Valentine v. Collier

• Decision Date: 13 October 2020
• Docket Number: No. 20-20525,20-20525
• Citation: 978 F.3d 154
• 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

978 F.3d 154

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 October 13, 2020

Brandon W. Duke, Winston & Strawn, L.L.P., Houston, TX, Jeff S. Edwards, Edwards Law, Austin, TX, for Plaintiffs—Appellees.

Matthew Hamilton Frederick, Deputy Solicitor General, Kyle Douglas Hawkins, Office of the Attorney General, Office of the Solicitor General, Christin Audrey Cobe-Vasquez, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendants—Appellants.

Before Willett, Ho, and Duncan, Circuit Judges.

Don R. Willett, Circuit Judge:

America houses roughly 2.2 million people in crowded correctional facilities. Amidst the unprecedented COVID-19 pandemic, prison inmates—in close quarters and with no control over their confinement conditions—face unique and heightened risks. And elderly inmates, unsurprisingly, are particularly vulnerable to outbreaks. Two inmates incarcerated at the Wallace Pack Unit, a state-run lockup housing geriatric, medically compromised, and mobility-impaired inmates, sued the Texas Department of Criminal Justice over its response to the coronavirus. The inmates alleged violations of the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act. And as the suit was progressing, the virus was spreading, infecting over 500 inmates, 20 of whom have died.

The pandemic inflicted a dreadful toll at the Pack Unit. Mercifully, positive cases of COVID-19 have plummeted sharply, falling from 172 cases between June 23–25 to just 4 cases as of September 28. TDCJ's preventive measures are working, belatedly abating what had been a perfect storm. As judges, our conscribed role is not to assess whether prison officials could have done more to contain the virus—no doubt they could have. Nor is it to micromanage prison operations—that is left to the governor-appointed Board of Criminal Justice and to the Texas Legislature. TDCJ requests a stay of the district court's permanent injunction pending appeal. Our limited role is thus to determine whether TDCJ has made the requisite showing that its efforts to combat COVID-19 satisfied the constitutionally required minimum. And we must do so within strict procedural bounds mandated by Congress. We are forbidden to do more.

Here, the plaintiff-inmates failed to comply with the exacting procedural preconditions imposed by the Prison Litigation Reform Act, specifically the PLRA's mandatory and jurisdictional exhaustion requirement. That alone defeats this suit. But even putting aside the inmates’ failure to exhaust their administrative remedies, their constitutional claim fails on the merits. TDCJ's response, albeit imperfect, did not amount to deliberate indifference under the Eighth Amendment. We grant TDCJ's motion to stay the permanent injunction.

I

Plaintiffs Laddy Valentine and Richard King are incarcerated at TDCJ's Wallace Pack Unit, a prison for the elderly and infirm in Grimes County, Texas. On March 30, 2020, they sued TDCJ, its executive director, and the Pack Unit warden on behalf of a putative class of all Pack Unit inmates and putative subclasses of high-risk and disabled inmates. The complaint alleged that TDCJ's response to COVID-19 violated the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act.

On April 16, the district court issued a preliminary injunction, imposing a detailed protocol on TDCJ to stem the spread of COVID-19 in the Pack Unit. The injunction specified the cleaning schedule for prison common areas (every 30 minutes from 7 a.m.–10 p.m.), the surfaces to be cleaned (tabletops, telephones, door handles, restroom fixtures, television controls, books, and gym and sports equipment), and the type of disinfectants to be used (bleach-based cleaning agents). It required prison staff to post signage, give oral presentations or show videos, conduct question and answer sessions, and provide handouts to inform inmates about COVID-19. It also mandated the provision of hard-to-come-by items, including hand sanitizer, masks, tissues, and toilet paper, and instructed TDCJ to develop a COVID-19 testing plan.

TDCJ timely filed an interlocutory appeal of the preliminary injunction. On April 22, a panel of this court stayed the injunction pending appeal, reasoning that Plaintiffs were unlikely to succeed because they did not comply with the Prison Litigation Reform Act's administrative exhaustion requirement and that, in any event, their Eighth Amendment claim was likely to fail on the merits. Valentine v. Collier (Valentine I ), 956 F.3d 797, 806 (5th Cir. 2020). The motions panel also concluded that TDCJ would be irreparably injured absent a stay because the injunction interfered with its ability to respond to the pandemic's rapidly changing conditions. Id. at 803–04. The Supreme Court declined to vacate the stay. Valentine v. Collier (Valentine II ), ––– U.S. ––––, 140 S. Ct. 1598, 206 L.Ed.2d 930 (2020) (mem.).

On June 5, a merits panel resolved the interlocutory appeal in a short order vacating the injunction on the ground 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). In three separate concurring opinions, the panel members expressed differing views on the merits of the preliminary injunction and how the evolving facts affected the nature of the proceeding.

On remand, the district court certified a 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 ), No. 4:20-CV-1115, 2020 WL 3491999, at *14 (S.D. Tex. June 27, 2020). The district court later certified a mobility-impaired subclass of inmates who use walkers, canes, crutches, and wheelchairs. Valentine v. Collier (Valentine V ), No. 4:20-CV-1115, 2020 WL 5797881, at *23–26 (S.D. Tex. Sept. 29, 2020).

An 18-day bench trial began on July 13. On September 29, the district court ruled for Plaintiffs on all claims and permanently required TDCJ to follow specific procedures to protect Pack Unit inmates from COVID-19. See generally id. at *29–38. In some ways, the permanent injunction is less demanding than the preliminary injunction. For example, it instructs TDCJ to "[c]reate a plan to allow for regular cleaning of common surfaces with bleach-based cleaning agents" rather than specifying a cleaning schedule, requires hand sanitizer only for the mobility-impaired subclass, and dispenses with the educational requirements. Id. at *37. But the permanent injunction is more demanding when it comes to COVID-19 testing. It requires TDCJ to "[c]reate 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" and to "[c]ontinue weekly testing until the pandemic is brought under control within the state of Texas, even if multiple weeks pass with zero positive cases," among other things. Id. at *38. The injunction is set to take effect on October 14, 2020. Id.

TDCJ appealed the same day the district court issued the permanent injunction. The district court denied TDCJ's motion to stay the injunction. TDCJ then filed an emergency motion asking us to stay the injunction pending appeal and for a temporary administrative stay while that motion was under consideration. On October 6, we administratively stayed the permanent injunction pending consideration of the emergency motion and granted Plaintiffs leave to file a response to TDCJ's motion. We now decide the emergency motion.

II

Our authority to stay a district court's order buys us time to conduct careful, considered appellate review. Nken v. Holder , 556 U.S. 418, 427, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). At the same time, a stay disrupts the usual rule that a district court's judgment becomes effective regardless of appeal. Id. Thus an appealing party is never entitled to a stay as a matter of right. Id. To obtain a stay, TDCJ must show that (1) its appeal is likely to succeed on the merits, (2) it will suffer irreparable harm absent a stay, (3) a stay will not substantially injure Plaintiffs, and (4) the public interest favors a stay. Id. at 426, 129 S.Ct. 1749. We place the greatest weight on the first two factors. Barber v. Bryant , 833 F.3d 510, 511 (5th Cir. 2016).

III

We first assess TDCJ's likelihood of success on appeal. Here, we consider both Plaintiffs’ compliance with the Prison Litigation Reform Act's exhaustion requirement, and the merits of their Eighth Amendment claim.

A

The PLRA's exhaustion requirement is no-nonsense. Inmates seeking to challenge prison conditions must exhaust "such administrative remedies as are available" before challenging prison conditions in court. 42 U.S.C. § 1997e(a). The provision is mandatory, and courts have zero discretion to hear unexhausted claims. Jones v. Bock , 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Indeed, the Supreme Court has "reject[ed] every attempt to deviate" from the PLRA's rigid exhaustion requirement, most recently in Ross v. Blake , where it emphatically held that there is no "special circumstances" exception. ––– U.S. ––––, 136 S. Ct. 1850, 1855, 195 L.Ed.2d 117 (2016).

That said, the PLRA does contain one textual exception to its otherwise stringent exhaustion requirement: availability. Inmates who fail to exhaust can proceed in court by showing that administrative remedies were not "available." As used in the PLRA, "available" means " ‘capable of use’ to obtain ‘some relief for the action complained of.’ " Id. at 1859 (quoting Booth v. Churner , 532 U.S. 731, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) )....