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Fifth Circuit Order Denies Texas Prisoners Hand Sanitizer and Cleaning Supplies

According to the appeals court, “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.” The court did note that 500 prisoners had been infected, and 20 had died. A certified class of affected prisoners had alleged  “violations of the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act.”

The appellate court set aside a September 29, 2020 order by federal district court judge Keith Ellison, who wrote, “The Court acknowledges that (officials) have taken a number of steps to address the spread of COVID-19 … at the Pack Unit. But the Court views these measures as the most basic steps that ... could have taken to prevent mass death within the prison walls on an unimaginable scale. Designing 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,” he said.

The appeals court’s ruling showed that it was less concerned about the human cost of COVID-19 on medically vulnerable prisoners than in upholding the exhaustion requirements of the Prison Litigation Reform Act (PLRA), which mandates exhaustion of all prison-filed administrative remedies before a court may entertain a lawsuit against prison officials. “The provision is mandatory,” the court said, “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).”

The court refused to find that the remedy process was “unavailable,” the one permitted PLRA exception, the position embraced by the district court. Instead, it said, “We ... remain bound by (PLRA), even in these unprecedented times. The district court lamented that (the prison) 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.”

The court of appeals also found that Texas correctional officials had not violated Eighth Amendment standards forbidding cruel and unusual punishment, even though their efforts were largely ineffectual, conceding that there were “lapses” but that they were not required to do the “impossible.”  It made clear it thought that the district court had strayed into non-judicial areas with its injunctions. “But federal judges are not policymakers,” it said. “The Constitution charges federal judges with deciding cases and controversies, not with running state prisons.” Lewis v. Cash, 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.’” The case now returns to the district court for further proceedings.

The Texas prison system leads in the nation in the dubious distinction of the most prisoners infected, 23,065 and the most deaths, 161, as of October 15. See Valentine v. Collier, 956 F.3d 154 (5th Cir. 2020). 


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Related legal case

Valentine v. Collier