By Linh Nguyen
WASHINGTON D.C. – The U.S. Supreme Court Monday denied an appeal by inmates at a Texas geriatric prison to reinstate a court’s order that the prison use COVID-19 safety protocols.
In a dissenting opinion, Justice Sonia Sotomayor wrote that she would grant the application, and was joined by Justice Elena Kagan. The application to vacate the stay was presented to Justice Samuel Alito, who referred it to the Court where it was denied.
Two elderly incarcerated people at the Wallace Pack Unit (Pack Unit) geriatric prison in southeast Texas sued Robert Herrera, senior warden of the Pack Unit, Bryan Collier, executive director of the Texas Department of Criminal Justice (TDCJ) and the TDCJ, alleging that prison officials were violating the incarcerated peoples’ Eighth Amendment rights by failing to protect them adequately from COVID-19.
COVID-19 was first detected in the Pack Unit in April 2020, when an incarcerated person contracted the virus and died. Subsequently, over 500 incarcerated people have tested positive, which is over 40 percent of the incarcerated population – 19 more incarcerated people have died.
The Pack Unit has been described as a “tinderbox” for COVID-19 because of its dormitory-style facility, “making social distancing in the living quarters impossible,” and because a majority of the incarcerated people are at least 65 years of age, and many suffer from chronic health conditions and disabilities.
In September 2020, the District Court entered a permanent injunction requiring prison officials to implement basic safety procedures, including social distancing, mask wearing, proper cleaning and sanitation, testing, quarantining and contact tracing.
This was based upon detailed findings about the officials’ “consistent noncompliance with basic public health protocols” and failure “to take obvious precautionary public health measures upon which all medical professionals would agree.”
However, the Fifth Circuit Court stayed the injunction pending appeal, stating that the respondents were likely to prevail because the plaintiffs failed to seek relief through the prison’s internal 
grievance process, as required by the Prison Litigation Reform Act (PLRA), before filing suit.
The Fifth Circuit also found that the injunction would “irreparably harm prison officials by interfering with their ability to manage the Pack Unit, and that the public interest favored a stay.”
Justice Sotomayor wrote, “The Fifth Circuit demonstrably erred with respect to both the threshold issue of exhaustion under the PLRA and the merits of the inmates’ Eighth Amendment claims.”
In regards to the PLRA claim, the prison’s grievance process is lengthy as it begins with mandatory informal dispute resolution and is followed by up to 160 days of formal review. However, given the speed at which the contagion spread, the 160-day grievance process offered no realistic prospect of relief, Sotomayor found.
In 116 days, nearly 500 incarcerated contracted COVID-19, leading to 74 hospitalizations and 19 deaths. Both the plaintiff and another incarcerated person contracted the virus while their grievances remained pending.
“Contrary to the Fifth Circuit’s analysis, consideration of ‘the real-world workings of prison grievance systems’ is central to assessing whether a process makes administrative remedies available,’” Sotomayor said. “When this suit was filed, the Pack Unit’s process plainly did not. As the District Court put it, the PLRA ‘cannot be understood as prohibiting judicial relief while inmates are dying.’”
Next, Sotomayor said that the Fifth Circuit’s evaluation of the merits of the incarcerated people’s Eighth Amendment violation claims were demonstrably wrong.
She reasoned that under these circumstances, the dangers of COVID-19 to a vulnerable population were very much present as the District Court found that the prison officials were aware of the obvious risks. The court also concluded that the officials’ conduct, communications and omissions reflected deliberate indifference.
For example, respondent Bryan Collier received a text message on Apr. 26, 2020, informing him of the dangers of the prison’s policy of removing infected individuals from quarantine after 14 days without first confirming a negative test.
The text message read, “FYI One of our first positives is still testing positive and shedding virus at 21 days. The state[‘s] 14 day isolation with no retesting is questionable at best.”
Following that event, the individuals who had contracted COVID-19 testified that they were “neither medically examined by a doctor [n]or retested for COVID-19 before returning to negative dorms” following the 14-day period.
Sotomayor said that the Fifth Circuit’s analysis “makes clear that it substituted its own view of the facts for that of the District Court.”
For example, the Fifth Circuit chose to ignore the District Court’s finding that “staff non-compliance with regard to wearing PPE and social distancing were regular, daily features of life in the Pack Unit.”
Sotomayor argues that the Fifth Circuit’s decision creates a serious risk of irreparable harm to the incarcerated people, which far outweighs any risk to the respondents, noting that while the incarcerated population in the Pack Unit are contracting the virus and dying, the respondents only make a generalized claim that the injunction interferes with their ability to manage the Pack Unit.
“The people incarcerated in the Pack Unit are some of our most vulnerable citizens,” Sotomayor concludes.
She added that, “They face severe risks of serious illness and death from COVID-19, but are unable to take even the most basic precautions against the virus on their own. If the prison fails to enforce social distancing and mask wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll. Twenty lives have been lost already. I fear the stay will lead to further, needless suffering.”
Linh Nguyen is a third year Political Science student at UC Davis, also pursuing a minor in Professional Writing. She is an aspiring investigative journalist from San Jose, California, who also shares interests in literature and baking
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