Valentine v. Collier

• Decision Date: 22 April 2020
• Docket Number: No. 20-20207,20-20207
• Citation: 956 F.3d 797
• 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

956 F.3d 797

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

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

No. 20-20207

United States Court of Appeals, Fifth Circuit.

FILED April 22, 2020

Brandon W. Duke, John R. Keville, Attorney, Winston & Strawn, L.L.P., Houston, TX, Jeff S. Edwards, Edwards Law, Austin, TX, for Plaintiffs - Appellees.

Kyle Douglas Hawkins, Jason R. LaFond, Christin Cobe Vasquez, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendants-Appellants.

Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.

PER CURIAM:

This case implicates the State of Texas’s response to COVID-19. On April 16, 2020, the United States District Court for the Southern District of Texas issued a reticulated preliminary injunction against the executive director of the Texas prison system and the warden of one of its prisons. The injunction regulates in minute detail the cleaning intervals for common areas, the types of bleach-based disinfectants the prison must use, the alcohol content of hand sanitizer that inmates must receive, mask requirements for inmates, and inmates’ access to tissues (amongst many other things). The district court admitted that its injunction "goes beyond" the recommendations of the Centers for Disease Control and Prevention. But in the district court’s view, anything less than this injunction—including, presumably, the CDC guidelines—violates the Eighth Amendment. Pursuant to Federal Rule of Appellate Procedure 8, we stay the injunction pending appeal.

I.

As with every other part of the country, our Nation’s correctional facilities have not escaped the reach of COVID-19. To mitigate the spread of the virus, the Texas Department of Criminal Justice ("TDCJ") has adopted and implemented several rounds of measures guided by ever-changing CDC recommendations. Plaintiffs are two inmates at the TDCJ Wallace Pack Unit ("Pack Unit"), a prison for the elderly and the infirm. They say TDCJ’s measures don’t go far enough.

On March 30, 2020, Plaintiffs filed a class action lawsuit on behalf of disabled and high-risk Pack Unit inmates against TDCJ, its executive director, and the warden of the Pack Unit. The complaint alleges violations of the Eighth Amendment’s prohibition against cruel and unusual punishment, and of the Americans with Disabilities Act. In addition, Plaintiffs sought a preliminary injunction.

After considering Defendants’ written evidence and Plaintiffs’ live witness testimony, the district court granted that injunction, finding it likely that Plaintiffs could prove an Eighth Amendment violation. The district court enjoined TDCJ to:

• "Provide Plaintiffs and the class members with unrestricted access to hand soap and disposable hand towels to facilitate handwashing."

• "Provide Plaintiffs and the class members with access to hand sanitizer that contains at least 60% alcohol in the housing areas, cafeteria, clinic, commissary line, pill line, and laundry exchange."

• "Provide Plaintiffs and the class members with access to tissues, or if tissues are not available, additional toilet paper above their normal allotment."

• "Provide cleaning supplies for each housing area, including bleach-based cleaning agents and CDC-recommended disinfectants in sufficient quantities to facilitate frequent cleaning, including in quantities sufficient for each inmate to clean and disinfect the floor and all surfaces of his own housing cubicle, and provide new gloves and masks for each inmate during each time they are cleaning or performing janitorial services."

• "Provide all inmates and staff members with masks. If TDCJ chooses to provide inmates with cotton masks, such masks must be laundered regularly."

• "Require common surfaces in housing areas, bathrooms, and the dining hall to be cleaned every thirty minutes from 7 a.m. to 10 p.m. with bleach-based cleaning agents, including table tops, telephones, door handles, and restroom fixtures."

• "Increase regular cleaning and disinfecting of all common areas and surfaces, including common-use items such as television controls, books, and gym and sports equipment."

• "Institute a prohibition on new prisoners entering the Pack Unit for the duration of the pandemic. In the alternative, test all new prisoners entering the Pack Unit for COVID-19 or place all new prisoners in quarantine for 14 days if no COVID-19 tests are available."

• "Limit transportation of Pack Unit inmates out of the prison to transportation involving immediately necessary medical appointments and release from custody."

• "For transportation necessary for prisoners to receive medical treatment or be released, CDC-recommended social distancing requirements should be strictly enforced in TDCJ buses and vans."

• "Post signage and information in common areas that provides: (i) general updates and information about the COVID-19 pandemic; (ii) information on how inmates can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands. Among other locations, all signage must be posted in every housing area and above every sink."

• "Educate inmates on the COVID-19 pandemic by providing information about the COVID- 19 pandemic, COVID-19 symptoms, COVID-19 transmission, and how to protect oneself from COVID-19. A TDCJ staff person must give an oral presentation or show an educational video with the above-listed information to all inmates, and give all inmates an opportunity to ask questions. Inmates should be provided physical handouts containing COVID-19 educational information, such as the CDC’s ‘Share Facts About COVID-19’ fact sheet already in TDCJ’s possession."

• "TDCJ must also orally inform all inmates that co-pays for medical treatment are suspended for the duration of the pandemic, and encourage all inmates to seek treatment if they are feeling ill."

• "TDCJ must, within three (3) days, provide the Plaintiffs and the Court with a detailed plan to test all Pack Unit inmates for COVID-19, prioritizing those who are members of Dorm A and of vulnerable populations that are the most at-risk for serious illness or death from exposure to COVID-19. For any inmates who test positive, TDCJ shall provide a plan to quarantine them while minimizing their exposure to inmates who test negative. TDCJ must also provide a plan for testing all staff who will continue to enter the Pack Unit, and for any staff that test positive, provide a plan for minimizing inmates’ exposure to staff who have tested positive."

Prelim. Inj. Order at 2–4 [hereinafter PI Order].

In its memorandum opinion explaining this injunction, the district court acknowledged that "many of the measures ordered in the preliminary injunction largely overlap with TDCJ’s COVID-19 policy requirements and recommendations." D. Ct. Op. at 23. Yet the court believed the injunction necessary "to promote compliance" with TDCJ’s policy, as well as CDC guidelines. Id. at 24. Some of the conduct required of Defendants under the injunction goes even further than CDC guidelines. But the district court found that compliance with those guidelines alone could be constitutionally insufficient. Id. at 25–26.

The district court stayed its preliminary injunction until April 22, 2020, at 5 p.m. Defendants timely appealed and sought a stay of the preliminary injunction pending appeal.

II.

When considering a stay, "a court considers four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder , 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quotation omitted). The first two factors are the most critical. Barber v. Bryant , 833 F.3d 510, 511 (5th Cir. 2016).

A.

We start with TDCJ’s likelihood of success on appeal. In a constitutional claim alleging deliberate indifference to the conditions of a prisoner’s confinement, the plaintiff must satisfy both the "subjective and objective requirements" of the Eighth Amendment inquiry. Farmer v. Brennan , 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To satisfy the objective requirement, the plaintiff must show an "objectively intolerable risk of harm." Ibid. To satisfy the subjective requirement, the plaintiff must show that the defendant: "(1) was ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists’; (2) subjectively ‘dr[e]w the inference’ that the risk existed; and (3) disregarded the risk." Cleveland v. Bell , 938 F.3d 672, 676 (5th Cir. 2019) (quoting Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ). The "incidence of diseases or infections, standing alone," do not "imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks." Shepherd v. Dallas Cty. , 591 F.3d 445, 454 (5th Cir. 2009). Instead, the plaintiff must show a denial of "basic human needs." Ibid. "Deliberate indifference is an extremely high standard to meet." Cadena v. El Paso Cty. , 946 F.3d 717, 728 (5th Cir. 2020).

TDCJ is likely to prevail on the merits of its appeal. That’s for two reasons: (1) after accounting for the protective measures TDCJ has taken, the Plaintiffs have not shown a "substantial risk of serious harm" that amounts to "cruel and unusual punishment"; and (2) the district court committed legal error in its application of Farmer v. Brennan .

1.

First, the harm analysis. There is no doubt that infectious diseases generally and COVID-19 specifically can pose a risk of serious or fatal harm to prison inmates. TDCJ acknowledges that fact. And it submitted evidence to the district court of the protective measures it has taken as a result.¹ Those protective measures include many of the things the district court ordered—including "access to...