Frazier v. Kelley

• Decision Date: 19 May 2020
• Docket Number: Case No. 4:20-cv-00434-KGB
• Parties: Nicholas FRAZIER, Plaintiff v. Wendy KELLEY, et al., Defendants
• Court: U.S. District Court — Eastern District of Arkansas

460 F.Supp.3d 799

Nicholas FRAZIER, Plaintiff

v.Wendy KELLEY, et al., Defendants

Case No. 4:20-cv-00434-KGB

United States District Court, E.D. Arkansas, Central Division.

Signed May 19, 2020

Ajmel Ahsen Quereshi, Pro Hac Vice, Christopher Eberhart Kemmitt, Pro Hac Vice, NAACP Legal Defense and Educational Fund, Inc, Washington, DC, Corrine A. Irish, Pro Hac Vice, George H. Kendall, III, Pro Hac Vice, Jenay Aretha Nurse-Guilford, Pro Hac Vice, Squire Patton Boggs (US) LLP, Jin Hee Lee, Pro Hac Vice, Natasha C. Merle, Pro Hac Vice, Omavi Shukur, Patricia Okonta, Pro Hac Vice, Samuel Spital, Pro Hac Vice, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Cristy L. Park, Disability Rights Arkansas Inc., Sarah Everett, Arkansas Civil Liberties Union Foundation, Inc., Little Rock, AR, Laura Fernandez, Pro Hac Vice, The Yale Law School, New Haven, CT, for Plaintiff.

Asher Steinberg, Jennifer L. Merritt, Jerry D. Garner, Nicholas Jacob Bronni, Vincent Moore Wagner, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.

ORDER DENYING PRELIMINARY INJUNCTION

Kristine G. Baker, United States District Judge Before the Court is an emergency motion for temporary restraining order and preliminary injunction filed by plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold "Scott" Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and John Doe, individually and on behalf of all others similarly situated (collectively, "plaintiffs") (Dkt. No. 2). A response was filed by defendants Wendy Kelley, Secretary of the Arkansas Department of Corrections ("DOC"); Dexter Payne, Division of Correction Director, Arkansas Department of Corrections ("ADC"); Jerry Bradshaw, Division of Community Correction Director, Arkansas Department of Corrections ("ADCC"); Asa Hutchinson, Governor of Arkansas; Benny Magness, Chairman of Arkansas Board of Corrections ("ABC"); Bobby Glover, Vice Chairman of ABC; John Felts, Member of ABC; William "Dubs" Byers, Member of ABC; and Whitney Gass, Member of ABC, all in their official capacities (collectively, "defendants") (Dkt. No. 36). Plaintiffs filed a reply on May 4, 2020 (Dkt. No. 44).

On Monday, April 27, 2020, plaintiffs also filed a supplemental motion for temporary restraining order (Dkt. No. 22). Plaintiffs' supplemental motion for temporary restraining order requested that the Court enter immediately a temporary restraining order (Id. , at 1). Plaintiffs provided a draft proposed order outlining in detail the relief they requested in their motion, which was comparable but not identical to the relief they seek in their current motion for preliminary injunction (Dkt. No. 22-1). The Court conducted a hearing with all parties on that motion on Tuesday, April 28, 2020 (Dkt. Nos. 24; 26). On May 4, 2020, the Court entered an order denying plaintiffs' motion for temporary restraining order but holding under advisement plaintiffs' previously filed motion for preliminary injunction (Dkt. No. 42).

Since the Court's ruling on plaintiffs' request for a temporary restraining order, plaintiffs and defendants have submitted to the Court additional record evidence and further briefing. The Court conducted a hearing on plaintiffs' pending motion for preliminary injunction on May 7, 2020 (Dkt. Nos. 62; 63), and the parties filed post-hearing briefs on May 8, 2020 (Dkt. Nos. 64; 65). For the following reasons, the Court denies plaintiffs' motion for preliminary injunction.

I. Overview

A. Claims

On April 21, 2020, plaintiffs filed a class action complaint and petition for writ of habeas corpus (Dkt. No. 1). Plaintiffs allege that conditions in ADC facilities create a serious risk of COVID-19-related infection, disease, and death (Id. , ¶¶ 72-89). Plaintiffs claim that the spread of COVID-19 in ADC facilities jeopardizes the public health of surrounding communities, especially black communities (Id. , ¶¶ 90-97). Plaintiffs assert that defendants have intentionally failed to adopt and implement adequate policies and procedures to prevent and mitigate the spread of COVID-19 (Id. , ¶¶ 98-126). Plaintiffs assert three causes of action: (1) violation of the Eighth Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all plaintiffs; (2) violation of the Eighth Amendment brought by a petition for writ of habeas corpus under 28 U.S.C. § 2241 on behalf of the proposed high risk subclass; and (3) violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. , on behalf of the proposed disability subclass (Id. , ¶¶ 127-48).

Plaintiffs also filed the instant emergency motion for temporary restraining order and preliminary injunction on April 21, 2020 (Dkt. No. 2). In this motion, plaintiffs request that this Court grant immediate relief to protect them against the substantial risk of COVID-19 infection, illness, and death while incarcerated in ADC facilities (Id. , at 1-2). Plaintiffs assert that they are entitled to a preliminary injunction because they are substantially likely to succeed on the merits of their claim that defendants' failure to take steps to address the imminent risk caused by COVID-19 constitutes deliberate indifference in violation of plaintiffs' Eighth Amendment rights (Id. , at 2). Plaintiffs further assert that defendants have violated, and will continue to violate, the ADA by failing to provide plaintiffs with disabilities with reasonable accommodations that would allow them to have safe housing while serving their prison sentence that does not place them at substantial risk of COVID-19 infection, illness, or death by virtue of their disability (Id. ). Plaintiffs maintain that defendants are aware of the substantial risk posed by the virus and the recommended steps issued by the Centers for Disease Control ("CDC") to prevent its spread but have failed to take steps to protect plaintiffs (Id. ). Plaintiffs assert that they and putative class members are also entitled to relief because they will suffer irreparable harm absent relief and that traditional legal remedies will not adequately protect their rights (Id. ).

B. Class Allegations

Plaintiffs are individuals incarcerated in facilities operated by the ADC (Dkt. No. 1, at 1-2). Based on the allegations in their complaint, each named plaintiff faces a heightened risk of death or serious injury if exposed to COVID-19 due to a chronic medical condition, a disability, or both (Id. , ¶¶ 15-35).

Plaintiffs seek relief on behalf of themselves and a class consisting of people who are currently incarcerated, or will be in the future, in an ADC detention facility during the duration of the COVID-19 pandemic (Id. , ¶ 41). Plaintiffs also propose two subclasses: (a) high risk subclass, defined as:

[P]eople in the custody of an ADC facility aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease

or asthma ; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease ), or an inherited metabolic disorder ; people who have had or are at risk of a stroke ; and people with any condition specifically identified by the Center for Disease Control ("CDC"), currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19.

and (b) disability subclass, defined as:

[P]eople in custody who suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability.

(Id. ).

The Court determines that, for reasons unrelated to plaintiffs' class allegations, plaintiffs have not demonstrated that they are likely to succeed on the merits of their Eighth Amendment and ADA claims. Therefore, the Court denies plaintiffs' request for a preliminary injunction and, at this stage of the proceeding, declines to address matters related to plaintiffs' class allegations.

C. Request For Injunctive Relief

Plaintiffs request in their pending motion that the Court grant preliminary injunctive relief and appoint a special master or an expert under Federal Rule of Evidence 706 to take certain actions and to make recommendations to the Court regarding a number of issues (Dkt. No. 44, at 90-92). Plaintiffs also request a preliminary injunction requiring defendants to take 26 specific actions with respect to COVID-19 (Id. , at 92-96). After the preliminary injunction hearing, plaintiffs proposed an alternative preliminary injunction for the Court's consideration (Dkt. No. 65, at 45-47). The Court has considered these requests in making its determination.

II. Findings Of Fact

The Court has considered the entire evidentiary record presented by the parties in reaching its decision, although citing only specific portions in this Order. The Court makes the following specific findings of fact.

A. COVID-19

1. COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 2019.

2. The World Health Organization ("WHO") declared COVID-19 a pandemic on March 11, 2020 (Dkt. Nos. 3, at 14; 3-1, ¶ 2). The COVID-19 pandemic has created a public health emergency (Id. ).

3. COVID-19 has proven highly contagious in congregate environments such as nursing home facilities, cruise ships, naval aircraft carriers, and prisons (Dkt. Nos. 1, ¶ 3; 3-1, ¶¶ 12-13; 3-2, ¶ 9).

4. There is no cure for COVID-19, and once contracted it can have life-threatening consequences, particularly for people who have...