Application — Laddy Curtis Valentine, et al., Applicants v. Bryan Collier, Executive Director, Texas Department of Criminal Justice, et al.

Supreme Court briefMay 4, 2020

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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.

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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

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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)

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(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.

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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

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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

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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

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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

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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.

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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

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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.

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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.

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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’

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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

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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.

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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

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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

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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

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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.

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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

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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

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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.

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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).

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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

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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

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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).

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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).

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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Application — Laddy Curtis Valentine, et al., Applicants v. Bryan Collier, Executive Director, Texas Department of Criminal Justice, et al. | Frix