Laddy Curtis Valentine, et al., v Bryan Collier, et al.

Plaintiffs Laddy Curtis Valentine (“Valentine”) and Richard Elvin King (“King”) were inmates at Wallace Pack Unit (“Pack Unit”), a geriatric state prison run by the Texas Department of Criminal Justice (“TDCJ”) in Grimes County, Texas. On March 30, 2020, plaintiffs filed a complaint, alleging that the defendants, TDCJ Executive Director Bryan Collier (“Collier”), Pack Unit Warden Robert Herrera, and the TCDJ failed to take reasonable and proper measures to prevent the spread of the COVID-19 pandemic within Pack Unit, and to protect inmates from infection. Plaintiffs alleged the defendants’ actions constituted violations of the Americans with Disabilities Act (“ADA”), as well as their Eighth and Fourteenth Amendment rights against “cruel and an unusual punishment.” Plaintiffs sought preliminary injunctive relief under 42 U.S.C § 1983 on behalf of themselves and a proposed class of all current and future inmates incarcerated at Pack Unit. Plaintiffs also included an Application for Temporary Restraining Order in their complaint.

On March 20th, 2020, the CMHC created a COVID-19 policy, B-14.52. This policy was updated on March 27 after the Centre of Disease Control (“CDC”) issued its guidance to correctional institutions on March 23rd, and again on April 2nd, and once more on April 15th, after Leonard Clerkly, (“Clerkly”) a 62-year-old inmate at Pack Unit, was transferred to a hospital due to difficulty breathing on April 11th. Autopsy results showed Clerkly died from viral pneumonia due to COVID-19, for which he tested positive. The TDCJ learned of Clerkly’s positive COVID result on April 13th. On April 14th, Pack Unit was place on precautionary lockdown, Inmates were confined to their dorms other than for scheduled showers and medical care. Inmates who lived in Clerkly’s dorm were placed on medical restriction, and had their temperatures taken twice daily. The precautionary lockdown was to be continually extended for an additional 14 days from the last known symptom.

The TDCJ refused to give inmates alcohol-based hand sanitizer or disposable paper towels on the grounds that they were flammable and could be hoarded or used to damage the plumbing system. The TDCJ also refused to provide inmates with facial tissue or additional toilet paper.

On April 15th, TDCJ began issuing clean masks and gloves to its janitorial staff each pair was only provided a single set of gloves rendering them effectively useless in protecting the wearer and preventing viral transfer between surfaces. TDCJ also failed to provide janitors with enough CDC-approved cleaning supplies to sustain any amount of repetitive cleaning throughout the 12-hour shift, and did not increase the number of inmate janitors since the pandemic began. Further, dining hall protocol did not allow for social distancing and social distancing was not enforced in common areas even when it was possible to do so. Lastly, inmate transfers continued on a case by case basis despite CDC guidelines.

TDCJ issued informational posters explaining COVID-19, how to prevent transmission, and notice that all medical copays were waived until the pandemic was over, yet failed to orally communicate any of this information to inmates through live or video presentations, or to invite them to ask questions. The informational posters were inaccessible to illiterate, low-literacy, visually-impaired, mentally-impaired, and non-English speaking inmates. Pack Unit tested 53 inmates who lived in Clerkly’s former dorm, and as of April 16th, 64 Pack Unit inmates were tested in total. TDCJ had no intent or plan to blanket test the remaining Pack Unit inmates, nor to trace or test Clerky’s contacts outside his dorm, despite COVID-19 having already breached the Unit.

Defendants presented zero evidence regarding the medical adequacy, cost, budgetary impact, or implementation of their policies. Plaintiffs’ medical experts found the measures taken in Pack Unit to be “grossly” and “woefully” inadequate to care for its geriatric population. Defendants presented no plans or intent to re-evaluate the need for hand sanitizer and paper towels or provide comparable alternatives, nor to design plans for expanding testing, triaging available tests, coordinating early release to reduce inmate populations, or enacting new measures after the precautionary lockdown is lifted.

The Court held that the plaintiffs satisfied the four requirements to receive injunctive relief. Plaintiffs showed: (1) a substantial likelihood that their claim will succeed on the merits; (2) a substantial threat that irreparable harm will occur if injunctive relief is denied; (3) that the threatened injury to the plaintiffs outweighs the threatened harm to the defendant; and (4) that granting the injunctive relief will not disservice the public interest. However, the Court first had to address the defendants’ argument that the plaintiffs’ claims were barred from succeeding on the merits due to the plaintiffs’ failure to properly exhaust their administrative remedies as necessitated by the Prison Litigation Reform Action of 1995 (“PLRA”).

The Court held that the PLRA’s requirement did not bar the plaintiffs’ claim from succeeding on its merits. While the PLRA’s requirement that inmates exhaust “such administrative remedies as are available” before bringing an action to challenge prison conditions is mandatory, and courts may not excuse a failure to exhaust merely due to “special circumstances”, there is a built-in exception to the requirement that releases inmates from their obligation to exhaust where no administrative remedies are “available”, which the Supreme Court defined as “capable of use for the accomplishment of a purpose.” Due to the rate at which COVID-19 spreads, especially in prisons where large populations are forced to live in extremely close quarters and share limited resources, the TDCJ’s administrative remedy was not “capable of use” to obtain the relief sought by the plaintiffs in this case. The delays inherent in the TDCJ’s administrative remedy, further opportunities for extension, and a lack of any emergency procedures available to inmates to expedite the process, all demonstrated that the remedy was incapable of providing the plaintiffs with any relief in circumstances that presented an imminent danger that was liable to spread rapidly. Consequently, the Court held that the Plaintiffs were not required to exhaust this remedy before bringing their constitutional challenge.

The Court held that the plaintiffs were substantially likely to succeed on the merits of their constitutional challenge alleging that the conditions of their confinement within Pack Unit during the COVID-19 pandemic violated their Eighth Amendment right against “cruel and unusual punishment.” Establishing an Eighth Amendment violation entails showing that the inmate is (1) “incarcerated under conditions posing a substantial risk of serious harm” and (2) “that prison officials’ failure to act manifests ‘deliberate indifference’ towards that risk.” The Court held that both criteria were met in this case. Given that the majority of the inmate population is over 65-years old, and many inmates live with preexisting health conditions and co-morbidities, as well as the fact that COVID-19 already breached the Unit and killed one inmate, the current inmates represent the exact class of people at highest risk of serious harm and death should the virus spread uncontrollably. Further more, as a Type I geriatric prison with dormitory-style living quarters and a serious lack of resources available to inmates and janitors to effectively prevent transmission, the conditions of confinement within Pack Unit are highly conducive to the rapid spread of the virus. The defendants had conscious knowledge of the substantial risk posed by COVID-19 in Pack Unit, which was obvious given its rapid spread across US prisons and the world, and especially after Clerky’s death from COVID-19. The Court found that the bulk of the measures adopted by the TDCJ—e.g., employee screenings, masks for staff, copay waivers, visitation suspensions, and unlimited soap access—were “so essential that they have become ubiquitous” across US prisons. The TDCJ did not actually implement numerous measures within B-14.52 until after the suit was already filed, and some as late as the day before the evidentiary hearing. The defendants’ actions did not satisfy their own policy, and did not reasonably mitigate the exceedingly high risks posed to Pack Unit inmates by the conditions of their confinement.

While the defendants took some steps to address the substantial risk of COVID-19 in Pack Unit, the fact that the defendants knew the entire population was, by definition, high-risk, coupled with their continued failure to meet their own policies and CDC guidelines, and their unwillingness to implement many necessary measures to protect them from exposure or provide them with many basic tools, established deliberate indifference.

“However, the PLRA has a “built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not ‘’ ” 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, 121 S.Ct. 1819, 149 L.Ed.2d 958 (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.’ ” (p. 320).

“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 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)” (p. 321).

“Only officials that “recklessly” or “consciously” disregard a known substantial risk of serious harm act with deliberate indifference. at 836, 114 S.Ct. 1970. 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, 114 S.Ct. 1970 (internal citation omitted). Past actions and conduct are relevant as well” (p. 322).

“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.” at 842, 114 S.Ct. 1970. 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 COVID-19 transmission” (p. 322).

“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 COVID-19 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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, 113 S.Ct. 2475 (“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.”)” (p. 327).

“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, 107 S.Ct. 2254. “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, 94 S.Ct. 1800). 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 afforded a constitutional minimum standard of care, particularly in the face of a rapidly spreading and potentially deadly virus” (p. 328).