     Case: 20-20207    Document: 00515443505     Page: 1   Date Filed: 06/05/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                  No. 20-20207                       June 5, 2020
                                                                   Lyle W. Cayce
                                                                        Clerk
LADDY CURTIS VALENTINE; RICHARD ELVIN KING,

              Plaintiffs - Appellees

v.

BRYAN COLLIER; ROBERT HERRERA; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,

              Defendants - Appellants


                 Appeal from the United States District Court
                      for the Southern District of Texas


Before DAVIS, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:
      The preliminary injunction entered by the district court is VACATED.
Based on facts that have been reported to us by the parties since the district
court’s judgment was entered, we are persuaded that the Texas Department of
Criminal Justice (“TDCJ”) has substantially complied with the measures
ordered by the district court in its preliminary injunction. The case is
remanded to the district court for further proceedings on the permanent
injunction.
      VACATED and REMANDED.
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                                        No. 20-20207
W. EUGENE DAVIS, Circuit Judge, concurring in judgment:
       I reluctantly concur in the judgment vacating the injunction because
conditions have dramatically changed in the prison since the preliminary
injunction issued, and vacating the preliminary injunction allows the district
court to expeditiously conduct factfinding to determine what relief is necessary
under the current circumstances. I write separately to underscore that holding
these elderly, ill inmates jammed together in their dormitories, unable to
socially distance as the virus continues to rapidly spread, is nothing short of a
human tragedy.
       The Wallace Pack Unit (“Pack Unit”) is a geriatric prison facility that
houses 1248 offenders. Approximately two-thirds of these inmates are 65 and
older, and an unspecified number of inmates has one or more comorbidities.
Almost all of the inmates are being housed in dormitories that contain 50-100
inmates. Every inmate has a bunk in a cubicle. Each cubicle has a waist-high
barrier separating the prisoner on either side. According to Plaintiff Valentine,
the inmates are within three to four feet of their neighbor on either side.
       At the time of the district court’s hearing on the preliminary injunction
on April 16, there was only one confirmed infection: inmate Leonard Clerkly,
whose autopsy was released two days prior. Now, six weeks later, the Pack
Unit is a vastly different place. As of May 28, TDCJ has reported 191 infections
in the Pack Unit. 1 Five inmates have died.




       1  The 191 positive test results are also reported on TDCJ’s website. We have
recognized that courts reviewing preliminary injunctions can take judicial notice of
subsequent factual developments bearing on the case. Indeed, this court has taken judicial
notice of statistics concerning COVID-19 already. See In re Abbott, 954 F.3d 772, 779 (5th
Cir. 2020). See also Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam) (taking
judicial notice of the state agency’s own website); Flight Engineer’s Int’l Ass’n, AFL-CIO v.
Am. Airlines, Inc., 303 F.2d 5, 8 (5th Cir. 1962) (noting, on review of a preliminary injunction,
that this court could take judicial notice of subsequent action).
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                                       No. 20-20207
       Many of the facts regarding developments in the Pack Unit since the
injunction was entered have not been tested by testimony under oath that has
been subjected to cross-examination. I assume the district court will hear
evidence on developments that have occurred since its April 16 preliminary
injunction that will definitively resolve these issues. 2
       The Plaintiffs and their fellow inmates are now being held under
circumstances that seriously threaten their life. It bears repeating: the Pack
Unit is a geriatric prison. Most inmates are over 65 and have multiple, serious
health problems. They are among the most vulnerable members of the
population to contract COVID-19 and the least likely to survive the infection.
They remain on 24-hour lockdown in their dorms, three to four feet from each
other. With so many potential spreaders of COVID-19 in the Pack Unit among
vulnerable inmates, we can expect several times that number to be infected by
July 13, 2020, the date the trial on the permanent injunction is now scheduled.
       The experienced trial judge scheduled a hearing on the preliminary
injunction days after the case was assigned to him and handled the evolving
nature of this proceeding diligently. I have confidence he will consider holding
the trial sooner than that date if possible. 3




       2  At the time of the preliminary injunction, the parties disagreed whether the prison
grievance system provided available relief so as to require exhaustion of all administrative
remedies under § 1997e(a) of the Prison Litigation Reform Act. The parties now dispute
whether Valentine exhausted his administrative remedies by seeking informal resolution
prior to filing suit. The district court should resolve the apparent factual dispute concerning
when Plaintiff Valentine sought administrative relief and whether TDCJ offered any
emergency grievance procedures to the inmates.
        3 The Supreme Court has emphasized the urgent nature of these proceedings. See

Marlowe v. LeBlanc, No. 19A1039, 2020 WL 2780803, at *1 (U.S. May 29, 2020) (mem.);
Valentine v. Collier, 140 S. Ct. 1598, 1600 (2020) (mem.).
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                                      No. 20-20207
JAMES E. GRAVES, JR., Circuit Judge, specially concurring:
       While I concur in the majority opinion, I write separately to note that a
motions panel of this court previously found that Plaintiffs are unlikely to
succeed on the merits of their claims. For substantially the same reasons given
by the district court, I disagree with that analysis. 1 As the district court rightly
noted, “[p]rison walls do not form a barrier separating prison inmates from the
protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).




       See Trevino v. Davis, 861 F.3d 545, 548 n.1 (5th Cir. 2017) (“[A] merits panel is not
       1

bound by a motions panel.”) (citation omitted).
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                                No. 20-20207
STUART KYLE DUNCAN, Circuit Judge, concurring in the judgment in part:
     I respectfully concur in the result reached by the majority, which vacates
the preliminary injunction and remands for further proceedings. For my part,
I would also reverse the district court’s judgment granting the preliminary
injunction. I would do so solely for the reasons expressed by the motions panel
in Valentine v. Collier, 956 F.3d 797, 801–06 (5th Cir. 2020). See also Marlowe
v. LeBlanc, --- F.3d ---, 2020 WL 2043425, at *2–4 (5th Cir. Apr. 27, 2020);
Swain v. Junior, 948 F.3d 1081, 1088–92 (11th Cir. 2020). I express no
definitive opinion on the impact of the interim factual developments discussed
in Judge Davis’s concurrence. I note only that, just as our panel received
updates on the spread of COVID-19 in the Wallace Pack Unit, we also received
updates detailing TDCJ’s evolving responses to the infection, including
increased testing, infection-control measures, and inmate treatment and
isolation. All these developments will be subject to adversarial testing in the
permanent injunction proceedings.




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