and testing positive while in

Bienville. Nash understood that he was transferred to Camp J for isolation and monitoring

because Bienville lacked the capacity to quarantine or isolate him.

While isolated in the Bass unit, Nash testified that nurses rounded in Bass once in

the morning and once in the evening, and that Park made rounds twice a day and

monitored patients’ temperature and blood pressure. Nash was moved to the Gar step-

down unit on April 15. On April 29, he tested negative for COVID-19. Nash testified that

he understood that he would be tested one more time, and if the results are negative, he

will be released from Camp J and returned to Bienville Parish Prison.

74 Exhibit D-29.

75 Symptomatic inmates who are being monitored in the Bass unit.

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Cao testified that, on April 14, he was transferred to the Bass unit from the LSP

barracks after running a high fever and testing positive for COVID-19. While isolated at

Bass, Cao experienced chills, sweats, no appetite, and fever. Cao admitted that Park

checked on patients twice a day, and he continued to see Park after he was transferred

to Gar. Cao was transferred to Gar after he was fever free.

Plaintiffs focus on the medical monitoring of Plaintiff Otto Barrera (“Barrera”).

Barerra, an LSP inmate housed in the Ash 2 dormitory, developed a fever and cough on

April 19, 2020.”” On April 20, Barrera was transported by ambulance to OLOL, where he

tested positive for COVID-19.”® OLOL evaluated Barrera and released him back to LSP

that same day where he was isolated in the Bass unit at Camp J. On April 22, Barrera

was sent to the ATU unit for medical treatment.’”? After being treated for two hours in a

negative pressure room, he was returned to Camp J, against his wishes.°®° Plaintiff's offer

this scenario as evidence of poor medical care and cross-contamination risks to the main

LSP prison. In her testimony, Nurse Park denied that Camp J patients are being sent to

the ATU for treatment. Despite this conflicting evidence, the Court finds that the evidence

overwhelmingly establishes that the purpose and use of Camp J is the temporary isolation

and medical monitoring of COVID-19 inmates with mild symptoms, and that inmates

requiring additional medical treatment would be referred to the ATU or sent to the nearest

hospital, if necessary.

76 Exhibit P-49. Barrera’s Declaration was admitted over Defendants’ objection since it was determined that

Barrera was unavailable to provide live testimony based on his being confined to a hospitalization.

77 Id. at TY 5, 9.

78 fd. at 911.

79 Id. at 915.

80 fd. at ¢ 16; Dr. Morrison’s testimony.

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Plaintiffs offered opinion testimony from Dr. Susi Vasallo in support of their claim

that the care and treatment of COVID-19 inmate-patients is constitutionally infirm. Dr.

Vassallo was accepted by the Court as an expert in correctional medicine and in the care

and treatment of COVID-19 patients. Dr. Vassallo opined that the medical care being

provided at Camp J falls short of the “community standard’”®’ in the following ways: the

ratio of nurses to patients is insufficient; in one instance (Plaintiff Barrera), the patient’s

oxygen levels were not properly monitored; and patients at Camp J are being improperly

cohorted, placing more vulnerable patients at increased risk, in contravention of the CDC

guidance. Dr. Vassallo also testified that, in her opinion, the Camp J patients are located

too far from a hospital to receive timely emergency treatment, if required.

Dr. Vassallo was particularly critical of the treatment of Barrera while at Camp J.

Dr. Vassallo testified that Camp J’s staff failed to properly manage Barrera’s oxygen

saturation and recognize indicators that he needed hospitalization five days before he

was transferred to OLOL.®* Dr. Vassallo explained that, based on her review of his

medical records, Barrera’s oxygen saturation levels had been at levels indicating a need

for hospitalization for many days prior to his transport to OLOL. Dr. Vassallo described

the skill and intense monitoring required to administer oxygen to COVID-19 patients,

which she claims Sec. LeBlanc erroneously characterized as “basic.” Dr. Vassallo

testified that fever checks alone are insufficient to meet the standard of care for COVID-

19 patients.

81 The Court notes that the “community standard” of care is not the legal standard applicable to an Eighth

Amendment claim. Rather, the Eighth Amendment “proscribes only medical care so unconscionable as to

fall below society’s minimum standards of decency.” Gibson v. Collier, 920 F.3d 212, 216 (5th Cir.

2019)(quoting Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir. 2014)(en banc)).

82 Barrera was sent back to OLOL on April 30 after having been previously released by OLOL on April 20.

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The Court was persuaded by Dr. Vassallo’s testimony regarding the medical

appropriateness of monitoring oxygen saturation rates of known positive COVID-19

patients. As explained by Dr. Vasallo, COVID-19 patients are subject to rapid

decompensation in pulmonary function; hence, close monitoring of oxygen saturation is

advisable. There is no evidence that oxygen saturation is being aggressively monitored

at Camp J. While in the Court’s view of the medical testimony, this is medically advisable

and a reasonable protocol, the failure to monitor oxygen saturation is not deliberate

indifference, particularly considering that all the medical experts roundly agreed that the

COVID-19 medical protocols are ever-evolving as more is learned about the disease.

While the Court accepts Dr. Vassallo’s expertise and found her opinions credible,

Dr. Vassallo admitted that she had never been to Camp J to observe the conditions and

monitoring taking place; thus, she lacks firsthand knowledge of the medical monitoring

being performed. Further, that Barrera was sent to OLOL initially and returned on the

same day undermines the allegation that the Camp J staff failed to timely respond to

Barrera’s worsening condition. The fact that Barrera was quickly sent back from OLOL

likely informed the staff's delay in sending him back to OLOL later in the week. Notably,

Barrera attested that, although his nurse counseled him to remain on oxygen at all times,

“it is extremely uncomfortable and sometimes | take off my mask.”®? Thus, Barrera’s

admitted noncompliance may have contributed to the worsening of his condition.

Dr. Vassallo testified generally as to certain protocols at Camp J she considered

to be “medically unreasonable.” As previously noted,®4 medical unreasonableness, while

83 Jd. at J 18.

84 See supra note 102 and discussion at page 23, supra.

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possibly negligent, is not evidence of deliberate indifference. As the Fifth Circuit stated

in Gibson v. Collier, “it can be cruel and unusual punishment to deny essential medical

care to an inmate. But that does not mean prisons must provide whatever care an inmate

wants. Rather, the Eighth Amendment ‘proscribes only medical care so unconscionable

as to fall below society’s minimum standards of decency.’””®°

Additionally, the Court is unpersuaded by the argument that the distance from LSP

to the nearest hospital — approximately one hour — is deliberately indifferent to Plaintiffs’

serious medical needs. Plaintiffs cite no authority to support this argument. Indeed, the

citizens who reside in West Feliciana Parish and the employees of LSP are just as far

from the hospital should they need emergency medical treatment.®°

As to Barrera, the Court makes no specific findings whether Barrera’s medical

monitoring was handled in a medically reasonable manner, and that is not the question

before the Court. However, the evidence before the Court regarding his medical

monitoring does not establish deliberate indifference to a serious risk of harm by the

Camp J staff. Even if Barrera’s medical monitoring was negligent, the Fifth Circuit

instructs that “[uJnsuccessful medical treatment, acts of negligence, or medical

malpractice do not constitute deliberate indifference, nor does a prisoner's disagreement

with his medical treatment, absent exceptional circumstances.”®”

Most damaging to Plaintiffs’ claims of inadequate medical care/monitoring is the

evidence that the Camp J plan appears to be working. Sec. LeBlanc aptly testified that,

85 920 F.3d 212, 216 (5th Cir. 2019)(quoting Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir. 2014)(en banc)).

86 It is also likely that some inmates transferred to Camp J from more remote or rural parishes are actually

closer to a hospital being at LSP.

87 Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)(citations omitted).

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by comparison to the COVID-19 clusters in documented nursing homes across the

country, and the documented clusters of infection and death rates being experienced

within the federal Bureau of Prisons, the Camp J transfer and isolation plan is containing

the spread of the virus. That a second step-down unit — Shark — was brought online

because Gar reached capacity of recovering patients demonstrates success, not

deliberate indifference to serious medical needs. Plaintiffs scoff at the purported “self-

congratulation” of the Defendants; however, Plaintiffs have presented no evidence that

inmates being sent to Camp J are not recovering. It is Plaintiffs’ heavy burden, on the

current motion, to present evidence of an intolerable risk of harm, and unsupported

speculation does not satisfy this burden for the extraordinary remedy of the issuance of

a TRO or preliminary injunction.

4. Cross-Contamination and Cohorting

Finally, Plaintiffs contend the DOC is deliberately indifferent to the serious risk of

harm presented by the cross-contamination and improper cohorting taking place at Camp

J, which increases Plaintiffs’ vulnerability to contracting the virus. Plaintiffs support this

claim with evidence that some Camp J staff members return to their homes without

properly sanitizing their daily PPE and live with partners who work at LSP. Also, Camp J

patients not sent to the hospital with worsening conditions are treated at the ATU in the

main prison, as is the general population of LSP, thus exposing uninfected inmates to the

virus.

Nurse Park testified that she lives on LSP grounds, within two minutes from Camp

J, with her husband who also works as a nurse at LSP. She also testified that the Camp

J staff wear jumpsuits, rubber boots, and PPE upon arrival. Upon leaving, they take

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decontamination showers, bag their soiled items, and wash them at home. Inmates who

are working as staff at Camp J are being housed at Camp J in a tier separate from the

patients, and these inmate workers have volunteered to work at Camp J.®° Defendants

provided unrefuted testimony that LSP inmates who work at Camp J are living at Camp J

and are not going back to Camp F or any other general population location at LSP.

The Court finds Plaintiffs’ evidence regarding cross-contamination insufficient to

rise to the level of a serious risk of harm. That the medical staff working at Camp J return

to their homes each day is not evidence of a serious risk of harm. Indeed, this

demonstrates no more risk of cross-contamination than medical care workers who serve

the general public and return to their homes. The evidence established that the medical

staff at Camp J are making efforts to properly utilize PPE and provide sanitary living

conditions to minimize the risk of transmission. That the DOC staff is not perfect at

eliminating any risk of cross-contamination is not evidence of deliberate indifference.

The Court is unpersuaded that the transport of worsening positive inmates at

Camp J to the ATU, in lieu of the hospital, poses an intolerable or serious risk of harm.

The CDC guidelines advise to restrict transfers of incarcerated/detained persons to and

from other jurisdictions and facilities unless necessary for medical evaluation and

medical isolation/quarantine.®° Additionally the CDC guidance explicitly contemplates

the need for “modifications based on a facility’s individual structure and resources.”°°

The Court is also unpersuaded by Plaintiffs’ argument regarding cohorting.

Evidence was presented that some Camp J patients are choosing not to utilize PPE and

89 Exhibit D-25, p. 14 (emphasis added).

90 Id. at p. 5.

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are congregating together and playing card games rather than maintaining six feet of

social distancing. Notably, all those isolated at Camp J are already infected with the

coronavirus. While Dr. Vassallo concluded that Camp J inmates were not properly

cohorting according to CDC guidelines, Dr. Morrison testified that Bass is a cohorting

dorm, operating consistent with CDC guidelines. Dr. Morrison explained that cohorting

allows for the grouping of patients with similar symptoms and level of infection, and it is

appropriate to cohort Bass patients in one room with negative pressure.

The CDC Interim Guidance on Management of Coronavirus Disease 2019

(COVID-19) in Correctional and Detention Facilities emphasized that: “The guidance may

need to be adapted based on individual facilities’ physical space, staffing, population,

operations, and other resources and conditions.”®' Addressing the process of cohorting

in the prison setting, the CDC advises:

Cohorting refers to the practice of isolating multiple laboratory-confirmed

COVID-19 cases together as a group, or quarantining close contacts of a

particular case together as a group. Ideally, cases should be isolated

individually, and close contacts should be quarantined individually.

However, some correctional facilities and detention centers do not

have enough individual cells to do so and must consider cohorting as

an alternative.°7

Express CDC guidance recognizes that cohorting may be necessary. Furthermore,

the failure to strictly adhere to CDC guidelines is not joso facto evidence of deliberate

indifference. In Amos v. Taylor, inmates at Parchman penitentiary in Mississippi sought

emergency injunctive relief requiring the Mississippi Department of Corrections' interim

commissioner and superintendent to implement certain measures to prevent or mitigate

1 Exhibit D-25.

8 Id. at p. 3 (emphasis added).

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the spread of COVID-19.%° The district court denied this relief, finding that the plaintiffs

failed to satisfy the requisite elements for injunctive relief. The plaintiffs complained that,

in certain instances, the prison was not in compliance with CDC guidelines or its own

COVID-19 response policy. The court found that “mere departure from recommended

best practices is insufficient to show deliberate indifference.” % It is well settled that lack

of adherence to industry best practice standards is not in and of itself deliberate

indifference. “Rather, the known noncompliance must result in an excessive risk to

inmate health or safety.”%

In its analysis of the allegations of deliberate indifference, the Amos court found

that several of the “defendants' stated policies conflicted in some ways with some of the

general recommendations of the CDC Guidance.” The court noted that the undisputed

evidence showed that the defendants

made no efforts to enforce, rather than merely recommend adherence to,

social distancing guidelines. The CDC Guidance also recommends that

facilities provide inmates “hand drying machines or disposable paper towels

for hand washing” and “tissues and no-touch trash receptacles for disposal.”

... None of these items are provided as a part of Parchman's response.

The Amos court relied on the Fifth Circuit's recent decision in Valentine and

concluded that the plaintiffs had presented insufficient evidence of deliberate indifference

with respect to the prison’s COVID-19 response.

The defendants have taken numerous proactive steps to prevent the

transmission of COVID-19, which they believe to be consistent with the

CDC Guidance. Doc. #75-2 at J 5. While there is some evidence showing

incomplete implementation of the procedures, the evidence is either limited

3 2020 WL 1978382 (N.D. Miss. Apr. 24, 2020).

4 Id. at *10 (citing M.D. ex rel. Stukenberg v. Abbot, 929 F.3d 272, 289 (5th Cir. 2019) (Higginbotham, J.,

concurring in part) (“Best practices are not the handmaiden of deliberate indifference.”).

fd.

98 fd.

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to sporadic instances, limited to two buildings in a single unit of Parchman,

or both, and therefore fails to show a policy or custom which would justify

the facility-wide injunctive relief sought by the plaintiffs. See Foster v.

Tarrant Cty. Sheriff's Dep't, No. 4:20-cv-113, 2020 WL 1906095, at *3 (N.D.

Tex. Apr. 17, 2020) (“The general rule is that allegations of isolated

incidents are insufficient to establish a custom or policy.”) (collecting cases).

Similarly, while elements of Parchman's protocols appear to conflict with a

handful of provisions in the CDC Guidance (provision of paper towels and

tissues and policies enforcing social distancing), these departures are

insufficient on their own to show a likelihood of success regarding deliberate

indifference, particularly in light of the comprehensive and far reaching

steps taken by the defendants. Valentine, 2020 WL 1934431, at * 4; cf.

Hernandez, 110 F. Supp. 3d at 943 (“At least since the CDC released its

guidelines, and since Puisis issued his report showing Defendants’ policies

and practices fell below the constitutional standard of care, Defendants

have known about the risks of harm but have not changed their practices.”).

Indeed, as in Valentine, the evidence shows that Parchman “has taken and

continues to take measures—informed by guidance from the CDC and

medical professionals—to abate and control the spread of the virus.” 2020

WL 1934431, at * 4. Accordingly, the Court concludes that the plaintiffs are

unlikely to succeed on their claims.9”

Although Plaintiffs herein attempt to distinguish this case from the facts in

Valentine, the Court does not find the facts significantly different such that the reasoning

and analysis in Valentine is not instructive here. In Valentine, the Fifth Circuit stayed

pending appeal an injunction issued by a district court against a prison where the plaintiffs

failed to demonstrate likely success in showing deliberate indifference.°® The court found

that the evidence demonstrated that the prison took numerous steps to prevent

transmission, including employee screenings, copay waivers, suspension of in-person

visits, isolation for symptomatic inmates, masks for staff, increased cleaning in inmate

areas, and increased soap access.9° Additionally, the plaintiffs submitted evidence

97 fd. at *11.

98 2020 WL 1934431, at *4.

99 Id.

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showing that at least one symptomatic inmate was not isolated; some cleaning policies

were not being implemented; the prison refused to give inmates hand sanitizer, facial

tissues or paper towels; information on co-pays and COVID-19 were not adequately

presented to inmates; and social distancing was not being enforced.'°° The Fifth Circuit

stayed the district court’s injunction, concluding that the prison was likely to succeed on

the merits of its appeal because “the Plaintiffs lack evidence of the Defendants’ subjective

deliberate indifference” to the risk of COVID-19.' The Fifth Circuit reasoned:

Though the district court cited the Defendants' general awareness of the

dangers posed by COVID-19, it cited no evidence that they subjectively

believe the measures they are taking are inadequate. To the contrary, the

evidence shows that TDCJ has taken and continues to take measures—

informed by guidance from the CDC and medical professionals—to abate

and control the spread of the virus. Although the district court might do

things differently, mere “disagreement” with TDCJ's medical decisions does

not establish deliberate indifference."

For the same reasons articulated in Amos and Valentine, the Court finds that, while

the Camp J transfer and isolation plan is not a “perfect” plan, the well-intentioned efforts

to decrease the risk of harm and the spread of the coronavirus throughout Louisiana jails

and prisons belies a claim of deliberate indifference. Under the foregoing jurisprudence,

occasional failures of implementation or lax enforcement of guidelines by Defendants

does not constitute deliberate indifference. Plaintiffs have presented no evidence that

Defendants subjectively believe their plan is inadequate, and the overall success of the

plan thus far undermines Plaintiffs’ claims.

100 at *4-*6.

101 Id, at *4.

102 Id. (citations omitted).

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B. Harm to the Defendants & Public Policy/Safety Factors

1. Harm to Defendants

While Plaintiffs focus entirely on the alleged risk of harm to their purported class,

Plaintiffs fail to give any real consideration to the serious potential risk of harm that an

injunction would cause to Defendants. As noted above, the DOC is not charged solely

with the protection of inmates at LSP; rather, the DOC is responsible for the care and

safety of all prisoners in the custody of the DOC throughout the State of Louisiana. Dr.

Morrison and Sec. LeBlanc testified that an injunction would be devastating for inmates

housed at facilities that cannot safely isolate/quarantine COVID-19 positive inmates.

When asked about the impact of halting the Camp J plan, Sec. LeBlanc responded that

one could use his/her imagination to picture the catastrophic consequences of illness and

death. Additionally, while Plaintiffs’ experts opined/testified regarding Camp J and LSP,

they did not consider or reach conclusions as to the effect on the remainder of the

Louisiana inmates in DOC custody if Camp J is closed. Plaintiffs presented no evidence

to rebut the fact that the harm of closing Camp J outweighs any alleged speculative

injuries to Plaintiffs, particularly considering the success of the Camp J plan to date.

Regarding weighing the potential harm to the state if an injunction was upheld,

many of the findings by the Fifth Circuit in Valentine are applicable to the present matter.

In Valentine, the court found that the injunctive relief ordered by the district court visited

harm upon the State Department of Corrections. The Valentine court found that “it is

‘difficult to imagine an activity in which a State has a stronger interest, or one that is more

intricately bound up with state laws, regulations, and procedures, than the administration

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of its prisons.”""°? The court further found that the harm to the state Department of

Corrections was “particularly acute” because the injunction “interferes with the rapidly

changing and flexible system-wide approach . . . used to respond to the pandemic so

far.”1°4 This same harm would ensue if this Court imposed Plaintiffs’ notions of pandemic

response on the DOC in this case. The Valentine court further observed that the

Department's “ability to continue to adjust its policies is significantly hampered by the

preliminary injunction, which locks in place a set of policies for a crisis that defies fixed

approaches.”'°> Similarly, this Court finds that an injunction would raise serious potential

risk of harm to the Defendants because it would hamstring the DOC “from responding to

the COVID-19 threat without a permission slip from the district court.’1°° For the same

reasoning and analysis articulated by the Fifth Circuit, the Court finds that the second

factor weighs in Defendants’ favor. Plaintiffs have failed to demonstrate that the

requested injunction will not cause irreparable harm to Defendants and potentially to

inmates and pre-trial detainees throughout the State of Louisiana.

2. Public Safety Issues with Alternative Plans

Plaintiffs acknowledge that Defendants have “instructed the local jails and prisons

to transport their confirmed cases to Camp J only if patients cannot be isolated at the

103 Valentine, 2020 WL 1934431, at *5 (citing Woodford v. Ngo, 548 U.S. 81, 94, 126 S.Ct. 2378, 165

L.Ed.2d 368 (2006) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 36 L.Ed.2d 439

(1973)); see also Missouri v. Jenkins, 495 U.S. 33, 51, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990).

104 Id.

105 (citing Jacobson v. Massachusetts, 197 U.S. 11, 28-29, 25 S.Ct. 358, 49 L.Ed. 643 (1905); In re

Abbott, 954 F.3d 772, —— (5th Cir. 2020)).

106 fd. The Fifth Circuit reinforced this principle in Marlowe, when it found that the harm from the district

court’s injunctive relief was “particularly acute because the district court’s order interferes with the rapidly

changing ... approach that [DPSC] has used to respond to the pandemic so far.” 2020 WL 2043425, at *4

(quoting Valentine, 2020 WL 1934431, at *5).

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local facility,"'°° but complain that “the DOC has presented no evidence that the local

facilities have received any guidance on setting up such isolation capabilities or held

accountable for efforts to do so,” and “[t]here is little incentive for facilities to attempt

isolation on their own when the Camp J option is available.”'°° Clearly, Plaintiffs attempt

to shift their burden of proof onto Defendants. Plaintiffs have offered no evidence that

local jails and prisons are not attempting to isolate prisoners where they can, and the

claim that local jails must not be following this instructive because there is no incentive to

do so is argumentative, speculative, and unsupported by evidence. Moreover, not only

is this refuted by Defendants’ evidence, this is Plaintiffs’ motion, and it is incumbent upon

Plaintiffs to present evidence to support their claims, not Defendants. It is improper for

Plaintiffs to toss out speculative allegations then demand Defendants offer evidence to

disprove them.

Also, Plaintiffs repeatedly claim that a better alternative to the Camp J transfer plan

is to house COVID-19 positive inmates at the Medical Monitoring Station (“MMS”) in the

New Orleans, Louisiana Morial Convention Center."!° Plaintiffs claim Defendants have

“completely ignore[d]” the availability of the MMS, “which is fully equipped to house

incarcerated patients and has hundreds of empty beds.”"'! Sec. LeBlanc was asked

about this purported alternative, and he testified that transferring inmates to the MMS

would be a “public safety nightmare.” Indeed, Plaintiffs fail to offer evidence or address

toe Rec. Doc. No. 48, p. 20.

0 Rec. Doc. No. 15-1, p. 24, n. 168.

1 Rec. Doc. No. 26-2, p. 2, n. 12 (citing Situational Awareness Report, supra note 4 (“384 beds are

available.)).

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genuine public safety concerns posed by the use of the MMS to house COVID-19

inmates.

Moreover, the existence of an alternative plan — even a better plan - is not evidence

that the challenged plan is unconstitutional or illustrative of deliberate indifference.

Whether the Plaintiffs’ proffered alternative plan of using the MMS in New Orleans is

feasible and better than Defendants’ plan is not the inquiry. Plaintiffs must offer evidence

that the challenged plan is unconstitutional, and they have not done so. The Court finds

that the balance of the harms and the public interest weigh against the issuance of the

requested TRO or preliminary injunction.

Vill. CONCLUSION

Accordingly, for the reasons set forth above, Plaintiffs Emergency Motion to

Restrain Defendants from Transferring COVID-19 Carriers to Louisiana State

Penitentiary''? is DENIED.

Signed in Baton Rouge, Louisiana on May 15, 2020.

fh Mack

wii bic

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

Document Number: 60212

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