Laddy Valentine v. Bryan Collier ( 2020 )

Case: 20-20525 Document: 00515599060 Page: 1 Date Filed: 10/13/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2020
No. 20-20525 Lyle W. Cayce
Clerk
Laddy Curtis Valentine; Richard Elvin King,
Plaintiffs—Appellees,
versus
Bryan Collier; Robert Herrera; Texas Department of
Criminal Justice,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-1115
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
Case: 20-20525 Document: 00515599060 Page: 2 Date Filed: 10/13/2020
No. 20-20525
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,
2
Case: 20-20525 Document: 00515599060 Page: 3 Date Filed: 10/13/2020
No. 20-20525
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), 140 S. Ct. 1598 (2020) (mem.).
3
Case: 20-20525 Document: 00515599060 Page: 4 Date Filed: 10/13/2020
No. 20-20525
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
4
Case: 20-20525 Document: 00515599060 Page: 5 Date Filed: 10/13/2020
No. 20-20525
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
(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. 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.
5
Case: 20-20525 Document: 00515599060 Page: 6 Date Filed: 10/13/2020
No. 20-20525
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
(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. 136 S. Ct. 1850, 1855 (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 (2001)). This is a fact-specific inquiry. See
id. For example, a grievance process is not available if “it operates as a simple
dead end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates,” if it is “so opaque that it becomes, practically
speaking, incapable of use,” or if prison administrators prevent access to it
“through machination, misrepresentation, or intimidation.” Id. at 1859–60.
Whether a grievance process is available does not depend on the relief that
can be granted; exhaustion is not excused just because inmates cannot obtain
the precise relief they seek. Booth, 532 U.S. at 741 & n.6.
Here, the district court concluded that TDCJ’s grievance process
was unavailable and allowed this suit to proceed despite Plaintiffs’
undisputed failure to exhaust. Valentine V, 2020 WL 5797881, at *26–28. In
staying the preliminary injunction, the previous motions panel observed that
“Plaintiffs’ suit appears premature” because “according to the standards the
6
Case: 20-20525 Document: 00515599060 Page: 7 Date Filed: 10/13/2020
No. 20-20525
Supreme Court has given us, TDCJ’s grievance procedure is ‘available,’
and Plaintiffs were required to exhaust.” Valentine I, 956 F.3d at 804. TDCJ
asks us to treat this as law of the case. But “the law of the case doctrine
applies only to issues that were actually decided.” Lindquist v. City of
Pasadena, 669 F.3d 225, 238–39 (5th Cir. 2012) (internal quotation omitted).
And the previous motions panel was tasked only with deciding whether the
failure to exhaust was likely to bar Plaintiffs’ claims based on the preliminary
record. On remand, the district court concluded anew that TDCJ’s
grievance process was not available after an 18-day trial. Valentine V, 2020
WL 5797881, at *26–28. We are thus reviewing a different decision based on
a different record. The previous panel’s preliminary ruling is not controlling.
Univ. of Tex. v. Camenisch, 451 U.S. 390, 394 (1981). Nonetheless, we reach
the same conclusion: TDCJ’s grievance procedure is available, and Plaintiffs
were required to exhaust.
The district court impermissibly applied a “special circumstances”
exception, like the one the Supreme Court rejected in Ross, under the guise
of an availability analysis. Its main rationale was that TDCJ’s grievance
process is incapable of responding to the rapid spread of COVID-19.
Valentine V, 2020 WL 5797881, at *28. In other words, the grievance process
is not amenable to current circumstances. But under Ross, special
circumstances—even threats posed by global pandemics—do not matter. 136
S. Ct. at 1856. We reiterate that the spread of COVID-19 in the Pack Unit is
an emergency that demands prison officials’ full attention. But as we
recognized in the aftermath of Hurricane Katrina, emergencies are not
“license to carve out new exceptions to the PLRA’s exhaustion
requirement, an area where our authority is constrained.” Dillon v. Rogers,
596 F.3d 260, 270 (5th Cir. 2010). The narrow question before us is whether
TDCJ’s grievance process was available to Plaintiffs as contemplated by the
PLRA.
7
Case: 20-20525 Document: 00515599060 Page: 8 Date Filed: 10/13/2020
No. 20-20525
The district court made much of TDCJ’s “acknowledgment that the
existing grievance process was inadequate in light of COVID-19 and the
implementation of a new set of procedures.” Valentine V, 2020 WL 5797881,
at *27. But inadequate is not a synonym for unavailable. The statutory
meaning of “available” in the PLRA is broad: Inmates must exhaust as long
as some form of relief can be obtained, regardless of what that relief may be.
Ross, 136 S. Ct. at 1859; Booth, 532 U.S. at 741 & n.6. Adequacy is not a factor.
The exhaustion provision’s statutory history makes this clear. The precursor
to the PLRA required exhaustion only where administrative remedies were
“plain, speedy, and effective.” Ross, 136 S. Ct. at 1858 (quoting Civil Rights
of Institutionalized Persons Act, Pub. L. No. 96-247, § 7(a), 94 Stat. 349, 352
(1980)). Congress removed those conditions from the PLRA in favor of the
current “invigorated exhaustion provision.” Id. (internal quotation omitted).
Under the old regime, concerns that TDCJ’s grievance process was
ineffective or “operated too slowly” might have excused exhaustion. See
Valentine V, 2020 WL 5797881, at *28. But those concerns are irrelevant
under today’s PLRA, which “prevent[s] a court from deciding that
exhaustion would be unjust or inappropriate in a given case.” Ross, 136 S. Ct.
at 1858. Instead, “all inmates must now exhaust all available remedies.” Id.
Here, the district court heard evidence that Plaintiffs obtained soap
and cleaning supplies, COVID-19 testing, and the halt of transfers into the
Pack Unit, which they requested through the grievance process at various
points after commencing this litigation. Valentine V, 2020 WL 5797881, at
*27. The court discounted that evidence because those changes were not a
direct response to Plaintiffs’ grievances. Indeed, the court noted “[i]n some
of these instances, TDCJ changed its policies prior to a grievance being
filed.” Id. (emphasis in original). As an example, the court gave Mr.
Valentine’s May 10 request for testing, which came one day after TDCJ
implemented a prison-wide testing plan. From there, the court concluded
8
Case: 20-20525 Document: 00515599060 Page: 9 Date Filed: 10/13/2020
No. 20-20525
that the grievance process was unresponsive and thus unavailable. Id. We do
not follow the district court’s logic. To the contrary, TDCJ’s conduct shows
that it was capable of providing “some relief for the action complained of,”
which is enough to render the grievance process “available” under the
PLRA. Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738).
The district court suggested that requiring exhaustion in these
circumstances would violate the Eighth Amendment. Valentine V, 2020 WL
5797881, at *28; Valentine IV, 2020 WL 3491999, at *8. We fail to see how
enforcing a statutory procedure amounts to cruel and unusual punishment,
and the district court cited no authority for that proposition.
As the Supreme Court has emphasized, the PLRA’s exhaustion
requirement was set by Congress, and Congress alone can change it. Ross, 136
S. Ct. at 1857. Congress has in fact made some adjustments in response to
COVID-19. For example, the Coronavirus Aid, Relief, and Economic
Security (CARES) Act relaxed the Federal Rules of Criminal Procedure to
allow for remote hearings in certain circumstances. Pub. L. No. 116-136,
§ 15002(b), 134 Stat. 281, 528 (2020). But the CARES Act did not alter the
PLRA. We thus remain bound by it, even in these unprecedented times. The
district court lamented that TDCJ’s grievance process was lengthy and
unlikely to provide necessary COVID-19 relief. By all accounts, the process
was suboptimal. But it was available, and Plaintiffs were required to exhaust
it before bringing this suit.
B
Plaintiffs’ failure to exhaust their administrative remedies before filing
suit is fatal. But even if Plaintiffs could surmount the PLRA, their Eighth
Amendment claim is likely to fail on the merits.
The Eighth Amendment requires prison officials to provide “humane
conditions of confinement” with due regard for inmate health and safety.
9
Case: 20-20525 Document: 00515599060 Page: 10 Date Filed: 10/13/2020
No. 20-20525
Farmer v. Brennan, 511 U.S. 825, 832, 837 (1994). To show a violation,
inmates must prove that they were exposed “to a substantial risk of serious
harm” and “that prison officials acted or failed to act with deliberate
indifference to that risk.” Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018)
(quoting Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006)). The
presence of a substantial risk is an objective inquiry. Petzold v. Rostollan, 946
F.3d 242, 249 (5th Cir. 2019). Deliberate indifference, however, is subjective;
it requires a showing that prison officials had actual knowledge of a risk and
disregarded it. Id. Knowledge may be inferred from the circumstances,
particularly where the risk is obvious. Hope v. Pelzer, 536 U.S. 730, 738
(2002). In addition, an inmate must “submit evidence that prison officials
refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.” Gobert, 463 F.3d at 346(internal quotation omitted). “Deliberate indifference is an extremely high
standard to meet.” Domino v. TDCJ, 239 F.3d 752, 756 (5th Cir. 2001).
The district court articulated the right legal standard but incorrectly
applied it. At the outset, the court erred by framing its analysis in terms of
COVID-19’s impact in the Pack Unit. Valentine V, 2020 WL 5797881, at
*29. We share the district court’s alarm at the toll of the virus. But the Eighth
Amendment inquiry concerns TDCJ’s state of mind, not the scope of the
injury. As the Supreme Court has instructed, “prison officials who actually
knew of a substantial risk to inmate health or safety may be found free from
liability if they responded reasonably to the risk, even if the harm ultimately
was not averted.” Farmer, 511 U.S. at 844 (emphasis added).
The district court made detailed factual findings about TDCJ’s
response to COVID-19. Discussions began at the end of February. TDCJ
suspended all in-person visitation on March 13 and suspended all inmate
medical copays on March 20. It began manufacturing masks on March 24.
10
Case: 20-20525 Document: 00515599060 Page: 11 Date Filed: 10/13/2020
No. 20-20525
The state Correctional Managed Health Care Committee issued Policy B-
14.52, its COVID-19 policy, on March 20 and an updated version on March
23, incorporating new guidance from the Centers for Disease Control. In
total, the policy has been updated six times since March 20. It requires social
distancing and the use of cloth face masks at all times. In the Pack Unit,
inmates have increased access to soap and toilet paper, and temporary
handwashing stations were installed in July, during the trial. After an inmate
died of COVID-19 on April 11—the first known case in the Pack Unit—all
54 inmates in the decedent’s dorm were tested and returned negative results.
Since then, the Pack Unit has conducted two “strike team testing” events to
test all inmates and staff who have not previously tested positive. TDCJ
devised a long-term testing plan shortly before trial. Under this plan, inmates
who test positive or who are suspected of being positive are placed in medical
isolation. Inmates who are brought back to the Pack Unit from off-site
hospitals are quarantined for 14 days. To inform inmates about the risks of
COVID-19, TDCJ hung posters and distributed pamphlets in the Pack
Unit. An educational video has played three times a day since mid-April.
Instead of addressing whether these actions were reasonable, the
district court dismissed them “as the most basic steps that TDCJ could have
taken.” Valentine V, 2020 WL 5797881, at *30. The court noted that
“[d]esigning a policy and implementing some of the measures therein does
not automatically satisfy Defendants’ constitutional obligations, especially in
the face of an unprecedented public health crisis.” Id. But to know whether
certain measures pass constitutional muster requires analyzing them under
the constitutional standard, which the district court did not do. And our
Eighth Amendment precedent in the context of infectious disease, though
limited, instructs that TDCJ met its constitutional obligations. We have
twice held that testing and treating inmates who were exposed to tuberculosis
is enough to establish that prison officials were not deliberately indifferent to
11
Case: 20-20525 Document: 00515599060 Page: 12 Date Filed: 10/13/2020
No. 20-20525
the risk of disease. Gibbs v. Grimmette, 254 F.3d 545 (5th Cir. 2001); Wallace
v. Dallas Cty., 51 F.3d 1045 (5th Cir. 1995) (per curiam). Here, even
recognizing that COVID-19 poses a greater risk than tuberculosis, any
argument that TDCJ “evince[d] a wanton disregard for any serious medical
needs” is dispelled by the affirmative steps it took to contain the virus.
Gobert, 463 F.3d at 346 (internal quotation omitted).
The bulk of the district court’s opinion focuses on what more TDCJ
could have done in response to COVID-19. For example, TDCJ failed to
enforce social distancing in the Pack Unit, particularly in the showers. It did
not increase the janitorial staff’s access to training or supplies. Staff regularly
violated the mask policy. Surfaces were not cleaned regularly at the laundry
exchange, where inmates interacted face-to-face without masks. No hand
sanitizer was available, and many sinks were broken. No contact tracing plan
was in effect. The turnaround time for COVID-19 tests was between one
and two weeks at the start of the pandemic.
The district court grouped these shortcomings into two categories:
(1) the lack of a systematic approach, and (2) the failure to abide by basic
health guidance, which together demonstrated TDCJ’s deliberate
indifference to the known risk of COVID-19 in the Pack Unit. Valentine V,
2020 WL 5797881, at *31. But in reaching that conclusion, the court held
TDCJ to a higher standard than the Constitution imposes. For example, it
reasoned that TDCJ’s approach “lacked indicia of effecting long-term
changes that will be consistently carried out until the pandemic is under
control” and questioned whether TDCJ was sanitizing the Pack Unit “to
the minimum extent required to avoid the spread of COVID-19.” Id. at 33.
The Eighth Amendment does not enact the CDC guidelines. Nor does it
require TDCJ to implement “long-term changes” or “avoid the spread of
COVID-19,” and the failure to do so does not “clearly evince a wanton
12
Case: 20-20525 Document: 00515599060 Page: 13 Date Filed: 10/13/2020
No. 20-20525
disregard for any serious medical needs.” Gobert, 463 F.3d at 346 (internal
quotation omitted).
The district court also faulted TDCJ for failing to do the impossible.
It criticized TDCJ’s use of COVID-19 tests that “were only approved
under the FDA’s Emergency Use Authorization and had not been approved
for testing of asymptomatic individuals.” Valentine V, 2020 WL 5797881, at
*33. But the evidence shows that the FDA has not fully approved any
COVID-19 test; all available tests are subject only to emergency-use
authorizations. And at the time of trial, none of those tests was approved for
asymptomatic individuals. 1 The district court also lamented that TDCJ
never considered “using authorized early release as a means to increase social
distancing,” without addressing that TDCJ has no power to release inmates
from the Pack Unit. Id. “Failing to do the ‘impossible’ doesn’t evince
indifference, let alone deliberate indifference.” Swain v. Junior, 961 F.3d
1276, 1287 (11th Cir. 2020).
To be sure, the district court identified lapses in TDCJ’s response to
COVID-19. As a matter of policy, TDCJ could have done more to protect
vulnerable inmates in the Pack Unit. But federal judges are not policymakers.
“The Constitution charges federal judges with deciding cases and
controversies, not with running state prisons.” Lewis v. Casey, 518 U.S. 343,
363 (1996) (Thomas, J., concurring). Here, the narrow question before us is
whether Plaintiffs have proven a constitutional violation. And under
governing precedent, their burden is “extremely high.” Domino, 239 F.3d at
1
The FDA issued an emergency-use authorization for asymptomatic testing
during the trial. Press Release, U.S. Food & Drug Admin., Coronavirus (COVID-19)
Update: FDA Authorizes First Diagnostic Test for Screening of People Without Known
or Suspected COVID-19 Infection (July 24, 2020), https://www.fda.gov/news-
events/fda-newsroom/press-announcements.
13
Case: 20-20525 Document: 00515599060 Page: 14 Date Filed: 10/13/2020
No. 20-20525
756. The Eighth Amendment does not mandate perfect implementation. See
Petzold, 946 F.3d at 250. And “prison officials who act reasonably cannot be
found liable under the Cruel and Unusual Punishments Clause.” Farmer, 511
U.S. at 844. TDCJ’s measures may have been unsuccessful. But they were
not unconstitutional.
C
We pause briefly to address Plaintiffs’ ADA and Rehabilitation Act
claim. The district court concluded that TDCJ’s failure to provide hand
sanitizer denied the mobility-impaired subclass a reasonable accommodation
necessary for proper hygiene. Valentine V, 2020 WL 5797881, at *35. Unlike
our review of Plaintiffs’ Eighth Amendment claim, which involved the
proper application of a legal standard, the reasonable-accommodation inquiry
is fact-specific. Given that Plaintiffs’ failure to exhaust forecloses their
success on this claim, we find it unnecessary to parse an 18-day trial record
on an expedited motion for temporary relief.
IV
Next, we consider whether TDCJ will be irreparably harmed absent
a stay.
As the previous motions panel recognized, “it is difficult to imagine
an activity in which a State has a stronger interest, or one that is more
intricately bound up with state laws, regulations, and procedures, than the
administration of its prisons.” Valentine I, 956 F.3d at 803 (quoting Woodford
v. Ngo, 548 U.S. 81, 94 (2006)). And TDCJ, of course, is tasked with
administering Texas’s prisons. Id. (citing Tex. Gov’t Code ch. 501). The
permanent injunction lays claim to TDCJ’s resources, commanding how it
must allocate its time, funding, and facilities. In doing so, it necessarily
interferes with TDCJ’s ability to perform its statutory duties. And it hinders
TDCJ’s flexibility to address the facts on the ground, which, as has been
14
Case: 20-20525 Document: 00515599060 Page: 15 Date Filed: 10/13/2020
No. 20-20525
repeatedly recognized in this litigation, are ever-changing. See id.; Valentine
III, 960 F.3d at 707; Valentine IV, 2020 WL 3491999, at *5. We have found
irreparable injury where an injunction required a prison “go to the effort and
expense of furnishing the district court with a plan” to address a problem
beyond what the Constitution requires. Ruiz v. Estelle, 650 F.2d 555, 572–73
(5th Cir. Unit A June 1981). The injunction in this case does that and more.
V
Finally, we assess the balance of harms and the public interest.
Here, the significant decrease in COVID-19 cases in the Pack Unit,
as documented by the district court, weighs in favor of a stay. Valentine V,
2020 WL 5797881, at *7–8. The Pack Unit reported 144 positive cases
between May 12–14, and 172 positive cases between June 23–25. Though
testing slowed somewhat, only 1 positive case was reported between August
10–12, and there were only 4 active cases among inmates as of September 28.
The district court observed that even now, “COVID-19 has not been fully
contained.” Id. But its incidence has been drastically reduced, all without
court intervention or oversight. On balance, then, a stay will not substantially
harm Plaintiffs. The harm to the state and the public interest overlap where,
as here, the state is the appealing party. Veasey v. Abbott, 870 F.3d 387, 391
(5th Cir. 2017) (per curiam); Nken, 556 U.S. at 435. In any event, the public
interest favors having politically accountable officials—not federal judges—
determine how to allocate resources. Swain, 961 F.3d at 1293; see also Lewis,
518 U.S. at 363 (Thomas, J., concurring) (“Principles of federalism and
separation of powers dictate that exclusive responsibility for administering
state prisons resides with the State and its officials.”). TDCJ has thus
satisfied all four factors.
15
Case: 20-20525 Document: 00515599060 Page: 16 Date Filed: 10/13/2020
No. 20-20525
VI
TDCJ’s motion to stay the permanent injunction pending appeal is
GRANTED.
16