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U.S. Supreme Court Overturns Texas Federal Judge’s Order Granting COVID-19 Relief to Elderly Prisoners

by Matt Clarke

On May 14, 2020 the United States Supreme Court rejected a class-action lawsuit filed by two elderly Texas prisoners that would have forced the Texas Department of Criminal Justice (TDCJ) to provide masks, hand sanitizer and cleaning supplies to prisoners in an effort to combat the novel coronavirus that causes COVID-19.

On April 16, U.S. District Judge Keith P. Ellison had ordered TDCJ to provide prisoners at Wallace Pack Unit with equipment to protect them from contracting the coronavirus. The agency was also ordered to initiate “social distancing” and other practices to prevent the spread of the disease, which five days earlier had claimed the life of Pack Unit prisoner Leonard Clerkly, 62.

But on April 22, a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans ruled in favor of TDCJ and overturned Ellison’s preliminary injunction.

Justices Sonia Sotomayor and Ruth Bader Ginsburg wrote separate opinions agreeing with the Appeals Court, though both noted they found “disturbing” issues in the case.

“Just a few nights ago, respondents revealed that numerous inmates and staff members at the Pack Unit are now COVID-19 positive and the vast majority of those tested positive within the past two weeks,” Sotomayor wrote.

Located about 60 miles northwest of Houston, the Pack Unit houses mainly elderly prisoners, many of whom suffer from medical conditions which, in addition to advanced age, make them more likely to suffer severe illness or death from COVID-19.

“It’s a life or death matter,” said Ellison, who noted that retired U.S. District Judge Kevin Duffy died of the disease on April 1, 2020. “I’m absolutely persuaded of that.”

Laddy Curtis Valentine, 69, and Richard Elvin King, 73, filed the class-action lawsuit on behalf of all Pack Unit prisoners. Noting that New York City’s Rikers Island prison complex had a rate of coronavirus infections nearly 9,000 percent above the overall U.S. rate, the suit stressed that “Rikers is not an anomaly” but is rather “the canary in the coal mine.” It warned that TDCJ risks inflicting “particularly serious harm on plaintiffs” with its “inadequate response,” having failed to implement social distancing in the prison and testing only a small fraction of its prisoners for the virus so far.

“Death concerns me,” Valentine testified by telephone during a hearing before Judge Ellison on the injunction. “The rapid spread of it is my greatest concern, not just for myself but for quite a few others that are here in the unit too. Some are in worse condition than I am, and obviously, one has already died.”

Valentine works as a janitor at the prison and described the limited cleaning supplies available, along with crowding well short of accepted social distancing. TDCJ did not present any witnesses at the hearing.

Ellison granted preliminary injunctive relief ordering TDCJ to provide Pack prisoners with access to hand soap, disposable hand towels, hand sanitizer, tissues or toilet paper, cleaning supplies, and masks—which could be made out of cotton fabric if frequently washed. He ordered frequent cleaning and sanitizing of common-use surfaces and items and new masks and gloves for the prisoners performing the cleaning. He placed restrictions on the transportation of prisoners into and out of the Pack Unit, requiring that new arrivals be quarantined for 14 days or tested for COVID-19 and departures be limited to releases and immediately necessary medical appointments.

Judge Ellison also ordered TDCJ to educate Pack prisoners on COVID-19, post signage and information on the disease and inform prisoners that the co-pay for medical treatment was suspended during the pandemic. He ordered TDCJ to come up with a plan to test all Pack Unit staff and prisoners for COVID-19. “The government has a constitutional duty to protect those it detains from conditions of confinement that create a substantial risk of serious harm,” Ellison said.

Texas Attorney General Ken Paxton, who is currently awaiting trial for securities fraud, said in a press release that Ellison’s order “prioritized the health concerns of convicted criminals over those of medical professionals” by requiring they be given personal protective equipment and coronavirus testing.

Researchers at Johns Hopkins University estimated about 43,000 cases of COVID-19 in Texas by mid-May, 2020, with nearly 1,200 deaths. But there was no announced shortage of gloves, as Paxton’s press release implied, and the masks Ellison ordered TDCJ to provide are not the N95-type used by medical professionals. Moreover, several cities near the Pack Unit were offering coronavirus testing to anyone who asked.

As of May 13, 2020, TDCJ reported that 1,775 of its approximately 140,000 prisoners had tested positive for the coronavirus, with 451 recoveries and 31 deaths. In addition, 677 staff members had tested positive, with 102 recoveries and 7 deaths. Over 42,000 prisoners remained on lockdown in an attempt to slow the virus’ spread.

The class action lawsuit had been filed with the assistance of attorneys John R. Keville, Denise Scofield, Michael T. Murphy, Brandon W. Duke, Benjamin D. Williams, Robert L. Green and Corinne Stone Hockman of Winston & Strawn, LLP, and Jeff Edwards, Scott Medlock, Michael Singley and David James of The Edwards Law Firm in Austin. See: Valentine v. Collier, USDC (S.D. Tex), Case No. 4:20-cv-01115. 


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Related legal case

Valentine v. Collier