By Michelle Casady

Law360 (April 17, 2020, 10:03 PM EDT ) Just a day after a group of geriatric Texas prisoners won a ruling they should be given masks and unrestricted access to hand soap, a Texas federal judge put that order on hold Friday while the Texas Department of Criminal Justice appeals it to the Fifth Circuit.

U.S. District Judge Keith P. Ellison agreed to halt implementation of the mask and soap order until 5 p.m. Wednesday. On Thursday evening, he had ordered increased cleaning and the provision of health and safety supplies for inmates housed at the Wallace Pack Unit in southeast Texas, where an inmate recently died who preliminarily tested positive for COVID-19. 

Judge Ellison wrote that he was issuing the stay, among other reasons, to allow "for issuance of the court's accompanying memorandum and order laying out the factual and legal basis for the court's preliminary injunction order."

"The court will entertain requests for extension of the length of the stay if needed," the order reads.

In the Thursday order, Judge Ellison told the criminal justice department it must provide the prisoners "unrestricted access" to soap and disposable hand towels, as well as access to hand sanitizer, tissues and toilet paper "above their normal allotment," cleaning supplies and masks.

The order also mandated that common surfaces in housing areas, the dining hall and bathrooms be cleaned every 30 minutes, that prisoners be educated about the risks of the virus, and that officials either halt all transfers into the Pack Unit, or either quarantine for 14 days or test all new prisoners for COVID-19 before they're allowed in.

Judge Ellison also gave the TDCJ three days to submit to the court a detailed plan on how it would test every inmate at the Pack Unit for COVID-19.

One inmate housed at the Pack Unit died on April 11 and, according to court records, "preliminarily tested positive for COVID-19."

The TDCJ argued in its emergency motion seeking a stay filed Friday that it should be granted because the prisoners failed to exhaust administrative remedies, as required under the Prison Litigation Reform Act, before bringing this suit, and therefore "are not entitled to any relief."

Laddy Curtis Valentine and a putative class of other inmates filed suit on March 30, asking the court for relief in the way of mandated social distancing measures as well as greater access to soap and sanitizers.

Texas Attorney General Ken Paxton issued a statement Friday blasting the injunction.

"It is outrageous that Texas should provide inmates with unlimited personal protective equipment and testing kits when the medical professionals currently combating this health crisis are in desperate need of supplies to protect themselves and the Texans who are actually suffering from this virus. This acute national health crisis is not the time for judicial activism," he said.

The parties did not immediately return messages seeking comment Friday afternoon.

Valentine and the other plaintiffs are represented by John R. Keville, Denise Scofield, Michael T. Murphy, Brandon W. Duke, Benjamin D. Williams, Robert L. Green and Corinne Stone Hockman of Winston & Strawn LLP and Jeffrey S. Edwards, Scott Medlock, Michael Singley and David James of The Edwards Law Firm.

The Texas Department of Criminal Justice is represented by Christin Cobe Vasquez and Jeffrey E. Farrell of the Texas Attorney General's Office.

The case is Laddy Curtis Valentine et al. v. Bryan Collier et al., case number 4:20-cv-01115, in the U.S. District Court for the Southern District of Texas.

--Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.