Valentine v. Collier

• Decision Date: 26 March 2021
• Docket Number: No. 20-20525,20-20525
• Citation: 993 F.3d 270
• Parties: Laddy Curtis VALENTINE; Richard Elvin King, Plaintiffs—Appellees, v. Bryan COLLIER; Robert Herrera; Texas Department of Criminal Justice, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

993 F.3d 270

Laddy Curtis VALENTINE; Richard Elvin King, Plaintiffs—Appellees,

v.Bryan COLLIER; Robert Herrera; Texas Department of Criminal Justice, Defendants—Appellants.

No. 20-20525

United States Court of Appeals, Fifth Circuit.

FILED March 26, 2021

John R. Keville, Brandon W. Duke, Basheer Youssef Ghorayeb, Robert L. Green, Corinne Stone Hockman, Denise U. Scofield, Attorneys, Winston & Strawn, L.L.P., Houston, TX, Aaron J. Curtis, Weil, Gotshal & Manges, L.L.P., New York, NY, Jeff S. Edwards, Edwards Law, Austin, TX, for Plaintiffs—Appellees.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendants—Appellants.

Roberto Finzi, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, for Amici Curiae Joseph Goldenson, Brie Williams, and M.S.

Brian D. East, Senior Attorney, Disability Rights Texas, Central Texas Regional Office, Austin, TX, L. Kym Davis Rogers, Disability Rights Texas, North Texas Regional Office, Dallas, TX, for Amici Curiae Disability Rights Texas, and Disability Rights Louisiana.

Geoffrey Neil Courtney, San Antonio, TX, for Amici Curiae Faith in Texas, Texas Impact, Erik K.J. Gronberg, Reverend, Scott Jones, Reverend, C. Andrew Doyle, Joel N. Martinez, Reverend, Shane Claiborne, National Religious Campaign Against Torture, Art Laffin, Colleen McCarthy, Sojourners, and Witness Against Torture.

Laura L. Rovner, University of Denver, Denver, CO, for Amici Curiae Martin Horn, Steve Martin, Richard Morgan, Dan Pacholke, Jane Parnell, and Phil Stanley.

Before Davis, Stewart, and Oldham, Circuit Judges.

W. Eugene Davis, Circuit Judge:

This case returns to this Court on Defendants’ appeal of the district court's permanent injunction against them following an 18-day bench trial. After a careful review of the record, we conclude that given the steps taken by Defendants before the end of trial, Plaintiffs failed to establish that they are entitled to injunctive relief. We therefore REVERSE and RENDER judgment for Defendants.

I. Background

Plaintiffs Laddy Valentine and Richard King are elderly inmates with various medical conditions at the Wallace Pack Unit ("Pack Unit"), a Type-1 Geriatric prison in the Texas Department of Criminal Justice ("TDCJ") prison system. Plaintiffs seek injunctive relief on behalf of three certified classes of inmates for violations of the Eighth Amendment, the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act ("RA"): (1) the General Class, (2) the High-Risk Subclass, and (3) the Mobility-Impaired Subclass. For the Eighth Amendment claim, Defendants are Pack Unit senior warden Robert Herrera and TDCJ Executive Director Bryan Collier in their official capacities only. For their ADA and RA claim, Plaintiffs sued TDCJ.

The Pack Unit housed approximately 1,132 inmates at the time of trial, including 800 inmates over the age of 65. Many of the inmates had serious chronic health conditions and disabilities. Forty-nine inmates were wheelchair-bound, and 87 inmates used walkers. The Pack Unit's living space consists of a number of dormitories that house an average of 54 inmates. Within the dorms, inmates have a small personal sleeping and living space in a cubicle. The cubicles are connected in long rows and separated by a small, waist-high wall as illustrated below.

?

This lawsuit was filed on March 30, 2020, shortly before COVID-19 struck the Pack Unit. On April 11, 2020, Leonard Clerkly, the first Pack Unit inmate to test positive for COVID-19, died from the virus. By the time of trial, over 497 Pack Unit inmates had tested positive for COVID-19, 74 inmates had been hospitalized, and 19 inmates had died.

From the time they filed suit until trial in July, Plaintiffs have maintained that Defendants acted with deliberate indifference to Plaintiffs’ health and safety in violation of the Eighth Amendment in light of the dangers of COVID-19 for a geriatric prison population, and that Defendants violated the ADA and Rehabilitation Act ("RA") by failing to accommodate for specific risks to wheelchair-bound and other mobility-impaired inmates.

Although the inmates in this geriatric unit have surely felt the effects of the virus, the evidence at trial showed that TDCJ did respond to the pandemic in a number of ways both before and after suit was filed and during the pendency of the litigation. In February of 2020, TDCJ first began discussions with Dr. Lanette Linthicum, Director of the Health Services Division for TDCJ, regarding a response to COVID-19. Also in February, the Correctional Managed Health Care Committee ("CMHCC"), composed of representatives from TDCJ, Texas Tech, and University of Texas Medical Branch ("UTMB"), began formulating Policy B-14.52—a comprehensive policy to manage COVID-19 in TDCJ facilities. The policy, which largely tracked the CDC guidance for detention centers, was adopted on March 20, 2020. The policy has been frequently updated and revised. In March, testing became available for symptomatic inmates. On May 12, 2020, TDCJ began to roll out "strike-team testing" for the Pack Unit and three other similarly situated prison facilities. Strike-team testing is TDCJ's mass testing protocol for all inmates that is included in the CDC's recommendations for mass testing for COVID-19 in nursing homes. Policy B-14.52 also instructs on quarantining and isolation both for inmates who test positive for the virus and those suspected of being infected with it.

On April 16, 2020, the district court entered a preliminary injunction which was stayed by this Court on April 22 and then vacated on June 5.¹ On July 13, 2020, the district court began an 18-day bench trial on whether a permanent injunction should be issued. The district court issued its findings of fact and conclusions of law on September 29, 2020, and ultimately issued the permanent injunction that Defendants are challenging in this appeal. The district court concluded that Plaintiffs did not need to exhaust administrative remedies, that Defendants were deliberately indifferent, and that Defendants violated the ADA and RA. The injunction ordered the prison to

(1) Provide unrestricted access to hand soap and clean (regularly washed) or disposable hand towels to facilitate frequent handwashing;

(2) Provide members of the Mobility-Impaired Subclass access to hand sanitizer that contains at least 60% alcohol;

(3) Provide sufficient cleaning supplies for each housing area, including bleach-based cleaning agents and CDC-recommended disinfectants; provide additional cleaning supplies as requested by inmate janitors; train janitors on additional cleaning practices to be carried out in light of COVID-19;

(4) Provide new (either disposable or washed) gloves and masks each time inmates perform new tasks, such as beginning a janitorial shift or working in the laundry exchange;

(5) Create a plan to allow for regular cleaning of common surfaces with bleach-based cleaning agents;

(6) Create a plan to allow for regular cleaning of the cubicles of inmates who are physically unable to do so themselves;

(7) Enforce social distancing and the wearing of PPE among TDCJ staff;

(8) Mark common spaces with red tape to denote safe social distancing practices;

(9) Create a plan for inmates to sleep head-to-foot with exceptions for legitimate concerns by individual inmates;

(10) Use common spaces for temporary housing of inmates without disabilities;

(11) Limit transportation of inmates in and out of the Pack Unit other than for medical appointments or release from custody;

(12) Create a comprehensive weekly testing program using tests that are approved by the FDA for asymptomatic testing and with a turnaround time for results of 48 hours or less, and document that plan in writing;

(13) Continue weekly testing until the pandemic is brought under control within the state of Texas, even if multiple weeks pass with zero positive cases;

(14) Quarantine inmates who are awaiting test results from individuals who are known to have tested negative;

(15) Create a written plan to implement contact tracing when an inmate or staff member tests positive;

(16) Document in writing all TDCJ policies in response to COVID-19; and

(17) Institute a regular audit and compliance program to ensure compliance with the measures.

On October 13, 2020, this Court stayed the permanent injunction.² We now consider the merits of the appeal.

II. Standard of Review

A party seeking a permanent injunction must show: (1) that it has succeeded on the merits; (2) that a failure to grant the injunction will result in irreparable injury; (3) that said injury outweighs any damage that the injunction will cause the opposing party; and (4) that the injunction will not disserve the public interest.³ Furthermore, "[a] permanent injunction is appropriate only if a defendant's past conduct gives rise to an inference that, in light of present circumstances, there is a reasonable likelihood of future transgressions."⁴ We review a district court's grant of a permanent injunction for abuse of discretion.⁵ A district court abuses its discretion if it (1) "relies on clearly erroneous factual findings" or "erroneous conclusions of law" when deciding to grant the injunction, or (2) "misapplies the factual or legal conclusions when fashioning its injunctive relief."⁶ When reviewing factual findings and legal conclusions for a permanent injunction, "we will review the district court's findings of fact under the clearly erroneous standard, and the conclusions of law under the de novo standard."⁷

With respect to the Eighth Amendment claim, Collier and Herrera are sued under 42 U.S.C. § 1983 in their official capacity for injunctive relief only. "Under Ex parte Young , a case can proceed against individual state officials named in their official capacities when the claim is for an ongoing violation of federal law, but the relief sought must be prospective."⁸ In such a suit, the proper defendant is a state official...