     Case: 20-20207   Document: 00515392232     Page: 1   Date Filed: 04/22/2020




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

                                                                    FILED
                                 No. 20-20207                   April 22, 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 JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM:
      This case implicates the State of Texas’s response to COVID-19. On April
16, 2020, the United States District Court for the Southern District of Texas
issued a reticulated preliminary injunction against the executive director of
the Texas prison system and the warden of one of its prisons. The injunction
regulates in minute detail the cleaning intervals for common areas, the types
of bleach-based disinfectants the prison must use, the alcohol content of hand
sanitizer that inmates must receive, mask requirements for inmates, and
inmates’ access to tissues (amongst many other things). The district court
admitted that its injunction “goes beyond” the recommendations of the Centers
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                                 No. 20-20207

for Disease Control and Prevention. But in the district court’s view, anything
less than this injunction—including, presumably, the CDC guidelines—
violates the Eighth Amendment. Pursuant to Federal Rule of Appellate
Procedure 8, we stay the injunction pending appeal.
                                       I.
      As with every other part of the country, our Nation’s correctional
facilities have not escaped the reach of COVID-19. To mitigate the spread of
the virus, the Texas Department of Criminal Justice (“TDCJ”) has adopted and
implemented several rounds of measures guided by ever-changing CDC
recommendations. Plaintiffs are two inmates at the TDCJ Wallace Pack Unit
(“Pack Unit”), a prison for the elderly and the infirm. They say TDCJ’s
measures don’t go far enough.
      On March 30, 2020, Plaintiffs filed a class action lawsuit on behalf of
disabled and high-risk Pack Unit inmates against TDCJ, its executive director,
and the warden of the Pack Unit. The complaint alleges violations of the Eighth
Amendment’s prohibition against cruel and unusual punishment, and of the
Americans with Disabilities Act. In addition, Plaintiffs sought a preliminary
injunction.
      After considering Defendants’ written evidence and Plaintiffs’ live
witness testimony, the district court granted that injunction, finding it likely
that Plaintiffs could prove an Eighth Amendment violation. The district court
enjoined TDCJ to:
   • “Provide Plaintiffs and the class members with unrestricted access to
     hand soap and disposable hand towels to facilitate handwashing.”
   • “Provide Plaintiffs and the class members with access to hand sanitizer
     that contains at least 60% alcohol in the housing areas, cafeteria, clinic,
     commissary line, pill line, and laundry exchange.”



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• “Provide Plaintiffs and the class members with access to tissues, or if
  tissues are not available, additional toilet paper above their normal
  allotment.”
• “Provide cleaning supplies for each housing area, including bleach-
  based cleaning agents and CDC-recommended disinfectants in
  sufficient quantities to facilitate frequent cleaning, including in
  quantities sufficient for each inmate to clean and disinfect the floor and
  all surfaces of his own housing cubicle, and provide new gloves and
  masks for each inmate during each time they are cleaning or
  performing janitorial services.”
• “Provide all inmates and staff members with masks. If TDCJ chooses to
  provide inmates with cotton masks, such masks must be laundered
  regularly.”
• “Require common surfaces in housing areas, bathrooms, and the dining
  hall to be cleaned every thirty minutes from 7 a.m. to 10 p.m. with
  bleach-based cleaning agents, including table tops, telephones, door
  handles, and restroom fixtures.”
• “Increase regular cleaning and disinfecting of all common areas and
  surfaces, including common-use items such as television controls,
  books, and gym and sports equipment.”
• “Institute a prohibition on new prisoners entering the Pack Unit for the
  duration of the pandemic. In the alternative, test all new prisoners
  entering the Pack Unit for COVID-19 or place all new prisoners in
  quarantine for 14 days if no COVID-19 tests are available.”
• “Limit transportation of Pack Unit inmates out of the prison to
  transportation involving immediately necessary medical appointments
  and release from custody.”
• “For transportation necessary for prisoners to receive medical
  treatment or be released, CDC-recommended social distancing
  requirements should be strictly enforced in TDCJ buses and vans.”
• “Post signage and information in common areas that provides: (i)
  general updates and information about the COVID-19 pandemic; (ii)
  information on how inmates can protect themselves from contracting
  COVID-19; and (iii) instructions on how to properly wash hands.
  Among other locations, all signage must be posted in every housing
  area and above every sink.”


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   • “Educate inmates on the COVID-19 pandemic by providing information
     about the COVID- 19 pandemic, COVID-19 symptoms, COVID-19
     transmission, and how to protect oneself from COVID-19. A TDCJ staff
     person must give an oral presentation or show an educational video
     with the above-listed information to all inmates, and give all inmates
     an opportunity to ask questions. Inmates should be provided physical
     handouts containing COVID-19 educational information, such as the
     CDC’s ‘Share Facts About COVID-19’ fact sheet already in TDCJ’s
     possession.”
   • “TDCJ must also orally inform all inmates that co-pays for medical
     treatment are suspended for the duration of the pandemic, and
     encourage all inmates to seek treatment if they are feeling ill.”
   • “TDCJ must, within three (3) days, provide the Plaintiffs and the Court
     with a detailed plan to test all Pack Unit inmates for COVID-19,
     prioritizing those who are members of Dorm A and of vulnerable
     populations that are the most at-risk for serious illness or death from
     exposure to COVID-19. For any inmates who test positive, TDCJ shall
     provide a plan to quarantine them while minimizing their exposure to
     inmates who test negative. TDCJ must also provide a plan for testing
     all staff who will continue to enter the Pack Unit, and for any staff that
     test positive, provide a plan for minimizing inmates’ exposure to staff
     who have tested positive.”
Prelim. Inj. Order at 2–4 [hereinafter PI Order].
      In its memorandum opinion explaining this injunction, the district court
acknowledged that “many of the measures ordered in the preliminary
injunction largely overlap with TDCJ’s COVID-19 policy requirements and
recommendations.” D. Ct. Op. at 23. Yet the court believed the injunction
necessary “to promote compliance” with TDCJ’s policy, as well as CDC
guidelines. Id. at 24. Some of the conduct required of Defendants under the
injunction goes even further than CDC guidelines. But the district court found
that compliance with those guidelines alone could be constitutionally
insufficient. Id. at 25–26.




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      The district court stayed its preliminary injunction until April 22, 2020,
at 5 p.m. Defendants timely appealed and sought a stay of the preliminary
injunction pending appeal.
                                      II.
      When considering a stay, “a court considers four factors: (1) whether the
stay applicant has made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken v.
Holder, 556 U.S. 418, 426 (2009) (quotation omitted). The first two factors are
the most critical. Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016).
                                      A.
      We start with TDCJ’s likelihood of success on appeal. In a constitutional
claim alleging deliberate indifference to the conditions of a prisoner’s
confinement, the plaintiff must satisfy both the “subjective and objective
requirements” of the Eighth Amendment inquiry. Farmer v. Brennan, 511 U.S.
825, 846 (1994). To satisfy the objective requirement, the plaintiff must show
an “objectively intolerable risk of harm.” Ibid. To satisfy the subjective
requirement, the plaintiff must show that the defendant: “(1) was ‘aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists’; (2) subjectively ‘dr[e]w the inference’ that the risk existed; and
(3) disregarded the risk.” Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019)
(quoting Farmer, 511 U.S. at 837). The “incidence of diseases or infections,
standing alone,” do not “imply unconstitutional confinement conditions, since
any densely populated residence may be subject to outbreaks.” Shepherd v.
Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). Instead, the plaintiff must show
a denial of “basic human needs.” Ibid. “Deliberate indifference is an extremely

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                                       No. 20-20207

high standard to meet.” Cadena v. El Paso Cty., 946 F.3d 717, 728 (5th Cir.
2020).
       TDCJ is likely to prevail on the merits of its appeal. That’s for two
reasons: (1) after accounting for the protective measures TDCJ has taken, the
Plaintiffs have not shown a “substantial risk of serious harm” that amounts to
“cruel and unusual punishment”; and (2) the district court committed legal
error in its application of Farmer v. Brennan.
                                              1.
       First, the harm analysis. There is no doubt that infectious diseases
generally and COVID-19 specifically can pose a risk of serious or fatal harm to
prison inmates. TDCJ acknowledges that fact. And it submitted evidence to
the district court of the protective measures it has taken as a result. 1 Those
protective measures include many of the things the district court ordered—
including “access to soap, tissues, gloves, masks, regular cleaning, signage and
education, quarantine of new prisoners, and social distancing during
transport.” D. Ct. Op. at 24. The legal question is whether the Eighth
Amendment requires TDCJ to do more to mitigate the risk of harm.
       The district court said yes. It acknowledged the numerous protections
TDCJ provided, but it wanted to see “extra measures,” such as providing
alcohol-based sanitizer and additional paper products. D. Ct. Op. at 26. The
district court further acknowledged that the “extra measures” it required “go[ ]
beyond TDCJ and CDC policies.” Id. at 25. Plaintiffs have cited no precedent




       1 The district court made much of the fact that TDCJ did not present “live testimony”
at the preliminary-injunction hearing. It’s unclear to us why that matters. It long has been
true that parties can present evidence at the preliminary-injunction stage with declarations
or affidavits. See, e.g., Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir.
1993). And, of course, it’s the Plaintiffs’ burden to prove their entitlement to an injunction,
not the Defendants’ burden to prove the opposite.
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holding that the CDC’s recommendations are insufficient to satisfy the Eighth
Amendment.
      TDCJ also is likely to succeed on appeal insofar as the district court
enjoined the State to follow its own laws and procedures. In Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89 (1984), a plaintiff class brought
suit under inter alia the Eighth Amendment and state law to challenge the
conditions at a state facility for people with mental disabilities. See id. at 92.
The Supreme Court held that the Eleventh Amendment prohibits federal
courts from enjoining state facilities to follow state law. See id. at 103–23.
Here, however, the district court acknowledged that its injunction “largely
overlap[ped]    with    TDCJ’s      COVID-19      policy    requirements      and
recommendations.” D. Ct. Op. at 23. In the district court’s view, this was a
virtue not a vice because its injunction would “promote compliance” with
TDCJ’s own policies. Id. at 24. Pennhurst plainly prohibits such an injunction.
                                        2.
      Second, even assuming that there is a substantial risk of serious harm,
the Plaintiffs lack evidence of the Defendants’ subjective deliberate
indifference to that risk. In Farmer v. Brennan, the Supreme Court held that
deliberate indifference requires the defendant to have a subjective “state of
mind more blameworthy than negligence,” Farmer, 511 U.S. at 835, akin to
criminal recklessness, id. at 839–40. The district court misapplied this
standard. It appeared to think that the question was “whether [the
Defendants] reasonably abate[d] the risk” of infection, D. Ct. Op. at 20, or
stated differently, “whether and how [TDCJ’s] policy is being administered,”
id. at 23.
      The district court thus collapsed the objective and subjective components
of the Eighth Amendment inquiry established in Farmer, treating inadequate

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                                 No. 20-20207

measures as dispositive of the Defendants’ mental state. Such an approach
resembles the standard for civil negligence, which Farmer explicitly rejected.
Though the district court cited the Defendants’ general awareness of the
dangers posed by COVID-19, it cited no evidence that they subjectively believe
the measures they are taking are inadequate. To the contrary, the evidence
shows that TDCJ has taken and continues to take measures—informed by
guidance from the CDC and medical professionals—to abate and control the
spread of the virus. See Dkt. 36-7 (declaration of TDCJ Health Services
Director); Dkt. 36 at 13–20 (compiling evidence of protective measures taken
by TDCJ). Although the district court might do things differently, mere
“disagreement” with TDCJ’s medical decisions does not establish deliberate
indifference. Cadena, 946 F.3d at 729.
                                       B.
      TDCJ also has shown that it will be irreparably injured absent a stay.
See Nken, 556 U.S. at 434. When the State is seeking to stay a preliminary
injunction, it’s generally enough to say “ ‘[a]ny time a State is enjoined by a
court from effectuating statutes enacted by representatives of its people, it
suffers a form of irreparable injury.’ ” Maryland v. King, 133 S. Ct. 1, 3 (2012)
(Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The Texas
Legislature assigned the prerogatives of prison policy to TDCJ. See, e.g., TEX.
GOV’T CODE ch. 501. The district court’s injunction prevents the State from
effectuating the Legislature’s choice and hence imposes irreparable injury.
      Moreover, the Supreme Court has repeatedly warned that “it is ‘difficult
to imagine an activity in which a State has a stronger interest, or one that is
more intricately bound up with state laws, regulations, and procedures, than
the administration of its prisons.’ ” Woodford v. Ngo, 548 U.S. 81, 94 (2006)

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(quoting Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973)); see also Missouri
v. Jenkins, 495 U.S. 33, 51 (1990). Yet the district court in this case imposed a
number of immediate demands on TDCJ. Among these is a plan within three
days to test all Pack Unit inmates for COVID-19, as well as a new plan to
quarantine those who test positive, distribute physical handouts with COVID-
19 information to the inmates, clean common surfaces every thirty minutes for
fifteen hours each and every day, and to provide masks to all inmates and staff
members. As we’ve said before about such intrusive orders, this one creates
“an administrative nightmare” for TDCJ “to comply with the district court’s
quotas and deadlines.” Ruiz v. Estelle, 650 F.2d 555, 571 (5th Cir. Unit A June
1981). “[T]he burden upon TDC[J] in terms of time, expense, and
administrative red tape is too great” while it must respond in other ways to the
crisis. Ibid.
      The harm to TDCJ is particularly acute because the district court’s order
interferes with the rapidly changing and flexible system-wide approach that
TDCJ has used to respond to the pandemic so far. The TDCJ’s Director of
Health Services explained this statewide approach in her declaration. See Dkt.
36-7. The Director worked with a team of medical directors to develop Policy
B-14.52 in response to COVID-19. Id. at 2. TDCJ first implemented that policy
on March 20, 2020. It was designed “to adhere to guidance issued” by the CDC.
Ibid. And the policy was then disseminated to staff, placed in the “Correctional
Managed Health Care Infection Control Policy Manual[,] and posted on the
TDCJ website.” Id. at 3. But just three days later, the CDC updated its
guidance, so TDCJ implemented a revised policy on March 27, 2020. Id. at 4.
More changes came again on April 2, 2020, and again TDCJ disseminated and
implemented the updated policy. Ibid. And on April 15, 2020, TDCJ
disseminated and began implementation of yet another policy. Id. at 4–5.

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TDCJ’s ability to continue to adjust its policies is significantly hampered by
the preliminary injunction, which locks in place a set of policies for a crisis that
defies fixed approaches. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 28–
29 (1905); In re Abbott, No. 20-50264, 2020 WL 1685929, at *12 (5th Cir. 2020)
(describing COVID-19 as a “massive and rapidly-escalating threat”). And it
prevents TDCJ from responding to the COVID-19 threat without a permission
slip from the district court. That constitutes irreparable harm.
                                        C.
      The remaining two factors of the stay standard are the balance of the
harms and the public interest. See Nken, 556 U.S. at 426. Both weigh in favor
of staying the district court’s injunction. There is no doubt that COVID-19
poses risks of harm to all Americans, including those in the Pack Unit. But the
question is whether Plaintiffs have shown that they will suffer irreparable
injuries even after accounting for the protective measures in TDCJ Policy B-
14.52. Neither the Plaintiffs nor the district court suggest the evidence satisfies
that standard. And “[b]ecause the State is the appealing party, its interest and
harm merge with that of the public.” Veasey v. Abbott, 870 F.3d 387, 391 (5th
Cir. 2017) (citing Nken, 556 U.S. at 435). Therefore, TDCJ has satisfied all four
requirements of the stay standard.
                                        III.
      Plaintiffs also face several obstacles to relief under the Prison Litigation
Reform Act (“PLRA”). Two bear emphasis at this stage: exhaustion and
narrowness.
                                        A.
      First, exhaustion. The PLRA requires inmates to exhaust “such
administrative remedies as are available” before filing suit in federal court to
challenge prison conditions. 42 U.S.C. § 1997e(a). This exhaustion obligation

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is mandatory—there are no “futility or other [judicially created] exceptions [to
the] statutory exhaustion requirements . . . .” Booth v. Churner, 532 U.S. 731,
741 n.6 (2001). So long as the State’s administrative procedure grants
“authority to take some action in response to a complaint,” that procedure is
considered “available,” even if it cannot provide “the remedial action an inmate
demands.” Id. at 736 (emphasis added); see also id. at 739 (“Congress meant to
require procedural exhaustion regardless of the fit between a prisoner’s prayer
for relief and the administrative remedies possible.”).
      By contrast, a remedy is not “available”—and exhaustion is not
required—when:
      1. The procedure “operates as a simple dead end” because “the relevant
      administrative procedure lacks authority to provide any relief,” or
      “administrative officials have apparent authority, but decline ever to
      exercise it.”
      2. The “administrative scheme [is] so opaque that . . . no reasonable
      prisoner can use them.”
      3. Or when “prison administrators thwart inmates from taking
      advantage    of   a     grievance    process through machination,
      misrepresentation, or intimidation.”
Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016) (quotation omitted).
      Under these standards, Plaintiffs’ suit appears premature. All parties
agree that the TDCJ administrative process is open for Plaintiffs’ use. And
Plaintiffs do not argue that TDCJ is incapable of providing some (albeit
inadequate) relief. Nor do they contend that TDCJ always “decline[s] to
exercise” its authority, id. at 1859, that the scheme is unworkably opaque, or
that administrators thwart use of the system, see id. at 1859–60. Therefore,
according to the standards the Supreme Court has given us, TDCJ’s grievance
procedure is “available,” and Plaintiffs were required to exhaust.
      The district court disagreed. It considered the TDCJ process too lengthy
to provide timely relief, and therefore incapable of use and unavailable under
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the special circumstances of the COVID-19 crisis. See D. Ct. Op. at 16. Other
inmates have tried this argument before. In Blake v. Ross, 787 F.3d 693 (4th
Cir. 2015), the court of appeals held that true exhaustion was not required
when the inmate had “exhausted his remedies in a substantive sense by
affording corrections officials time and opportunity to address complaints
internally.” Id. at 698 (quoting Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007)).
      The Supreme Court rejected this “special circumstances” exception “as
inconsistent with the PLRA.” Ross, 136 S. Ct. at 1855. In so holding, the Court
noted that the precursor to today’s § 1997e(a) “would require exhaustion only
if a State provided ‘plain, speedy, and effective’ remedies . . . .” Id. at 1858
(quoting § 7(a), 94 Stat. 352 (1980)). By enacting the PLRA (which removed
that proviso), Congress rejected this “weak exhaustion provision” in favor of an
“invigorated” and absolute “exhaustion provision.” Ibid. (quotation omitted). In
the Supreme Court’s view, reading a “special circumstances” exception into the
PLRA would undo the PLRA and “resurrect” its predecessor. Ibid.
      The district court’s understanding of the exhaustion requirement
similarly revivifies the rejected portions of the old regime. The crux of the
court’s concern is that TDCJ has not acted speedily enough. But that was an
exception to exhaustion under the old § 1997e(a), not the current one.
Moreover, the district court held that TDCJ’s procedure would be unduly
lengthy if TDCJ were to use the full time allotted for a response to the
grievance under state law. See D. Ct. Op. at 17. But the district court never
found that TDCJ would take the full time if given the chance. The holding that
the TDCJ process “presents no ‘possibility of some relief,’ ” id. at 17–18
(citing Ross, 136 S. Ct. at 1859), is therefore unsupported by the evidence.
      Nor are we persuaded by the district court’s reliance on Fletcher v.
Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010). In that case, Judge

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Posner hypothesized that administrative remedies might “offer no possible
relief in time to prevent . . . imminent danger from becoming an actual
harm.” Fletcher, 623 F.3d at 1174. But, in that hypothetical, the State
procedure could “offer no possible relief ” because State law prohibited a
response to the grievance until two weeks after it was filed—rendering the
procedure of no use to an inmate threatened with death in 24
hours. Ibid. (emphasis added). In those circumstances, of course the procedure
is unavailable—“it lacks authority to provide any relief,” Ross, 136 S. Ct. at
1859, because as a matter of law it cannot respond quickly enough. We need
not confront Judge Posner’s hypothetical because TDCJ faces no legal bar to
offering timely relief. TDCJ is empowered to act on a grievance any time up
to—not after, as in Fletcher—the statutory limit. Relief by TDCJ therefore
remains possible (and the procedure available), even if TDCJ has not acted as
swiftly as Plaintiffs would like. 2
                                            B.
       Finally, it appears that the district court’s injunction goes well beyond
the limits of what the PLRA would allow even if the Plaintiffs had properly
exhausted their claims. The PLRA mandates that “[p]reliminary injunctive
relief must be narrowly drawn, extend no further than necessary to correct the
harm the court finds requires preliminary relief, and be the least intrusive
means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). And the PLRA
says courts “shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the preliminary



       2 Nor is the possibility of TDCJ action speculative. As noted above in Part II.B,
Defendants offered uncontroverted testimony from the Director of TDCJ Health Services that
TDCJ adopted an infection control policy as early as March 20, 2020. Dkt. 36-7 at 3. TDCJ’s
medical directors have updated the policy periodically in response to ever-evolving CDC
guidelines and other input. Id. at 4.
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relief and shall respect the principles of comity set out in paragraph (1)(B) in
tailoring any preliminary relief.” Ibid.
      The district court’s order recited these propositions, see PI Order at 1–2,
but the injunction’s substance contravenes them. This is a class-action
injunction that applies to all inmates—disabled and non-disabled alike—in the
Pack Unit. And it’s hard to see how an injunction that prescribes both a prison-
wide testing regime and a cleaning schedule down to the half-hour interval is
“narrowly drawn” or the “least intrusive means” available. See id. at 3–4. So
too with the requirement that every single sink have a sign over it with
COVID-19 information. See id. at 3. These may be salutary health measures.
But that level of micromanagement, enforced upon threat of contempt, does
not reflect the principles of comity commanded by the PLRA.
                                  *        *   *
      For the foregoing reasons, TDCJ’s motion to stay the preliminary
injunction pending appeal is GRANTED. The appeal is EXPEDITED to the
next available argument calendar.




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STEPHEN A. HIGGINSON, Circuit Judge, concurring in the judgment:
       I agree that Appellants have demonstrated a substantial likelihood of
success on their claim that Appellees failed to exhaust prison remedies prior
to seeking relief in federal court. Appellees did not submit any grievance
request to prison authorities before filing this lawsuit, and I am not aware of
any case, nor do Appellees or the district court cite one, in which a prisoner has
been deemed compliant with the Prison Litigation Reform Act (PLRA) when
there has been no attempt to file a grievance prior to suit in federal court. 1
       I write separately, however, to emphasize two points as governments,
state and federal, respond to the COVID-19 crisis, which presents enormous
and imminent health risks for prisoners and correctional officers alike.
       First, the instant stay order does not foreclose the possibility that, upon
expedited consideration, our court may nonetheless conclude that a remedy
using the Texas Department of Criminal Justice’s (TDCJ) grievance system is
not “available” because of the immediacy of the COVID-19 medical emergency
coupled with statements credited by the district court that prisoners’
grievances may not be addressed promptly. If these plaintiffs—geriatric
prisoners, many of whom are medically compromised—have no opportunity to
expedite systemic medical emergency grievances, our court might hold that
prison administrative remedies “operate[] as a simple dead end” giving prison
officials apparent authority though they decline to exercise it. See Ross v.
Blake, 136 S. Ct. 1850, 1859 (2016). 2 However, here it is undisputed that the


       1 Cf. United State of America v. Vigna, No. S1 16-CR-786-3 (NSR), 2020 WL 1900495,
at *5 (S.D.N.Y. Apr. 17, 2020) (noting that the court is not aware of any case where an
inmate’s failure to exhaust has been excused without the inmate “at least submitting a
request [to the prison] . . . prior to, or in conjunction with, his or her application to the court”).
       2 See also Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1174 (7th Cir. 2010); Nellson

v. Barnhart, No. 20-CV-00756-PAB, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020)
(discussing importance of an imminent-danger exception while also noting that the Supreme
Court clarified that “total and immediate relief is not the standard for exhaustion, ‘the
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                                                No. 20-20207

plaintiffs sought relief in federal district court prior to filing any grievance, and
Appellees cite no PLRA exhaustion caselaw supporting a not “available”
determination ex ante.
         Second, our reasoning on PLRA’s exhaustion requirement does not
foreclose federal prisoners from seeking relief under the First Step Act’s
provisions for compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). Though
that statute contains its own administrative exhaustion requirement, several
courts have concluded that this requirement is not absolute and that it can be
waived by the government or by the court, therefore justifying an exception in
the unique circumstances of the COVID-19 pandemic. See, e.g., United States
v. Russo, No. 16-cr-441 (LJL), 2020 WL 1862294, at *4–5 (S.D.N.Y. Apr. 14,
2020) (holding that, “[d]espite the mandatory nature of [the statute’s]
exhaustion requirement,” the exhaustion bar is “not jurisdictional” and can
therefore be waived); United States v. Smith, No. 12 Cr. 133 (JFK), 2020 WL
1849748, at *2–3 (S.D.N.Y. Apr. 13, 2020) (citing cases); see also Vigna, 2020
WL 1900495, at *5–6 (identifying the difficulties of the First Step Act
exhaustion question while ultimately deferring a ruling until the petitioner
exhausted his remedies); but see United States v. Raia, -- F.3d --, No. 20-1033,
2020 WL 1647922, at *2 (3d Cir. Apr. 2, 2020); United States v. Clark, No. 17-
85-SDD-RLB, 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020). 3


possibility of some relief’ is”). Cf. Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019)
(identifying the examples in Ross as “at least three” of the circumstances where the
administrative process may be “unavailable” (emphasis added)); Williams v. Corr. Officer
Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016) (“We note that the three circumstances discussed
in Ross do not appear to be exhaustive . . . .”).
3
 I note that, unlike the PLRA, Section 3582 does not limit the exhaustion requirement to “available” remedies. See
18 U.S.C. § 3582(c)(1)(A) (authorizing a motion for a sentence reduction “after the defendant has fully exhausted
all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or
the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility”). The
“availability” caveat—PLRA’s “built-in exception to the exhaustion requirement,” Ross, 136 S. Ct. at 1855—
arguably presents a stronger basis from which to conclude that Appellants were not required to exhaust their
remedies here.

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    Case: 20-20207       Document: 00515392232          Page: 17     Date Filed: 04/22/2020


                                       No. 20-20207

       Because Appellants are substantially likely to succeed on their argument
that statutory exhaustion of administrative remedies was not even sought
prior to filing this lawsuit, I would not reach the merits of Appellees’ ADA and
42 U.S.C. § 1983 claims. Whereas those claims face high legal hurdles, 4 they
also are intensely fact-based. 5 The district court assessed lay and expert
testimony before making extensive and careful findings of fact showing that
mitigation deficiencies still exist. D. Ct. Op. at 7–14. However, given the
TDCJ’s systemic and ongoing responses to fast-changing guidance, I would
reserve for the merits panel the complex question of whether and which of
these deficiencies amount to a cognizable violation.




       4  See Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006) (holding that “deliberate
indifference exists wholly independent of an optimal standard of care”); see also Alexander v.
Choate, 469 U.S. 287, 301 (1985) (holding that an accommodation is reasonable under the
ADA if it provides “meaningful access to the benefit[s] that the [prison] offers”); Love v.
Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996) (holding that in the prison context, it
is appropriate to consider “[s]ecurity concerns, safety concerns, and administrative
exigencies”); cf. Garza v. City of Donna, 922 F.3d 626, 636–37 (5th Cir. 2019) (holding that a
deliberate indifference claim does not “require[] proof that officials subjectively intend that
the harm occur” (emphasis added)).
        5 See, e.g., Banks v. Booth, No. 1:20-cv-00849 (D.D.C. Apr. 19, 2020) (order granting

temporary restraining order in COVID-19 prison context); cf. Fraher v. Heyne, No. 1:10-cv-
00951-MJS (PC), 2011 WL 5240441, *2 (E.D. Cal. Oct. 31, 2011) (prisoner with preexisting
heart condition who was refused a swine flu test could state a claim for violation of
constitutional rights).


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