By Michelle Casady

Law360 (May 29, 2020, 12:19 AM EDT ) Texas told the Fifth Circuit Thursday a bid by a proposed class of geriatric prisoners for better safety measures amid the COVID-19 pandemic is doomed because they ran to court without exhausting a mandatory grievance process.

Though the prisoners, led by Laddy Curtis Valentine, convinced a Texas federal judge they needed more protection from the virus, the Fifth Circuit temporarily blocked the order during the state's appeal.

Texas Solicitor General Kyle Hawkins told the Fifth Circuit during oral argument the district court's preliminary injunction is unlawful because the prisoners were required to follow the Texas Department of Criminal Justice's grievance procedure before filing suit.

On top of that, the district court's injunction is unsafe because it "locks us in to doing certain things and requires us to get a permission slip from the district court" any time the guidance from officials managing the global health crisis changes, Hawkins argued.

Thursday's arguments were originally scheduled to take place June 4, but the circuit judges bumped it up, citing the "alarming speed" of the spread of COVID-19 in the Wallace Pack Unit, located about 70 miles northwest of downtown Houston. At the time the suit was filed, there were no reported cases of COVID-19 inside the prison, but Hawkins told the judges Thursday that 191 inmates are infected, along with nine employees, and five people have died.

Valentine and the proposed class of other inmates from that unit sued on March 30 for mandated social distancing measures and increased access to soap and sanitizers. Valentine has now tested positive for COVID-19, his attorney John Keville of Winston & Strawn LLP told the court.

Valentine and the other inmates have argued that the prison's grievance system is effectively "unavailable" because it isn't designed to produce quick responses to complaints, which they argue are necessary with a pandemic spreading through the prison system.

U.S. Circuit Judge Stuart Kyle Duncan questioned how the inmates could possibly argue the grievance process is "unavailable" when just three weeks after Valentine's complaint, the prison system began providing increased access to soap and cleaners as requested.

"I don't understand the argument that the grievance process is not available if what I'm looking at is the prison's response to a grievance," he said. "I don't understand."

Judge Duncan repeatedly asked Keville for evidence that would support prisoners' claims that the prison isn't following its own guidelines in some cases, not including prisoners' unrebutted testimony that Keville had already pointed to.

The judge also questioned the "unavailability" argument.

"How could I possibly find that the process is not available if … I see evidence of the process going on?" he asked.

Keville said Judge Duncan saw evidence of the process "because it's still going on."

"We're now in Step 2," he said. "So while this goes on and continues, Mr. Valentine has tested positive for COVID-19. So the grievance process has not wound its way to the end … it's a process which is a dead end."

On May 14, U.S. Supreme Court Justice Samuel Alito denied a bid from the prisoners seeking to enforce U.S. District Judge Keith Ellison's order. But U.S. Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg issued a statement, saying that while the prisoners hadn't exhausted other avenues before going to the court, the extraordinary circumstances of the pandemic "could open the courthouse doors where they would otherwise stay closed."

Judge Ellison issued an order mandating increased cleaning and the distribution of safety supplies in April, but a day later put that part of the order on hold while the Texas Department of Criminal Justice appealed to the Fifth Circuit. The Fifth Circuit then put the entire injunction on pause, which triggered the inmates' unsuccessful request to Justice Alito seeking to undo the appellate court's decision.

U.S. Circuit Judges W. Eugene Davis, James E. Graves Jr. and Stuart Kyle Duncan sat on the panel for the Fifth Circuit.

Texas is represented by state Solicitor General Kyle Hawkins and Christin Cobe Vasquez and Jeffrey E. Farrell of the Texas Attorney General's Office.

Valentine and the other inmates are represented by John 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 case is Laddy Valentine et al. v. Bryan Collier et al., case number 20-20207, in the U.S. Court of Appeals for the Fifth Circuit.

--Additional reporting by Mike LaSusa. Editing by Janice Carter Brown.

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