Two inmates incarcerated at the Wallace Park Unit, a Texas prison housing geriatric, medically-compromised, and mobility-impaired inmates, sued the Texas Department of Criminal Justice over its response to COVID-19. On behalf of themselves and a putative class of all Pack Unit inmates and putative subclasses of high-risk and disabled inmates, they alleged violations of the 8th Amendment, the Americans with Disabilities Act, and the Rehabilitation Act.
Here's a quick time-line of their case's already-complex procedural history:
April 16, 2020: district court issues preliminary injunction, imposing detailed protocol on TDCJ to stem spread of COVID-19 in Pack Unit.
April 22, 2020: Fifth Circuit motions panel stays injunction pending TDCJ's interlocutory appeal, reasoning that Plaintiffs were unlikely to succeed because they had not complied with the Prison Litigation Reform Act’s (PLRA) administrative-exhaustion requirement, 42 U.S.C. § 1997e(a), and their Eighth Amendment claim likely failed on the merits. Valentine v. Collier (Valentine I), 956 F.3d 797, 806 (5th Cir. 2020) (Jones, Higginson, Oldham) (published per curiam).
May 14, 2020: The Supreme Court declines to vacate stay. Valentine v. Collier (Valentine II), 140 S. Ct. 1598 (2020) (mem.). Justice Sotomayor, joined by Justice Ginsburg, issued a statement respecting the denial of application to vacate stay.
June 5, 2020: Fifth Circuit merits panel resolves TDCJ's interlocutory appeal on merits, holding that TDCJ had "substantially complied with the measures ordered by the district court." Valentine v. Collier (Valentine III), 960 F.3d 707, 707 (5th Cir. 2020) (per curiam) (Davis, Graves, Duncan) (published per curiam).
June 27, 2020: On remand, district court certifies general class of all Pack Unit inmates and a high-risk subclass of inmates who are vulnerable to severe illness or death from COVID-19 due to their advanced age or underlying health conditions. Valentine v. Collier (Valentine IV), 2020 WL 3491999, at *14 (S.D. Tex. June 27, 2020). District court later certifies a mobility-impaired subclass of inmates who use walkers, canes, crutches, and wheelchairs.
September 29, 2020: After 18-day bench trial, district court rules for Plaintiffs on all claims and permanently required TDCJ to follow specific procedures to protect Pack Unit inmates from COVID-19. Valentine v. Collier (Valentine V), 2020 WL 5797881, at *29-38 (S.D. Tex. Sept. 29, 2020). District court scheduled permanent injunction to go into effect on October 14, 2020.
September 30, 2020: TDCJ appeals permanent injunction. District court denies TDCJ's motion to stay the injunction. TDCJ files emergency motion asking Fifth Circuit to stay the injunction pending appeal and for a temporary administrative stay while that motion was pending.
October 6, 2020: Fifth Circuit motions panel administratively stayed the permanent injunction pending consideration of the emergency motion and granted Plaintiffs leave to file a response.
That brings us to the October 13, 2020 panel opinion. To obtain a stay, TDCJ was required to show that (1) its appeal was likely to succeed on the merits, (2) it would suffer irreparable harm absent a stay, (3) a stay would not substantially injure Plaintiffs, and (4) the public interest favored a stay. (citing Nken v. Holder, 556 U.S. 418, 426 (2009)). The Fifth Circuit places particular weight on the first two factors. (citing Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016)).
Beginning with TDCJ's likelihood of success on appeal, Judge Willett's opinion for a unanimous panel explained that "[t]he PLRA's exhaustion requirement is no-nonsense," but it does contain one statutory exception that applies when inmates can show that administrative remedies were not "available." In the PLRA context, "available" means “‘capable of use’ to obtain ‘some relief for the action complained of.’” (quoting Ross v. Blake, 136 S. Ct. 1850, 1859 (2016), which, in turn, was quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
The district court concluded Plaintiffs had shown that the TDCJ's grievance process was not "available" under that standard, thus excusing Plaintiffs' failure to exhaust administrative remedies. It focused on TDCJ’s “acknowledgment that the existing grievance process was inadequate in light of COVID-19 and the implementation of a new set of procedures.” Valentine V, 2020 WL 5797881, at *27. But, Judge Willett explained, "inadequate is not a synonym for unavailable." In effect, he concluded, "[t]he district court impermissibly applied a 'special circumstances' exception, like the one the Supreme Court rejected in Ross, under the guise of an availability analysis." Because the evidence in the record showed that the TDCJ "was capable of providing 'some relief for the action complained of,'" the TDCJ's grievance process was "available" for PLRA purposes. (quoting Ross, 136 S. Ct. at 1859, which, in turn, was quoting Booth, 532 U.S. at 738).
The panel proceeded to explain that "even if Plaintiffs could surmount the PLRA, their Eighth Amendment claim [was] likely to fail on the merits." To establish a violation, inmates must show that they were exposed "to a substantial risk of serious harm," and "that prison officials acted or failed to act with deliberate indifference to that risk." (quoting Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018), which, in turn, was quoting Gobert v. Caldwell, 463 F.3d 339, 345-46 (5th Cir. 2006)):
Under that standard, the panel held, the TDCJ was not deliberately indifferent. Though the Fifth Circuit's Eighth Amendment precedent in the infectious-disease context is limited, Judge Willett said, "[w]e have twice held that testing and treating inmates who were exposed to tuberculosis is enough to establish that prison officials were not deliberately indifferent to the risk of disease." (citing Gibbs v. Grimmette, 254 F.3d 545 (5th Cir. 2001); Wallace v. Dallas Cty., 51 F.3d 1045 (5th Cir. 1995) (per curiam)). True, COVID-19 poses a greater risk than tuberculosis, but "any argument that TDCJ 'evince[d] a wanton disregard for any serious medical needs' is dispelled by the affirmative steps it took to contain the virus." (quoting Gobert, 463 F.3d at 346 (internal quotation omitted)). Those steps included the following:
Under Fifth Circuit precedent, that was enough. In reaching the opposite conclusion, the district court had focused on what TDCJ didn't do, which, according to the Fifth Circuit, "held TDCJ to a higher standard than the Constitution imposes":
After concluding that the remaining Nken factors also favored a stay, the panel granted TDCJ's motion.