By Melissa Angell

Law360 (October 14, 2020, 6:05 PM EDT ) The Fifth Circuit on Tuesday temporarily suspended a permanent injunction requiring a Texas prison to implement a COVID-19 containment protocol in one of its units, saying a lower court incorrectly applied an exception to a law prisoners must follow to file lawsuits, and that the pandemic's threats "do not matter."

In a 16-page opinion authored by U.S. Circuit Judge Don R. Willett, a three-judge panel unanimously agreed to stay the injunction faced by the Texas Department of Criminal Justice until the department concludes its appeal of the injunction. The panel held that the injunction must be paused because the class of prisoners who obtained it sued before exhausting grievance procedures outlined by the Prison Litigation Reform Act.

On Tuesday, the panel referenced the U.S. Supreme Court's 2016 Ross v. Blake decision, where the high court rejected attempts to stray from PLRA's "rigid exhaustion requirement," saying that the Texas prisoners' failure to adhere to this requirement "alone defeats this suit."

"[T]he grievance process is not amenable to current circumstances," the opinion said. "But under Ross, special circumstances — even threats posed by global pandemics — do not matter."

Counsel for the inmates of the Wallace Pack Unit told Law360 on Wednesday that "anyone reading this decision should be troubled" that the panel set aside the lower court's findings that TDCJ "has continued to fail to protect these most vulnerable inmates' constitutional rights."

"Over 20 inmates have already died and half the Pack Unit's population has been infected, and it is critical that the appeal on the merits move as quickly as possible," Brandon Duke of Winston & Strawn LLP said.

An attorney for the department did not immediately respond to a request for comment Wednesday.

The panel's ruling allows the prison officials not to abide by the lower court's ruling as their appeal continues to await a decision from the Fifth Circuit.

Tuesday's decision is the latest development in the class action first initiated by Wallace Pack Unit inmates Laddy Curtis Valentine, 69, and Richard Elvin King, 73, in March. The inmates launched the suit because of TDCJ's alleged failure to implement measures to prevent the spread of the coronavirus to the prison's more vulnerable inmates.

Valentine and the other inmates argued that the prison's grievance system is inaccessible since it's not designed to quickly respond to complaints, which they claimed is imperative as the virus spread throughout the prison.

Details of the opinion note that TDCJ failed to keep the prisoners safe from the virus since the unit lacked a contact tracing plan, staff failed to wear masks, social distancing was not enforced, there was a shortage of cleaning supplies and there were delays incurred for COVID-19 test results at the start of the pandemic.

According to court documents, the Pack Unit holds around 1,200 inmates, where more than 800 are 65 years or older.

TDCJ appealed a preliminary injunction instructing officials to create a regular cleaning plan in April, which the Fifth Circuit stayed pending an appeal. Then the elderly prisoners requested the Supreme Court to reinstate U.S. District Judge Keith P. Ellison's order in May, but the high court declined to do so. Justice Sonia Sotomayor and the late Justice Ruth Bader Ginsburg expressed their concern for the prisoners and recognized that "the stakes could not be higher" in the high court's order.

In June, a merits panel resolved the appeal by vacating the preliminary injunction and found that TDCJ "substantially complied with the measures ordered by the district court."

On remand, Judge Ellison certified a general class of Pack Unit inmates in June and later certified two subclasses of medically vulnerable and mobility impaired prisoners.

A bench trial commenced in mid-July, and in late September, Judge Ellison mandated that TDCJ permanently follow a specified protocol to protect its inmates from the novel virus. TDCJ appealed the permanent injunction the same day it was issued and filed an emergency motion to the Fifth Circuit asking for two forms of stay.

On Tuesday, the Fifth Circuit said that a decrease in the prison population's COVID-19 case count "weighs in the favor of stay" and reiterated that even in these unprecedented times, the panel is "bound" to the PLRA.

In its opinion, the Fifth Circuit emphasized its role in the case, chalking up authority to Congress rather than itself to assess how well the prison officials contained the virus. The panel added that the officials could have done more to control the spread.

The judges also found that though the prison's response was not perfect, it "did not amount to deliberate indifference under the Eighth Amendment."

"TDCJ's measures may have been unsuccessful," the opinion says. "But they were not unconstitutional."

U.S. Circuit Judges Don R. Willett, James C. Ho and Stuart Kyle Duncan sat on the panel for the Fifth Circuit.

Valentine and the other inmates are represented by Brandon W. Duke and John R. Keville of Winston & Strawn LLP and Jeffrey S. Edwards of Edwards Law.

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

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 Michelle Casady. Editing by Gemma Horowitz.

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