Fifth Circuit still sucks on prison-conditions litigation: Coronavirus edition

The US Supreme Court has declined to vacate a stay by the 5th Circuit Court of Appeals of an injunction granted to Texas prison inmates from the Pack Unit, a geriatric prison unit, reported the New York Times. The inmates had asked for improved protections from the coronavirus. Four justices were needed to take the case, but only two apparently wanted to do so. Justice Sotomayor issued a statement, joined by Justice Ginsberg. Here are some notable excerpts:

The District Court heard unrefuted testimony that, despite the prison’s claim of enhanced cleaning measures, its cleaning protocol in practice remained virtually the same. The facility neither increased the number of inmate janitors nor ensured that the existing janitors did their jobs safely and effectively. One janitor testified that, just as before the pandemic, the cleaning solution provided to the cleaning crews was frequently depleted by midafternoon, only halfway through a shift. Each day he received only one pair of gloves to share with his co-janitor, an arrangement medical experts described as tantamount to no gloves at all.

The facility’s failures to comply with its own safety protocol became even clearer after [inmate Leonard] Clerkly’s death. Prison policies required that any inmate showing signs of Covid–19 be “‘triaged’” and “‘placed in medical isolation’” and that all areas used by the symptomatic inmate be thoroughly disinfected. Id., at *11. Yet even though Clerkly had difficulty breathing and died only a few hours after being transported to the hospital, the prison “made no representations” to the District Court that “they identified Mr. Clerkly as symptomatic, evaluated him for potential COVID-19 infection, or isolated or treated him for COVID-19 at any point before his transport to the hospital on the day of his death.” Ibid.

In fact, the prison “did not implement further precautionary measures until three days after Mr. Clerkly’s death.” Ibid. In the meantime, while the prison waited for a positive Covid–19 test that seemed certain to come, “countless inmates were knowingly exposed to a serious substantial risk of harm.” 

Having heard testimony from several witnesses from the Pack Unit and from prison experts who declared the Pack Unit practices “woefully inadequate,” the District Court held that applicants were likely to succeed on their Eighth Amendment claim. Id., at *12. The court noted the “obvious” risk of Covid–19 to the older men in the Pack Unit and reasoned that the prison’s failure to take basic steps, many of which were required by its own policies, evinced deliberate indifference. Id., *10, *13. The District Court then ordered the prison to mitigate the harm to inmates, including through some measures recommended by an expert witness who had managed prisons himself. Id., at *6–*7, *9–*12; 2020 WL 1899274.

Of particular interest was Sotomayor's analysis of the Fifth Circuit's decision and how they (perhaps improperly) ignored detailed fact finding from the lower court. Long-time watchers of this court will not be surprised, but I'm still glad someone said it: 

Despite the District Court’s detailed, careful findings, based on live testimony and the court’s own visit to the Pack Unit, the Fifth Circuit stayed the injunction. The Fifth Circuit noted that the prison had submitted evidence of “the protective measures it ha[d] taken as a result” of the Covid– 19 pandemic, and so the question was simply whether the Eighth Amendment required the prison “to do more.” 956 F. 3d, at ___ – ___.1 But in crediting the prison’s assurances, the Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates.2 See Farmer v. Brennan, 511 U. S. 825, 842 (1994) (noting that deliberate indifference is a question of fact often made out

by “inference from circumstantial evidence”). The Fifth Circuit may have acted outside its authority in refusing to defer to those factual findings. See Anderson v. Bessemer City, 470 U. S. 564, 573 (1985). Similarly, while the Fifth Circuit faulted the District Court for issuing an admittedly exacting injunction, that injunction too was rooted in equally detailed factfinding regarding the prison’s failure to live up to its promises.

Similarly worth noting was the discussion of the 5th Circuit's reading of "exhaustion" provisions in the Prison Litigation Reform Act, which, even when interpreted correctly, have shut down prison-conditions litigation all over the country in problematic ways. If TDCJ grievance procedures are effectively a "dead end," wondered Sotomayor, do they really count as an "available" remedy?

Also concerning was some of the Fifth Circuit’s language regarding exhaustion. This Court has made clear that the PLRA requires exhaustion only of “available” judicial remedies. Ross v. Blake, 578 U. S. ___, ___ (2016) (slip op., at 8). “[T]he ordinary meaning of the word ‘available’ is ‘capable of use for the accomplishment of a purpose.’” Ibid. (some internal quotation marks omitted). Thus, when a grievance procedure is a “dead end”—when “the facts on the ground” indicate that the grievance procedure provides no possibility of relief—the procedures may well be “unavailable.” Id., at ___ (slip op., at 9).

The Fifth Circuit seemed to reject the possibility that grievance procedures could ever be a “dead end” even if they could not provide relief before an inmate faced a serious risk of death. But if a plaintiff has established that the prison grievance procedures at issue are utterly incapable of responding to a rapidly spreading pandemic like Covid–19, the procedures may be “unavailable” to meet the plaintiff’s purposes, much in the way they would be if prison officials ignored the grievances entirely. Ibid. Here, of course, it is difficult to tell whether the prison’s system fits in that narrow category, as applicants did not attempt to avail themselves of the grievance process before filing suit. But I caution that in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PLRA’s textual exception could open the courthouse doors where they would otherwise stay closed.  

Sotomayor added:

As the circumstances of this case make clear, the stakes could not be higher. 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.” 

Finally, her commentary concluded:

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales.

That's all well and good, but hope is not a medical policy and won't address the unrefuted problems identified by the District court at the Pack Unit. This is incredibly disappointing.