             Case: 20-11622    Date Filed: 05/05/2020    Page: 1 of 20



                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                         _________________________

                               No. 20-11622-C
                         _________________________

ANTHONY SWAIN, et al.

                                                          Plaintiffs - Appellees,

                                      versus

DANIEL JUNIOR, in his official capacity as Director
of the Miami-Dade Corrections and Rehabilitation Department, and
MIAMI-DADE COUNTY, FLORIDA


                                                          Defendants - Appellants.

                         __________________________

                        On Appeal from the United States
                District Court for the Southern District of Florida
                         __________________________

Before: WILSON, WILLIAM PRYOR and BRANCH, Circuit Judges.

BY THE COURT:

      No part of our country has escaped the effects of COVID-19. It is thus not

surprising that several inmates at the Metro West Detention Center (“Metro

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West”)—the largest direct-supervision jail facility in the State of Florida—have

tested positive for the virus. This appeal concerns the adequacy of the measures

implemented by Metro West to protect its prisoners from the spread of COVID-19.

      On April 5, 2020, seven Metro West inmates filed a class action complaint

challenging the conditions of the inmates’ confinement under 42 U.S.C. § 1983

and seeking habeas relief under 28 U.S.C. § 2241 for the named plaintiffs along

with a “medically vulnerable” subclass of inmates.

      At issue in this motion for a stay pending appeal is the preliminary

injunction issued by the United States District Court for the Southern District of

Florida on April 29, 2020, against defendants Miami-Dade County and Daniel

Junior, the Director of the Miami-Dade Corrections and Rehabilitations

Department (“MDCR”). The injunction requires the defendants to employ

numerous safety measures to prevent the spread of COVID-19 and imposes

extensive reporting requirements. Pursuant to Rule 8 of the Federal Rules of

Appellate Procedure, we stay the injunction pending appeal and expedite the

appeal.

                                          I.

      MDCR, a department of Miami-Dade County, operates Metro West. When

the first case of COVID-19 in Miami-Dade County was reported in early March

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2020, MDCR began enacting measures to protect inmates. Those measures

included cancelling inmate visitation; screening arrestees, inmates, and staff; and

advising staff of use of protective equipment and sanitation practices. On March

23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) issued the

Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

Correction and Detention Facilities, (the “CDC Guidance”). MDCR reviewed the

CDC Guidance and updated its practices. As the situation developed, MDCR

continued to implement additional safety measures, including daily temperature

screenings of all persons entering Metro West, establishing a “COVID-19 Incident

Command Center and Response Line” to track testing and identify close contacts

with the virus, developing a social hygiene campaign, and mandating that staff and

inmates wear protective masks at all times. MDCR also implemented social

distancing efforts, including staggering the dormitory bunks, requiring inmates to

sleep head-to-toe to ensure further distancing, and instructing staff to encourage

social distancing between inmates. The district court accepted as true that the

defendants implemented these measures for purposes of issuing the preliminary

injunction and did not resolve any factual disputes in favor of the plaintiffs.

      On April 5, 2020, the plaintiffs filed a class action complaint on behalf of

“all current and future persons detained at Metro West during the course of the

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COVID-19 pandemic.” Among other deficiencies, the class action complaint

alleged that the inmates at Metro West did not have enough soap or towels to wash

their hands properly, waited days for medical attention, were “denied basic

hygienic supplies” like laundry detergent and cleaning materials, and were forced

to sleep only two feet apart. They sought declaratory and injunctive relief for

violations of the Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983

on behalf of the entire class and immediate release from custody pursuant to 28

U.S.C. § 2241 on behalf of the named plaintiffs and the medically vulnerable

subclass.

      The district court entered a temporary restraining order (“TRO”) against the

defendants on April 7, two days after the complaint was filed. Consistent with the

TRO, the defendants screened all new arrestees and staff as they entered the

facilities, enhanced cleaning and sanitation measures, made efforts to increase

social distancing, issued masks to all staff and inmates, supplied paper towels in

the restrooms, and quarantined inmates showing COVID-19 symptoms.

      On April 29, following a telephonic evidentiary hearing, the district court

entered a preliminary injunction against the defendants on the plaintiffs’ § 1983




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claim. 1 The preliminary injunction enjoins the defendants to:

• “Effectively communicate to all people incarcerated at [Metro West], including
  low-literacy and non-English speaking people, sufficient information about
  COVID-19, measures taken to reduce the risk of transmission, and any changes
  in policies or practices to reasonably ensure that individuals are able to take
  precautions to prevent infection”;

• “To the maximum extent possible considering [Metro West’s] current
  population level, provide and enforce adequate spacing of six feet or more
  between people incarcerated at Metro West so that social distancing can be
  accomplished”;

• “Ensure that each incarcerated person receives, free of charge (1) an individual
  supply of soap, preferably liquid as recommended by the CDC, sufficient to
  allow frequent hand washing each day; (2) hand drying machines, or disposable
  paper towels as recommended by the CDC, and individual towels, sufficient for
  daily use; (3) an adequate supply of disinfectant products effective against the
  virus that causes COVID-19 for daily cleanings; and (4) an adequate supply of
  toilet paper sufficient for daily use”;

• “Provide reasonable access to showers and to clean laundry”;

• “Require that all MCDR staff wear personal protective equipment, including
  masks, and gloves when physically interacting with any person, and require
  that, absent extraordinary or unusual circumstances, a new pair of gloves is
  worn each time MDCR staff touch a different person; and require all inmate
  workers who are cleaning facilities or preparing food to follow this same
  protocol”;



    1
       The district court did not make a finding as to whether the defendants had complied with
the TRO. We do note, however, that a report commissioned by the district court and prepared
by experts for each party following a review of the facility and of the TRO appears to indicate
that the defendants were in compliance with the TRO.

     The district court also denied the plaintiffs’ requested habeas relief under § 2241 without
prejudice.
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• “Require that all MDCR staff regularly wash their hands with soap and water or
  use hand sanitizer containing at least 60% alcohol”;

• “Ensure access to proper testing for anyone displaying known symptoms of
  COVID-19 in accordance with CDC guidelines and for anyone who has come
  in contact with an individual who has tested positive for COVID-19”;

• “Ensure that individuals identified as having COVID-19 or having been
  exposed to COVID-19 receive adequate medical care and are properly
  quarantined, with continued access to showers, mental health services, phone
  calls with family, and communications with counsel; individuals identified as
  having COVID-19 or having been exposed to COVID-19 shall not be placed in
  cells normally used for disciplinary confinement absent emergency
  circumstances”;

• “Respond to all emergency (as defined by the medical community) requests for
  medical attention as soon as possible”;

• “Provide sufficient disinfecting supplies consistent with CDC recommendations
  in each housing unit, free of charge, so incarcerated people can clean high-
  touch areas or any other items in the unit between each use”;

• “Waive all medical co-pays for those experiencing COVID-19-related
  symptoms”;

• “Waive all charges for medical grievances during this health crisis”; and

• “Provide face masks for inmates at Metro West. The face masks must be
  replaced at medically appropriate intervals, and Defendants must provide
  inmates with instruction on how to use a face mask and the reasons for its use.”

      The district court observed that the CDC’s Guidance “formed the basis” of

these requirements. In order to ensure compliance, it further ordered the

defendants to:


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• “Continue providing the Court with updated information regarding the number
  of staff and inmates who have tested positive for, or are being quarantined
  because of, COVID-19. These notices shall be filed every three days for the
  duration of [the order]; Defendants shall also continue to provide this
  information to their state criminal justice partners”;

• “Provide the [district court] with weekly reports containing the current
  population data for Metro West”; and

• “Submit, within 7 days of [the order], a proposal outlining steps Defendants
  will undertake to ensure additional social distancing safeguards in terms of
  housing inmates and inmate activity (medical visits, telephones, etc.).”

                                          II.

      “In considering whether to stay a preliminary injunction . . . we examine the

district court’s grant of the preliminary injunction for abuse of discretion,

reviewing de novo any underlying legal conclusions and for clear error any

findings of fact.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1317

(11th Cir. 2019).

                                          III.

      A court considering whether to issue a stay “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) (quoting Hilton v. Braunskill, 481 U.S. 770, 776
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(1987)). The first two factors are “the most critical.” Id. at 434. We address

each factor in turn and conclude that a stay is warranted.

                         A. Likelihood of Success on Appeal

      In their § 1983 claim, the plaintiffs allege that the defendants violated the

Eighth and Fourteenth Amendments through their deliberate indifference to the

risk that COVID-19 poses to the plaintiffs. The defendants ask us to stay the

injunction pending appeal because they contend that the plaintiffs failed to

establish that they were entitled to a preliminary injunction. To obtain a

preliminary injunction, the plaintiffs were required to establish that (1) “a

substantial likelihood of success on the merits” exists; (2) they would suffer

irreparable harm absent an injunction; (3) “the threatened injury to the[m] . . .

outweighs” any harm the injunction might cause the defendants; and (4) if issued,

the injunction would not be adverse to the public interest. Wreal, LLC v.

Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016) (internal quotation marks

omitted).

      The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” “The ‘cruel and unusual punishments’ standard

applies to the conditions of a prisoner’s confinement.” Chandler v. Crosby, 379

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F.3d 1278, 1288 (11th Cir. 2004); see also Mann v. Taser Int’l, Inc., 588 F.3d

1291, 1306 (11th Cir. 2009) (explaining that a pre-trial detainee’s “rights exist

under the due process clause of the Fourteenth Amendment” but “are subject to the

same scrutiny as if they had been brought as deliberate indifference claims under

the Eighth Amendment”). An Eighth Amendment challenge to the conditions of

confinement has two components: one objective and the other subjective. See

Farmer v. Brennan, 511 U.S. 825, 846 (1994).

      First, to satisfy the “objective component,” the prisoner must show “an

objectively intolerable risk of harm.” Id. He must show that the challenged

conditions were “extreme” and presented an “‘unreasonable risk of serious damage

to his future health’ or safety.” Chandler, 379 F.3d at 1289 (quoting Helling v.

McKinney, 509 U.S. 25, 35 (1993)). The defendants do not contest for purposes

of this motion that the plaintiffs can satisfy this component.

      Second, to satisfy the “subjective component,” the prisoner must show that

the prison official acted with deliberate indifference. Id. A prison official acts

with deliberate indifference when he “knows of and disregards an excessive risk to

inmate health or safety.” Farmer, 511 U.S. at 837; see also Brown v. Johnson,

387 F.3d 1344, 1351 (11th Cir. 2004). A prison “official may escape liability for

known risks ‘if [he] responded reasonably to the risk, even if the harm ultimately

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was not averted.’” Chandler, 379 F.3d at 1290 (quoting Farmer, 511 U.S. at

844). Deliberate indifference requires the defendant to have a subjective “state of

mind more blameworthy than negligence,” Farmer, 511 U.S. at 835, closer to

criminal recklessness, id. at 839–40.

      The defendants are likely to prevail on appeal because the district court

likely committed errors of law in granting the preliminary injunction. In

conducting its deliberate indifference inquiry, the district court incorrectly

collapsed the subjective and objective components. The district court treated the

increase in COVID-19 infections as proof that the defendants deliberately

disregarded an intolerable risk. In doing so, it likely violated the admonition that

resultant harm does not establish a liable state of mind. See Farmer, 511 U.S. at

844. The district also likely erred by treating Metro West’s inability to “achieve

meaningful social distancing” as evincing a reckless state of mind. Although the

district court acknowledged that social distancing was “impossible” and “cannot be

achieved absent an additional reduction in Metro West’s population or some other

measure to achieve meaningful social distancing,” it concluded that this failure

made it likely that the plaintiffs would establish the subjective component of their

claim. But the inability to take a positive action likely does not constitute “a state

of mind more blameworthy than negligence.” Id. at 835.

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      The defendants are also likely to succeed on appeal because the plaintiffs

offered little evidence to suggest that the defendants were deliberately indifferent.

Indeed, the evidence supports that the defendants are taking the risk of COVID-19

seriously. For example, the expert report commissioned by the district court

concluded that the staff at Metro West “should be commended for their

commitment to protect the staff and inmates in this facility during this COVID-19

pandemic. They are doing their best balancing social distancing and regulation

applicable to the facility.” According to the expert report, Metro West appears to

have implemented many measures to curb the spread of the virus. While perhaps

impossible for the defendants to implement social distancing measures effectively

in all situations at Metro West’s current population level, the district court cited no

evidence to establish that the defendants subjectively believed the measures they

were taking were inadequate. See Valentine v. Collier, No. No. 20-20207, 2020

WL 1934431, at *4 (5th Cir. Apr. 27, 2020) (“[T]reating inadequate measures as

dispositive of the Defendants’ mental state . . . resembles the standard for civil

negligence, which Farmer explicitly rejected.”).

      The only other evidence the district court relied on to establish deliberate

indifference is that Metro West’s social-distancing policies are “not uniformly

enforced.” But the district court made no finding that the defendants are ignoring

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or approving the alleged lapses in enforcement of social-distancing policies, so

these lapses in enforcement do little to establish that the defendants were

deliberately indifferent. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th

Cir. 1995) (requiring plaintiffs establish a causal connection between the

defendant’s conduct and the constitutional violation to prevail on a deliberate-

indifference claim). Accepting, as the district court did, that the defendants

adopted extensive safety measures such as increasing screening, providing

protective equipment, adopting social distancing when possible, quarantining

symptomatic inmates, and enhancing cleaning procedures, the defendants’ actions

likely do not amount to deliberate indifference. So the district court likely erred in

this regard.

                                B. Irreparable Injury

      The defendants have also shown that they will be irreparably injured absent

a stay. See Nken, 556 U.S. at 434. Absent a stay, the defendants will lose the

discretion vested in them under state law to allocate scarce resources among

different county operations necessary to fight the pandemic. Through its

injunction, the district court has taken charge of many administrative decisions

typically left to MDCR officials. For example, the injunction requires that the

defendants provide each Metro West inmate with an individual supply of soap and

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disinfectant products. Under pain of contempt, therefore, MDCR must divert

these high-demand supplies to Metro West, even though they may be more critical

at another county facility. Similarly, the injunction requires that the defendants

test all inmates with COVID-19 symptoms and everyone with whom they have

been in contact. To avoid contempt, then, MDCR must allocate limited testing

resources to Metro West at the expense of other county facilities. All the while,

the district court has tasked itself with overseeing the steps the defendants are

taking to “ensure additional social distancing safeguards,” even though it

acknowledges that social distancing is “impossible” at the current inmate

population level. In short, the district court assumed the role of “super-warden”

that our decisions repeatedly condemn. See Pesci v. Budz, 935 F.3d 1159, 1167

(11th Cir. 2019); Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954,

965 (11th Cir. 2018).

      As the Supreme Court has cautioned, “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). In large measure, the injunction

transfers the power to administer the Metro West facility in the midst of the

pandemic from public officials to the district court. The injunction hamstrings

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MDCR officials with years of experience running correctional facilities, and the

elected officials they report to, from acting with dispatch to respond to this

unprecedented pandemic. They cannot respond to the rapidly evolving

circumstances on the ground without first seeking “a permission slip from the

district court.” Valentine, 2020 WL 1934431, at *5. Such a prohibition amounts

to an irreparable harm.

                      C. Balance of Harms and Public Interest

      The final two factors are the balance of harms and the public interest. See

Nken, 556 U.S. at 426. Here, both those factors weigh in favor of a stay. The

district court found that because the inmates “face immediate, irreparable harm

from COVID-19,” their risk of harm outweighs the harm imposed on the

defendants from complying with the preliminary injunction. But the question is

not whether COVID-19 presents a danger to the inmates—we do not dismiss the

risk of harm that COVID-19 poses to everyone, including the inmates at Metro

West. The question is instead whether the plaintiffs have shown that they will

suffer irreparable injuries that they would not otherwise suffer in the absence of an

injunction. See id.; cf. Valentine, 2020 WL 1934431, at *5. Nothing in the

record indicates that the defendants will abandon the current safety measures

absent a preliminary injunction, especially since the defendants implemented many

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of those measures before the plaintiffs even filed the complaint. Nor do the

plaintiffs contend that they will abandon those measures. For that reason, the

balance of harms weighs in the defendants’ favor.

      Finally, where the government is the party opposing the preliminary

injunction, its interest and harm merge with the public interest. Nken, 556 U.S. at

435. We therefore conclude that the defendants have satisfied all four

requirements for a stay.

                                          IV.

      Before concluding, we address two other probable errors in the district

court’s order that make the defendants likely to succeed on appeal: its refusal to

address whether the plaintiffs established that the county and defendant Junior

were likely liable under Monell and its refusal to address the exhaustion

requirement of the Prison Litigation Reform Act (“PLRA”). Both inquiries are

necessary components of the likelihood of success inquiry a court must undertake

in order to issue a preliminary injunction in the first instance. See Wreal, 840 F.3d

at 1247.

      First, the district court likely erred in holding that the plaintiffs are not

required to establish municipal liability under Monell at the preliminary injunction

stage. A municipality may not be held liable under § 1983 unless a municipal

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policy or custom caused the plaintiffs’ injury. Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658, 694 (1978). The policy or custom requirement of

Monell applies to § 1983 claims for declaratory or injunctive relief no less than

claims for damages. Los Angeles Cty. v. Humphries, 562 U.S. 29, 31 (2010).

Because a district court cannot award prospective relief against a municipality

unless the requirements of Monell are satisfied, id., plaintiffs must establish that

they are likely to satisfy the requirements of Monell to obtain a preliminary

injunction against a municipality. See Church v. City of Huntsville, 30 F.3d 1332,

1342 (11th Cir. 1994).

      Contrary to Church, the district court ruled that the plaintiffs did not need to

establish a likelihood of success under Monell to obtain a preliminary injunction,

and it did not address whether they were likely to satisfy Monell. For that reason,

Miami-Dade County is likely to succeed in arguing on appeal that the district court

erred by enjoining it. And because the plaintiffs sued defendant Junior only in his

official capacity, which “generally represent[s] only another way of pleading an

action against an entity of which an officer is an agent,” Kentucky v. Graham, 473

U.S. 159, 165 (1985) (quoting Monell, 436 U.S. at 690), they must also satisfy the

requirements of Monell to obtain injunctive relief against him to the extent they

challenge his conduct as an officer of Miami-Dade County. See Barnett v.

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MacArthur, No. 18-12238, 2020 WL 1870445, at *3 (11th Cir. Apr. 15, 2020);

Familias Unidas v. Briscoe, 619 F.2d 391, 403–04 (5th Cir. 1980). The district

court did not address whether the plaintiffs were likely to satisfy Monell as to

defendant Junior, so he is also likely to succeed in having the injunction against

him vacated on appeal.

      Second, the district court also likely erred in declining to address PLRA

exhaustion at the preliminary injunction stage. In no uncertain terms, the PLRA

provides: “No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). So long as those remedies are

“available” to the prisoner, a “court may not excuse a failure to exhaust, even to

take [special] circumstances into account.” Ross v. Blake, 136 S. Ct. 1850, 1856

(2016). But the district declined to address exhaustion because failure to exhaust

is an affirmative defense, and therefore, according to the district court, is

inapplicable at the preliminary injunction stage. That decision was misguided.

      Just because failure to exhaust is an affirmative defense and not a pleading

requirement, see Jones v. Bock, 549 U.S. 199, 216 (2007), does not render

exhaustion irrelevant to determining whether the plaintiffs are entitled to a

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preliminary injunction. “[T]he burdens at the preliminary injunction stage track

the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 429 (2006). Failure to exhaust is an affirmative defense,

so the defendants bear the burden of proving it. See Jones v. Bock, 549 U.S. at

216. Because the defendants correctly raised and briefed the defense in a motion

to dismiss and in their opposition to the plaintiffs’ motion for a preliminary

injunction, the district court was obliged to decide whether the defendants were

likely to establish the defense. See Gonzales, 546 U.S. at 428; Chandler, 379 F.3d

at 1286 (explaining that exhaustion under the PLRA is “a threshold matter” that a

court “must address” before reaching the merits). Although the district court

determined that the existence of the defense turned on disputed questions of fact,

district courts are required to resolve factual disputes regarding PLRA

exhaustion—a “preliminary issue”—at the outset of a case. See Bryant v. Rich,

530 F.3d 1368, 1376 (11th Cir. 2008). The district court could not determine that

the plaintiffs were likely to succeed on their § 1983 claim without, at the very least,

finding that the defendants were unlikely to carry their burden of establishing

failure to exhaust. See Gonzales, 546 U.S. at 428–29. Because it failed to do so,

the defendants are likely to succeed on appeal.




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                                         V.

      In conclusion, the defendants’ motion for a stay pending appeal and motion

to expedite the appeal are GRANTED. The plaintiffs’ “Opposed Motion for Oral

Argument on Appellants’ Emergency Motion to Stay Injunction Pending Appeal”

is DENIED.

      The Court DIRECTS the Clerk to expedite the appeal for merits disposition

purposes and to schedule it for oral argument before the earliest available panel.

      The Court sets the following briefing schedule: the initial brief is due on May

18, 2020, the response brief is due on May 28, 2020, and the reply brief is due on

June 1, 2020. No motions for extensions of time will be considered.




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WILSON, Circuit Judge, dissenting from the order granting the stay:

      To persuade us to grant a stay, the County bore the burden of making “a strong

showing” that it is likely to succeed on the merits—a “most critical” factor. See

Nken v. Holder, 556 U.S. 418, 433–34 (2009); Democratic Exec. Comm. of Fla. v.

Lee, 915 F.3d 1312, 1317 (11th Cir. 2019). It failed to do so. I see no strong

showing of error as to the district court’s factual findings or legal conclusions about

(1) meaningful social distancing and population reduction or other measures to

achieve it, or (2) officials’ knowledge and the reasonableness of their response. See

Brown v. Plata, 563 U.S. 493, 521, 526–30 (2011) (analyzing the necessity of

reducing overcrowding after other failed remedial measures in the Eighth

Amendment context); Helling v. McKinney, 509 U.S. 25, 36–37 (1993) (describing

focus on both society’s and prison authorities’ current attitudes and conduct). And

I otherwise fail to see an abuse of discretion here. Therefore, I dissent from the

order granting the stay.




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