Application — Laddy Curtis Valentine, et al., Applicants v. Bryan Collier, Executive Director, Texas Department of Criminal Justice, et al.
Supreme Court briefMay 4, 2020
Ask Donna
What actually matters in this document.
Text
No. 19A________
In the Supreme Court of the United States
__________
LADDY CURTIS VALENTINE AND RICHARD ELVIN KING,
INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED,
Applicants,
v.
BRYAN COLLIER, IN HIS OFFICIAL CAPACITY, ROBERT HERRERA, IN HIS OFFICIAL
CAPACITY, AND THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Respondents.
__________
EMERGENCY APPLICATION TO JUSTICE ALITO TO VACATE STAY
PENDING APPEAL OF PRELIMINARY INJUNCTION ENTERED BY THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
__________
JEFF EDWARDS
SCOTT MEDLOCK
MICHAEL SINGLEY
DAVID JAMES
The Edwards Law Firm
The Haehnel Building
1101 East 11th Street
Austin, Texas 78702
(512) 623-7727
JOHN R. KEVILLE
DENISE U. SCOFIELD
MICHAEL T. MURPHY
BRANDON W. DUKE
Counsel of Record
BENJAMIN D. WILLIAMS
ROBERT L. GREEN
CORINNE STONE HOCKMAN
Winston & Strawn LLP
800 Capitol Street, Suite 2400
Houston, Texas 77002
(713) 651-2600
bduke@winston.com
Counsel for Applicants
TABLE OF CONTENTS
Page
STATEMENT ................................................................................................................. 2
REASONS TO VACATE THE STAY ............................................................................ 6
I.
The Stay Imposes a Risk of Serious and Irreparable Harm to Plaintiffs ......... 7
II.
The Stay Panel’s Application of the Stay Factors Was Demonstrably
Wrong .................................................................................................................. 8
A.
B.
C.
III.
The Stay Panel Applied Incorrect Standards and Ignored the
District Court’s Fact Findings to Conclude that Defendants Are
Likely to Prevail on Appeal...................................................................... 9
1.
The Stay Panel Improperly Overruled the District Court’s
Fact Findings on Harm Without Finding Clear Error ............... 10
2.
The Stay Panel Improperly Overruled the District Court’s
Fact Findings on Deliberate Indifference ................................... 14
The Stay Panel Overruled the District Court’s Fact Findings on
the Remaining Elements Despite Not Finding Them Clearly
Erroneous................................................................................................ 16
1.
The District Court’s Finding of Irreparable Harm to
Plaintiffs Was Not Clearly Erroneous ........................................ 17
2.
Defendants Put Forward No Evidence of Actual Harm to
Factor into the Balance of Equities ............................................ 18
3.
The Injunction Was Not Against the Public Interest ................ 20
Defendants’ Unproven PLRA Defense Does Not Justify a Stay .......... 21
1.
The Stay Panel Applied the Wrong Standard by
Improperly Shifting the Burden to Plaintiffs ............................. 21
2.
The District Court’s Injunction Was Narrowly Tailored
Based on the Record Before It ..................................................... 23
The Court Would Likely Grant Review............................................................ 24
CONCLUSION............................................................................................................. 25
i
TABLE OF AUTHORITIES
Page(s)
Cases
Abrams v. Chapman,
Case No. 2:20-cv-11053 (E.D. Mich. filed Apr. 29, 2020) ...................................... 25
Atchafalaya Basinkeeper v. United States Army Corps of Engineers,
894 F.3d 692 (5th Cir. 2018) .............................................................................. 9, 16
Coleman v. Paccar Inc.,
424 U.S. 1301 (1976) ................................................................................................ 6
Cullors v. County of Los Angles,
Case No. 2:20-cv-03760 (C.D. Cal. filed Apr. 24, 2020)......................................... 25
Enter. Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana,
762 F.2d 464 (5th Cir. 1985) ................................................................................ 7, 9
Farmer v. Brennan,
511 U.S. 842 (1994) .............................................................................. 10, 14, 15, 16
Fernandez-Rodriguez v. Licon-Vitale,
Case No. 1:20-cv-03315 (S.D.N.Y. filed Apr. 28, 2020) ......................................... 25
Fletcher v. Menard Corr. Ctr.,
623 F.3d 1171 (7th Cir. 2010) ................................................................................ 23
Gates v. Cook,
376 F.3d 323 (5th Cir. 2004) ............................................................................ 11, 12
Helling v. McKinney,
509 U.S. 25 (1993) .................................................................................................. 23
Inwood Labs., Inc. v. Ives Labs., Inc.,
456 U.S. 844 (1982) .......................................................................................... 13, 20
Jones v. Bock,
549 U.S. 199 (2007) ................................................................................................ 22
June Med. Servs., L.L.C. v. Gee,
136 S. Ct. 1354 (2016) .............................................................................................. 6
Martinez-Brooks v. Easter,
Case No. 3:20-cv-00569 (D. Conn. filed Apr. 27, 2020) ......................................... 25
ii
Mays v. Dart,
Case No. 1:20-cv-02134 (N.D. Ill. filed Apr. 3, 2020) ............................................ 25
Mistretta v. United States,
488 U.S. 361 (1989) ................................................................................................ 25
Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................. 8
Pennhurst State School & Hospital v. Halderman,
465 U.S. 89 (1984) ...........................................................................................passim
Reynolds v. Int’l Amateur Athletic Fed’n,
505 U.S. 1301 (1992) ................................................................................................ 6
Ross v. Blake,
136 S. Ct. 1850 (2016) ...................................................................................... 22, 23
Simms v. District of Columbia,
872 F. Supp. 2d 90 (D.D.C. 2012) .......................................................................... 21
Turner v. Safley,
482 U.S. 78 (1987) .................................................................................................. 20
W. Airlines v. Teamsters,
480 U.S. 1301 (1987) .......................................................................................passim
Ex Parte Young,
209 U.S. 123 (1908) ................................................................................................ 14
Statutes
18 U.S.C. § 3626(a)(2) .................................................................................................. 24
42 U.S.C. § 1983 ........................................................................................................... 14
42 U.S.C. § 1997e(a)..................................................................................................... 22
Other Authorities
Sup. Ct. R. 10 ............................................................................................................... 25
iii
To the Honorable Samuel A. Alito, Jr., Associate Justice of the Supreme
Court and Circuit Justice for the Fifth Circuit:
Plaintiffs-Applicants, two inmates at a geriatric state prison unit in Texas,
filed the underlying action to require prison officials to provide safeguards against
further COVID-19 contamination in a facility that has already experienced at least
one COVID-19 related death. After an evidentiary hearing, the district court found
that Plaintiffs made a sufficient showing of deliberate indifference to support a
narrowly tailored preliminary injunction necessary to preserve the status quo and
protect the lives and health of these elderly inmates. On April 22, 2020, the U.S.
Court of Appeals for the Fifth Circuit stayed that preliminary injunction over
Plaintiffs’ objection and in contravention of the district court’s factual findings. The
COVID-19 pandemic is a serious public health crisis shown to spread in confined
conditions at an alarming rate. Every day that the state refuses to implement the
measures set forth in the injunction exposes Plaintiffs to serious and irreparable
harm from COVID-19. This Court’s intervention is urgently needed. Applicants
respectfully request that the Fifth Circuit’s stay be vacated.
1
STATEMENT
While most of the country observes social distancing and remains in their
homes to keep safe from COVID-19, one highly at-risk population for contraction of
the virus has been all but forgotten: those in our Nation’s prisons. This case concerns
the most basic human right—the ability to protect oneself from grave danger.
Plaintiffs Laddy Valentine (age 69) and Richard King (age 73) are elderly
inmates in the Pack Unit, a prison in Grimes County, Texas for geriatric prisoners—
a high-risk population for COVID-19. Plaintiffs filed a putative class action alleging
violations of their and similarly situated inmates’ constitutional rights under the
Eighth Amendment and statutory rights under the Americans with Disabilities Act.
Ex. 5, Complaint. Plaintiffs allege their rights are violated by Defendants’ willful and
deliberately indifferent and discriminatory conduct in failing to protect inmates
housed in the Pack Unit who face severe illness or death from exposure to COVID19. Id. 1. According to the complaint, Defendants are subjectively aware and “act with
deliberate indifference to the serious risk COVID-19 poses to the inmates in their
custody and care, including the numerous medically vulnerable individuals currently
in confinement, without regard to their safety and health.” Id. ¶¶ 75–77.
After the complaint was filed, the parties had several conferences with the
district court to discuss steps the Pack Unit could implement to address the
constitutional violations. Exs. 6–7, notices of settings. After one such conference,
Defendants requested an additional, immediate conference and subsequently
informed the district court and Plaintiffs, for the first time, that an inmate at the
2
Pack Unit, 62-year-old Leonard Clerkly, had died three days earlier from COVID-19
related complications. Ex. 8, Minute Entry; see also Ex. 9, TDCJ COVID-19 Update
Apr. 14, 2020, https://www.tdcj.texas.gov/covid-19/index2.html. Given the clear
urgency, Plaintiffs requested an immediate hearing on their application for injunctive
relief, which was set for April 16, 2020 at 1:30 p.m. Id.
At that hearing, Plaintiffs put forward five live witnesses. Plaintiffs Valentine
and King testified about the current prison conditions, including that many staff
members still do not wear masks (Ex. 16, Valentine Decl. ¶ 12); that inmates have
not been given any oral guidance on preventing COVID-19 transmission (Ex. 10, Inj.
Hr’g Tr. 66:19–69:6); that inmates are not allowed to use hand sanitizer, despite
Defendants posting signs recommending inmates do so (id. 65:25–66:5); that
Defendants do not enforce social distancing even where it is feasible (id. 69:7–71:24);
that inmates working janitorial duty have to share a single pair of gloves between
three inmates (id. 80:2–14); and that half of one dormitory is presently empty but not
being used to facilitate social distancing (id.75:17–76:13).
The district court also heard testimony from three of Plaintiffs’ experts, Dr.
Joseph C. Gathe, Eldon Vail, and Dr. Jeremy Young, who each testified consistent
with their previously submitted declarations. Ex. 4, Inj. Mem. Op. 5–6. Dr. Gathe, an
expert in internal medicine and infectious disease who currently treats COVID-19
patients, testified about the grave risks presented by the current conditions at the
Pack Unit, especially given the recent fatality. Id. 5. Dr. Gathe also testified about
the need to test all the Unit’s inmates and begin quarantine procedures to prevent
3
COVID-19 from overwhelming the facility. Id. 26; Ex. 10, Inj. Hr’g Tr. 14:6–16:9.
Eldon Vail, an expert on correctional administration who twice served as the Deputy
Secretary for the Washington State Department of Corrections and as a warden for
three state prisons, testified about his experience as a prison warden and
administrator and how, in response to a significant influenza outbreak, he had taken
steps like those in Plaintiffs’ request for injunctive relief, including temporarily
allowing inmates to have access to hand sanitizer in common areas to help prevent
the virus’s spread. Ex. 4, Inj. Mem. Op. 5; Ex. 10, Inj. Hr’g Tr. 28:3–31:19. Dr. Young,
an expert in internal medicine and infectious disease with a background in
suppressing virologic outbreaks in the Illinois prison system, testified about his
experience controlling and suppressing infections in prison systems and the extreme
risk to inmates at the Pack Unit, which he compared to a “tinderbox” ready to burst
into flames.1 Ex. 4, Inj. Mem. Op. 5–6; Ex. 10, Inj. Hr’g Tr. 93:14–17, 95:14–21. Dr.
Young also agreed with Dr. Gathe and Secretary Vail about the measures needed to
protect the inmates in the Pack Unit, which were reflected in Plaintiffs’ requested
relief. See Ex. 10, Inj. Hr’g Tr. 86:23–87:11. Defendants did not challenge the
credentials or expertise of any of these witnesses, and their testimony went
unrebutted. Ex. 4, Inj. Mem. Op. 13–14, 28.
1 Plaintiffs also submitted the declaration of Dr. Robert L. Cohen, an expert in the
field of Correctional Medicine who previously oversaw the provision of medical
services to more than 13,000 prisoners at Rikers Island in New York. Ex. 11
(declaration of Robert L. Cohen); see also Ex. 4, Inj. Mem. Op. 4.
4
After the hearing, the district court issued a preliminary injunction, requiring
Defendants to take certain measures that the district court found necessary to
preserve the status quo: Plaintiffs and the putative class being alive and uninfected.
Ex. 2, Prelim. Inj. 4. The last sentence of the district court’s order reads: “The Court
will issue a memorandum and order setting forth the grounds for this preliminary
injunction.” Id. 4.
That next morning, the press and local governments reported that another
elderly inmate at the prison had tested positive for COVID-19. See Ex. 12, Press
Release, Eighth and Ninth Confirmed Cases of COVID-19 in Grimes County, Grimes
County
Office
of
Emergency
Management
(Apr.
16,
2020),
https://www.grimescountytexas.gov/page/open/2341/0/Grimes%20County%20Pack%
20Unit%20Cases%20Press%20Release.pdf. That same day, Defendants filed a threepage motion requesting a stay of the preliminary injunction pending appeal. Within
hours, the district court stayed the injunction “until 5:00 pm on Wednesday, April 22,
2020, in order to, among other reasons, allow for issuance of the Court’s
accompanying Memorandum and Order laying out the factual and legal basis for the
Court’s Preliminary Injunction Order.” Ex. 3, Order Staying Inj. The district court
noted it would “entertain requests for extension of the length of the stay if needed.”
Id. Rather than wait for the district court’s memorandum and order to issue or for
the district court’s stay to expire, Defendants moved for the Fifth Circuit to stay the
injunction pending appeal. See generally Ex. 1, Stay Op. Over Plaintiffs’ opposition,
the Fifth Circuit granted the stay. Id. Accordingly, the preliminary injunction is not
5
currently in effect. In the interim, based on the Fifth Circuit’s stay, Defendants have
refused to provide any details regarding the second COVID-19 positive inmate or
whether other inmates have tested positive.
REASONS TO VACATE THE STAY
A Circuit Justice or the full Court has jurisdiction to vacate a stay entered by
a court of appeals “regardless of the finality of the judgment below.” W. Airlines v.
Teamsters, 480 U.S. 1301, 1304 (1987) (O’Connor, J., in chambers); see, e.g., June
Med. Servs., L.L.C. v. Gee, 136 S. Ct. 1354 (2016) (vacating Fifth Circuit’s stay of a
district court’s injunction pending appeal). An application to vacate a stay should be
granted “where it appears that the rights of the parties to a case pending in the court
of appeals, which case could and very likely would be reviewed [by this Court] upon
final disposition in the court of appeals, may be seriously and irreparably injured by
the stay, and the Circuit Justice is of the opinion that the court of appeals is
demonstrably wrong in its application of accepted standards in deciding to issue a
stay.” W. Airlines, 480 U.S. at 1305 (quoting Coleman v. Paccar Inc., 424 U.S. 1301,
1304 (1976) (Rehnquist, J., in chambers)); see also Reynolds v. Int’l Amateur Athletic
Fed’n, 505 U.S. 1301, 1301–02 (1992) (Stevens, J., in chambers).
This case meets all of those requirements. The stay pending appeal risks
imposing the very harm that Plaintiffs sought to prevent: infection and possible death
from COVID-19 on Defendants’ watch. The stay effectively acts as a pocket veto of
the district court’s well-supported findings. In rejecting those findings, the stay panel
strayed from the governing standards—requiring deference to the district court’s fact
6
findings—and instead did what the Fifth Circuit itself regards as improper, “simply
[] substitute[ing] its judgment for the trial court’s.” Enter. Int’l, Inc. v. Corporacion
Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985). The stay panel also
misapplied this Court’s precedent in Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 124 (1984) by reframing the preliminary injunction as
enforcement of state law, even though the injunction was grounded in the Eighth
Amendment. If the merits panel reverses the preliminary injunction on these
grounds, the Court is likely to grant review to correct this fundamental deviation in
appellate review and constitutional law. For these reasons, Plaintiffs request the stay
be vacated.
I.
The Stay Imposes a Risk of Serious and Irreparable Harm to Plaintiffs
COVID-19 is already inside the Pack Unit, costing one inmate his life, infecting
at least one other, and risking the lives of Plaintiffs and the remaining population.
Ex. 4, Inj. Mem. Op. 16. The Fifth Circuit recognized the urgency and set expedited
briefing for the appeal, but with oral argument still a month away, there is a grave
risk that any merits decision will be too late for Plaintiffs. Plaintiffs’ infectiousdisease expert described this dire situation as a “tinderbox ready to catch fire.” Ex.
10, Inj. Hr’g Tr. 91:14–17. If the current stay is left in place, this spark could become
an inferno, overwhelming the Pack Unit just as it has prisons across the country.2
Within TDCJ’s own system, the “Beto Unit” has over 100 positive cases. Ex. 13, TDCJ
2 As an example, one Ohio prison had 73% of its inmates test positive for COVID-19.
This is unfortunately not uncommon. A Tennessee prison has over 500 cases,
representing 99% of the COVID-19 cases in its county, and Terminal Island Prison in
California has 600 cases and five deaths.
7
COVID-19
Medical
Action
Center,
https://www.tdcj.texas.gov/covid-
19/offender_mac.html. A similar outbreak at the Pack Unit poses an even greater risk
because of the Pack Unit’s elderly and infirm population. Ex. 4, Inj. Mem. Op. 7. The
district court recognized all of this and, based on the largely unchallenged medical
and factual evidence, ordered the measures it found necessary to protect the status
quo: “Plaintiffs and proposed class members remaining alive and free from serious
illness stemming from COVID-19.” Id. 29. The stay jeopardizes that status quo. Given
this extreme risk of harm and the demonstrable misapplication of the stay factors,
the stay should be vacated.
II.
The Stay Panel’s Application of the Stay Factors Was Demonstrably
Wrong
In determining whether to grant the stay, the panel looked at: (1) whether the
Defendants made a strong showing that they are likely to succeed on the merits;
(2) whether Defendants will be irreparably injured absent a stay; (3) whether
issuance of the stay would substantially injure Plaintiffs and other parties interested
in the proceeding; and (4) where the public interest lies. Ex. 1, Stay Op. 5 (citing Nken
v. Holder, 556 U.S. 418, 426 (2009). The stay panel’s application of these factors was
demonstrably wrong because it failed to apply the governing “abuse of discretion”
standard for review of a preliminary injunction. The stay panel reached its decision
on likelihood of success and harm by consistently rejecting or ignoring the district
court’s findings. These fact findings were entitled to deference under the clearly
erroneous standard but received none. The stay panel also committed legal error by
misapplying this Court’s precedent in Pennhurst, effectively creating new law
8
forbidding injunctive relief for constitutional violations as long as Defendants have a
policy in place, regardless of what they do in practice. Under the correct legal
framework and giving proper deference to the district court’s well-supported fact
findings, none of the stay factors are met. Because the stay panel did not follow these
standards, its stay should be vacated.
A.
The Stay Panel Applied Incorrect Standards and Ignored the
District Court’s Fact Findings to Conclude that Defendants Are
Likely to Prevail on Appeal
To be likely to prevail on an appeal, Defendants must make a strong showing
that the district court abused its discretion in entering the preliminary injunction.
Enter. Int’l, Inc., 762 F.2d at 472 (“The district court’s decision to grant or deny a
preliminary injunction lies within its discretion, and may be reversed on appeal only
by a showing of abuse of discretion.”) (internal quotations omitted). This requires
showing that the district court committed an error of law or based its injunction on
an erroneous fact finding. Atchafalaya Basinkeeper v. United States Army Corps of
Engineers, 894 F.3d 692, 696 (5th Cir. 2018) (“Factual determinations within the
preliminary injunction analysis are reviewed for clear error, and legal conclusions
within the analysis are reviewed de novo.”).
The stay panel did not recite these standards, but nevertheless concluded that
Defendants were likely to prevail for two reasons: “(1) after accounting for the
protective measures TDCJ has taken, the Plaintiffs have not shown a ‘substantial
risk of serious harm’ that amounts to ‘cruel and unusual punishment’; and (2) the
district court committed legal error in its application of Farmer v. Brennan.” Ex. 1,
Stay Op. 6. On the first point, the stay panel never concluded that the district court’s
9
findings were clearly erroneous; rather, it simply chose to make new fact findings by
giving more weight to TDCJ’s CDC-compliance arguments in its brief, many of which
were proven false by evidence put before the district court. And for the second, the
stay panel incorrectly converted the district court’s fact finding on subjective intent
into a legal determination. The stay panel did not review these findings under the
appropriate “clearly erroneous” standard, and thus erred in concluding Defendants
are likely to succeed on appeal.
1.
The Stay Panel Improperly Overruled the District Court’s
Fact Findings on Harm Without Finding Clear Error
Since the suit started, Defendants claim to have made some changes that they
allege comply with CDC guidelines for prisons. The stay panel began with the
objective harm requirement, finding Defendants were likely to prevail because TDCJ
“submitted evidence to the district court of the protective measures it has taken” in
response to COVID-19, and that the Eighth Amendment did not require more. Ex. 1,
Stay Op. 6. To reach its conclusion, the stay panel treated the CDC guidelines as
dispositive, and thus ignored its own instruction that an associational standard “may
be a relevant consideration, [but] it is not per se evidence of constitutionality.” Gates
v. Cook, 376 F.3d 323, 337 (5th Cir. 2004) (“[I]t is absurd to suggest that the federal
courts should subvert their judgment as to alleged Eighth Amendment violations to
the [American Correctional Association] whenever it has relevant standards.”).
Treating the CDC guidelines as dispositive was also improper because the CDC itself
advises that its “guidance may need to be adapted based on individual facilities’
10
physical space, staffing, population, operations, and other resources and conditions,”3
and the sole prison at issue here is a geriatric prison with most inmates having
additional comorbidities making it much higher risk than the average prison. Ex. 4,
Inj. Mem. Op. 7. On this point, the district court heard from three medical experts
that the on-the-ground conditions at the Pack Unit present an immediate and dire
risk to Plaintiffs. Ex. 10, Inj. Hr’g Tr. 91:14–17. The district court also considered the
obvious danger—one inmate at the Pack Unit has already died from COVID-19, with
another infected, while other TDCJ facilities, like the Beto Unit, have numerous
positive test results demonstrating the obvious risk that was present. Ex. 4, Inj. Mem.
Op.
3–4;
Ex.
13,
TDCJ
COVID-19
Medical
Action
Center,
https://www.tdcj.texas.gov/covid-19/offender_mac.html. (showing hundreds of cases
in other units).
In contrast, Defendants did not put on a single witness, fact or expert, to claim
that the inmates were safe, instead choosing to stand on the policies they put in place,
many of which were only allegedly implemented on the eve of the hearing. Ex. 4, Inj.
Mem. Op. 4; Ex. 10, Inj. Hr’g Tr. 105:10–16. The stay panel mistook this policy—
which would not set a constitutional floor—for what Defendants were actually doing
in practice. Ex. 1, Stay Op. 6. Contrary to Defendants’ claims, the evidence showed
they: (1) were not providing inmates tissues or additional toilet paper as a substitute
3 See Ex. 14, CDC Interim Guidance on Management of Coronavirus Disease 2019
(COVID-19)
in
Correctional
and
Detention
Facilities,
available
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/
guidance-correctional-detention.html.
11
at
(Ex. 10, Inj. Hr’g Tr. 37:5–17, 66:13–24), despite CDC guidance and their own policies
to the contrary (Ex. 15, TDCJ Policy B-14.52; Ex. 14, CDC Interim Guidance); (2)
were not giving gloves to all inmate janitors tasked with cleaning, but instead making
three-person crews share a single pair of gloves between them (Ex. 10, Inj. Hr’g Tr.
81:2–14); (3) were leaving an entire dorm empty instead of using it to better distance
inmates (id. 76:17–77:13); (4) were allowing prison staff to not wear masks (Ex. 16,
Valentine Decl. ¶ 12); (5) were providing a significantly lower concentration of bleach
for cleaning than their policy requires (Ex. 10, Inj. Hr’g Tr. 79:5–81:1); (6) were not
providing any COVID-19 education beyond signs (id. 67:19–70:6), despite CDC
recommendations to account for inmates “with low literacy,” that have “cognitive or
intellectual disabilities,” or “who are deaf, blind, or low-vision” (Ex. 14, CDC Interim
Guidance).
It was not clearly erroneous for the district court to credit this unrebutted
evidence and find a substantial risk of serious harm. Gates v. Cook, 376 F.3d 323, 338
(5th Cir. 2004). Nor did the stay panel find it was, as it never applied the abuse of
discretion standard at all. Ex. 1, Stay Op., passim (never concluding any finding was
“clearly erroneous”). It simply credited Defendants’ unsupported statements,
overrode the district court’s fact finding, and improperly substituted its own
judgment. Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857–58 (1982) (“An
appellate court cannot substitute its interpretation of the evidence for that of the trial
court simply because the reviewing court might give the facts another construction,
resolve the ambiguities differently, and find a more sinister cast to actions which the
12
District Court apparently deemed innocent.”) (internal quotations omitted). A stay
based on this demonstrably improper application of the governing standards cannot
stand. W. Airlines, 480 U.S. at 1305.
The stay panel also justified its decision by explaining that, even if Defendants
were not following their own policies, Defendants could not be enjoined under this
Court’s holding in Pennhurst State School & Hospital v. Halderman. Ex. 1, Stay Op.
7. But this case does not present the Pennhurst scenario. There, the Court held that
the Eleventh Amendment barred injunctive relief against a state for violating its own
laws. 465 U.S. 89, 124 (1984). Defendants’ policies and practices at issue here are not
“state law” and Plaintiffs’ claims do not flow from them but from the Eighth
Amendment itself. See Ex. 4, Inj. Mem. Op. 2.
The stay panel’s confusion appears to stem from the district court’s
acknowledgement that aspects of its injunction “largely overlap with TDCJ’s COVID19 policy requirements and recommendations.” Ex. 1, Stay Op. 7; Ex. 4, Inj. Mem. Op.
23–24. Conflating this statement with Pennhurst rewrites the district court’s
injunction into something that it is not. Plaintiffs did not seek, and the district did
not grant, an injunction for Defendants to follow their own policies or any other state
law or guideline. Id. 2, 29. Based on a thorough record, the district court concluded
that Defendants are violating Plaintiffs’ Eighth Amendment rights and that the
least-restrictive means to correct that violation were the basic protective measures
set forth in its preliminary injunction. Id. 29.
13
Defendants never argued those actions were too restrictive (id. 31), as many
were actions they tacitly agreed should be taken based on their own policy (id. 24),
but were not happening in practice. That is the “virtue” the district court saw (Ex. 1,
Stay Op. 7)—that its injunction was not overly restrictive because Defendants
represented they were capable of many of the precautions, but chose not to actually
fulfill them (Ex. 4, Inj. Mem. Op. 28–31). That does not turn the injunction into an
improper declaration to “follow state law,” because the obligation arises from the U.S.
Constitution, not any state law (or even Defendants’ own policy). There is of course
no bar to such an injunction, and Section 1983 explicitly allows federal courts to grant
such relief. See 42 U.S.C. Section 1983; see also Ex Parte Young, 209 U.S. 123 (1908).
The stay panel improperly relied on Pennhurst to bar this well-established relief.
2.
The Stay Panel Improperly Overruled the District Court’s
Fact Findings on Deliberate Indifference
The stay panel’s second basis for finding Defendants likely to prevail on appeal
was that the district court committed “legal error” in its application of Farmer v.
Brennan. Ex. 1, Stay Op. 6–7. The purported error was “treating inadequate
measures as dispositive of the Defendants’ mental state” and failing to cite “evidence
that they subjectively believe the measures they are taking are inadequate.” Id. 7–8.
This framing misunderstands the issue. It was not legal error for the district court to
consider Defendants’ own actions when making a fact finding on their subjective
intent. As this Court noted in Farmer, circumstantial evidence will often be the basis
of finding subjective intent. 511 U.S. at 842 (“Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration
14
in the usual ways, including inference from circumstantial evidence . . . .”). As the
district court found, the very act of having policies to combat COVID-19 shows
Defendants were subjectively aware of the excessive risk it posed. Ex. 4, Inj. Mem.
Op. 21. The district court’s further finding that Defendants refuse to actually follow
those policies shows that they were deliberately indifferent to the known risk of that
failure. Id. 21–23.
While those facts alone would be sufficient to carry the district court’s finding,
they were not the only evidence of Defendants’ subjective intent. Plaintiffs also
showed there is a completely empty dorm at the Pack Unit that could be used to
improve social distancing—widely recognized as the most effective measure to combat
COVID-19—but that Defendants refuse to use it (Ex. 10, Inj. Hr’g Tr. 76:17–77:13),
that Defendants have not even considered allowing hand sanitizer despite
Defendants’ materials recognizing its importance (id. 65:25–66:5 (no hand sanitizer
available to inmates); Ex. 4, Inj. Mem. Op. 10 (explaining TDCJ has posters and
pamphlets that instruct inmates to use hand sanitizer)), and that Defendants ignore
the CDC’s recommendation that its “guidance may need to be adapted based on
individual facilities’ physical space, staffing, population, operations, and other
resources and conditions” (Ex. 14, CDC Interim Guidance), such as the high-risk
population of the Pack Unit. This evidence was largely unrebutted. Defendants’
refusal to follow their own procedures or consider anything beyond the CDC
guidelines—despite the recent death of an inmate due to COVID-19, the infection of
another, and the CDC’s emphasis that the guidelines must be adjusted based on the
15
circumstances—supports the district court’s finding that Defendants are deliberately
indifferent to the risk.
The stay panel again does not claim that these findings were clearly erroneous,
nor is there a basis to do so given the circumstantial evidence. It implies that relying
on circumstantial evidence at all was improper. That was legally incorrect as this
Court explained in Farmer. 511 U.S. at 842. The district court was not required to
take Defendants at their word and ignore the obvious. Id. Nor was it required to have
a direct admission from Defendants that they knew their conduct was inadequate as
the stay panel implied—a requirement that would bleed into intentional, rather than
reckless, conduct. Under Farmer, the district court could properly consider the
circumstantial evidence and make a fact finding on Defendants’ subjective intent. It
did, and that fact finding can only be overturned if it is clearly erroneous.
Atchafalaya, 894 F.3d at 696. Because the stay panel did not use that standard, its
application of the likelihood of success factor was demonstrably wrong and its stay
must be vacated. W. Airlines v. Teamsters, 480 U.S. at 1305.
B.
The Stay Panel Overruled the District Court’s Fact Findings on
the Remaining Elements Despite Not Finding Them Clearly
Erroneous
As with its findings on likelihood of success, the stay panel did not apply the
clearly erroneous standard to the district court’s factual findings that: (1) Plaintiffs
would be irreparably harmed; (2) that there was no evidence of harm to Defendants
beyond a generalized institutional injury; and (3) that the balance of the harms and
16
the public interest weighed in favor of an injunction. Accordingly, the stay panel’s
application of these factors was demonstrably wrong.
1.
The District Court’s Finding of Irreparable Harm to
Plaintiffs Was Not Clearly Erroneous
In its Memorandum and Order, the district court determined that “Plaintiffs’
alleged harm is both imminent and irreparable [because] [s]ince this suit was filed,
an inmate at Pack Unit has already died from COVID-related cause [and] [t]here
continues to be an imminent harm threatening the inmates at Pack Unit.” Ex. 4, Inj.
Mem. Op. 28–29. The district court found that without testing all of the inmates—a
remedy proscribed only in the injunction and not in TDCJ’s policies—“Plaintiffs
certainly face further infection.” Id. 29. In rendering its opinion, the district court
weighed the evidence presented by both parties, specifically noting that the
“population at Pack Unit, a geriatric unit, is overwhelmingly older and sicker than
the prison population at large,” a fact that “Defendants have not contested,” and that
because of these risk factors, “COVID-19 is more likely to result in death or serious
injury” to this population. Id. Consequently, the district court found that an
“injunction is necessary to prevent these irreparable harms from befalling
[Plaintiffs].” Id.
On review, the stay panel stated: “But the question is whether Plaintiffs have
shown that they will suffer irreparable injuries even after accounting for the
protective measures in TDCJ Policy B-14.52. Neither the Plaintiffs nor the district
court suggest the evidence satisfies that standard.” Ex. 1, Stay Op. 10. Not so.
Plaintiffs presented, and the district court considered, undisputed evidence in this
17
regard. For example, Plaintiffs presented overwhelming and uncontroverted evidence
that testing all inmates in the Pack Unit is necessary to avoid the high risk of serious
injury and death to the vulnerable inmate population, particularly in light of the
COVID-19 related death suffered by one of the inmates, and the infection of another
high-risk inmate. Ex. 10, Inj. Hr’g Tr. 14:6–16:9, 90:9–91:21. Based on this evidence,
the district court explicitly determined that Plaintiffs and other inmates at the Pack
Unit will suffer irreparable harm if they are not tested for COVID-19 and if “further
action to prevent transmission” is not taken (Ex. 4, Inj. Mem. Op. 28–29; see also id.
26 (“But the Court does not order widespread testing because it is ‘optimal.’ The Court
orders it because it is necessary for abating a substantial risk of serious harm to Pack
Unit inmates”)), and ordered TDCJ to submit a detailed testing plan to test all Pack
Unit inmates. Ex. 2, Prelim. Inj. 4.
Thus, at best, the stay panel made its determination without reviewing the
district court’s reasoned opinion or the underlying testimony upon which it relied. In
any case, the stay panel failed to conduct the required inquiry, and in light of the
underlying record, the stay panel’s determination cannot stand.
2.
Defendants Put Forward No Evidence of Actual Harm to
Factor into the Balance of Equities
In weighing the equities, the stay panel found that the injunction created an
“administrative nightmare” for Defendants. Ex. 1, Stay Op. 9. This finding was not
based on any evidence presented in the case. Aside from boilerplate complaints,
Defendants offered no explanation of why the specific relief requested would be overly
burdensome or difficult to implement at the Pack Unit. Ex. 4, Inj. Mem. Op. 31
18
(“[H]ere, Defendants have failed to present to the Court any evidence of undue burden
by an injunction.”). The stay panel again highlights TDCJ’s statewide policy (Ex. 1,
Stay Op. 9), which it believes will be interfered with, but the case concerns only the
abnormally-high-risk Pack Unit, and the stay panel did not confront the district
court’s factual finding that the policy was not enforced at the Pack Unit. Ex. 4, Inj.
Mem. Op. 31 (“[N]umerous provisions of the Court’s injunction are measures that
Defendants stated they had implemented but, in reality, have not—for instance,
providing masks and gloves for each inmate during janitorial shifts.”). Further, the
stay panel’s previous recognition that the preliminary injunction “largely overlapped
with TDCJ’s COVID-19 policy requirements and recommendations” (Ex. 1, Stay Op.
7) belies the claim that the same relief is somehow too burdensome for Defendants to
implement.
After accounting for the lack of evidence of actual injury, the only thing
remaining for the district court to consider was Defendants’ claim of an “institutional
injury.” The district court took this into account while balancing the equities, finding
that, although states have a “strong interest in the administration of their prisons”
and while there may be federalism principles at play, those interests do not outweigh
the threat to the lives of the Pack Unit inmates. Ex. 4, Inj. Mem. Op. 30 (“Principles
of federalism and deference, however, do not erode the core tenet that ‘[p]rison walls
do not form a barrier separating prison inmates from the protections of the
Constitution.’”) (quoting Turner v. Safley, 482 U.S. 78, 84 (1987)). The district court
determined that where, as here, there is a likelihood that Plaintiffs will successfully
19
demonstrate that “Defendants’ response to the global pandemic is deliberately
indifferent in violation of their constitutional rights, the balance of the equities and
public interest weigh in favor of an injunction to protect those rights.” Ex 4., Inj. Mem.
Op. 30. The district court appropriately balanced the potential harms to both parties
and found, as a matter of fact, that Plaintiffs’ harm outweighed that posed to
Defendants. See id.
There is no suggestion by the stay panel or by Defendants that the district
court abused its discretion or committed clear error in weighing the equities. Instead,
the stay panel improperly substituted its own judgment for that of the district court,
holding, without evidentiary support, that “[T]he burden upon TDC[J] in terms of
time, expense, and administrative red tape is too great while it must respond in other
ways to the crisis.” Ex. 1, Stay Op. 9 (alterations in original). For the same reasons
discussed above, this substitution of judgment is impermissible and should not stand.
Inwood Labs., 456 U.S. at 857–58.
3.
The Injunction Was Not Against the Public Interest
The stay panel only briefly addressed the public interest, finding that a stay
was warranted because Defendants’ interest and harm merged with that of the
public. The district court considered this, but used its discretion to find the public
interest was better served by an injunction for two reasons. First, “[i]t is always in
the public interest to prevent the violation of a party’s constitutional rights.” Simms
v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (collecting cases); Inj.
Mem. Op. 33. Second, the public has a strong interest in protecting the health and
safety of the inmates because a COVID-19 outbreak on the Pack Unit threatens the
20
health and safety of the surrounding community where many of the staff live. Ex. 4,
Inj. Mem. Op. 33. The stay panel did not consider these other public interests at all,
and thus its opinion is demonstrably flawed. This, in combination with its incorrect
analysis under the other factors, necessitates vacatur.
C.
Defendants’ Unproven PLRA Defense Does Not Justify a Stay
After concluding its analysis of the stay factors, the stay panel separately noted
that Appellants “face several obstacles to relief” under the PLRA, specifically
discussing exhaustion and narrowness of the injunction. Ex. 1, Stay Op. 10. While it
is unclear what weight, if any, this was given in the stay analysis, neither hurdle
warranted staying the preliminary injunction. As an affirmative defense, Defendants
had the burden of showing an unexhausted yet available remedy, and they wholly
failed to do so. Further, the district court found that its measures were the
least-restrictive means based on the evidence, including expert testimony from a
prison administrator and three medical experts. These PLRA requirements were not
grounds to stay the injunction.
1.
The Stay Panel Applied the Wrong Standard
Improperly Shifting the Burden to Plaintiffs
by
The PLRA only requires inmates to exhaust “such administrative remedies as
are available” before bringing suit. 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136
S. Ct. 1850, 1855, (2016) (“[W]e also underscore that statute’s built-in exception to
the exhaustion requirement: A prisoner need not exhaust remedies if they are not
‘available.’”). The Court has held that this exhaustion requirement is an affirmative
21
defense, subject to the normal standards of pleading and proof. Jones v. Bock, 549
U.S. 199, 216 (2007).
The district court found there was no remedy available to Plaintiffs under the
circumstances because TDCJ’s grievance process was not “capable of use for the
accomplishment of a purpose.” Ex. 4, Inj. Mem. Op. 16 (quoting Ross, 136 S. Ct. 1859).
TDCJ’s policy requires inmates to informally raise disputes and then complete a
multiple-step, months long process before the grievance is considered exhausted. See
id. 16. The district court heard testimony from three medical experts concerning the
immediate threat COVID-19 poses to Plaintiffs and the other inmates in the Pack
Unit, especially given that there are already at least two positive cases, with one
elderly inmate, Leonard Clerkly, dying from the disease. Id.4 The stark reality was
that even if Mr. Clerkly had filed a grievance before Governor Abbott declared a state
of emergency, he would have died before even completing Step 1 of the grievance
process. Ex. 5, Complaint ¶ 10. It was not erroneous for the district court to conclude
that the grievance process was not “capable of use,” when there was no evidence it
could be completed before Plaintiffs suffered the harm. Fletcher v. Menard Corr. Ctr.,
623 F.3d 1171, 1173 (7th Cir. 2010) (“[T]here is no duty to exhaust, in a situation of
imminent danger, if there are no administrative remedies for warding off such a
danger.”).
4 The second inmate was announced by Grimes County, but Defendants have refused
to disclose his identify. See Ex. 12, Press Release, Eighth and Ninth Confirmed Cases
of COVID-19 in Grimes County, Grimes County Office of Emergency Management
(Apr. 16, 2020), https://www.grimescountytexas.gov/page/open/2341/0/Grimes
%20County %20Pack%20Unit%20Cases%20Press%20Release.pdf.
22
In reaching its conclusion, the stay panel flipped the burden—faulting the
district court for not finding that TDCJ “would take the full time if given the chance.”
Ex. 1, Stay Op. 12. But it is Defendants’ affirmative defense and their burden to show
an “available” yet unexhausted remedy. Ross, 136 S. Ct. at 1855. Defendants
emphasized that they were not required to respond until mid-May and gave no
suggestion that they intended to move quicker so that some relief was actually
possible. Ex. 17, Defs.’ Opp. to TRO 7. In addition to improperly flipping the burden,
the stay panel’s wait-and-see approach requires Plaintiffs having their grievances
mooted, through infection or even death, before being allowed to bring suit. Ex. 1,
Stay Op. 12. This is not a requirement for injunctive relief, nor would it be justified
in a situation where the potential harm is death. Helling v. McKinney, 509 U.S. 25,
33 (1993) (“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.”). The district court was not required to let the months-long
grievance period run its course–and potentially allow irreparable harm to Plaintiffs—
to make its determination. The available evidence supported the district court’s
finding that no remedy was available here, and therefore exhaustion did not bar the
preliminary injunction.
2.
The District Court’s Injunction Was Narrowly Tailored
Based on the Record Before It
The stay panel’s final criticism of the preliminary injunction was that it
“appears that the district court’s injunction goes well beyond the limits of what the
PLRA would allow even if the Plaintiffs had properly exhausted their claims.” Ex. 1,
23
Stay Op. 13. This too fails to give proper credence to the district court’s findings of
fact. The district court reached its conclusion on what steps were needed based on
testimony from three separate infectious disease experts. Ex. 4, Inj. Mem. Op. 4–5. It
also heard from Eldon Vail, the former Secretary of the Washington State
Department of Corrections and an expert in prison administration, on what was
feasible in prison environments, including steps he took to mitigate a viral outbreak
at his prison. Id. 5. The stay panel found it “hard to see” how regular cleaning and
testing of inmates could be narrowly tailored, viewing them as “salutary,” but not
required, actions. Ex. 1, Stay Op. 14. But the stay panel did not have the benefit of
an injunction hearing with unrebutted expert testimony. As the district court
explained, it did not order these measures because they were “optimal”; it did so
because the evidence established they were “necessary for abating a substantial risk
of serious harm.” Ex. 4, Inj. Mem. Op. 26. This was a “direct and tailored response”
based on the district court’s findings (id. 25–26), and Defendants notably did not
present any credible evidence that these measures would have an “adverse impact on
public safety or the operation of the criminal justice system.” 18 U.S.C. § 3626(a)(2).
It was demonstrably wrong to stay the preliminary injunction on this ground.
III.
The Court Would Likely Grant Review
Finally, it is also appropriate to vacate the stay because this Court “could and
very likely would” review the court of appeal’s merits decision as to the preliminary
injunction. W. Airlines, 480 U.S. at 1305. This case presents a question of particular
national importance at this time when courts across the county are addressing how
to respond to violations of state and federal inmates’ rights in connection with the
24
COVID-19 pandemic. 5 In circumstances as time-sensitive and pressing as these, any
conflicts on these questions among the lower courts would warrant granting
certiorari. See Sup. Ct. R. 10; Mistretta v. United States, 488 U.S. 361, 371 (1989)
(granting certiorari “[b]ecause of the ‘imperative public importance’ of the issue” and
“the disarray among the Federal District Courts”). The stay panel’s misapplication of
this Court’s Pennhurst decision and failure to assess the district court’s factual
findings under the correct clearly erroneous standard of review would also warrant
review, as a similar decision by the Fifth Circuit merits panel would “conflict with
the relevant decisions of this Court” and other courts of appeals. Sup. Ct. R. 10(c).
5 See, e.g., Mays v. Dart, Case No. 1:20-cv-02134 (N.D. Ill. filed Apr. 3, 2020); Cullors
v. County of Los Angles, Case No. 2:20-cv-03760 (C.D. Cal. filed Apr. 24, 2020);
Martinez-Brooks v. Easter, Case No. 3:20-cv-00569 (D. Conn. filed Apr. 27, 2020);
Abrams v. Chapman, Case No. 2:20-cv-11053 (E.D. Mich. filed Apr. 29, 2020);
Fernandez-Rodriguez v. Licon-Vitale, Case No. 1:20-cv-03315 (S.D.N.Y. filed Apr. 28,
2020).
25
CONCLUSION
For these reasons, Applicants respectfully request that the stay entered by the
United States Court of Appeals for the Fifth Circuit be vacated.
Respectfully submitted,
JEFF EDWARDS
SCOTT MEDLOCK
MICHAEL SINGLEY
DAVID JAMES
The Edwards Law Firm
The Haehnel Building
1101 East 11th Street
Austin, Texas 78702
(512) 623-7727
s/ Brandon W. Duke
JOHN R. KEVILLE
DENISE U. SCOFIELD
MICHAEL T. MURPHY
BRANDON W. DUKE
Counsel of Record
BENJAMIN D. WILLIAMS
ROBERT L. GREEN
CORINNE STONE HOCKMAN
Winston & Strawn LLP
800 Capitol Street, Suite 2400
Houston, Texas 77002
(713) 651-2600
bduke@winston.com
26
CERTIFICATE OF SERVICE
I, Brandon W. Duke, a member of the bar of this Court, certify that on May 4,
2020, a copy of the foregoing and the attached exhibits were served on all parties by
email and first class mail to the individuals listed below:
KYLE D. HAWKINS, SOLICITOR GENERAL
MATTHEW HAMILTON FREDERICK
JASON R. LAFOND
CHRISTIN COBE VASQUEZ
Office of the Attorney General for the State of Texas
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697
kyle.hawkins@oag.texas.gov
matthew.frederick@oag.texas.gov
jason.lafond@oag.texas.gov
christin.vasquez@oag.texas.gov
s/ Brandon W. Duke
BRANDON W. DUKE
Counsel of Record
27
LIST OF EXHIBITS
1.
Court of Appeals Order Granting Defendant’s Motion to Stay of the
Preliminary Injunction (5th Cir. Apr. 22, 2020)
2.
Preliminary Injunction Order (S.D. Tex. Apr. 16, 2020)
3.
Order Granting Five-Day Stay of the Preliminary Injunction (S.D. Tex. Apr.
17, 2020)
4.
Memorandum and Order regarding the Preliminary Injunction (S.D. Tex. Apr.
20, 2020)
5.
Complaint and Application for a Temporary Restraining Order
6.
Notice of Setting for April 2, 2020 Telephonic Conference
7.
Order Setting April 6, 2020 Telephonic Conference
8.
Minute Entry for April 14, 2020 Telephonic Conference
9.
TDCJ COVID-19 Updates
10.
Transcript of April 16, 2020 Telephonic Evidentiary Hearing
11.
Declaration of Robert L. Cohen
12.
Grimes County Office of Emergency Management April 16, 2020 Press Release
13.
TDCJ COVID-19 Medical Action Center
14.
CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities
15.
TDCJ Policy B-14.52 Coronavirus Disease 2019 (COVID-19)
16.
Declaration of Laddy Valentine
17.
Defendant’s Response in Opposition to Plaintiffs’ Application for a Temporary
Restraining Order
28
Exhibit 1
Case: 20-20207
Document: 00515392232
Page: 1
Date Filed: 04/22/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 20-20207
FILED
April 22, 2020
Lyle W. Cayce
Clerk
LADDY CURTIS VALENTINE; RICHARD ELVIN KING,
Plaintiffs-Appellees,
v.
BRYAN COLLIER; ROBERT HERRERA; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM:
This case implicates the State of Texas’s response to COVID-19. On April
16, 2020, the United States District Court for the Southern District of Texas
issued a reticulated preliminary injunction against the executive director of
the Texas prison system and the warden of one of its prisons. The injunction
regulates in minute detail the cleaning intervals for common areas, the types
of bleach-based disinfectants the prison must use, the alcohol content of hand
sanitizer that inmates must receive, mask requirements for inmates, and
inmates’ access to tissues (amongst many other things). The district court
admitted that its injunction “goes beyond” the recommendations of the Centers
Case: 20-20207
Document: 00515392232
Page: 2
Date Filed: 04/22/2020
No. 20-20207
for Disease Control and Prevention. But in the district court’s view, anything
less than this injunction—including, presumably, the CDC guidelines—
violates the Eighth Amendment. Pursuant to Federal Rule of Appellate
Procedure 8, we stay the injunction pending appeal.
I.
As with every other part of the country, our Nation’s correctional
facilities have not escaped the reach of COVID-19. To mitigate the spread of
the virus, the Texas Department of Criminal Justice (“TDCJ”) has adopted and
implemented several rounds of measures guided by ever-changing CDC
recommendations. Plaintiffs are two inmates at the TDCJ Wallace Pack Unit
(“Pack Unit”), a prison for the elderly and the infirm. They say TDCJ’s
measures don’t go far enough.
On March 30, 2020, Plaintiffs filed a class action lawsuit on behalf of
disabled and high-risk Pack Unit inmates against TDCJ, its executive director,
and the warden of the Pack Unit. The complaint alleges violations of the Eighth
Amendment’s prohibition against cruel and unusual punishment, and of the
Americans with Disabilities Act. In addition, Plaintiffs sought a preliminary
injunction.
After considering Defendants’ written evidence and Plaintiffs’ live
witness testimony, the district court granted that injunction, finding it likely
that Plaintiffs could prove an Eighth Amendment violation. The district court
enjoined TDCJ to:
x “Provide Plaintiffs and the class members with unrestricted access to
hand soap and disposable hand towels to facilitate handwashing.”
x “Provide Plaintiffs and the class members with access to hand sanitizer
that contains at least 60% alcohol in the housing areas, cafeteria, clinic,
commissary line, pill line, and laundry exchange.”
2
Case: 20-20207
Document: 00515392232
Page: 3
Date Filed: 04/22/2020
No. 20-20207
x “Provide Plaintiffs and the class members with access to tissues, or if
tissues are not available, additional toilet paper above their normal
allotment.”
x “Provide cleaning supplies for each housing area, including bleachbased cleaning agents and CDC-recommended disinfectants in
sufficient quantities to facilitate frequent cleaning, including in
quantities sufficient for each inmate to clean and disinfect the floor and
all surfaces of his own housing cubicle, and provide new gloves and
masks for each inmate during each time they are cleaning or
performing janitorial services.”
x “Provide all inmates and staff members with masks. If TDCJ chooses to
provide inmates with cotton masks, such masks must be laundered
regularly.”
x “Require common surfaces in housing areas, bathrooms, and the dining
hall to be cleaned every thirty minutes from 7 a.m. to 10 p.m. with
bleach-based cleaning agents, including table tops, telephones, door
handles, and restroom fixtures.”
x “Increase regular cleaning and disinfecting of all common areas and
surfaces, including common-use items such as television controls,
books, and gym and sports equipment.”
x “Institute a prohibition on new prisoners entering the Pack Unit for the
duration of the pandemic. In the alternative, test all new prisoners
entering the Pack Unit for COVID-19 or place all new prisoners in
quarantine for 14 days if no COVID-19 tests are available.”
x “Limit transportation of Pack Unit inmates out of the prison to
transportation involving immediately necessary medical appointments
and release from custody.”
x “For transportation necessary for prisoners to receive medical
treatment or be released, CDC-recommended social distancing
requirements should be strictly enforced in TDCJ buses and vans.”
x “Post signage and information in common areas that provides: (i)
general updates and information about the COVID-19 pandemic; (ii)
information on how inmates can protect themselves from contracting
COVID-19; and (iii) instructions on how to properly wash hands.
Among other locations, all signage must be posted in every housing
area and above every sink.”
3
Case: 20-20207
Document: 00515392232
Page: 4
Date Filed: 04/22/2020
No. 20-20207
x “Educate inmates on the COVID-19 pandemic by providing information
about the COVID- 19 pandemic, COVID-19 symptoms, COVID-19
transmission, and how to protect oneself from COVID-19. A TDCJ staff
person must give an oral presentation or show an educational video
with the above-listed information to all inmates, and give all inmates
an opportunity to ask questions. Inmates should be provided physical
handouts containing COVID-19 educational information, such as the
CDC’s ‘Share Facts About COVID-19’ fact sheet already in TDCJ’s
possession.”
x “TDCJ must also orally inform all inmates that co-pays for medical
treatment are suspended for the duration of the pandemic, and
encourage all inmates to seek treatment if they are feeling ill.”
x “TDCJ must, within three (3) days, provide the Plaintiffs and the Court
with a detailed plan to test all Pack Unit inmates for COVID-19,
prioritizing those who are members of Dorm A and of vulnerable
populations that are the most at-risk for serious illness or death from
exposure to COVID-19. For any inmates who test positive, TDCJ shall
provide a plan to quarantine them while minimizing their exposure to
inmates who test negative. TDCJ must also provide a plan for testing
all staff who will continue to enter the Pack Unit, and for any staff that
test positive, provide a plan for minimizing inmates’ exposure to staff
who have tested positive.”
Prelim. Inj. Order at 2–4 [hereinafter PI Order].
In its memorandum opinion explaining this injunction, the district court
acknowledged that “many of the measures ordered in the preliminary
injunction largely overlap with TDCJ’s COVID-19 policy requirements and
recommendations.” D. Ct. Op. at 23. Yet the court believed the injunction
necessary “to promote compliance” with TDCJ’s policy, as well as CDC
guidelines. Id. at 24. Some of the conduct required of Defendants under the
injunction goes even further than CDC guidelines. But the district court found
that compliance with those guidelines alone could be constitutionally
insufficient. Id. at 25–26.
4
Case: 20-20207
Document: 00515392232
Page: 5
Date Filed: 04/22/2020
No. 20-20207
The district court stayed its preliminary injunction until April 22, 2020,
at 5 p.m. Defendants timely appealed and sought a stay of the preliminary
injunction pending appeal.
II.
When considering a stay, “a court considers four factors: (1) whether the
stay applicant has made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken v.
Holder, 556 U.S. 418, 426 (2009) (quotation omitted). The first two factors are
the most critical. Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016).
A.
We start with TDCJ’s likelihood of success on appeal. In a constitutional
claim alleging deliberate indifference to the conditions of a prisoner’s
confinement, the plaintiff must satisfy both the “subjective and objective
requirements” of the Eighth Amendment inquiry. Farmer v. Brennan, 511 U.S.
825, 846 (1994). To satisfy the objective requirement, the plaintiff must show
an “objectively intolerable risk of harm.” Ibid. To satisfy the subjective
requirement, the plaintiff must show that the defendant: “(1) was ‘aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists’; (2) subjectively ‘dr[e]w the inference’ that the risk existed; and
(3) disregarded the risk.” Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019)
(quoting Farmer, 511 U.S. at 837). The “incidence of diseases or infections,
standing alone,” do not “imply unconstitutional confinement conditions, since
any densely populated residence may be subject to outbreaks.” Shepherd v.
Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). Instead, the plaintiff must show
a denial of “basic human needs.” Ibid. “Deliberate indifference is an extremely
5
Case: 20-20207
Document: 00515392232
Page: 6
Date Filed: 04/22/2020
No. 20-20207
high standard to meet.” Cadena v. El Paso Cty., 946 F.3d 717, 728 (5th Cir.
2020).
TDCJ is likely to prevail on the merits of its appeal. That’s for two
reasons: (1) after accounting for the protective measures TDCJ has taken, the
Plaintiffs have not shown a “substantial risk of serious harm” that amounts to
“cruel and unusual punishment”; and (2) the district court committed legal
error in its application of Farmer v. Brennan.
1.
First, the harm analysis. There is no doubt that infectious diseases
generally and COVID-19 specifically can pose a risk of serious or fatal harm to
prison inmates. TDCJ acknowledges that fact. And it submitted evidence to
the district court of the protective measures it has taken as a result. 1 Those
protective measures include many of the things the district court ordered—
including “access to soap, tissues, gloves, masks, regular cleaning, signage and
education, quarantine of new prisoners, and social distancing during
transport.” D. Ct. Op. at 24. The legal question is whether the Eighth
Amendment requires TDCJ to do more to mitigate the risk of harm.
The district court said yes. It acknowledged the numerous protections
TDCJ provided, but it wanted to see “extra measures,” such as providing
alcohol-based sanitizer and additional paper products. D. Ct. Op. at 26. The
district court further acknowledged that the “extra measures” it required “go[ ]
beyond TDCJ and CDC policies.” Id. at 25. Plaintiffs have cited no precedent
1 The district court made much of the fact that TDCJ did not present “live testimony”
at the preliminary-injunction hearing. It’s unclear to us why that matters. It long has been
true that parties can present evidence at the preliminary-injunction stage with declarations
or affidavits. See, e.g., Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir.
1993). And, of course, it’s the Plaintiffs’ burden to prove their entitlement to an injunction,
not the Defendants’ burden to prove the opposite.
6
Case: 20-20207
Document: 00515392232
Page: 7
Date Filed: 04/22/2020
No. 20-20207
holding that the CDC’s recommendations are insufficient to satisfy the Eighth
Amendment.
TDCJ also is likely to succeed on appeal insofar as the district court
enjoined the State to follow its own laws and procedures. In Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89 (1984), a plaintiff class brought
suit under inter alia the Eighth Amendment and state law to challenge the
conditions at a state facility for people with mental disabilities. See id. at 92.
The Supreme Court held that the Eleventh Amendment prohibits federal
courts from enjoining state facilities to follow state law. See id. at 103–23.
Here, however, the district court acknowledged that its injunction “largely
overlap[ped]
with
TDCJ’s
COVID-19
policy
requirements
and
recommendations.” D. Ct. Op. at 23. In the district court’s view, this was a
virtue not a vice because its injunction would “promote compliance” with
TDCJ’s own policies. Id. at 24. Pennhurst plainly prohibits such an injunction.
2.
Second, even assuming that there is a substantial risk of serious harm,
the Plaintiffs lack evidence of the Defendants’ subjective deliberate
indifference to that risk. In Farmer v. Brennan, the Supreme Court held that
deliberate indifference requires the defendant to have a subjective “state of
mind more blameworthy than negligence,” Farmer, 511 U.S. at 835, akin to
criminal recklessness, id. at 839–40. The district court misapplied this
standard. It appeared to think that the question was “whether [the
Defendants] reasonably abate[d] the risk” of infection, D. Ct. Op. at 20, or
stated differently, “whether and how [TDCJ’s] policy is being administered,”
id. at 23.
The district court thus collapsed the objective and subjective components
of the Eighth Amendment inquiry established in Farmer, treating inadequate
7
Case: 20-20207
Document: 00515392232
Page: 8
Date Filed: 04/22/2020
No. 20-20207
measures as dispositive of the Defendants’ mental state. Such an approach
resembles the standard for civil negligence, which Farmer explicitly rejected.
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. See Dkt. 36-7 (declaration of TDCJ Health Services
Director); Dkt. 36 at 13–20 (compiling evidence of protective measures taken
by TDCJ). Although the district court might do things differently, mere
“disagreement” with TDCJ’s medical decisions does not establish deliberate
indifference. Cadena, 946 F.3d at 729.
B.
TDCJ also has shown that it will be irreparably injured absent a stay.
See Nken, 556 U.S. at 434. When the State is seeking to stay a preliminary
injunction, it’s generally enough to say “ ‘[a]ny time a State is enjoined by a
court from effectuating statutes enacted by representatives of its people, it
suffers a form of irreparable injury.’ ” Maryland v. King, 133 S. Ct. 1, 3 (2012)
(Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The Texas
Legislature assigned the prerogatives of prison policy to TDCJ. See, e.g., TEX.
GOV’T CODE ch. 501. The district court’s injunction prevents the State from
effectuating the Legislature’s choice and hence imposes irreparable injury.
Moreover, the Supreme Court has repeatedly warned 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 of its prisons.’ ” Woodford v. Ngo, 548 U.S. 81, 94 (2006)
8
Case: 20-20207
Document: 00515392232
Page: 9
Date Filed: 04/22/2020
No. 20-20207
(quoting Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973)); see also Missouri
v. Jenkins, 495 U.S. 33, 51 (1990). Yet the district court in this case imposed a
number of immediate demands on TDCJ. Among these is a plan within three
days to test all Pack Unit inmates for COVID-19, as well as a new plan to
quarantine those who test positive, distribute physical handouts with COVID19 information to the inmates, clean common surfaces every thirty minutes for
fifteen hours each and every day, and to provide masks to all inmates and staff
members. As we’ve said before about such intrusive orders, this one creates
“an administrative nightmare” for TDCJ “to comply with the district court’s
quotas and deadlines.” Ruiz v. Estelle, 650 F.2d 555, 571 (5th Cir. Unit A June
1981). “[T]he burden upon TDC[J] in terms of time, expense, and
administrative red tape is too great” while it must respond in other ways to the
crisis. Ibid.
The harm to TDCJ is particularly acute because the district court’s order
interferes with the rapidly changing and flexible system-wide approach that
TDCJ has used to respond to the pandemic so far. The TDCJ’s Director of
Health Services explained this statewide approach in her declaration. See Dkt.
36-7. The Director worked with a team of medical directors to develop Policy
B-14.52 in response to COVID-19. Id. at 2. TDCJ first implemented that policy
on March 20, 2020. It was designed “to adhere to guidance issued” by the CDC.
Ibid. And the policy was then disseminated to staff, placed in the “Correctional
Managed Health Care Infection Control Policy Manual[,] and posted on the
TDCJ website.” Id. at 3. But just three days later, the CDC updated its
guidance, so TDCJ implemented a revised policy on March 27, 2020. Id. at 4.
More changes came again on April 2, 2020, and again TDCJ disseminated and
implemented the updated policy. Ibid. And on April 15, 2020, TDCJ
disseminated and began implementation of yet another policy. Id. at 4–5.
9
Case: 20-20207
Document: 00515392232
Page: 10
Date Filed: 04/22/2020
No. 20-20207
TDCJ’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. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 28–
29 (1905); In re Abbott, No. 20-50264, 2020 WL 1685929, at *12 (5th Cir. 2020)
(describing COVID-19 as a “massive and rapidly-escalating threat”). And it
prevents TDCJ from responding to the COVID-19 threat without a permission
slip from the district court. That constitutes irreparable harm.
C.
The remaining two factors of the stay standard are the balance of the
harms and the public interest. See Nken, 556 U.S. at 426. Both weigh in favor
of staying the district court’s injunction. There is no doubt that COVID-19
poses risks of harm to all Americans, including those in the Pack Unit. But the
question is whether Plaintiffs have shown that they will suffer irreparable
injuries even after accounting for the protective measures in TDCJ Policy B14.52. Neither the Plaintiffs nor the district court suggest the evidence satisfies
that standard. And “[b]ecause the State is the appealing party, its interest and
harm merge with that of the public.” Veasey v. Abbott, 870 F.3d 387, 391 (5th
Cir. 2017) (citing Nken, 556 U.S. at 435). Therefore, TDCJ has satisfied all four
requirements of the stay standard.
III.
Plaintiffs also face several obstacles to relief under the Prison Litigation
Reform Act (“PLRA”). Two bear emphasis at this stage: exhaustion and
narrowness.
A.
First, exhaustion. The PLRA requires inmates to exhaust “such
administrative remedies as are available” before filing suit in federal court to
challenge prison conditions. 42 U.S.C. § 1997e(a). This exhaustion obligation
10
Case: 20-20207
Document: 00515392232
Page: 11
Date Filed: 04/22/2020
No. 20-20207
is mandatory—there are no “futility or other [judicially created] exceptions [to
the] statutory exhaustion requirements . . . .” Booth v. Churner, 532 U.S. 731,
741 n.6 (2001). So long as the State’s administrative procedure grants
“authority to take some action in response to a complaint,” that procedure is
considered “available,” even if it cannot provide “the remedial action an inmate
demands.” Id. at 736 (emphasis added); see also id. at 739 (“Congress meant to
require procedural exhaustion regardless of the fit between a prisoner’s prayer
for relief and the administrative remedies possible.”).
By contrast, a remedy is not “available”—and exhaustion is not
required—when:
1. The procedure “operates as a simple dead end” because “the relevant
administrative procedure lacks authority to provide any relief,” or
“administrative officials have apparent authority, but decline ever to
exercise it.”
2. The “administrative scheme [is] so opaque that . . . no reasonable
prisoner can use them.”
3. Or when “prison administrators thwart inmates from taking
advantage
of
a
grievance
process
through
machination,
misrepresentation, or intimidation.”
Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016) (quotation omitted).
Under these standards, Plaintiffs’ suit appears premature. All parties
agree that the TDCJ administrative process is open for Plaintiffs’ use. And
Plaintiffs do not argue that TDCJ is incapable of providing some (albeit
inadequate) relief. Nor do they contend that TDCJ always “decline[s] to
exercise” its authority, id. at 1859, that the scheme is unworkably opaque, or
that administrators thwart use of the system, see id. at 1859–60. Therefore,
according to the standards the Supreme Court has given us, TDCJ’s grievance
procedure is “available,” and Plaintiffs were required to exhaust.
The district court disagreed. It considered the TDCJ process too lengthy
to provide timely relief, and therefore incapable of use and unavailable under
11
Case: 20-20207
Document: 00515392232
Page: 12
Date Filed: 04/22/2020
No. 20-20207
the special circumstances of the COVID-19 crisis. See D. Ct. Op. at 16. Other
inmates have tried this argument before. In Blake v. Ross, 787 F.3d 693 (4th
Cir. 2015), the court of appeals held that true exhaustion was not required
when the inmate had “exhausted his remedies in a substantive sense by
affording corrections officials time and opportunity to address complaints
internally.” Id. at 698 (quoting Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007)).
The Supreme Court rejected this “special circumstances” exception “as
inconsistent with the PLRA.” Ross, 136 S. Ct. at 1855. In so holding, the Court
noted that the precursor to today’s § 1997e(a) “would require exhaustion only
if a State provided ‘plain, speedy, and effective’ remedies . . . .” Id. at 1858
(quoting § 7(a), 94 Stat. 352 (1980)). By enacting the PLRA (which removed
that proviso), Congress rejected this “weak exhaustion provision” in favor of an
“invigorated” and absolute “exhaustion provision.” Ibid. (quotation omitted). In
the Supreme Court’s view, reading a “special circumstances” exception into the
PLRA would undo the PLRA and “resurrect” its predecessor. Ibid.
The district court’s understanding of the exhaustion requirement
similarly revivifies the rejected portions of the old regime. The crux of the
court’s concern is that TDCJ has not acted speedily enough. But that was an
exception to exhaustion under the old § 1997e(a), not the current one.
Moreover, the district court held that TDCJ’s procedure would be unduly
lengthy if TDCJ were to use the full time allotted for a response to the
grievance under state law. See D. Ct. Op. at 17. But the district court never
found that TDCJ would take the full time if given the chance. The holding that
the TDCJ process “presents no ‘possibility of some relief,’ ” id. at 17–18
(citing Ross, 136 S. Ct. at 1859), is therefore unsupported by the evidence.
Nor are we persuaded by the district court’s reliance on Fletcher v.
Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010). In that case, Judge
12
Case: 20-20207
Document: 00515392232
Page: 13
Date Filed: 04/22/2020
No. 20-20207
Posner hypothesized that administrative remedies might “offer no possible
relief in time to prevent . . . imminent danger from becoming an actual
harm.” Fletcher, 623 F.3d at 1174. But, in that hypothetical, the State
procedure could “offer no possible relief ” because State law prohibited a
response to the grievance until two weeks after it was filed—rendering the
procedure of no use to an inmate threatened with death in 24
hours. Ibid. (emphasis added). In those circumstances, of course the procedure
is unavailable—“it lacks authority to provide any relief,” Ross, 136 S. Ct. at
1859, because as a matter of law it cannot respond quickly enough. We need
not confront Judge Posner’s hypothetical because TDCJ faces no legal bar to
offering timely relief. TDCJ is empowered to act on a grievance any time up
to—not after, as in Fletcher—the statutory limit. Relief by TDCJ therefore
remains possible (and the procedure available), even if TDCJ has not acted as
swiftly as Plaintiffs would like. 2
B.
Finally, it appears that the district court’s injunction goes well beyond
the limits of what the PLRA would allow even if the Plaintiffs had properly
exhausted their claims. The PLRA mandates that “[p]reliminary injunctive
relief must be narrowly drawn, extend no further than necessary to correct the
harm the court finds requires preliminary relief, and be the least intrusive
means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). And the PLRA
says courts “shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the preliminary
Nor is the possibility of TDCJ action speculative. As noted above in Part II.B,
Defendants offered uncontroverted testimony from the Director of TDCJ Health Services that
TDCJ adopted an infection control policy as early as March 20, 2020. Dkt. 36-7 at 3. TDCJ’s
medical directors have updated the policy periodically in response to ever-evolving CDC
guidelines and other input. Id. at 4.
2
13
Case: 20-20207
Document: 00515392232
Page: 14
Date Filed: 04/22/2020
No. 20-20207
relief and shall respect the principles of comity set out in paragraph (1)(B) in
tailoring any preliminary relief.” Ibid.
The district court’s order recited these propositions, see PI Order at 1–2,
but the injunction’s substance contravenes them. This is a class-action
injunction that applies to all inmates—disabled and non-disabled alike—in the
Pack Unit. And it’s hard to see how an injunction that prescribes both a prisonwide testing regime and a cleaning schedule down to the half-hour interval is
“narrowly drawn” or the “least intrusive means” available. See id. at 3–4. So
too with the requirement that every single sink have a sign over it with
COVID-19 information. See id. at 3. These may be salutary health measures.
But that level of micromanagement, enforced upon threat of contempt, does
not reflect the principles of comity commanded by the PLRA.
*
*
*
For the foregoing reasons, TDCJ’s motion to stay the preliminary
injunction pending appeal is GRANTED. The appeal is EXPEDITED to the
next available argument calendar.
14
Case: 20-20207
Document: 00515392232
Page: 15
Date Filed: 04/22/2020
No. 20-20207
STEPHEN A. HIGGINSON, Circuit Judge, concurring in the judgment:
I agree that Appellants have demonstrated a substantial likelihood of
success on their claim that Appellees failed to exhaust prison remedies prior
to seeking relief in federal court. Appellees did not submit any grievance
request to prison authorities before filing this lawsuit, and I am not aware of
any case, nor do Appellees or the district court cite one, in which a prisoner has
been deemed compliant with the Prison Litigation Reform Act (PLRA) when
there has been no attempt to file a grievance prior to suit in federal court. 1
I write separately, however, to emphasize two points as governments,
state and federal, respond to the COVID-19 crisis, which presents enormous
and imminent health risks for prisoners and correctional officers alike.
First, the instant stay order does not foreclose the possibility that, upon
expedited consideration, our court may nonetheless conclude that a remedy
using the Texas Department of Criminal Justice’s (TDCJ) grievance system is
not “available” because of the immediacy of the COVID-19 medical emergency
coupled with statements credited by the district court that prisoners’
grievances may not be addressed promptly. If these plaintiffs—geriatric
prisoners, many of whom are medically compromised—have no opportunity to
expedite systemic medical emergency grievances, our court might hold that
prison administrative remedies “operate[] as a simple dead end” giving prison
officials apparent authority though they decline to exercise it. See Ross v.
Blake, 136 S. Ct. 1850, 1859 (2016). 2 However, here it is undisputed that the
1 Cf. United State of America v. Vigna, No. S1 16-CR-786-3 (NSR), 2020 WL 1900495,
at *5 (S.D.N.Y. Apr. 17, 2020) (noting that the court is not aware of any case where an
inmate’s failure to exhaust has been excused without the inmate “at least submitting a
request [to the prison] . . . prior to, or in conjunction with, his or her application to the court”).
2 See also Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1174 (7th Cir. 2010); Nellson
v. Barnhart, No. 20-CV-00756-PAB, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020)
(discussing importance of an imminent-danger exception while also noting that the Supreme
Court clarified that “total and immediate relief is not the standard for exhaustion, ‘the
15
Case: 20-20207
Document: 00515392232
Page: 16
Date Filed: 04/22/2020
No. 20-20207
plaintiffs sought relief in federal district court prior to filing any grievance, and
Appellees cite no PLRA exhaustion caselaw supporting a not “available”
determination ex ante.
Second, our reasoning on PLRA’s exhaustion requirement does not
foreclose federal prisoners from seeking relief under the First Step Act’s
provisions for compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). Though
that statute contains its own administrative exhaustion requirement, several
courts have concluded that this requirement is not absolute and that it can be
waived by the government or by the court, therefore justifying an exception in
the unique circumstances of the COVID-19 pandemic. See, e.g., United States
v. Russo, No. 16-cr-441 (LJL), 2020 WL 1862294, at *4–5 (S.D.N.Y. Apr. 14,
2020) (holding that, “[d]espite the mandatory nature of [the statute’s]
exhaustion requirement,” the exhaustion bar is “not jurisdictional” and can
therefore be waived); United States v. Smith, No. 12 Cr. 133 (JFK), 2020 WL
1849748, at *2–3 (S.D.N.Y. Apr. 13, 2020) (citing cases); see also Vigna, 2020
WL 1900495, at *5–6 (identifying the difficulties of the First Step Act
exhaustion question while ultimately deferring a ruling until the petitioner
exhausted his remedies); but see United States v. Raia, -- F.3d --, No. 20-1033,
2020 WL 1647922, at *2 (3d Cir. Apr. 2, 2020); United States v. Clark, No. 1785-SDD-RLB, 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020). 3
possibility of some relief’ is”). Cf. Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019)
(identifying the examples in Ross as “at least three” of the circumstances where the
administrative process may be “unavailable” (emphasis added)); Williams v. Corr. Officer
Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016) (“We note that the three circumstances discussed
in Ross do not appear to be exhaustive . . . .”).
3
I note that, unlike the PLRA, Section 3582 does not limit the exhaustion requirement to “available” remedies. See
18 U.S.C. § 3582(c)(1)(A) (authorizing a motion for a sentence reduction “after the defendant has fully exhausted
all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or
the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility”). The
“availability” caveat—PLRA’s “built-in exception to the exhaustion requirement,” Ross, 136 S. Ct. at 1855—
arguably presents a stronger basis from which to conclude that Appellants were not required to exhaust their
remedies here.
16
Case: 20-20207
Document: 00515392232
Page: 17
Date Filed: 04/22/2020
No. 20-20207
Because Appellants are substantially likely to succeed on their argument
that statutory exhaustion of administrative remedies was not even sought
prior to filing this lawsuit, I would not reach the merits of Appellees’ ADA and
42 U.S.C. § 1983 claims. Whereas those claims face high legal hurdles, 4 they
also are intensely fact-based. 5 The district court assessed lay and expert
testimony before making extensive and careful findings of fact showing that
mitigation deficiencies still exist. D. Ct. Op. at 7–14. However, given the
TDCJ’s systemic and ongoing responses to fast-changing guidance, I would
reserve for the merits panel the complex question of whether and which of
these deficiencies amount to a cognizable violation.
4 See Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006) (holding that “deliberate
indifference exists wholly independent of an optimal standard of care”); see also Alexander v.
Choate, 469 U.S. 287, 301 (1985) (holding that an accommodation is reasonable under the
ADA if it provides “meaningful access to the benefit[s] that the [prison] offers”); Love v.
Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996) (holding that in the prison context, it
is appropriate to consider “[s]ecurity concerns, safety concerns, and administrative
exigencies”); cf. Garza v. City of Donna, 922 F.3d 626, 636–37 (5th Cir. 2019) (holding that a
deliberate indifference claim does not “require[] proof that officials subjectively intend that
the harm occur” (emphasis added)).
5 See, e.g., Banks v. Booth, No. 1:20-cv-00849 (D.D.C. Apr. 19, 2020) (order granting
temporary restraining order in COVID-19 prison context); cf. Fraher v. Heyne, No. 1:10-cv00951-MJS (PC), 2011 WL 5240441, *2 (E.D. Cal. Oct. 31, 2011) (prisoner with preexisting
heart condition who was refused a swine flu test could state a claim for violation of
constitutional rights).
17
Exhibit 2
Case 4:20-cv-01115 Document 40 Filed on 04/16/20 in TXSD Page 1 of 5
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LADDY CURTIS VALENTINE, et al,
Plaintiffs,
VS.
BRYAN COLLIER, et al,
Defendants.
April 16, 2020
David J. Bradley, Clerk
§
§
§
§ CIVIL ACTION NO. 4:20-CV-1115
§
§
§
§
PRELIMINARY INJUNCTION ORDER
This matter came for hearing before the Court on April 16, 2020, upon the Application of
Plaintiffs Laddy Curtis Valentine and Richard Elvin King, individually and on behalf of those
similarly situated, for injunctive relief. At the hearing, the Court heard testimony from Plaintiffs’
witnesses and argument from counsel for both parties. The Court notes that the Defendants chose
to present no live testimony to controvert Plaintiffs’ evidence. After consideration of the Class
Action Complaint, the attached evidence, the testimony and evidence at the April 16, 2020 hearing,
and any arguments of counsel, the Court finds that Plaintiffs are substantially likely to succeed on
the merits of the underlying litigation; that, in the absence of a preliminary injunction, Plaintiffs
will suffer immediate irreparable injury for which there is no adequate remedy at law, in that they
will face a high risk of serious illness or death from exposure to COVID-19; that the issuance of a
preliminary injunction will not inflict greater or undue injury upon those restrained or third parties;
and the issuance of a preliminary injunction order will serve the public interest and maintain the
status quo. The Court further finds the relief below is narrowly drawn, is consistent with Center
for Disease Control (CDC) guidelines, extends no further than necessary to correct the harm the
Court finds requires preliminary relief, and is the least intrusive means necessary to correct the
Case 4:20-cv-01115 Document 40 Filed on 04/16/20 in TXSD Page 2 of 5
harm the Court finds requires preliminary relief. The Court has given substantial weight to any
adverse impact on public safety and the operation of the criminal justice system caused by the
preliminary relief and shall respect the principles of comity in tailoring this preliminary relief. See
18 U.S.C. § 3626(a)(2).
Plaintiffs’ Application for a Temporary Restraining Order is therefore GRANTED as a
preliminary injunction, and it is ORDERED, pursuant to Federal Rule of Civil Procedure 65, that
all Defendants, their agents, representatives, and all persons or entities acting in concert with them
are enjoined as follows:
x
Provide Plaintiffs and the class members with unrestricted access to hand soap and
disposable hand towels to facilitate handwashing.
x
Provide Plaintiffs and the class members with access to hand sanitizer that contains at least
60% alcohol in the housing areas, cafeteria, clinic, commissary line, pill line, and laundry
exchange.
x
Provide Plaintiffs and the class members with access to tissues, or if tissues are not
available, additional toilet paper above their normal allotment.
x
Provide cleaning supplies for each housing area, including bleach-based cleaning agents
and CDC-recommended disinfectants in sufficient quantities to facilitate frequent cleaning,
including in quantities sufficient for each inmate to clean and disinfect the floor and all
surfaces of his own housing cubicle, and provide new gloves and masks for each inmate
during each time they are cleaning or performing janitorial services.
x
Provide all inmates and staff members with masks. If TDCJ chooses to provide inmates
with cotton masks, such masks must be laundered regularly.
Case 4:20-cv-01115 Document 40 Filed on 04/16/20 in TXSD Page 3 of 5
x
Require common surfaces in housing areas, bathrooms, and the dining hall to be cleaned
every thirty minutes from 7 a.m. to 10 p.m. with bleach-based cleaning agents, including
table tops, telephones, door handles, and restroom fixtures.
x
Increase regular cleaning and disinfecting of all common areas and surfaces, including
common-use items such as television controls, books, and gym and sports equipment.
x
Institute a prohibition on new prisoners entering the Pack Unit for the duration of the
pandemic. In the alternative, test all new prisoners entering the Pack Unit for COVID-19
or place all new prisoners in quarantine for 14 days if no COVID-19 tests are available.
x
Limit transportation of Pack Unit inmates out of the prison to transportation involving
immediately necessary medical appointments and release from custody.
x
For transportation necessary for prisoners to receive medical treatment or be released,
CDC-recommended social distancing requirements should be strictly enforced in TDCJ
buses and vans.
x
Post signage and information in common areas that provides: (i) general updates and
information about the COVID-19 pandemic; (ii) information on how inmates can protect
themselves from contracting COVID-19; and (iii) instructions on how to properly wash
hands. Among other locations, all signage must be posted in every housing area and above
every sink.
x
Educate inmates on the COVID-19 pandemic by providing information about the COVID19 pandemic, COVID-19 symptoms, COVID-19 transmission, and how to protect oneself
from COVID-19. A TDCJ staff person must give an oral presentation or show an
educational video with the above-listed information to all inmates, and give all inmates an
opportunity to ask questions. Inmates should be provided physical handouts containing
Case 4:20-cv-01115 Document 40 Filed on 04/16/20 in TXSD Page 4 of 5
COVID-19 educational information, such as the CDC’s “Share Facts About COVID-19”
fact sheet already in TDCJ’s possession.
x
TDCJ must also orally inform all inmates that co-pays for medical treatment are suspended
for the duration of the pandemic, and encourage all inmates to seek treatment if they are
feeling ill.
x
TDCJ must, within three (3) days, provide the Plaintiffs and the Court with a detailed plan
to test all Pack Unit inmates for COVID-19, prioritizing those who are members of Dorm
A and of vulnerable populations that are the most at-risk for serious illness or death from
exposure to COVID-19. For any inmates who test positive, TDCJ shall provide a plan to
quarantine them while minimizing their exposure to inmates who test negative. TDCJ must
also provide a plan for testing all staff who will continue to enter the Pack Unit, and for
any staff that test positive, provide a plan for minimizing inmates’ exposure to staff who
have tested positive.
The Defendants have not sought a bond and the Court finds and holds that no security need
be posted. See Fed. R. Civ. P. 65(c); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir.
1996) (“In holding that the amount of security required pursuant to Rule 65(c) is a matter for the
discretion of the trial court, we have ruled that the court may elect to require no security at
all.” (internal quotation marks omitted)); see also A.T.N. Indus., Inc. v. Gross, 632 F. App’x 185,
192 (5th Cir. 2015) (holding that, under Rule 65(c), a court may elect to require no security at all
as the amount it considers to be proper).
The Court will issue a memorandum and order setting forth the grounds for this preliminary
injunction.
IT IS SO ORDERED.
Case 4:20-cv-01115 Document 40 Filed on 04/16/20 in TXSD Page 5 of 5
SIGNED at Houston, Texas on this the 16th day of April, 2020.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
Exhibit 3
Case 4:20-cv-01115 Document 47 Filed on 04/17/20 in TXSD Page 1 of 1
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LADDY CURTIS VALENTINE, et al,
Plaintiffs,
VS.
BRYAN COLLIER, et al,
Defendants.
April 17, 2020
David J. Bradley, Clerk
§
§
§
§ CIVIL ACTION NO. 4:20-CV-1115
§
§
§
§
ORDER
Before the Court is Defendants’ Emergency Motion to Stay. (Doc. No. 46). Defendants
request a stay of the Court’s Preliminary Injunction Order (Doc. No. 40) pending appeal to the
Fifth Circuit.
The Court issues a five-day stay of its Preliminary Injunction, until 5:00 pm on Wednesday,
April 22, 2020, in order to, among other reasons, allow for issuance of the Court’s accompanying
Memorandum and Order laying out the factual and legal basis for the Court’s Preliminary
Injunction Order. The Court will entertain requests for extension of the length of the stay if needed.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 1th day of April, 2020.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
Exhibit 4
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 1 of 33
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LADDY CURTIS VALENTINE, et al,
Plaintiffs,
VS.
BRYAN COLLIER, et al,
Defendants.
April 20, 2020
David J. Bradley, Clerk
§
§
§
§ CIVIL ACTION NO. 4:20-CV-1115
§
§
§
§
MEMORANDUM AND ORDER
Before the Court is Plaintiffs’ Application for Temporary Restraining Order and Other
Injunctive Relief. (Doc. No. 1). Plaintiffs Laddy Curtis Valentine and Richard Elvin King, both
inmates at Wallace Pack Unit (“Pack Unit” or “the Unit”), a state geriatric prison, allege that
Defendants have failed to reasonably protect the inmates of the Unit from the spread of the
COVID-19 pandemic. In the face of a rapidly growing pandemic, the inmates of Pack Unit, who
are disproportionately elderly and ill, fear the health repercussions if the virus made its way into
the Unit. Plaintiffs accordingly request emergency injunctive relief, in the form of protective health
measures that help prevent transmission of the coronavirus. After considering all motions and
evidence submitted by parties, live testimony presented at the April 16, 2020 evidentiary hearing,
and all relevant law, the Court granted Plaintiffs’ application as a preliminary injunction. (Doc.
No. 40). It now issues this accompanying Memorandum and Order to explain the legal and factual
findings that underlie the Court’s Preliminary Injunction Order.
1
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 2 of 33
I.
BACKGROUND
A. Procedural History
Plaintiffs Laddy Curtis Valentine and Richard Elvin King filed the present case on March
30, 2020. (Doc. No. 1). Plaintiffs are both inmates housed at Wallace Pack Unit, a state prison run
by the Texas Department of Criminal Justice (TDCJ) in unincorporated Grimes County, Texas. Id.
at 3. In their Complaint, Plaintiffs allege that Defendants TDCJ Executive Director Bryan Collier,
Pack Unit Warden Robert Herrera, and TDCJ are not taking proper measures to prevent
transmission of COVID-19 within Pack Unit. Id. at 1–2. Plaintiffs allege violations of their Eighth
and Fourteenth Amendment rights, as well as the Americans with Disabilities Act (ADA), and
seek injunctive relief on behalf of themselves and a proposed class of all inmates who currently
are or who in the future will be incarcerated at Pack Unit. Plaintiffs included their Application for
Temporary Restraining Order and Preliminary Injunction with their Complaint. Id. at 31–34.
The case was initially assigned to Judge Kenneth Hoyt, but by agreement of the judges, the
case was transferred before this Court because Plaintiffs had marked the case as related to Cole v.
Collier, No. 4:14-cv-1698, which this Court has presided over for the past six years. (Doc. No. 2).
The case continues because defendants have, in material respects, not always been in compliance
with the terms of the agreed settlement. Upon receipt of this case, the Court set a telephonic hearing
for the afternoon of April 2, 2020. (Doc. No. 3). Before the hearing, Defendants filed a Motion to
Transfer Case, arguing that the case should be transferred back to Judge Hoyt or placed back in
the random assignment system because the present case is unrelated to Cole. (Doc. No. 17). At the
telephonic hearing, the Court declined to hear any evidence or make any decisions while the
Motion to Transfer remained pending. Plaintiffs agreed to file their response to Defendants’
2
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 3 of 33
Motion to Transfer the next day and, acknowledging the urgency of the situation, the Court agreed
to rule on the Motion expeditiously.
On April 6, 2020, the Court denied Defendants’ Motion to Transfer, finding that the present
case is related to Cole based on similarities in parties, potential class members, relevant facts, and
potential relief. (Doc. No. 20). The Court also ordered a telephonic conference for later that
afternoon. (Doc. No. 21). At the telephonic conference, parties reported that they had discussed
potential resolutions and were continuing such discussions. The Court set a follow-up telephonic
conference for Tuesday, April 13, 2020. (Doc. No. 22). At the April 13th conference, Plaintiffs
reported that discussions had not been successful and that Defendants had refused to implement
most measures that Plaintiffs considered essential. The Court requested that Plaintiffs file an
updated proposed Temporary Restraining Order, specifying the measures on which they still seek
relief. Defendants also alleged that, as of April 13th, there were no cases of COVID-19 in Pack
Unit. Defendants reported that ten inmates and three staff members at Pack Unit had been tested
for COVID-19; all had received negative results. Defendants did not have a plan for systematic
testing of inmates; rather, individuals who were tested at that point had gone to the hospital for
unrelated medical treatment and the hospital had determined that they should be tested.
The next day, Tuesday, April 14, 2020, at 2:18 PM, the Court received an email from
Defendants requesting a telephonic conference with the Court that afternoon. The Court set a
hearing for 3:30 PM. At the hearing, Defendants reported that an inmate at Pack Unit, Leonard
Clerkly, had been transported to the hospital in the early morning hours of Saturday, April 11,
2020 for emergency care and passed away hours later. Preliminary autopsy results showed that he
tested positive for COVID-19. A press release by TDCJ later that day noted that Mr. Clerkly was
62 years old and was transported to the hospital because he had difficulty breathing. COVID-19
3
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 4 of 33
Updates, TDCJ (Apr. 14, 2020), https://www.tdcj.texas.gov/covid-19/index2.html. Defendants
reported that Pack Unit had been placed on precautionary lockdown on April 14th, and Mr.
Clerkly’s dorm was now on medical restriction. All inmates in Mr. Clerkly’s dorm and all inmates
at Pack who are 65 years old or older were given masks to wear. Defendants’ counsel was unaware
of any plans to provide masks to any other inmates. The University of Texas Medical Branch
(UTMB) agreed to test the fifty-three inmates who were housed in the same dorm as Mr. Clerkly,
but there were no plans to test the other inmates at Pack Unit. The Court ordered an evidentiary
hearing for Thursday, April 16, 2020, at 1:30 PM.
B. Evidentiary Hearing
Prior to the hearing, Defendants notified the Court that they would not present any live
testimony at the evidentiary hearing. Defendants instead rely on their response in opposition to
Plaintiffs’ requested relief and accompanying exhibits, which they submitted on the evening of
April 15, 2020. (Doc. Nos. 35, 36). Defendants filed evidence of new measures taken at Pack Unit,
most of which were put in place on April 14th and 15th. Defendants’ exhibits included declarations
by TDCJ Deputy Executive Director Oscar Mendoza, Pack Unit Senior Warden Robert Herrera,
and Director of Health Services at TDCJ Dr. Lannette Linthicum, as well as a declaration on the
status of Plaintiffs’ Step One grievances. Defendants also filed copies of TDCJ’s Correctional
Managed Health Care (CMHC) Infection Control Policy B-14.52, which outlines management and
control measures in response to the spread of COVID-19; photos of Pack Unit; and a copy of the
CDC’s guidelines for correction and detention facilities. Plaintiffs had previously filed
declarations for all witnesses who would testify at the evidentiary hearing, described infra, as well
as a declaration by Dr. Robert Cohen, a physician and expert on correctional medicine.
4
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 5 of 33
The evidentiary hearing took place telephonically on April 16, 2020. Counsel for both
parties were present. Plaintiffs presented three expert witnesses and both Plaintiffs for live
testimony.
• Dr. Joseph Gathe is a physician and infectious disease specialist practicing in Houston,
Texas. He is board-certified in internal medicine and infectious diseases. He has been
diagnosing and treating patients exposed to COVID-19. He was accepted as an expert in
infectious diseases without objection. His testimony focused on how quickly COVID-19
can spread in confined spaces like prisons, and the measures that needed to be implemented
at Pack Unit to keep inmates safe and healthy.
• Dr. Eldon Vail is the former Secretary of the Washington State Department of Corrections
(WDOC). He has almost thirty-five years of experience as a corrections administrator, and
over a decade experience as the Secretary and Deputy Secretary of the WDOC. He oversaw
a severe flu epidemic at a Washington state prison while he was overseeing the WDOC.
He also consulted the WDOC in its COVID command center a week before the hearing.
He was accepted as an expert without objection. His testimony focused on the necessity
and feasibility of various measures that Pack Unit should take in the face of the pandemic,
given his previous experience managing a similarly contagious outbreak. Dr. Vail had
previously visited Pack Unit, and so, he was able to testify on measures Pack Unit
specifically could and should take.
• Dr. Jeremy Young is a physician and associate professor of practicing and teaching at
Ohio State University. He is board-certified in internal medicine and infectious diseases.
He also holds a Master of Public Health. Before returning to Ohio State in 2019, Dr. Young
worked on controlling the spread of infectious diseases such as HIV and hepatitis C in the
5
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 6 of 33
Illinois state prison system for approximately ten years. He was accepted as an expert
without objection. Dr. Young’s testimony focused on the threat that COVID-19 poses to
prisons in particular and the necessity of certain measures to keep inmates safe and healthy.
Defendants chose not to cross-examine Dr. Young.
• Laddy Curtis Valentine and Richard Elvin King are Plaintiffs in this case. They have
been living in Pack Unit for about six and nine years, respectively. Both are over 65 years
old and have chronic medical conditions that make them more vulnerable to severe illness
or death if they are infected with COVID-19. Both testified to the current conditions at
Pack Unit, both before and after the recent death of Mr. Clerkly, as well as what concerned
them about TDCJ’s response to the ongoing pandemic. Defendants chose not to crossexamine either Mr. Valentine or Mr. King.
Defendants did not present any live testimony; none of their declarants were made available
for cross-examination by Plaintiffs. Both parties were given the opportunity to present oral
argument after close of evidence.
The Court issued a Preliminary Injunction Order that evening. (Doc. No. 40). In its Order,
the Court stated that it would publish shortly a memorandum and order, explaining its reasoning.
Accordingly, the Court explains the factual and legal basis for issuing its Preliminary Injunction
Order here.
Prior to the issuance of this Memorandum and Order, Defendants filed an appeal of the
Court’s Preliminary Injunction Order with the Fifth Circuit. (Doc. No. 45). Defendants also filed
an Emergency Motion to Stay before this Court, asking that it stay the effect of its Preliminary
Injunction Order pending appeal. (Doc. No. 46). This Court granted a five-day stay, staying the
6
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 7 of 33
Preliminary Injunction Order until Wednesday, April 22, 2020, at 5 PM. (Doc. No. 47). In the
Order, the Court also informed the parties that they could apply for an extension of the stay. Id.
II.
FINDINGS OF FACT
After reviewing the exhibits submitted by both parties and considering the live testimony
of witnesses at the evidentiary hearing, the Court makes the following findings of fact. Where
Defendants have not challenged or refuted a fact presented by Plaintiffs, the Court accepts that fact
as true.
1. Pack Unit is a Type I Geriatric Facility, which houses a high number of elderly and disabled
prisoners. (Doc. No. 14 ¶ 10). The Unit currently houses 1,248 offenders, 827 of whom are
65 years old or older. (Doc. No. 35-4, at 3). As the Court knows from its own visit to the
Pack Unit, the Unit is a dormitory-style prison, where each inmate has a small cubicle, built
with a half-wall. (Doc. No. 14 ¶ 12; Doc. No. 35-4, at 3). Each dorm holds between 54 and
107 inmates, except the two wheelchair dorms, which house 30 inmates each. (Doc. No.
35-4, at 3). Pack Unit has a medical infirmary that is always available to inmates. Id. The
infirmary has twelve beds and a small medical staff, but no physicians. Id.
2. It is undisputed that Pack Unit has a population that is predominantly and
disproportionately elderly and ill.
3. The COVID-19 pandemic has presented a serious public health emergency to the United
States. (Tr. 10:18–24).1 COVID-19 is a respiratory illness that primarily spreads between
people who come within approximately six feet of each other. (Doc. No. 36-3, at 2). It can
also infect a person who touches a contaminated surface and then touches his own nose,
All citations to the transcript of the April 16, 2020 evidentiary hearing are designated (Tr.
XX:XX).
1
7
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 8 of 33
eyes, or mouth. Id. Those who become infected can become seriously ill and die from the
disease. Id. Those over the age of 65 and with comorbid conditions, like lung disease,
chronic obstructive pulmonary disease (COPD), heart disease, hypertension, diabetes,
cancer, or a weakened immune system are at higher risk of serious illness or death. Id.;
(Doc. No. 12 ¶¶ 17, 19–21; Doc. No. 13, at 10–11; Tr. 13:14–22).
4. There are currently no vaccines or FDA-approved cures for COVID-19. (Doc. No. 12 ¶ 16).
Those who develop moderate or severe symptoms require hospitalization. Id. ¶ 18. Those
who become seriously ill may need intubation and mechanical ventilation. Id. ¶ 17. Pack
Unit does not have a hospital on site and must transfer patients to local hospitals for this
type of care. (Doc. No. 35–4, at 3; Doc. No. 13, at 13–14).
5. Communicable diseases are more easily transmitted in prison population. This is because
of the congregative nature of prisons. (Doc. No. 12 ¶ 23; Doc. No. 13, at 6–7; Tr. 84:23–
85:8). Similarly, other densely packed environments, like nursing homes and cruise ships,
are also highly conducive to rapid spread of disease. (Doc. No. 12 ¶ 23; Tr. 95:14–10). This
is especially true in environments with dorm-style living arrangements, where many
individuals share the same, open sleeping space and bathroom. (Doc. No. 12 ¶ 23; Tr. 33:1–
12). Additionally, prisons tend to lack resources to treat and control spread once a disease
has been introduced into the population. (Doc. No. 13, at 7–8; Tr. 84:23–85:8). Prison
populations also tend to consist of people who are more likely to have underlying
comorbidities. (Tr. 84:23–85:19).
6. COVID-19 is no different in this respect, and spreads easily through prison environments.
In fact, COVID-19 is even more easily spread than some diseases because of its long
incubation period and asymptomatic presentation in some people. (Doc. No. 12 ¶ 14; Tr.
8
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 9 of 33
94:4–13). Additionally, some individuals who are symptomatic and in close quarters with
other people can become “superspreaders,” and spread COVID-19 to many others. (Tr.
86:3–19, 95:21–10).
7. The CMHC created a coronavirus policy, B-14.52, Coronavirus Disease 2019 (COVID-19)
on March 20, 2020. (Doc. No. 36-9 ¶ 4). The policy was updated on March 27, 2020, after
the Center for Disease Control (CDC) issued its guidance to correctional institutions on
March 23, 2020. Id. ¶ 6. It was updated again on April 2, 2020, then once more, after an
inmate died at Pack Unit, on April 15, 2020. Id. ¶ 7–8. These policies are equally applicable
to all TDCJ facilities and do not include additional or tailored requirements for Pack Unit
or units that have particularly vulnerable populations. (Doc. Nos. 36-3, 36-5, 36-6).
8. On April 11, 2020, Leonard Clerkly, an inmate at Pack Unit, was transferred to the hospital
because of difficulty breathing. He was pronounced dead at 5:25 AM. Preliminary autopsy
results indicate that he died because of viral pneumonia due to COVID-19. COVID-19
TDCJ Update, TDCJ (Apr. 14, 2020), https://www.tdcj.texas.gov/covid-19/index2.html.
TDCJ was informed of Mr. Clerkly’s positive test result around 5:30 PM on April 13, 2020.
(Doc. No. 36-9 ¶ 11).
9. On April 14, 2020, Pack Unit was placed on precautionary lockdown. (Doc. No. 35-4, at
4). Pursuant to the lockdown, all transfers to and from the Unit, other than those that are
medically necessary, have stopped. Inmates are confined to their dorms other than for
medical care and scheduled showers. Those inmates in Mr. Clerkly’s dorm are placed on
medical restriction, and thus, have their temperatures taken twice a day. Id. at 4–5. On April
15, 2020, TDCJ began giving all inmates cloth masks, which could be switched out once a
day to be laundered. Id. at 5. If no other COVID-19 cases are confirmed in the Unit, the
9
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 10 of 33
lockdown will be lifted on April 25, 2020. Otherwise, Pack Unit will continue to be locked
down for an additional fourteen days from the last known symptom. Id. at 5.
10.Beginning April 6, 2020, inmates could request additional soap at no cost. (Doc. No. 35-4,
at 3).
11.However, TDCJ has refused to give inmates alcohol-based hand sanitizer or disposable
paper towels, citing that they are both flammable, hand sanitizer can be ingested, and paper
towels can be hoarded or used to damage the plumbing system. (Doc. No. 35-4, at 3–4).
Inmates have always had access to items like paper, books, cotton clothing, and towels,
which are all flammable and can be used to damage plumbing. (Tr. 66:13–18). Neither
party was able to name a single example of inmates drinking or setting fire to hand sanitizer,
or misusing paper towels in the past, even when these items were made available to inmates
outside of Texas. (Tr. 24:14–25:3, 29:6–16, 30:10–18, 41:21–42:5, 45:6–21, 49:15–50:5,
66:6–12). TDCJ also refuses to give inmates facial tissue or additional toilet paper. (Tr.
65:10–12). Despite these policies, TDCJ posters and pamphlets instruct inmates to use
alcohol-based hand sanitizer and facial tissues when practicing good hygiene. (Doc. No.
35-3; Tr. 65:13–22). Until April 2, 2020, TDCJ’s official policy also recommend that staff
and inmates use hand sanitizer with at least 60% alcohol and tissues to prevent transmission.
(Doc. No. 36-3, at 3; Doc. No. 36-5, at 4; Doc. No. 36-6, at 4). TDCJ staff are instructed
to carry alcohol-based hand sanitizer for their own use. (Doc. No. 36-6, at 13).
12.Hand sanitizer is an important part of preventing transmission. (Doc. No. 12 ¶ 30). Studies
have shown that access to hand sanitizer improves hand hygiene, because it is easier to
access than soap and water. (Tr. 91:22–92:21). Accordingly, the CDC also recommends
use of alcohol-based hand sanitizers and instructs prisons to consider allowing access to
10
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 11 of 33
inmates. (Doc. No. 36-10, at 9). Other state prisons outside of Texas have lifted the ban on
alcohol-based sanitizers, both in response to previous outbreaks of communicable diseases
and in response to the present COVID-19 pandemic. (Tr. 45:9–21, 49:4–7, 49:18–50:5).
13.On April 15, 2020, TDCJ began providing its inmate janitors clean masks and gloves at
the beginning of each twelve-hour shift. (Doc. No. 35-4, at 4). However, at Pack Unit,
when inmate janitors work in pairs, each pair of janitors is given only one set of gloves to
share for the duration of the shift. (Tr. 80:2–14). For gloves to be effective in protecting
the wearer and preventing transfer of the virus between surfaces, they need to be changed
out for clean gloves whenever soiled. (Tr. 37:22–9, 93:12–25). Additionally, while TDCJ
does provide inmate janitors with CDC-approved cleaning supplies, (Doc. No. 35-4, at 4),
they fail to provide janitors with enough product to sustain any amount of repetitive
cleaning throughout a twelve-hour shift, (Tr. 78:5–79:8). TDCJ has not increased the
number of inmate janitors since the onset of the pandemic. (Tr. 78:2–4). It is necessary to
clean high-touch areas frequently, multiple times a day, to prevent transmission. (Tr. 37:5–
21, 92:22–93:12). The CDC guidelines accordingly instruct prisons to clean and disinfect
frequently touched areas several times a day, with appropriate cleaners. (Doc. No. 36-10,
at 10).
14.Each inmate is responsible for cleaning his own cubicle. Once a day, a TDCJ officer sprays
a bleach solution into each cubicle. (Doc. No. 35-4, at 4; Tr. 79:16–80:1). A spray bottle
of disinfectant cleaner is also available in the dorm for inmates to use. (Doc. No. 35-4, at
4).
15.TDCJ has put up posters with information about COVID-19, how to prevent transmission,
and notice that they had waived all medical copays for the duration of the pandemic. (Doc.
11
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 12 of 33
No. 35-4, at 6; Doc. No. 36-9, at 5; Tr. 80:15–20). However, TDCJ has not communicated
orally to the inmates any of this information, through live or video presentations, nor have
they invited inmates to ask questions about the disease or its prevention. (Tr. 67:11–21,
80:21–24). Signs are not sufficient for inmate education, as inmates who cannot read,
cannot read well, or cannot understand English will not receive information in this way.
(Tr. 35:1–36:4, 94:14–95:5). There are inmates at Pack Unit who are illiterate or cannot
read English; the current signs are not accessible to them. (Tr. 68:18–69:6). Presumably
for this reason, TDCJ presents educational videos on protection from excessive heat and
cold twice a week to all inmates. (Tr. 36:22–37:4, 67:22–68:17). The CDC guidelines
require educational materials to be accessible by non-English speakers, those with lowliteracy, and those with disabilities. (Doc. No. 36-10, at 11).
16.Pack Unit has tested the 53 inmates housed in Mr. Clerkly’s former dorm. As of April 16,
2020, a total of 64 inmates from Pack Unit have been tested. (Tr. 126:14–24). There is no
plan or intent to test the remaining Pack Unit population. (Doc. No. 36-9 ¶ 13). There is no
evidence that TDCJ intends to trace Mr. Clerkly’s contacts and test those individuals.
Where there is no contact tracing and where COVID-19 has already been inside Pack Unit,
blanket testing is necessary to contain an outbreak, because COVID-19 can spread even
when those infected are asymptomatic or have mild symptoms. (Tr. 14:2–16:9, 91:7–21).
17.Inmates are not six feet apart from each other when they are in their dorms. (Doc. No. 354, at 6; Tr. 63:1–7). The cubicles cannot be easily altered. (Doc. No. 35-4, at 6). There is a
dorm in the E building that is currently unused, although there is no apparent or presented
reason why it cannot be used to spread out inmates from other dorms. (Tr. 75:17–76:13).
12
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 13 of 33
The gymnasium cannot be used as living quarters because it is not air-conditioned. (Doc.
No. 35-4, at 6).
18.Prior to the precautionary lockdown, only two dorms were allowed in the dining hall at a
given time. This lowered the density of inmates in the dining hall, but still did not allow
for strict social distancing of six feet. (Doc. No. 35-4, at 6; Tr. 70:1–4). Feeding inmates
with strict social distancing enforcement would require about fourteen hours of feeding
every day. (Doc. No. 35-4, at 6). Currently, while inmates are on precautionary lockdown,
they are fed in their housing areas. Id. at 5.
19.Prior to the precautionary lockdown, inmates were told to keep six feet of distance between
themselves and others in open, common areas, “where feasible.” Id. at 5–6. However,
TDCJ has no policies that call for enforcement of this distance, even where possible.
Inmates are often within six feet of each other, even when it is possible to socially distance.
(Tr. 63:5–7, 69:7–70:4, 70:18–24).
20.Prior to the precautionary lockdown, transfers between units were minimized, but still
allowed upon agency or medical needs, as determined on a case-by-case basis. (Doc. No.
36-9, at 5). Individuals being transferred were screened only for visible symptoms or fevers
before being integrated with the general population. Id. Individuals were seated in every
other seat if transferred in a bus; only one inmate was transferred at a time in a van. Id. The
CDC guidelines instruct prisons to restrict transfers to those that are “absolutely necessary.”
(Doc. No. 36-10, at 10).
21.Defendants did not present any evidence on the medical adequacy of their current policies
or their implementation of those policies. Plaintiffs’ medical experts both evaluated
measures taken in Pack Unit and found them to be deeply inadequate to care for the Unit’s
13
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 14 of 33
inmate population. (Doc. No. 12 ¶ 22; Doc. No. 13, at 11–12 (finding measures to be
“grossly inadequate”); Tr. 18:3–16; 95:6–10 (finding measures to be “woefully
inadequate”)).
22.Defendants did not present any evidence of cost or budgetary impact of various measures.
23.Defendants did not present any plans or intent to create plans for reevaluating the need for
hand sanitizer and paper towels, or an ability to provide comparable alternatives.
Defendants did not present any plans or intent to design plans for expanding testing,
triaging available tests, coordinating early release to reduce prison populations, or enacting
new measures after precautionary lockdown is lifted.
III.
PRELIMINARY INJUNCTION ANALYSIS
Plaintiffs challenge the constitutionality of the conditions of their confinement in Pack Unit
during the COVID-19 pandemic. Plaintiffs seek preliminary injunctive relief under 42 U.S.C.
§ 1983 to protect the health and safety of inmates housed in the Unit.
To receive injunctive relief, Plaintiffs must show: “(1) there is a substantial likelihood that
the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will
result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to
the defendant; and (4) the granting of the [] injunction will not disserve the public interest.” Clark
v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987) (citing Canal Auth. of Fla. v. Callaway, 489 F.2d
567, 572–73 (5th Cir. 1974)); see Parker v. Ryan, 960 F.2d 543, 545 (5th Cir. 1992) (“[T]he
requirements of [R]ule 65 apply to all injunctions.”).
A. Substantial Likelihood of Success on the Merits
Plaintiffs allege that Defendants’ failure to implement adequate protections against
COVID-19 transmission in Pack Unit constitutes cruel and unusual punishment in violation of the
14
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 15 of 33
Eighth and Fourteenth Amendments. Defendants argue that Plaintiffs cannot show a substantial
likelihood of success on this claim because (i) Plaintiffs did not properly exhaust their
administrative remedies as required by the Prison Litigation Reform Act of 1995 (the “PLRA”),
and (ii) Plaintiffs cannot prevail on the merits of their constitutional and ADA claims. Because the
Court concludes that Plaintiffs are substantially likely to prevail on their Eighth Amendment claim,
the Court does not address Plaintiffs’ claims under the ADA. The Court will examine the
exhaustion issue before proceeding to the substance of Plaintiffs’ constitutional claim.
i. Plaintiffs’ claims are not barred by the PLRA’s exhaustion requirement.
Defendants contend that Plaintiffs cannot establish a substantial likelihood of success on
the merits because, as a threshold matter, they did not properly exhaust their administrative
remedies as required by the PLRA. The parties do not dispute that Plaintiffs have not fully
exhausted TDCJ’s administrative process. However, because no administrative remedy was
available, the Court concludes that Plaintiffs were not obligated to exhaust prior to bringing this
action.
The PLRA mandates that an inmate exhaust “such administrative remedies as are available”
before bringing suit to challenge prison conditions. 42 U.S.C. § 1997e(a). The benefit of the
PLRA’s exhaustion requirement is to “allow[] a prison to address complaints about the program it
administers before being subjected to suit, reduc[e] litigation to the extent complaints are
satisfactorily resolved, and improv[e] litigation that does occur by leading to the preparation of a
useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007). The exhaustion requirement is
“mandatory,” Woodford v. Ngo, 548 U.S. 81, 85 (2006), and courts may not excuse an inmate’s
failure to exhaust because of “special circumstances,” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016).
15
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 16 of 33
However, the PLRA has a “built-in exception to the exhaustion requirement: A prisoner
need not exhaust remedies if they are not ‘available.’” Id. at 1855. The exhaustion requirement in
this way “hinges on the ‘availab[ility]’ of administrative remedies.” Id. at 1858. The Supreme
Court has explained that the ordinary meaning of “available” is “capable of use for the
accomplishment of a purpose.” Id. at 1858 (quoting Booth v. Churner, 532 U.S. 731, 737 (2001)).
Accordingly, an inmate is required to exhaust only those grievance procedures that are “‘capable
of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (quoting Booth, 532 U.S.
at 738). The Supreme Court identified three examples of circumstances “in which an
administrative remedy, although officially on the books, is not capable of use to obtain relief”:
(1) when the procedure “operates as a simple dead end,” such that the procedure is not “‘capable
of use’ for the pertinent purpose,” (2) when the procedure is “so opaque that it becomes,
practically speaking, incapable of use,” and (3) when prison administrators thwart the use of the
procedure “through machination, misrepresentation, or intimidation.” Id. at 1859–60.
In light of the alarming speed with which COVID-19 has ravaged our country and prisons,
TDCJ’s administrative remedy is not “capable of use” to obtain the relief Plaintiffs seek. TDCJ’s
grievance procedures require that inmates complete a lengthy two-step grievance process before
their claim is considered exhausted. Rosa v. Littles, 336 F. App’x 424, 428 (5th Cir. 2009) (citing
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004)). Inmates must first file a Step One
grievance within fifteen days of the alleged incident. Rosa v. Littles, 336 F. App’x 424, 428 (5th
Cir. 2009) (citing Grievance Manual, ch. III, p.11). Inmates may then appeal the Warden’s decision
on the Step One grievance by filing a Step Two grievance. Id. (citing Grievance Manual, ch. V,
p.1).
16
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 17 of 33
In this case, Plaintiffs filed Step One grievances on April 1 and April 2, 2020. (Doc. No.
36-1). Under TDCJ’s grievance procedures, however, TDCJ is not required to respond to the Step
One grievances until May 11 and May 12, 2020, respectively, at the earliest—as Defendants
emphasized in their filings, TDCJ may seek an extension under the Offender Grievance Operations
Manual. (Doc. No. 36, at 7; Doc. No. 36-1, at 2). Upon receiving the Warden’s decision, Plaintiffs
would then need to file Step Two grievances, which would delay any form of relief even further.
Such delay, however, precludes any relief to Plaintiffs given how rapidly COVID-19 spreads. The
experience of detention facilities across the nation presents alarming examples. At Rikers Island
jail in New York City, the number of confirmed cases soared from one to nearly 200 in just twelve
days. See Miranda Bryant, Coronavirus Spread at Rikers Is a “Public Health Disaster,” Says
Jail’s
Top
Doctor,
The
Guardian
(Apr.
1,
2020),
https://www.theguardian.com/us-
news/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster. At the Cook County jail in
Chicago, the number of confirmed cases went from two to 101 inmates and a dozen employees in
a single week. See Timothy Williams et al., As Coronavirus Spreads Behind Bars, Should Inmates
Get Out?, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisons-jails.html. Indeed, the coronavirus has spread quickly through TDCJ facilities: over the
past six days, the number of infected TDCJ employees and staff rose from 72 to 183, and the
number of infected inmates rose from 167 to 376. See COVID-19 Updates, TDCJ (Apr. 11, 2020),
https://www.tdcj.texas.gov/covid-19/index2.html; COVID-19 Updates, TDCJ (Apr. 18, 2020),
https://www.tdcj.texas.gov/covid-19/index.html. Pack Unit itself has already had one inmate die
because of COVID-19, before TDCJ confirmed a single case in the Unit.
Where, as here, the circumstances present an imminent danger, TDCJ’s lengthy
administrative procedure, which TDCJ may choose to extend at will, presents no “possibility of
17
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 18 of 33
some relief.” Ross, 136 S. Ct. at 1859. Indeed, the Seventh Circuit has opined that “there is no duty
to exhaust, in a situation of imminent danger, if there are no administrative remedies for warding
off such a danger.” Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010).2 Such
imminent danger is present here. Under TDCJ’s grievance procedure, TDCJ is not required to
respond to Plaintiffs’ first grievances for at least another three weeks—during which time COVID19 may have spread throughout Pack Unit, as it has done in several facilities across the country,
rendering Plaintiffs’ grievances moot. And TDCJ has pointed to no emergency procedures that
Plaintiffs could avail themselves of that would expedite its review of either Step One or Step Two
grievances. Cf. id. at 1174 (finding an available remedy where Illinois had created an emergency
grievance procedure that expedited review of certain urgent medical complaints). Under these
circumstances, the Court concludes that there is no available remedy and thus, Plaintiffs were not
obligated to exhaust prior to bringing this action.
ii. Plaintiffs have established a substantial likelihood of success on their Eighth
Amendment conditions-of-confinement claim.
The government has a constitutional duty to protect those it detains from conditions of
confinement that create “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825,
834 (1994). This duty extends to providing “adequate . . . medical care” and “tak[ing] reasonable
measures to guarantee the safety of the inmates.” Id. at 832.
However, “a prison official may be held liable under the Eighth Amendment for denying
humane conditions of confinement only if he knows that inmates face a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. Thus,
2
Although Fletcher was decided before Ross, Fletcher’s reasoning that administrative remedies
may offer no remedy at all in situations of imminent danger is consistent with Ross’s holding that
the PLRA’s exhaustion requirement is exempted when there are no available remedies.
18
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 19 of 33
to establish an Eighth Amendment violation based on a failure to prevent harm, an inmate must
show both that “he is incarcerated under conditions posing a substantial risk of serious harm” and
that prison officials’ failure to act manifests “deliberate indifference” toward that risk. Id. at 834.
Defendants do not dispute that COVID-19 poses a substantial risk of serious harm to
Plaintiffs. Prisons are highly conducive to the spread of COVID-19 and Pack Unit has already
reported one confirmed case of COVID-19, which resulted in the death of 62-year-old inmate
Leonard Clerkly. Because Mr. Clerkly had not been recently transported, he must have contracted
COVID-19 while he was in Pack Unit. As Dr. Young summarized at the evidentiary hearing, Pack
Unit is a “tinderbox” and “the spark has been lit.” (Tr. 93:14–17, 95:14–21). Moreover, Mr.
Clerkly was not an outlier in his vulnerability. As a Type I Geriatric prison, Pack Unit is home to
a large population of inmates that are over fifty years old, have serious pre-existing health
conditions, or both. The CDC warns that these are precisely the type of people most at risk for
serious illness from COVID-19. The current pandemic presents a substantial risk of serious harm
and death to Pack Unit’s current residents.
Defendants argue, however, that Plaintiffs cannot establish that TDCJ has responded to
this substantial risk of death and serious harm with deliberate indifference. A prison official acts
with deliberate indifference if “the official knows of and disregards an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 837. Because deliberate indifference requires knowledge of
the risk, “mere negligence” does not satisfy the deliberate indifference standard. Wilson v. Seiter,
501 U.S. 294, 305 (1991). An official demonstrates disregard of a known risk by “failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847. Accordingly, “prison officials who act
reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Id. at 845.
Only officials that “recklessly” or “consciously” disregard a known substantial risk of serious harm
19
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 20 of 33
act with deliberate indifference. Id. at 836. Whether an official is acting recklessly “should be
determined in light of the prison authorities’ current attitudes and conduct,” both “at the time suit
is brought and persisting thereafter.” Id. at 845 (internal citation omitted). Past actions and conduct
are relevant as well. Defendants’ conduct must be viewed in conjunction with Defendants’ failure
to live up to the commitments they voluntarily assumed in the settlement of the related case of
Cole v. Collier.
Defendants cannot, and do not, dispute that they have knowledge of the substantial risk
that COVID-19 poses to the men of Pack Unit. “[A] factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842. The risk of
COVID-19 is obvious. One person incarcerated at Pack Unit has died from COVID-19 and we are
seeing COVID-19 spread like wildfire in prisons, jails, and detention facilities within TDCJ’s
system, the country, and the world.
Instead, Defendants argue that Plaintiffs cannot demonstrate deliberate indifference
because “TDCJ, and specifically, the Pack Unit are taking copious measures in response to the
COVID-19 pandemic.” (Doc. No. 36, at 20). The question before the Court is not, however,
whether Defendants’ measures are copious, but whether they reasonably abate the risk of COVID19 transmission.
As discussed in detail above, Defendants claim to have adopted various TDCJ-wide
measures before the first positive test at Pack Unit. See supra at 9–13. Mr. Clerkly died on April
11, 2020. Beginning on April 14, 2020, Pack Unit was placed on lockdown and the fifty-three men
in Mr. Clerkly’s dorm were placed in medical restriction. Defendants also claim that, beginning
April 15, 2020, all inmates have been given cloth masks and janitors are given clean gloves and
masks for each twelve-hour shift. Sixty-four total inmates at Pack Unit have also been tested for
20
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 21 of 33
COVID-19, including the fifty-three people in Mr. Clerkly’s dorm. The Court has not been notified
of any results of those tests.
Some of these measures adopted by TDCJ are so essential that they have become
ubiquitous. Employee screenings, copay waivers, visit suspensions, masks for staff, and unlimited
soap access are becoming the norm in prisons across the country. But it would not be reasonable
to stop with those measures given the nature and magnitude of this pandemic, as TDCJ has
effectively acknowledged by developing CMHC Policy B-14.52. The Court notes that many of the
measures set out in this policy were not implemented under after the commencement of this lawsuit,
and some were not adopted until the day before this Court’s evidentiary hearing. Even so,
Defendant’s actions fall short of their own policy and do not reasonably abate the extremely high
risks facing the inmates in Pack Unit.
Consider cleanliness. Defendants claim to have “ordered enhanced cleaning and
disinfection of its facilities.” (Doc. No. 36, at 12). Plaintiffs, however, presented unrebutted
evidence at the evidentiary hearing that Pack Unit’s post-pandemic procedures for cleaning
common areas resemble their pre-pandemic procedures. Defendants have not increased the number
of inmate janitors or increased their access to cleaning solutions. Plaintiff King, who is a janitor at
Pack Unit, testified at the hearing that all inmate janitors perform twelve-hour shifts, that the
cleaning solutions provided are used up largely on the initial morning cleaning and are almost
depleted by mid-afternoon, and that only one pair of gloves is provided daily for him and his cojanitor to share—an arrangement Plaintiffs’ medical experts described as being as effective as no
gloves at all. (Tr. 91:12–14). Plaintiff Valentine also testified regarding his concern about
sanitizing of the mess hall where meals are served, having observed that the same rag is used
“without cleaning it, or without rinsing it” to wipe ten or more tables at a time. (Tr. 70:12–13). As
21
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 22 of 33
for personal spaces, Defendants spray each inmate’s cubicle daily with diluted bleach, and
otherwise provide a shared bottle of disinfectant spray for common use. Defendants do not provide
access to disposable towels or additional tissues. These inadequate sanitizing and disinfecting
measures, at a time when hygiene is a life or death matter, reflect a deliberate indifference toward
the safety of Pack Unit inmates.
The Court is further concerned by Defendants’ purported reasons for refusing to provide
paper towels and hand sanitizer to Pack Unit members. Given that Plaintiffs routinely use a variety
of other paper and cloth items without incident, the argument that disposable towels could be used
to start fires or clog toilets falls flat. The same holds for Defendants’ argument that alcohol-based
hand sanitizer could be ingested. As testimony by Dr. Vail at the hearing revealed, hand sanitizer
that is normally contraband has been used without incident in other prisons during other outbreaks.
Indeed, the Court understands that prisoners have been entrusted with manufacturing hand
sanitizer at another TDCJ facility. Denying Plaintiffs these potentially life-saving tools under such
dire circumstances for such remote reasons evinces a disregard for the health and safety of the men
at Pack Unit.
Mr. Clerkly’s death also suggests a conscious disregard of substantial risk. Defendants’
own policies provide that inmates complaining of symptoms consistent with COVID-19 “should
be triaged as soon as possible” and “placed in medical isolation” and that all areas where the
symptomatic inmate spent time should be “thoroughly clean[ed] and disinfect[ed].” (Doc. No. 365, at 5). Mr. Clerkly displayed difficulty breathing and quickly died from viral pneumonia soon
after he was transported to the hospital. However, Defendants made no representations to the Court
that they identified Mr. Clerkly as symptomatic, evaluated him for potential COVID-19 infection,
or isolated or treated him for COVID-19 at any point before his transport to the hospital on the day
22
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 23 of 33
of his death. What is clear is that Pack Unit did not implement further precautionary measures until
three days after Mr. Clerkly’s death, when his COVID-19 test came back positive. In the meantime,
countless inmates were knowingly exposed to a serious substantial risk of harm.
Defendants argue that they cannot possibly be acting with deliberate indifference because
“TDCJ has implemented policies that are in accordance with CDC guidelines, and they have been
careful to ensure that those policies are being followed at the Pack Unit.” (Doc. No. 36, at 13). It
is true that official policies “bear heavily on the inquiry into deliberate indifference.” Helling v.
McKinney, 509 U.S. 25, 36 (1993). But it also matters whether and how the policy is being
administered. As discussed, Mr. Clerkly’s death has cast doubt on the policy’s implementation at
Pack Unit. So does unrefuted testimony at the hearing. For instance, the Court heard testimony
from Plaintiff King that an inmate janitor receives “maybe a quarter cup of powdered bleach” for
a multi-gallon mop bucket. (Tr. 78:8–9). TDCJ’s own policy requires a significantly higher
concentration: 8 ounces of powdered bleach to 1 gallon of water. (Doc. No. 36-6, at 4). Moreover,
the TDCJ cleaning guidance to which the policy refers states that common areas “should be
disinfected at least twice a day,” that “continuous (i.e., finish and then promptly begin again)
disinfection” of hand-contact areas is recommended, and that the mess hall “must be disinfected
between the feeding of groups.” See CMHC Infection Control Policy B-14.26, Gastrointestinal
Illness, at 7 (Aug. 2019), https://www.tdcj.texas.gov/divisions/cmhc/docs/cmhc_infection_
control_policy_manual/B-14.26.pdf; (Doc. No. 36-6, at 4 (citing CMHC Policy B-14.26 for
cleaning recommendations)). As discussed supra, these policies are not being adequately
implemented.
Indeed, many of the measures ordered in the preliminary injunction largely overlap with
TDCJ’s COVID-19 policy requirements and recommendations. These include the Court’s orders
23
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 24 of 33
concerning access to soap, tissues, gloves, masks, regular cleaning, signage and education,
quarantine of new prisoners, and social distancing during transport. The current version of TDCJ
Policy CMHC B-14.52, effective April 15, 2020, advises that “in settings where social distancing
measures are difficult to maintain or in areas of significant community-based transmission,” “cloth
face coverings” may be used and “should be worn at all times.” (Doc. No. 36-6, at 2, 5). It also
states that officials should inform inmates of the suspension of copays, emphasize “handwashing
and cough etiquette with offenders,” including “cover[ing] coughs or sneezes with a tissue, then
throw[ing] the tissue in the trash,” and place posters with COVID-19 information at “strategic
places.” (Doc. No. 36-6, at 4, 34). The CMHC policy also requires, in addition to the cleaning
measures discussed above, that inmates or staff “thoroughly clean and disinfect all areas where
suspected or confirmed COVID-19 cases spent time” while using “gloves and a gown.” (Doc. No.
36-6, at 6). The policy’s transportation provisions provide that “offender transportation must be
curtailed, except for movement that is absolutely required,” and requires that when inmates are
transported “they must be seated at least 3 feet apart.” (Doc. No. 36-6, at 12). The policy also
recommends “implementing routine intake quarantine for all new intakes for 14 days before they
enter the facility’s general population.” (Doc. No. 36-6, at 5).
The Court’s injunctive relief aims to promote compliance with TDCJ and CDC guidelines,
which Defendants themselves treat as the yardstick for reasonableness, based on a record that
reflects numerous failures on Defendants’ part to meet those guidelines. For instance, the Court’s
order that inmates be given access to tissue or additional toilet paper is intended to allow
compliance with the TDCJ policy that offenders should cough or sneeze into disposable tissues.
Currently, inmates at Pack Unit receive no tissues and only one roll of toilet paper each week,
leaving them to cough or sneeze into their hands when they run out. (Tr. 65:18–24). Similarly, the
24
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 25 of 33
CDC directs that prisons should ensure that “signage is understandable for non-English speaking
persons and those with low literacy, and make necessary accommodations for those with cognitive
or intellectual disabilities and those who are deaf, blind, or low-vision.” (Doc. No. 36-8, at 6). The
Court heard testimony that an illiterate inmate had asked Plaintiff Valentine to explain the COVID19 posters to him. (Tr. 68:18–69:6). Inmates who do not take protective measures for lack of
understanding present a known substantial risk of serious harm to Pack Unit. The Court’s order
that Pack Unit staff “give an oral presentation or show an educational video” provides a reasonable
measure to abate that risk, where Pack Unit officials so far have taken none. (Doc. No. 40).
To the extent that the Court’s order goes beyond TDCJ and CDC policies, it does so only
with great care and out of great necessity. The CDC guidelines state, in bold, on the first page:
“The guidelines may need to be adapted based on individual facilities’ physical space, staffing,
population, operations, and other resources and conditions.” (Doc. No. 36-8, at 1). In Pack Unit,
the population consists of geriatric prisoners suffering from comorbidities that render them
particularly susceptible to COVID-19. The environment is a dormitory, making social distancing
in the living quarters impossible. And the conditions are now exceptionally dire, in that COVID19 is known to have already entered the facility. Defendants presented no evidence or testimony
to suggest that the steps they have taken are sufficient to meet this conflux of challenges facing
Pack Unit. In fact, counsel for Defendants agreed that steps beyond those proscribed by the CDC
may be needed to adequately protect Pack Unit inmates. (Tr. 109:15–110:2). Plaintiffs’ expert, Dr.
Young, described the measures taken by Defendants so far as “woefully inadequate” given the
special needs of the Unit. (Tr. 95:10).
The Court’s order that TDCJ “provide the Plaintiffs and the Court with a detailed plan to
test all Pack Unit inmates,” (Doc. No. 40, at 4), is a direct and tailored response to the special
25
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 26 of 33
vulnerabilities of Pack Unit. Defendants are correct that “deliberate indifference exists wholly
independent of an optimal standard of care.” Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006).
But the Court does not order widespread testing because it is “optimal.” The Court orders it
because it is necessary for abating a substantial risk of serious harm to Pack Unit inmates. Dr.
Gathe testified that because of Pack Unit’s high-risk population, the difficulty of social distancing
in the dorms, lack of sterilization thus far, and the known introduction of COVID-19, testing of all
Pack Unit inmates for the virus is “necessary” in order to (1) isolate infected inmates, (2) provide
them timely treatment, and (3) prevent staff from bringing COVID-19 back out into the community.
(Tr. 14:6–15:6). Defendants have recently tested some inmates, including the fifty-three people in
Mr. Clerkly’s dorm. But more testing is essential because, as Dr. Gathe testified: “The [CDC]
recommendation [is] to test[] anyone that is at high risk of exposure, and my understanding with
the structure and where we are with the Pack Unit, is that each and every person at that institution
becomes, by definition, a high-risk person.” (Tr. 16:5–9). Defendants know they are working with
an extremely high-risk population. Their lack of willingness to take extra measures, including
measures as basic as providing hand sanitizer and extra toilet paper, to protect them reflects a
deliberate indifference toward their vulnerability.
The Court readily acknowledges that any deliberate indifference inquiry must be sensitive
to the expertise and discretion of prison officials, the challenging nature of their jobs, and the
“realities of prison administration.” Helling v. McKinney, 509 U.S. 25, 37 (1993). Furthermore, in
times of evolving crisis, officials’ understanding of the risks involved will change, and what may
seem like reasonable measures to abate the crisis one day, may be revealed as inadequate the next.
For this reason, officials may not be held liable “if they responded reasonably to a known risk,
even if the harm ultimately was not averted.” Farmer, 511 U.S. at 826. But for all the deference
26
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 27 of 33
owed, prison officials must still take reasonable steps to abate known substantial risks of serious
harm, especially during a crisis. Id. at 847. What is “reasonable” will depend on the crisis.
The day after this Court issued its preliminary injunction in this case, Judge Jon S. Tigar
of the Northern District of California declined to issue injunctive relief in Plata v. Newsom, No.
4:01-cv-1351 (N.D. Cal. Apr. 17, 2020), citing the reasonable steps taken by the California
Department of Corrections and Rehabilitation (CDCR) to prevent the spread of COVID-19 in
California prisons. The contrast between that case and Plaintiffs’ case is illuminating. The
plaintiffs in Plata filed suit seeking an order directing the CDCR to develop a plan to prevent the
spread of COVID-19 in California prisons. By the time of the preliminary injunction hearing, the
CDCR had developed and begun to implement an extensive plan. The measures taken included
accelerating the release of 3,500 inmates to reduce prison population, transferring 1,300 inmates
out of dorm housing to increase physical separation, sharply reducing transfers between facilities,
mass producing hand sanitizer and cloth masks (22,000 per day) for use by staff and inmates,
developing detailed protocols for managing symptomatic inmates and staff, disinfecting
commonly touched objects between each use, and adjusting inmate housing and activities to
increase physical distancing. Order Denying Plaintiffs’ Emergency Motion at 6–9, Plata, No. 4:01cv-1351, ECF No. 3291.The plaintiffs’ primary concern at the hearing appears to have been that
the physical distance between plaintiffs still had not been adequately increased. Id. at 9. Judge
Tigar held that the CDCR’s extensive efforts constituted reasonable measures to abate the risk of
COVID-19, though he observed that “no bright line divides a reasonable response from one that
is deliberately indifferent in violation of the Eighth Amendment.” Id. at 14.
Defendants’ actions in this case fall on the other side of the line. Although Defendants have
taken some steps to address the substantial risk of COVID-19 in Pack Unit, Plaintiffs have made
27
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 28 of 33
a showing that a large portion of those steps have fallen short and continue to fall short even of
TDCJ and CDC guidelines. Defendants have also declined to provide basic tools to Plaintiffs that
would help them keep themselves safer, including adequate cleaning supplies, hand sanitizer, extra
toilet paper, and disposable towels. Finally, Defendants have provided no evidence that the steps
they have taken are adequate to reasonably address the specific needs of Pack Unit’s high-risk
population. Testimony from Plaintiffs’ medical experts and the fact that an inmate at Pack Unit
has died speak to how inadequate those steps have been. The Court concludes that Plaintiffs are
likely to establish that their conditions of confinement place them at substantial risk of harm from
COVID-19, in violation of their Eighth and Fourteenth Amendment rights, and that Defendants
are being deliberately indifferent to their obvious and serious medical and safety needs.
B. Irreparable Harm
Plaintiffs allege that they and their proposed class members face irreparable harm because
there is a strong likelihood that they will be infected with COVID-19, especially now that COVID19 has entered Pack Unit, and that because of their medical vulnerabilities, they face a heightened
risk of dying or suffering from serious illness and long-term health consequences. Plaintiffs must
show that “irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008). A harm need not be inevitable or have already happened in
order for it to be irreparable; rather, imminent harm is also cognizable harm to merit an injunction.
See Helling, 509 U.S. at 33 (“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. . . . [A] remedy for unsafe conditions need not await a tragic event.”).
Plaintiffs’ alleged harm is both imminent and irreparable. Since this suit was filed, an
inmate at Pack Unit has already died from COVID-related causes. Plaintiffs’ most serious alleged
28
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 29 of 33
harm has thus come to pass. There continues to be an imminent harm threatening the inmates at
Pack Unit. Mr. Clerkly was living among other inmates at Pack Unit until the morning of his death,
thus coming into contact with an unidentified portion of the Unit’s population. Defendants have
not identified those who came in contact with Mr. Clerkly in the days preceding his death, nor
have they tested the Unit’s population for COVID-19. Thus, they have no means of isolating those
who can transmit the disease from those who have not yet been infected. Without further action to
prevent transmission, Plaintiffs certainly face further infection. The population at Pack Unit, a
geriatric unit, is overwhelmingly older and sicker than the prison population at large. Defendants
have not contested this fact, nor do they contest that COVID-19 is more likely to result in serious
illness or death in individuals who are older and have comorbidities. Given that the population at
Pack Unit is particularly vulnerable if exposed to COVID-19, and given that COVID-19 has
already entered the Unit, Plaintiffs face irreparable harm, in the form of serious illness or death.
An injunction is necessary to prevent these irreparable harms from befalling Defendants.
Measures taken by Defendants to keep COVID-19 from spreading throughout Pack Unit would
maintain the status quo of Plaintiffs and proposed class members remaining alive and free from
serious illness stemming from COVID-19. Because the alleged harm is a high likelihood of serious
illness or death, the Court finds that Plaintiffs have properly alleged irreparable harm.
C. Balancing of Equities and Public Interest
The equities at issue and the public interest weigh in Plaintiffs’ favor. Plaintiffs face serious
irreparable harm—including severe illness, long-term health effects, and possibly death—if forced
to remain in the current conditions at Pack Unit. As discussed supra, prisons are particularly
susceptible to a rapid spread of the virus within their walls. And Plaintiffs and their proposed class
members—many of whom are elderly individuals with co-morbidities—are especially vulnerable
29
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 30 of 33
to not only contracting the virus, but indeed having particularly severe cases that may result in
death.
Defendant’s countervailing contention is that they will suffer an institutional injury because
an injunction would “upend[] federalism principles, disregard[] the separation of powers, and
thwart[] the State’s fundamental prerogative, and Defendants’ basic duty as state officials, to
maintain safety and security in Texas prisons.” (Doc. No. 36, at 30–31). The Court recognizes that
states have a strong interest in the administration of their prisons, which is “bound up with state
laws, regulations, and procedures.” Woodford v. Ngo, 548 U.S. 81, 94 (2006) (quoting Preiser v.
Rodriguez, 411 U.S. 475, 491–92 (1973)). The Court also appreciates deeply the difficulty of
running a prison and that courts are “ill equipped” to undertake the task of prison administration,
which is within the province of the legislative and executive branches of government. Turner v.
Safley, 482 U.S. 78, 84–85 (1987) (quoting Procunier v. Martinez, 416 U.S. 396, 405–06 (1974)).
Courts accordingly should accord deference to prison authorities. Id.
Principles of federalism and deference, however, do not erode the core tenet that “[p]rison
walls do not form a barrier separating prison inmates from the protections of the Constitution.”
Turner, 482 U.S. at 84. “Because prisoners retain these rights, ‘[w]hen a prison regulation or
practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to
protect constitutional rights.’” Id. (quoting Martinez, 416 U.S. at 405–06). Thus where, as here,
prisoners demonstrate a substantial likelihood of proving successfully that Defendants’ response
to the global pandemic is deliberately indifferent in violation of their constitutional rights, the
balance of equities and public interest weigh in favor of granting an injunction to protect those
rights. Deference to prison policies must not come at the expense of ensuring that inmates are
30
Case 4:20-cv-01115 Document 51 Filed on 04/20/20 in TXSD Page 31 of 33
afforded a constitutional minimum standard of care, particularly in the face of a rapidly spreading
and potentially deadly virus.3
Moreover, an injunction will not, as Defendants contend, be “unduly burdensome to
Defendants, waste resources, and set a precedent for courts to micro-manage the operations of
prisons during a pandemic.” (Doc. No. 36, at 33). First, any burden Defendants incur from
implementing reasonable measures in response to COVID-19 are outweighed by the significant
and irreparable harm to Plaintiffs, particularly when the virus has already breached the prison’s
walls. See Laube v. Haley, 234 F. Supp. 2d 1227, 1252 (M.D Ala. 2002) (“The threat of harm to
the plaintiffs cannot be outweighed by the risk of financial burden or administrative inconvenience
to the defendants.”). This is particularly true where, as here, Defendants have failed to present to
the Court any evidence of undue burden by an injunction. Second, Defendants point to no evidence
that allows the Court to conclude that implementing reasonable measures to protect Plaintiffs’ lives
and constitutional rights will waste resources. Indeed, numerous provisions of the Court’s
injunction are measures that Defendants stated they had implemented but, in reality, have not—
for instance, providing masks and gloves for each inmate during janitorial shifts. And to the extent
Defendants contend that an injunction contravenes public interest because it would divert
The Court notes that the Fifth Circuit recently affirmed the Supreme Court’s holding in Jacobson
v. Massachusetts, 197 U.S. 11 (1905), that, “when faced with a society-threatening epidemic, a
state may implement emergency measures that curtail constitutional rights so long as the measures
have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all
question, a plain, palpable invasion of rights secured by the fundamental law.’” In re Abbott, No.
20-50264, 2020 WL 1685929, at *7 (5th Cir. Apr. 7, 2020) (quoting Jacobson, 197 U.S. at 31).
The curtailment of constitutional rights permitted under In re Abbott and Jacobson, however, does
not apply to the instant case. Critically, Plaintiffs claim not that the State is infringing upon their
constitutional rights to combat a public health emergency, but rather that the State is infringing
upon their constitutional rights precisely because it is not reasonably combatting a public health
emergency within Pack Unit. Thus, Plaintiffs’ constitutional rights remain protected under the
Eighth Amendment’s deliberate indifference standar
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.