Trial News

With coronavirus outbreaks springing up in jails and prisons around the country, trial attorneys have looked to the courts for help. They’ve filed lawsuits for injunctive relief—demanding that prisoners be supplied with hygiene products and that prison populations be reduced—alleging civil rights violations. The first lawsuits have reached the U.S. Supreme Court, which has been reluctant to reverse circuit court rulings against the prisoners.

In mid-May, the Supreme Court rejected a group of geriatric Texas prisoners’ request to enforce a federal district court order that would have provided them with disease prevention measures such as face masks and greater access to hand soap and sanitizers. (Valentine v. Collier, 2020 WL 2497541 (U.S. May 14, 2020).) The Texas Department of Criminal Justice’s Pack Unit is a facility of about 1,200 that houses mostly prisoners over 50 and those with preexisting health conditions. The Court denied the prisoners’ request, agreeing with the Fifth Circuit that the prisoners had failed to exhaust the mandatory grievance process under the Prison Litigation and Reform Act (PLRA) before filing their claims in court.

However, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, cautioned that “while [s]tates and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death.” Justice Sotomayor agreed with the majority that the Fifth Circuit’s finding was not “demonstrably wrong” but expressed concern that according to the district court’s findings, “the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates.” She added that “in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer,” an exception to the PLRA “could open the courthouse doors where they would otherwise stay closed.”

Austin, Texas, attorney Jeff Edwards, who represents the Pack Unit prisoners, agreed: “We are measured by how we treat those in our prisons, especially this particularly vulnerable population of elderly and disabled inmates.” He called Justice Sotomayor’s statement, “a powerful reminder that inmates require protection from the risk of COVID-19. Sadly, the woefully inadequate precautions found by the district court were not corrected, leading to six deaths and more than 200 infections.” Edwards added that the case is proceeding to an expedited trial in the district court, which he and his cocounsel, Houston attorneys Brandon Duke and John Keville, hope “will result in a permanent injunction adopting measures to protect everyone in the Pack Unit from the further spread of COVID-19.​”

Two weeks later, the Court considered another Fifth Circuit case involving Christopher Marlowe, a diabetic prisoner at Louisiana’s Rayburn Correctional Center. (Marlowe v. LeBlanc, 2020 WL 2780803 (U.S. May 29, 2020).) In his motion for a temporary restraining order, Marlowe argued he is more vulnerable to the coronavirus due to his underlying health condition and requested the facility “meaningfully implement social distancing procedures and other measures aimed at thwarting the spread of the coronavirus.” He alleged that the facility does not regularly clean common areas such as water fountains, has failed to eliminate “chokepoints” in dormitory walkways, and has inmates standing “heel-to-toe” to receive cafeteria meals that they then eat sitting directly next to each other.

A federal district court order required Louisiana’s Department of Public Safety and Corrections to submit a plan for implementation of proper hygiene and social distancing practices, but the Fifth Circuit stayed this order. It found that the plaintiff had failed to exhaust administrative remedies and noted that the district court made few factual findings about the inadequacy of the defendants’ protective measures. “[A]n increase in infection rate alone is insufficient to prove deliberate indifference,” the Fifth Circuit said. (Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. Apr. 27, 2020).) However, the Rayburn facility reported 50 COVID-19 cases as of June 15. The Supreme Court ultimately denied Marlowe’s request to vacate the stay but indicated that he could still seek redress through the prison’s grievance process.

New Orleans attorney Emily Posner, who represents Marlowe, said that COVID-19 is still in the prison where her client is housed. “His dorm is currently quarantined because a fellow prisoner tested positive. As a diabetic, Marlowe is especially vulnerable to medical complications should he contract the coronavirus. He will continue to pursue, as necessary, his legal rights so that he can properly protect himself through social distancing and increased hygiene.”

Next, the Supreme Court tackled a case calling for the release of prisoners in Ohio. The U.S. Justice Department sought to halt an April 22 Ohio federal district court order that required the U.S. Bureau of Prisons to identify prisoners who are vulnerable to the coronavirus—those over 65 or who have documented medical conditions—and move them out of the Elkton Federal Correctional Institution in Lisbon, Ohio, through either furlough or transfer. (Williams v. Wilson, 2020 WL 2644305 (U.S. May 26, 2020).) The prisoners argued that confinement during the pandemic violates their Eighth Amendment rights. The district court found that the prison’s dorm-like structure made it impossible to implement social distancing and that the prison has inadequate tests to determine which prisoners and staff members are infected—coronavirus infections are “rampant” and “numerous inmates have passed away from complications from the virus.”

The Sixth Circuit initially denied a stay of the district court’s April 22 order, agreeing with the lower court that the Elkton facility was unable to implement adequate social distancing measures and rejecting the Bureau of Prison’s argument that evaluating prisoners for potential release was unduly burdensome. The Supreme Court denied the stay initially but noted that the defendants had not requested a stay of the district court’s subsequent May 19 order. Under both orders, the Elkton prison would have been required to begin transferring prisoners on June 5.

The defendants then requested a stay of both orders, which the Court granted while the defendants’ newly filed appeal was pending before the Sixth Circuit. (Williams v. Wilson, 2020 WL 2988458 (U.S. June 4, 2020).) But on June 9, the Sixth Circuit reversed, finding that the prisoners were unlikely to succeed on the merits of their Eighth Amendment claim and that the district court had abused its discretion. (Wilson v. Williams, 2020 WL 3056217 (6th Cir. June 9, 2020).)

ACLU attorney David Cole, of New York City, who represents the class of Elkton prisoners, said that “prison sentences should not be death sentences. When the government takes individuals into its custody, it has an obligation to ensure their safety. The ACLU has sued prisons, jails, and immigration detention centers across the country that have failed to meet that obligation. In the Elkton case, we represent a class of 844 medically vulnerable prisoners held, cheek by jowl, in dormitory-style rooms holding 150 persons each. One in every four Elkton prisoners has tested positive for the coronavirus, and one in five prisoners is currently sick with it. And socially distancing, the only way to avoid infection, is literally impossible. That’s why the district court has ordered the medically vulnerable to be transferred out of Elkton. Yet thus far, the government has seemingly spent more time fighting orders in the courts than keeping prisoners safe.”

For updated information on actions around the country to protect prisoners, see https://www.prisonpolicy.org/virus/virusresponse.html.