U.S. District Court Eastern District of Arkansas (Central Division) CIVIL DOCKET FOR CASE #: 4:20-cv-00434-KGB

Frazier v. Graves et al Assigned to: Judge Kristine G. Baker Cause: 42:1983 Prisoner Civil Rights
Plaintiff Nicholas Frazier individually and on behalf of all others similarly situated TERMINATED: 12/28/2020

Date Filed: 04/21/2020 Jury Demand: None Nature of Suit: 555 Prison Condition: Civil Rights Jurisdiction: Federal Question Trial Date: 04/05/2021
represented by Ajmel Ahsen Quereshi NAACP Legal Defense and Educational Fund, Inc 700 14th Street NW Suite 600 Washington, DC 20005 202-216-5574 Email: aquereshi@naacpldf.org TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 646-581-3380 Email: akoonce@naacpldf.org TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt NAACP Legal Defense and Educational Fund, Inc 700 14th Street NW Suite 600 Washington, DC 20005

202-682-1300 Email: ckemmitt@naacpldf.org TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish Squire Patton Boggs (US) LLP 1211 Avenue of the Americas 26th Floor New York, NY 10036 212-872-9800 Fax: 212-872-9815 Email: corrine.irish@squirepb.com TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park Disability Rights Arkansas Inc. 400 West Capitol Avenue Suite 1200 Little Rock, AR 72201 501-296-1775 Email: cpark@disabilityrightsar.org TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III Squire Patton Boggs (US) LLP 1211 Avenue of the Americas 26th Floor New York, NY 10036 212-872-9800 Email: george.kendall@squirepb.com TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford Squire Patton Boggs (US) LLP

1211 Avenue of the Americas 26th Floor New York, NY 10036 646-557-5177 Email: jenay.nurse@squirepb.com TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Fax: 212-226-7592 Email: jlee@naacpldf.org TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez The Yale Law School 127 Wall Street New Haven, CT 06511 203-432-1779 Email: laura.fernandez@yale.edu TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Fax: 212-226-7592 Email: nmerle@naacpldf.org TERMINATED: 12/28/2020 LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 646-831-1774 Email: oshukur@naacpldf.org TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Email: pokonta@naacpldf.org TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Fax: 212-225-2792 Email: sspital@naacpldf.org TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 West Second Street

Plaintiff
John Doe No. 2, individually and on behalf of all others similarly situated

Suite 2 Little Rock, AR 72201 918-766-4028 Email: sarah@acluarkansas.org TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Cedric Sims individually and on behalf of all others similarly situated TERMINATED: 12/28/2020

Victor Genecin Squire Patton Boggs (US) LLP 1211 Avenue of the Americas 26th Floor New York, NY 10036 212-872-9800 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols Attorney at Law 3205 Summit Court Little Rock, AR 72227 870-403-4901 Email: thomasnicholslaw@gmail.com ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address)

Plaintiff
Darryl Hussey individually and on behalf of all others similarly situated

TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta

Plaintiff
Price Brown ADC #090004 individually and on behalf of all others similarly situated

(See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY

Plaintiff
Wesley Bray individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Aaron Elrod ADC #160306 individually and on behalf of all others similarly situated TERMINATED: 10/16/2020

Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020

Plaintiff
Torris Richardson individually and on behalf of all others similarly situated

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address)

Plaintiff
Joseph Head ADC #553097 individually and on behalf of all others similarly situated

TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE

Plaintiff
Lee Owens individually and on behalf of all others similarly situated

ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address)

Plaintiff

TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED

Jimmy Little individually and on behalf of all others similarly situated

represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols

Plaintiff
Charles Czarnetzki individually and on behalf of all others similarly situated TERMINATED: 10/16/2020

(See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford

(See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Roderick Wesley individually and on behalf of all others similarly situated

Sarah Everett (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Consol Plaintiff
Alvin Hampton individually and on behalf of all others similarly situated TERMINATED: 10/16/2020

Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020

Consol Plaintiff
Marvin Kent individually and on behalf of all others similarly situated

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) TERMINATED: 10/16/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital

Consol Plaintiff
Michael Kouri individually and on behalf of all others similarly situated

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY

Consol Plaintiff
Harold Otwell "Scott," individually and on behalf of all others similarly situated TERMINATED: 12/28/2020

PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Corrine A. Irish (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY

Consol Plaintiff
Trinidad Serrato individually and on behalf of all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) TERMINATED: 12/28/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur

Consol Plaintiff
Robert Stiggers individually and on behalf of all others similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY

Consol Plaintiff
Victor Williams individually and on behalf of all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Consol Plaintiff
Jonathan Neeley individually and on behalf of all others similarly situated

Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address)

Consol Plaintiff

TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alfred Nickson individually and on behalf of all others similarly situated

represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Micole Koonce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY

Consol Plaintiff
John Doe individually and on behalf of all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ajmel Ahsen Quereshi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Eberhart Kemmitt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Corrine A. Irish (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristy L. Park (See above for address) TERMINATED: 02/04/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George H. Kendall , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenay Aretha Nurse-Guilford (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Laura Fernandez (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C. Merle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omavi Shukur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Okonta (See above for address) TERMINATED: 09/10/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Everett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Genecin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Solomon Graves Secretary of Arkansas Department of Corrections, in his official capacity (Originally named as Wendy Kelley)

represented by Asher Steinberg Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-1051 Email: asher.steinberg@arkansasag.gov ATTORNEY TO BE NOTICED
Jennifer L. Merritt Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-1319 Fax: 501-682-2591 Email: jennifer.merritt@arkansasag.gov ATTORNEY TO BE NOTICED
Jerry D. Garner Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-1723 Fax: 501-682-2591 Email: jerry.garner@arkansasag.gov ATTORNEY TO BE NOTICED
Nicholas J. Bronni Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-6302 Email: nicholas.bronni@arkansasag.gov ATTORNEY TO BE NOTICED
Vincent Moore Wagner

Defendant Dexter Payne Division of Correction Director, Arkansas Department of Corrections, in his official capacity
Defendant Jerry Bradshaw Division of Community Correction Director, Arkansas Department of Corrections, in his official capacity TERMINATED: 12/28/2020

Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201-2610 501-682-8090 Email: vincent.wagner@arkansasag.gov ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) TERMINATED: 12/28/2020 ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) TERMINATED: 12/28/2020 ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) TERMINATED: 12/28/2020 ATTORNEY TO BE NOTICED

Defendant Asa Hutchinson Governor of Arkansas, in his official capacity TERMINATED: 10/16/2020
Defendant Benny Magness Chairman of Arkansas Board of Corrections, in his official capacity

Nicholas J. Bronni (See above for address) TERMINATED: 12/28/2020 ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) TERMINATED: 12/28/2020 ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) TERMINATED: 10/16/2020 ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) TERMINATED: 10/16/2020 ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) TERMINATED: 10/16/2020 ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) TERMINATED: 10/16/2020 ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) TERMINATED: 10/16/2020 ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED

Defendant Bobby Glover Vice Chairman of Arkansas Board of Corrections, in his official capacity
Defendant Buddy Chadick Secretary of Arkansas Board of Corrections, in his official capacity TERMINATED: 05/04/2020

Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) TERMINATED: 05/04/2020 ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) TERMINATED: 05/04/2020 ATTORNEY TO BE NOTICED

Defendant Tyronne Broomfield Member of Arkansas Board of Corrections, in his official capacity
Defendant John Felts Member of Arkansas Board of Corrections, in his official capacity
Defendant William Byers "Dubs," Member of Arkansas Board

represented by Asher Steinberg (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address)

of Corrections, in his official capacity
Defendant Whitney Gass Member of Arkansas Board of Corrections, in her official capacity
Defendant Lee Watson Secretary of Arkansas Board of Corrections, in his official capacity

ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Asher Steinberg (See above for address) ATTORNEY TO BE NOTICED
Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
Nicholas J. Bronni (See above for address) ATTORNEY TO BE NOTICED
Vincent Moore Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer L. Merritt (See above for address) ATTORNEY TO BE NOTICED
Jerry D. Garner

Defendant Jose Romero Secretary of Arkansas Department of Health, in his official capacity (originally named as Nathaniel Smith)
Defendant Wellpath LLC

(See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer L. Merritt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry D. Garner (See above for address) ATTORNEY TO BE NOTICED
represented by Kirkman T. Dougherty Hardin, Jesson & Terry, PLC Post Office Box 10127 Fort Smith, AR 72903-0127 479-452-2200 Email: kdougherty@hardinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Wahl Hatfield Hardin, Jesson & Terry, PLC 1401 West Capitol Avenue Suite 190 Little Rock, AR 72201 501-850-0015 Fax: 501-372-3617 Email: jhatfield@hardinlaw.com ATTORNEY TO BE NOTICED
Kynda Almefty Hardin, Jesson & Terry, PLC 1401 West Capitol Avenue Suite 190 Little Rock, AR 72201 501-850-0015 Fax: 501-372-3617 Email: kalmefty@hardinlaw.com ATTORNEY TO BE NOTICED

Date Filed # Docket Text

04/21/2020 04/21/2020 04/21/2020
04/22/2020 04/22/2020 04/22/2020 04/22/2020 04/22/2020 04/23/2020

1 CLASS ACTION COMPLAINT and Petition for Writ of Habeas Corpus against All Defendants, filed by Nicholas Frazier. Fee of $400 paid. Receipt Number LIT076913. Summons issued. (Attachments: # 1 Civil Cover Sheet)(kdr) (Entered: 04/21/2020)
2 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction by All Plaintiffs (Shukur, Omavi) (Entered: 04/21/2020)
3 MEMORANDUM re 2 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by Nicholas Frazier. (Attachments: # 1 Exhibit Ex. 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9, # 10 Exhibit Ex. 10, # 11 Exhibit Ex. 11, # 12 Exhibit Ex. 12)(Shukur, Omavi) (Entered: 04/21/2020)
4 WAIVER OF SERVICE Returned Executed as to Asa Hutchinson by Nicholas Frazier. (Shukur, Omavi) (Entered: 04/22/2020)
5 ORDER consolidating this case and the other inmates' pending cases with and into Nicholas Frazier v. Wendy Kelley, et al., Case No. 4:20cv-00434-KGB-JJV; and directing all parties to make filings only in the Frazier case going forward until further ordered by the Court. Signed by Judge Kristine G. Baker on 4/22/2020. (jbh) (Entered: 04/22/2020)
6 ORDER: To the extent pretrial matters in these actions are referred to United States Magistrate Judge Joe J. Volpe, this Court withdraws the reference. Signed by Judge Kristine G. Baker on 4/22/2020. (jbh) (Entered: 04/22/2020)
7 WAIVER OF SERVICE Returned Executed as to Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Wendy Kelley, Benny Magness, Dexter Payne by Nicholas Frazier. (Shukur, Omavi) (Entered: 04/22/2020)
8 NOTICE of Voluntary Dismissal by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Shukur, Omavi) (Entered: 04/22/2020)
9 MOTION for Leave to Appear pro hac vice by Samuel Spital. Fee $100 receipt number AAREDC-3689219. Filed by All Plaintiffs (Attachments: # 1 Declaration of Samuel Spital)(Shukur, Omavi) (Entered: 04/23/2020)

04/23/2020 04/23/2020 04/23/2020
04/23/2020 04/23/2020 04/23/2020 04/23/2020 04/24/2020

10 MOTION for Leave to Appear pro hac vice by Ajmel Quereshi. Fee $100 receipt number AAREDC-3689250. Filed by All Plaintiffs (Attachments: # 1 Declaration of Ajmel Quereshi)(Shukur, Omavi) (Entered: 04/23/2020)
11 MOTION for Leave to Appear pro hac vice by Natasha Merle. Fee $100 receipt number BAREDC-3689313. Filed by All Plaintiffs (Attachments: # 1 Declaration of Natasha Merle)(Shukur, Omavi) (Entered: 04/23/2020)
12 ORDER directing the parties to confer regarding a proposed briefing and hearing schedule before 12:00 p.m., 04/24/2020; and directing counsel for the parties to advise the Court of any agreement reached by 12:00 p.m., 04/24/2020. If the parties are unable to reach agreement, the Court directs counsel for the parties to provide to the Court availability for a hearing to address matters raised in the pending emergency motion on 04/29, 04/30, or 05/01/2020, or the week of 05/04/2020; to advise the Court whether the party wishes to present evidence at such a hearing or only argument; and to propose a briefing schedule to address matters raised in the pending emergency motion. Signed by Judge Kristine G. Baker on 04/23/2020. (ajt) (Docket text modified on 4/24/2020 to correct a typographical error (jak) (Entered: 04/23/2020)
13 NOTICE of Appearance by Jerry D. Garner on behalf of Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne (Garner, Jerry) (Entered: 04/23/2020)
14 MOTION for Leave to Appear pro hac vice by Jin Hee Lee. Fee $100 receipt number AAREDC-3689686. Filed by All Plaintiffs (Attachments: # 1 Declaration of Jin Hee Lee)(Shukur, Omavi) (Entered: 04/23/2020)
15 NOTICE of Appearance by Jennifer L. Merritt on behalf of Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne (Merritt, Jennifer) (Entered: 04/23/2020)
16 NOTICE of Appearance by Asher Steinberg on behalf of All Defendants (Steinberg, Asher) (Entered: 04/23/2020)
17 ORDER granting 9 , 10 , 11 , 14 motions for admission pro hac vice of attorneys Samuel Spital, Ajmel Quereshi, Natasha Merle, and Jin Hee Lee filed by attorney Omavi Shukur. Mr. Spital, Mr. Quereshi, Ms. Merle, and Ms. Lee shall appear as counsel for plaintiffs in this matter and in all matters consolidated with this matter by order of the Court.

04/24/2020 04/24/2020 04/24/2020
04/24/2020

Signed by Judge Kristine G. Baker on 4/24/2020. (jbh) (Entered: 04/24/2020)
18 STATUS REPORT Joint Status Report by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne. (Merritt, Jennifer) (Entered: 04/24/2020)
19 MOTION for Leave to Appear pro hac vice by Christopher Kemmitt. Fee $100 receipt number AAREDC-3690587. Filed by All Plaintiffs (Attachments: # 1 Declaration of Christopher Kemmitt)(Shukur, Omavi) (Entered: 04/24/2020)
20 ORDER AND NOTICE OF HEARING: The Court will conduct a hearing on 2 plaintiffs' pending emergency motion for temporary restraining order and preliminary injunction on Thursday, 5/7/2020, beginning at 9:00 a.m. in Little Rock Courtroom 4C. Defendants' response to plaintiffs' pending emergency motion for temporary restraining order and preliminary injunction - if it chooses to file one is due by 5:00 p.m. on Thursday, 4/30/2020. Plaintiffs' reply brief in support of their motion for temporary restraining order and/or preliminary injunction - if it chooses to file one - is due by 12:00 noon on Monday, 5/4/2020. If the parties wish to file supplemental briefings with argument only following the hearing, such simultaneous briefings are due by 5:00 p.m. on Friday, 5/8/2020. If any party objects to the Court's consideration of exhibits already in the record in this matter, such objections must be made in writing and filed by 12:00 noon on Tuesday, 5/5/2020, and any responses to such objections must be made in writing and filed by 12:00 noon on Wednesday, 5/6/2020. Prior to the hearing, the Court directs the parties to exchange copies of exhibits they intend to present, or a list of exhibits if copies have already been provided, and written lists of witnesses they will or may call at the hearing, if permitted to call witnesses by the Court, by 12:00 noon on Tuesday, 5/5/2020. If the parties wish to present at the hearing rebuttal exhibits or witnesses, if permitted to call witnesses by the Court, the parties shall submit such rebuttal exhibits and written lists of such rebuttal witnesses by 12:00 noon on Wednesday, 5/6/2020. Signed by Judge Kristine G. Baker on 4/24/2020. (jbh) (Entered: 04/24/2020)
21 ORDER granting 19 motion for admission pro hac vice of attorney Christopher Kemmitt. Mr. Kemmitt shall appear as counsel for plaintiffs in this matter and in all matters consolidated with this matter by order of the Court. Signed by Judge Kristine G. Baker on 4/24/2020. (jbh) (Entered: 04/24/2020)

04/27/2020 04/27/2020 04/28/2020
04/28/2020 04/28/2020
04/29/2020 04/29/2020

22 Supplemental MOTION for Temporary Restraining Order by All Plaintiffs (Attachments: # 1 Document Proposed Order)(Shukur, Omavi) (Entered: 04/27/2020)
23 BRIEF IN SUPPORT re 22 Motion for TRO filed by All Plaintiffs. (Shukur, Omavi) (Entered: 04/27/2020)
24 NOTICE OF HEARING: The Court will conduct a hearing on the 22 supplemental motion for a temporary restraining on Tuesday, 4/28/2020, at 2:00 p.m. in Little Rock Courtroom 4C. The parties and counsel will participate by video or audio teleconference, with participation information to be provided by the Court to individual participants. All other persons, including members of the public, may attend the hearing at the Courthouse, where appropriate COVID-19 precautions and social distancing requirements will be strictly enforced. Signed by Judge Kristine G. Baker on 4/28/2020. (jbh) (Entered: 04/28/2020)
25 NOTICE of Appearance by Nicholas Jacob Bronni on behalf of All Defendants (Bronni, Nicholas) (Entered: 04/28/2020)
26 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: MOTION HEARING held on 4/28/2020 re 22 Supplemental MOTION for Temporary Restraining Order filed by Nicholas Frazier. Court convened via telephone; After arguments from counsel, the Court took the matter under advisement. (Present for plaintiffs: Jin Hee Lee, Omavi Shukur, Corrine Irish, Cristy Park, George Kendall, Laura Fernandez and Sarah Everett; Present for Defendants: Asher Steinberg, Jennifer Merritt, Jerry Garner, and Nicholas Bronni) (Court Reporter Elaine Hinson) (tmw) (Entered: 04/28/2020)
27 MOTION for Leave to Appear pro hac vice by Laura Fernandez. Fee $100 receipt number AAREDC-3693016. Filed by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Attachments: # 1 Declaration of Laura Fernandez)(Shukur, Omavi) (Entered: 04/29/2020)
28 MOTION for Leave to Appear pro hac vice by Patricia Okonta. Fee $100 receipt number AAREDC-3693027. Filed by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Attachments: # 1 Declaration of Patricia Okonta)(Shukur, Omavi) (Entered: 04/29/2020)

04/29/2020 04/29/2020 04/29/2020 04/29/2020 04/29/2020
04/29/2020

29 MOTION for Leave to Appear pro hac vice by George H. Kendall. Fee $100 receipt number AAREDC-3693051. Filed by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Attachments: # 1 Declaration of George H. Kendall)(Shukur, Omavi) (Entered: 04/29/2020)
30 MOTION for Leave to Appear pro hac vice by Jenay Nurse. Fee $100 receipt number AAREDC-3693061. Filed by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Attachments: # 1 Declaration of Jenay Nurse)(Shukur, Omavi) (Entered: 04/29/2020)
31 MOTION for Leave to Appear pro hac vice by Corinne Irish. Fee $100 receipt number AAREDC-3693066. Filed by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Attachments: # 1 Declaration of Corinne Irish)(Shukur, Omavi) (Entered: 04/29/2020)
32 MOTION to Amend/Correct 31 MOTION for Leave to Appear pro hac vice by Corinne Irish. Fee $100 receipt number AAREDC-3693066. Filed Corrine Irish Motion for Leave to Appear pro hac vice by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Attachments: # 1 Declaration of Corrine Irish)(Shukur, Omavi) (Entered: 04/29/2020)
33 NOTICE OF HEARING: The Court will conduct a hearing to address the nature of the 5/7/2020, hearing on Friday, 5/1/2020, at 2:00 p.m. in Little Rock Courtroom 4C. The parties and counsel will participate by video or audio teleconference, with participation information to be provided by the Court to individual participants. All other persons, including members of the public, may attend the hearing at the Courthouse, where appropriate COVID-19 precautions and social distancing requirements will be strictly enforced. Signed by Judge Kristine G. Baker on 4/29/2020. (jbh) (Entered: 04/29/2020)
34 ORDER granting 27 , 28 , 29 , 30 , 31 , 32 motions for admission pro hac vice of attorneys Laura Fernandez, Patricia Okonta, George H. Kendall, Jenay Nurse, and Corrine Irish. Ms. Fernandez, Ms. Okonta, Mr. Kendall, Ms. Nurse, and Ms. Irish shall appear as counsel for plaintiffs in this matter and in all matters consolidated with this matter by order of the Court. Signed by Judge Kristine G. Baker on 4/29/2020. (jbh) (Entered: 04/29/2020)

04/30/2020 04/30/2020
05/01/2020 05/01/2020

35 NOTICE of Appearance by Vincent Moore Wagner on behalf of Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne (Wagner, Vincent) (Entered: 04/30/2020)
36 RESPONSE in Opposition re 2 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by All Defendants. (Attachments: # 1 Exhibit Declaration of Dexter Payne, # 2 Exhibit March 11, 2020 Memorandum from Wendy Kelley, # 3 Exhibit ADC March 16, 2020 Press Release, # 4 Exhibit March 19, 2020 Visitation Poster, # 5 Exhibit March 19, 2020 Furlough Memorandum, # 6 Exhibit March 20, 2020 Poster, # 7 Exhibit Public Health Notice, # 8 Exhibit March 27, 2020 Memorandum from Wellpath, # 9 Exhibit CDC Guidelines for Correctional Facilities, # 10 Exhibit March 27, 2020 Guidance of Arkansas Department of Health, # 11 Exhibit Declaration of Kelley Garner, # 12 Exhibit "Protect Yourself" Poster, # 13 Exhibit "Clean Hands" Poster, # 14 Exhibit "Cover Your Cough" Poster, # 15 Exhibit "Wash Hands" Poster (in English), # 16 Exhibit "Wash Hands" Poster (in Spanish), # 17 Exhibit Wellpath Informational Posters, # 18 Exhibit CDC Cloth Mask Recommendation, # 19 Exhibit April 13, 2020 Guidance of Arkansas Department of Health, # 20 Exhibit April 15, 2020 Guidance of Arkansas Department of Health, # 21 Exhibit Frazier Sentencing Orders, # 22 Exhibit Frazier Disciplinary Summary and Reports, # 23 Exhibit Declaration of Dona Gordon, # 24 Exhibit Hampton Sentencing Order, # 25 Exhibit Hampton Criminal Information and Affidavit, # 26 Exhibit Kent Sentencing Order, # 27 Exhibit Kent Disciplinary Summary and Reports, # 28 Exhibit Kent ADC Page, # 29 Exhibit Kouri Disciplinary Summary, # 30 Exhibit Neeley Sentencing Order, # 31 Exhibit Nickson Sentencing Order, # 32 Exhibit Nickson Disciplinary Summary and Reports, # 33 Exhibit Otwell Sentencing Orders, # 34 Exhibit Serrato Sentencing Orders, # 35 Exhibit Serrato Disciplinary Summary, # 36 Exhibit Stiggers Disciplinary Summary and Reports, # 37 Exhibit Declaration of Terri Grigsby, # 38 Exhibit Declaration of Jacqueline Michelle Buterbaugh, # 39 Exhibit Declaration of Gloria Thompson, # 40 Exhibit Declaration of Jason Gray, # 41 Exhibit Declaration of April Gibson, # 42 Exhibit Sample ADC COVID-19 Test Results Notifications)(Steinberg, Asher) (Entered: 04/30/2020)
37 MOTION for Discovery by All Plaintiffs (Shukur, Omavi) (Entered: 05/01/2020)
38 BRIEF IN SUPPORT re 37 Motion for Discovery filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Shukur, Omavi) (Additional attachment(s) added on 5/1/2020: # 5 Exhibit 1 - Correct (submitted 5/1/2020)) (jak).

05/01/2020 05/01/2020
05/03/2020 05/04/2020 05/04/2020 05/04/2020

(Additional attachment(s) added on 5/1/2020: # 6 Exhibit 2 - Correct (submitted 5/1/2020)) (jak). (Entered: 05/01/2020)
39 NOTICE OF DOCKET CORRECTION re 38 Brief in Support. CORRECTION: The correct exhibits 1 and 2 were added to docket entry 38 based on the attached correspondence. (jak) (Entered: 05/01/2020)
40 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: STATUS CONFERENCE held on 5/1/2020. The parties convened via telephone and discussed status and options to proceed. The Court took the matters under advisement and will issue a written ruling. (Present for plaintiffs: Jin Hee Lee, Christopher Kemmitt, Corrine Irish, Cristy Park, Laura Fernandez, Natasha Merlem Omavi Shukur, and Sarah Everett; Present for defendants: Jennifer Merritt, Asher Steinberg, Jerry Garner, and Nicholas Bronni) (Court Reporter Elaine Hinson) (tmw) (Entered: 05/01/2020)
41 RESPONSE in Opposition re 37 MOTION for Discovery filed by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne. (Attachments: # 1 Exhibit 1 - Wellpath Emails, # 2 Exhibit 2 - 4/6/20 FOIA Request, # 3 Exhibit 3 - 4/29/20 FOIA Request)(Merritt, Jennifer) (Entered: 05/03/2020)
42 TEMPORARY RESTRAINING ORDER provisionally denying 22 plaintiffs' supplemental motion for temporary restraining order; keeping under advisement 2 plaintiffs' emergency motion for temporary restraining order and preliminary injunction; and directing the Clerk to terminate Mr. Chadick as a defendant in this action. Signed by Judge Kristine G. Baker on 5/4/2020. (jbh) (Additional attachment(s) added on 5/5/2020: # 1 Court's Exhibit A) (thd). (Entered: 05/04/2020)
43 ORDER directing the parties to abide by the evidentiary procedures outlined in this Order for the 5/7/2020, hearing; and holding in abeyance 37 plaintiffs' motion for expedited discovery. Defendants need not respond to plaintiffs' requests for production at this time. Signed by Judge Kristine G. Baker on 5/4/2020. (jbh) (Entered: 05/04/2020)
44 REPLY MEMORANDUM in Support re 2 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by John Doe, Nicholas Frazier, Alvin Hampton, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor

05/04/2020 05/04/2020
05/04/2020

Williams. (Shukur, Omavi) (Docket text modified on 5/4/2020 to correct the linkage) (jak) (Entered: 05/04/2020)
45 Mail Returned Undeliverable as to George Kendall re 1 Class Action Complaint. (fjg) (Entered: 05/04/2020)
NOTICE OF DOCKET CORRECTION re 44 Reply. CORRECTION: The docket text was modified to correct the linkage to 2 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction. (jak) (Entered: 05/04/2020)
46 ADDENDUM filed by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams to 44 Reply to Response to Motion,. (Attachments: # 1 Exhibit Ex. 1 - Second Declaration of Nicholas Frazier, April 29, 2020, # 2 Exhibit Ex. 2 Second Declaration of Alvin Hampton, April 29, 2020, # 3 Exhibit Ex. 3 - Second Declaration of Marvin Kent, April 29, 2020, # 4 Exhibit Ex. 4 - Second Declaration of Michael Kouri April 26, 2020, # 5 Exhibit Ex. 5 - Second Declaration of Jonathan Neeley, April 29, 2020, # 6 Exhibit Ex. 6 - Second Declaration of Alfred Nickson, April 29, 2020, # 7 Exhibit Ex. 7 - Second Declaration of Harold Otwell, April 29, 2020, # 8 Exhibit Ex. 8 - Second Declaration of Trinidad Serrato, April 29, 2020, # 9 Exhibit Ex. 9 - Second Declaration Robert Stiggers, April 29, 2020, # 10 Exhibit Ex. 10 - Second Declaration Victor Williams, April 29, 2020, # 11 Exhibit Ex. 11 - Expert Declaration of Eldon Vail, May 3, 2020, # 12 Exhibit Ex. 12 - Second Expert Declaration of Dr. Marc Stern, May 3, 2020, # 13 Exhibit Ex. 13 Declaration of Katina Anderson May 3, 2020, # 14 Exhibit Ex. 14 Declaration of Audrey Brown May 3, 2020, # 15 Exhibit Ex. 15 Declaration of Carrie Coleman, May 3, 2020 (pdf), # 16 Exhibit Ex. 16 - Declaration of Nicole Cleveland, May 3, 2020, # 17 Exhibit Ex. 17 Declaration of Susie Anita Daniels, May 3, 2020, # 18 Exhibit Ex. 18 Declaration of Joshua Gillispie May 3, 2020, # 19 Exhibit Ex. 19 April 21 Letter from Joshua Gillispie to Warden and Medical Services, # 20 Exhibit Ex. 20 - April 22 Letter from Joshua Gillispie to Warden and Medical Services, # 21 Exhibit Ex. 21 - Declaration of Randi Harper May 3, 2020, # 22 Exhibit Ex. 22 - Declaration of Carlton Hayes May 2, 2020, # 23 Exhibit Ex. 23 - Declaration of William Holley May 3, 2020, # 24 Exhibit Ex. 24 - Declaration of Kenna Lewis May 3, 2020, # 25 Exhibit Ex. 25 - Declaration of Janice Nicholson May 3, 2020, # 26 Exhibit Ex. 26 - Declaration of Cecilia Sagers Ponder, May 3, 2020, # 27 Exhibit Ex. 27 - Declaration of Juanita Singleton, May 3, 2020, # 28 Exhibit Ex. 28 - Declaration of Roxcena Smith May 1, 2020, # 29 Exhibit Ex. 29 - Declaration of Valencia White May 1, 2020, # 30 Exhibit Ex. 30 - Declaration of Tonya

05/05/2020 05/05/2020 05/05/2020

Williams May 3, 2020, # 31 Exhibit Ex. 31 - Department of Correction Secretarys Board Report March 2020, # 32 Exhibit Ex. 32 - April 24, 2020 ADH Letter to ADC Employee regarding positive test results and work restrictions, # 33 Exhibit Ex. 33 - Nicholas Frazier Affidavits and Grievances, April 2020, # 34 Exhibit Ex. 34 - Alvin Hampton Grievances, April 2020, # 35 Exhibit Ex. 35 - Michael Kouri Grievances, April 2020, # 36 Exhibit Ex. 36 - Jonathan Neeley Grievances, April 2020, # 37 Exhibit Ex. 37 - Harold Otwell Grievances, April 2020, # 38 Exhibit Ex. 38 - Trinidad Serrato Grievances, April 2020, # 39 Exhibit Ex. 39 - Victor Williams Grievances, April 2020, # 40 Exhibit Ex. 40 - Search Results for Citrus Breeze on EPA List of Disinfectants for Use Against SARS-CoV-2, # 41 Exhibit Ex. 41 - ADC Total of Medical Grievances Jan 1 - April 1, 2020, # 42 Exhibit Ex. 42 - ADC COVID Response, # 43 Exhibit Ex. 43 - Eldon Vail Curriculum Vitae, # 44 Exhibit Ex. 44 - Image ADC Graduation Ceremony 3.27.2020, # 45 Exhibit Ex. 45 - Image Cummins Unit Facebook Post, # 46 Exhibit Ex. 46 - Food Tray (Cummins Unit), # 47 Exhibit Ex. 47 - ADC Sergeant Facebook Post_Redacted, # 48 Exhibit Ex. 48 - Dr. Naveen Patil (ADH) West Memphis Email to Austin Porter (ADH) 4.13.2020, # 49 Exhibit Ex. 49 - Dr. Naveen Patil (ADH) Email to Nate Smith (ADH) 4.12.2020, # 50 Exhibit Ex. 50 - Dr. Naveen Patil (ADH) Hand Sanitizer Email to Nate Smith (ADH) 4.10.2020, # 51 Exhibit Ex. 51 - First Declarations (Plaintiff Signed), April 26, 2020 April 27, 2020, # 52 Exhibit Ex. 52 Image - Food Tray 2, # 53 Exhibit Ex. 53 - Image - Food Tray 5, # 54 Exhibit Ex. 54 - Image - Food Tray 6)(Shukur, Omavi) (Entered: 05/04/2020)
47 OBJECTIONS by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Irish, Corrine) (Entered: 05/05/2020)
48 Exhibit List for Preliminary Hearing by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Shukur, Omavi) (Entered: 05/05/2020)
49 Exhibit List with Exhibits 43-80 by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne. (Attachments: # 1 Document 43.April 13, 2020 Payne Email re: Staff Testing for COVID-19;, # 2 Exhibit 44.April 15, 2020 Kelley Email re: N95 Masks & Sanitizer;, # 3 Exhibit 45.April 16, 2020 Emails re: Clear

05/05/2020

Barriers;, # 4 Exhibit 46.April 20, 2020 Bradshaw-Payne Emails re: Steps to Enforce Social Distancing;, # 5 Exhibit 47.April 30, 2020 Payne Email re: Masks During Transports;, # 6 Exhibit 48.April 4, 2020 Email to All DOC Staff re: COVID Stats;, # 7 Exhibit 49.March 10, 2020 Email with Arkansas Department of Health & ADC Joint Effort;, # 8 Exhibit 50.March 10, 2020 Email re: Obtaining Masks;, # 9 Exhibit 51.March 16, 2020 Kelley Email re: Screening and Visitation;, # 10 Exhibit 52.March 30, 2020 Email re: Correctional Officer Testing;, # 11 Exhibit 53.March 27, 2020 Email re: DOC & ADH Guidance Revisions;, # 12 Exhibit 54.March 22, 2020 Email re: Screening and Thermometers;, # 13 Exhibit 55.Plans for New Commitment Intake Process;, # 14 Exhibit 56.Second Declaration of Dexter Payne;, # 15 Exhibit 57.March 23, 2020 Payne Email re: NIC CV Information Page;, # 16 Exhibit 58.March 30, 3030 BradshawPayne Emails re: How to Protect Self & Coworkers;, # 17 Exhibit 59.April 2, 2020 Payne Email re: COVID-19;, # 18 Exhibit 60.April 8, 2020 Payne Email re: Inmate Visitation;, # 19 Exhibit 61.April 14, 2020 FEMA Email;, # 20 Exhibit 62.April 15, 2020 Kelley Email re: COVID Positive Guidance;, # 21 Exhibit 63.April 16, 2020 Email re: Return to Work Guidance;, # 22 Exhibit 64.April 16, 2020 Payne Email re: Employees Returning to Work Fulltime;, # 23 Exhibit 65.April 17, 2020 ORCU Memo re: Face Masks;, # 24 Exhibit 66.April 20, 2020 Bradshaw-Payne Email re: Use of Cloth Masks;, # 25 Exhibit 67.April 21, 2020 Payne Email re: Use of Cloth Face Masks;, # 26 Exhibit 68.April 23, 2020 Payne Email re: COVID Webinar;, # 27 Exhibit 69.April 27, 2020 ORCU Memo;, # 28 Exhibit 70.April 27, 2020 Payne Email re: How to Protect Yourself and Others;, # 29 Exhibit 71.May 1, 2020 Email re: PPE Guide;, # 30 Exhibit 72.April 12, 2020 Payne Email re: Additional Cleaning of Entrance Bldgs.;, # 31 Exhibit 73.Homeland Security Return-to-Work Guidance;, # 32 Exhibit 74.ORCU Photographs;, # 33 Exhibit 75.Citrus Breeze III Information Page;, # 34 Exhibit 76.Cummins Unit Chemical Inventory Log;, # 35 Exhibit 77.Industry Stock Transfer Forms for Cloth Masks;, # 36 Exhibit 78.ORCU Plaintiffs Mask Receipts;, # 37 Exhibit 79.ORCU Staff Mask Issuance Log;, # 38 Exhibit 80.Sales Orders for Masks & Respirators;)(Garner, Jerry) (Entered: 05/05/2020)
50 Exhibit List with Exhibits 81-104 by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne. (Attachments: # 1 Exhibit 81.Varner Cleaning Summary;, # 2 Exhibit 82.May 4, 2020 Bradshaw Email;, # 3 Exhibit 83.April 13, 2020 ORCU Memo re: Sanitation Details;, # 4 Exhibit 84.April 8, 2020 Kelley Email re: COVID-19 Update;, # 5 Exhibit 85.April 14, 2020 Email re: Distancing & Meals at Varner Unit;, # 6 Exhibit 86.April 15, 2020 Kelley Email re: Programs;, # 7 Exhibit 87.April 16, 2020 Email re:

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Distancing at Varner Unit;, # 8 Exhibit 88.April 24, 2020 Cummins Restrictive Housing Clean Log;, # 9 Exhibit 89.April 29, 2020 Memo from ORCU re: Recreation & Sanitation;, # 10 Exhibit 90.April 30, 2020 Kelley Email re: Distancing in Barracks;, # 11 Exhibit 91.March 11, 2020 Payne Email re: Limiting Staff Travel;, # 12 Exhibit 92.March 21, 2020 Payne Email re: Sanitizing Transportation Vehicles;, # 13 Exhibit 93.March 23, 2020 Email re: Social Distancing at Varner;, # 14 Exhibit 94.March 24, 2020 Payne Email re: Hand Sanitizer & Soap for All Units;, # 15 Exhibit 95.March 26, 2020 Email re: COVID Isolation Procedures at Varner SuperMax;, # 16 Exhibit 96.May 3, 2020 Payne Email re: Social Distancing in Barracks with Attachment;, # 17 Exhibit 97.Varner Unit April Citrus Breeze Chemical Inventory Log;, # 18 Exhibit 98.Varner Unit April Formula 10.6 Chemical Inventory Log;, # 19 Exhibit 99.Varner Unit April Razor Blue Chemical Inventory Log;, # 20 Exhibit 100.Varner Unit April Sparkle Plus Chemical Inventory Log;, # 21 Exhibit 101.Varner Unit March Citrus Breeze Chemical Inventory Log;, # 22 Exhibit 102.Varner Unit March Formula 10.6 Chemical Inventory Log;, # 23 Exhibit 103.Varner Unit March Razor Blue Chemical Inventory Log; and, # 24 Exhibit 104.Varner Unit March Sparkle Plus Chemical Inventory Log.)(Garner, Jerry) (Entered: 05/05/2020)
51 AMENDED DOCUMENT by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams. Amendment to 48 Exhibit List, (Attachments: # 1 Exhibit 72, # 2 Exhibit 73, # 3 Exhibit 74, # 4 Exhibit 75, # 5 Exhibit 76, # 6 Exhibit 77, # 7 Exhibit 78, # 8 Exhibit 79, # 9 Exhibit 80, # 10 Exhibit 81, # 11 Exhibit 82)(Shukur, Omavi) (Entered: 05/05/2020)
52 Witness List by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams(Shukur, Omavi) (Entered: 05/05/2020)
53 NOTICE by All Defendants Defendants' Objections to Plaintiffs' Exhibits (Merritt, Jennifer) (Entered: 05/05/2020)
54 NOTICE by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers (Attachments: # 1 Ex. 1- 2020-05-04023-Order)(Shukur, Omavi) (Entered: 05/05/2020)
55 NOTICE OF DOCKET CORRECTION re: 42 Temporary Restraining Order. CORRECTION: The Court's Exhibit A was omitted from the

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original document. Exhibit A was added as an attachment to docket entry 42 and is attached hereto for service on the parties. (thd) (Entered: 05/05/2020)
56 AMENDED DOCUMENT by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams. Amendment to 48 Exhibit List, (Shukur, Omavi) (Entered: 05/05/2020)
57 Exhibit List Rebuttal by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams. (Attachments: # 1 Exhibit Ex. 83 - Sanitation Issuance Logs, Barbara Ester Unit, # 2 Exhibit Ex. 84 - Pine Bluff Unit, Beach Issuance Daily Logs, # 3 Exhibit Ex. 85 - Declaration of Harold Scott Otwell, May 5, 2020, # 4 Exhibit Ex. 86 - Declaration of Jonathan Neeley, May 5, 2020, # 5 Exhibit Ex. 87 - Email from Dexter Payne, April 24, 2020, Employees that Asymptomatic, # 6 Exhibit Ex. 88 - Email from John Craig, April 30, 2020, Inmate/Resident Social Distancing, # 7 Exhibit Ex. 89 - Memo from Doris Greer, COVID-19 Updated Precautions, May 4, 2020, # 8 Exhibit Ex. 90 - Email from Dexter Payne, April 21, 2020, Masks During Transports, # 9 Exhibit Ex. 91 - ADC FY19 Statistical Information Trends Website, April 10, 2020, # 10 Exhibit Ex. 92 - Center for Disease Control, Cleaning and Disinfection for Households, # 11 Exhibit Ex. 93 - Email from James Gibson, April 30, 2020, Inmate/Resident Social Distancing, # 12 Exhibit Ex. 94 - Email from Jared Byers, April 27, 2020, Masks, # 13 Exhibit Ex. 95 - Article from Arkansas Democrat Gazette, May 6, 2020, Hutchinson Relaxes Curbs on Recreational Travelers)(Quereshi, Ajmel) (Entered: 05/06/2020)
58 Witness List by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne(Merritt, Jennifer) (Entered: 05/06/2020)
59 RESPONSE re 47 Objection by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne (Merritt, Jennifer) (Entered: 05/06/2020)
60 AMENDED DOCUMENT by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams. Amendment to 57 Exhibit List,,,,, Amended

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05/08/2020
05/08/2020 05/08/2020 05/14/2020

Rebuttal (Attachments: # 1 Exhibit Ex. 96. - Email to Wendy Kelley, March 23, 2020, # 2 Exhibit Ex. 97 - Second Declaration of Michael Kouri, May 6, 2020)(Quereshi, Ajmel) (Entered: 05/06/2020)
61 RESPONSE re 53 Notice (Other) Plaintiffs' Responses to Defendants Objections to Plaintiffs' Filed Exhibits by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Irish, Corrine) (Entered: 05/06/2020)
62 MINUTES for proceedings held before Judge Kristine G. Baker: MOTION HEARING held on 5/7/2020 re 2 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by Nicholas Frazier et al. Court convened via telephone; After witness testimony and arguments from counsel, the Court took the matter under advisement. The Court will issue a written ruling. (Present for Plaintiffs: Jin Hee Lee, Omavi Shukur, Christopher Kemmitt, George Kendall, Natasha Merle, Ajmel Quereshi, Corrine Irish, and Patricia Okonta; Present for defendants: Asher Steinberg, Jennifer Merritt, Jerry Garner and Nicholas Bronni) (Court Reporter Elaine Hinson and Margie Kruse.) (tmw) (Entered: 05/07/2020)
63 TRANSCRIPT of Hearing on Motion for Preliminary Injunction held on 5/7/2020, before Judge Kristine G. Baker. Court Reporters Elaine Hinson and Margaret M. Kruse. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 5/15/2020. Redaction Request due 5/29/2020. Redacted Transcript Deadline set for 6/8/2020. Release of Transcript Restriction set for 8/6/2020. (fcd) (Entered: 05/08/2020)
64 TRIAL BRIEF by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne(Steinberg, Asher) (Entered: 05/08/2020)
65 BRIEF IN SUPPORT re 3 Memorandum, 2 Motion for TRO and Preliminary Injunction filed by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams. (Shukur, Omavi) (Entered: 05/08/2020)
66 MOTION for Order Taking Judicial Notice of New COVID-19 Infection Data by All Plaintiffs (Shukur, Omavi) (Entered: 05/14/2020)

05/14/2020 05/19/2020 05/27/2020 05/28/2020
05/28/2020 05/29/2020
05/29/2020 06/04/2020
06/04/2020
06/22/2020

67 BRIEF IN SUPPORT re 66 Motion for Order Taking Judicial Notice of New COVID-19 Infection Data filed by All Plaintiffs. (Shukur, Omavi) (Entered: 05/14/2020)
68 ORDER denying 2 plaintiffs' motion for preliminary injunction. Signed by Judge Kristine G. Baker on 5/19/2020. (jbh) (Entered: 05/19/2020)
69 MOTION to Stay Rule 26(f) Conference & Discovery by All Defendants (Merritt, Jennifer) (Entered: 05/27/2020)
70 MOTION for Issuance of an Initial Scheduling Order by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Shukur, Omavi) (Entered: 05/28/2020)
71 BRIEF IN SUPPORT re 70 Motion for Issuance of an Initial Scheduling Order filed by All Plaintiffs. (Attachments: # 1 Exhibit)(Shukur, Omavi) (Entered: 05/28/2020)
72 RESPONSE in Opposition re 70 MOTION for Issuance of an Initial Scheduling Order filed by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne. (Merritt, Jennifer) (Entered: 05/29/2020)
73 REPLY to Response to Motion re 70 MOTION for Issuance of an Initial Scheduling Order filed by All Plaintiffs. (Shukur, Omavi) (Entered: 05/29/2020)
74 ORDER denying 69 defendants' motion to stay discovery; and granting 70 plaintiffs' emergency motion for initial scheduling order. The Court will enter an initial scheduling order by separate order. Signed by Judge Kristine G. Baker on 6/4/2020. (jbh) (Entered: 06/04/2020)
75 INITIAL SCHEDULING ORDER: Rule 26(f) Conference to occur by 6/11/2020; Rule 26(f) Report due by 6/25/2020; Bench Trial set for sometime during the week of 4/5/2021 at 09:00 AM in Little Rock Courtroom # 4C before Judge Kristine G. Baker. Signed at the direction of the Court on 06/04/2020. (tmw) (Entered: 06/04/2020)
76 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by All Defendants (Attachments: # 1 Document Brief in Support)(Steinberg, Asher) (Entered: 06/22/2020)

06/23/2020 06/24/2020 06/25/2020 06/25/2020 06/30/2020
07/06/2020 07/07/2020 07/13/2020 07/16/2020

77 NOTICE by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams (Merle, Natasha) (Entered: 06/23/2020)
78 NOTICE by All Defendants re 77 Notice (Other) Notice of Violation of Ark. R. Prof. Conduct 4.2 (Merritt, Jennifer) (Entered: 06/24/2020)
79 NOTICE OF HEARING setting a hearing via telephone on Tuesday, 6/30/2020, at 2:30 p.m. CT in Little Rock Courtroom 4C. Signed by Judge Kristine G. Baker on 6/25/2020. (jbh) (Entered: 06/25/2020)
80 REPORT of Rule 26(f) Planning Meeting by John Doe, Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams. (Shukur, Omavi) (Entered: 06/25/2020)
81 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) MINUTES for proceedings held before Judge Kristine G. Baker: Telephone Conference held on 6/30/2020. The parties convened; After arguments from counsel, the Court directed the parties to confer; The Court took the matter under advisement and will issue a written ruling. (Present for plaintiffs: Natasha Merle, Ajmel Quereshi, George Kendall, Laura Fernandez, Omavi Shukur; Present for defendants: Jennifer Merritt, Jerry Garner, and Christine Cryer) (Court Reporter Suzanne McKennon) (tmw) (Entered: 06/30/2020)
82 Unopposed MOTION for Extension of Time to File Response/Reply as to 76 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by All Plaintiffs (Everett, Sarah) (Entered: 07/06/2020)
83 ORDER granting 82 plaintiffs' unopposed motion for extension of time to oppose defendants' motion to dismiss. Plaintiffs shall have up to, and including, 07/13/2020, to oppose defendants' motion to dismiss. Signed by Judge Kristine G. Baker on 07/07/2020. (ajt) (Entered: 07/07/2020)
84 AMENDED Class Action Complaint and PETITION for Writ of Habeas Corpus against All Defendants filed by All Plaintiffs. Summons issued as to Nathaniel Smith, Wellpath LLC and returned to counsel for service. (fjg) (Entered: 07/14/2020)
85 Unopposed MOTION for Extension of Time to File Answer re 84 Amended Complaint by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne, Lee Watson (Merritt, Jennifer) (Entered: 07/16/2020)

07/16/2020 07/17/2020
07/17/2020
07/31/2020 07/31/2020 07/31/2020 08/03/2020 08/04/2020

86 ORDER granting 85 Motion for Extension of Time to Answer. The State defendants shall have up to, and including, 08/04/2020, to file a responsive pleading to the amended complaint. Signed by Judge Kristine G. Baker on 07/16/2020. (ajt) (Entered: 07/16/2020)
87 AFFIDAVIT of Service of summons , filed by Alvin Hampton, Aaron Elrod, Wesley Bray, Torris Richardson, Marvin Kent, Trinidad Serrato, Nicholas Frazier, Joseph Head, Lee Owens, Roderick Wesley, John Doe, Victor Williams, Darryl Hussey, John Doe, Jimmy Little, Jonathan Neeley, Michael Kouri, Harold Otwell, Cedric Sims, Price Brown, Charles Czarnetzki, Robert Stiggers, Alfred Nickson. Nathaniel Smith served on 7/14/2020. (Attachments: # 1 Document Acceptance of service)(Everett, Sarah) (Entered: 07/17/2020)
88 AFFIDAVIT of Service , filed by Alvin Hampton, Aaron Elrod, Wesley Bray, Torris Richardson, Marvin Kent, Trinidad Serrato, Nicholas Frazier, Joseph Head, Lee Owens, Roderick Wesley, John Doe, Victor Williams, Darryl Hussey, John Doe, Jimmy Little, Jonathan Neeley, Michael Kouri, Harold Otwell, Cedric Sims, Price Brown, Charles Czarnetzki, Robert Stiggers, Alfred Nickson. Wellpath LLC served on 7/16/2020. (Attachments: # 1 Document USPS Proof of Delivery)(Everett, Sarah) (Entered: 07/17/2020)
89 Second MOTION for Extension of Time to File Answer re 84 Amended Complaint or Motion to Dismiss by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne, Nathaniel Smith, Lee Watson (Merritt, Jennifer) (Entered: 07/31/2020)
90 RESPONSE to Motion re 89 Second MOTION for Extension of Time to File Answer re 84 Amended Complaint or Motion to Dismiss filed by All Plaintiffs. (Shukur, Omavi) (Entered: 07/31/2020)
91 ORDER granting 89 State defendants' second motion for extension of time to respond to plaintiffs' amended complaint. The State defendants shall have up to, and including, 08/18/2020, to file a responsive pleading to the amended complaint. Signed by Judge Kristine G. Baker on 07/31/2020. (ajt) (Entered: 07/31/2020)
92 ANSWER to 84 Amended Complaint by Wellpath LLC.(Dougherty, Kirkman) (Entered: 08/03/2020)
93 ORDER concluding that plaintiffs may not proceed with ex parte communications with nonsupervisory DOC employees at this time. To the extent any party wishes to brief further the possibility of vicarious liability under Title II of the ADA and how the existence or absence of

such liability would bear upon plaintiffs' ex parte communications with nonsupervisory DOC employees, the Court welcomes such briefing. Signed by Judge Kristine G. Baker on 8/4/2020. (jbh) (Entered: 08/04/2020)

08/18/2020

94 MOTION to Withdraw as Attorney Laura Fernandez by Wesley Bray, Price Brown, Charles Czarnetzki, John Doe, John Doe, Aaron Elrod, Nicholas Frazier, Alvin Hampton, Joseph Head, Darryl Hussey, Marvin Kent, Michael Kouri, Jimmy Little, Jonathan Neeley, Alfred Nickson, Harold Otwell, Lee Owens, Torris Richardson, Trinidad Serrato, Cedric Sims, Robert Stiggers, Roderick Wesley, Victor Williams (Fernandez, Laura) (Entered: 08/18/2020)

08/18/2020

95 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and based on Sovereign Immunity by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne, Jose Romero, Lee Watson (Merritt, Jennifer) (Entered: 08/18/2020)

08/18/2020

96 BRIEF IN SUPPORT re 95 Motion to Dismiss for Failure to State a Claim, Sovereign Immunity filed by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne, Jose Romero, Lee Watson. (Merritt, Jennifer) (Entered: 08/18/2020)

08/25/2020

97 Unopposed MOTION for Extension of Time to File Response/Reply as to 95 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and based on Sovereign Immunity by All Plaintiffs (Shukur, Omavi) (Entered: 08/25/2020)

08/27/2020 98 NOTICE of Appearance by Kynda Almefty on behalf of Wellpath LLC (Almefty, Kynda) (Entered: 08/27/2020)

08/27/2020 99 NOTICE of Appearance by Jeffrey Wahl Hatfield on behalf of Wellpath LLC (Hatfield, Jeffrey) (Entered: 08/27/2020)

09/02/2020

100 MOTION to Withdraw as Attorney Patricia Okonta by Wesley Bray, Price Brown, Charles Czarnetzki, John Doe, John Doe, Aaron Elrod, Nicholas Frazier, Alvin Hampton, Joseph Head, Darryl Hussey, Marvin Kent, Michael Kouri, Jimmy Little, Jonathan Neeley, Alfred Nickson, Harold Otwell, Lee Owens, Torris Richardson, Trinidad Serrato, Cedric Sims, Robert Stiggers, Roderick Wesley, Victor Williams (Okonta, Patricia) (Entered: 09/02/2020)

09/04/2020 101 REPORT of Rule 26(f) Planning Meeting by Wesley Bray, Price Brown, Charles Czarnetzki, John Doe, John Doe, Aaron Elrod, Nicholas Frazier, Alvin Hampton, Joseph Head, Darryl Hussey, Marvin

Kent, Michael Kouri, Jimmy Little, Jonathan Neeley, Alfred Nickson, Harold Otwell, Lee Owens, Torris Richardson, Trinidad Serrato, Cedric Sims. (Shukur, Omavi) (Entered: 09/04/2020)

09/10/2020

102 ORDER granting 97 plaintiffs' unopposed motion for extension of time to respond to State defendants' 95 amended motion to dismiss; allowing Plaintiffs up to, and including, 9/10/2020, to file their response; granting 94 , 100 motions to withdraw as counsel for plaintiffs; and directing the Clerk to terminate Ms. Fernandez and Ms. Okonta as counsel of record for the plaintiffs. Signed by Judge Kristine G. Baker on 9/10/2020. (jbh) (Entered: 09/10/2020)

09/10/2020

103 RESPONSE in Opposition re 95 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and based on Sovereign Immunity filed by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Shukur, Omavi) (Entered: 09/10/2020)

09/15/2020

104 Unopposed MOTION for Leave to File Reply to Plaintiffs' Response to the State Defendants' Motion to Dismiss Amended Complaint by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne, Jose Romero, Lee Watson (Garner, Jerry) (Entered: 09/15/2020)

09/16/2020

105 ORDER granting 104 motion for leave to file a reply to plaintiffs' response to the State defendants' motion to dismiss amended complaint. The State defendants shall have up to, and including, 10/9/2020, to file their reply. Signed by Judge Kristine G. Baker on 9/16/2020. (jbh) (Entered: 09/16/2020)

10/01/2020

106 STIPULATION of Dismissal by Wesley Bray, Price Brown, Charles Czarnetzki, John Doe, John Doe, Aaron Elrod, Nicholas Frazier, Alvin Hampton, Joseph Head, Darryl Hussey, Marvin Kent, Michael Kouri, Jimmy Little, Jonathan Neeley, Alfred Nickson, Harold Otwell, Lee Owens, Torris Richardson, Trinidad Serrato, Cedric Sims, Robert Stiggers, Roderick Wesley, Victor Williams. (Shukur, Omavi) (Entered: 10/01/2020)

10/09/2020

107 REPLY to Response to Motion re 95 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and based on Sovereign Immunity filed by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Asa Hutchinson, Wendy Kelley, Benny Magness, Dexter Payne, Jose Romero, Lee Watson. (Merritt, Jennifer) (Entered: 10/09/2020)

10/12/2020 108 MOTION for Leave to Appear pro hac vice by Amber Koonce. Fee $100 receipt number AAREDC-3833474. Filed by All Plaintiffs

(Attachments: # 1 Affidavit of Amber Koonce)(Shukur, Omavi) (Entered: 10/12/2020)

10/13/2020

109 ORDER granting 108 motion for admission pro hac vice of attorney Amber Koonce. Ms. Koonce shall appear as counsel for plaintiffs in this matter and in all matters consolidated with this matter by order of the Court. Signed by Judge Kristine G. Baker on 10/13/2020. (jbh) (Entered: 10/13/2020)

10/16/2020

110 ORDER adopting the 106 stipulation of dismissal of Governor Asa Hutchinson from this action without prejudice; dismissing Governor Asa Hutchinson from this action without prejudice; and dismissing without prejudice all claims by plaintiffs Charles Czarnetski, Aaron Elrod, and Alvin Hampton, without prejudice. Signed by Judge Kristine G. Baker on 10/16/2020. (jbh) (Entered: 10/16/2020)

10/30/2020

111 REPLY to Response to Motion re 95 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and based on Sovereign Immunity Supplemental Reply filed by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Wendy Kelley, Benny Magness, Dexter Payne, Jose Romero, Lee Watson. (Merritt, Jennifer) (Entered: 10/30/2020)

11/23/2020 112 WITHDRAWN pursuant to 115 Order. (Kendall, George) Docket text modified on 12/9/2020 to indicate the document was withdrawn at direction of the Court. (kbc) (Entered: 11/23/2020)

11/24/2020

113 MOTION to Strike 112 Request, for Inspection by Jerry Bradshaw, Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Benny Magness, Dexter Payne, Jose Romero, Lee Watson (Attachments: # 1 Exhibit A - Nov. 13 email, # 2 Exhibit B - Nov. 18 correspondence, # 3 Exhibit C - Nov. 24 email)(Merritt, Jennifer) (Entered: 11/24/2020)

11/30/2020 114 MOTION to Withdraw 112 Request, by All Plaintiffs (Kendall, George) (Entered: 11/30/2020)

12/09/2020

115 ORDER granting 114 motion to withdraw Rule 34(A)(2) request for inspection; directing the Clerk to withdraw 112 docket entry from the docket; directing the Clerk to substitute Mr. Graves for Ms. Kelley on the docket of this case; and denying as moot 113 motion to strike. Signed by Judge Kristine G. Baker on 12/9/2020. (jbh) (Entered: 12/09/2020)

12/16/2020 116 MOTION for Protective Order by All Plaintiffs (Attachments: # 1 Exhibit Proposed Protective Order)(Shukur, Omavi) (Entered: 12/16/2020)

12/16/2020

117 BRIEF IN SUPPORT re 116 Motion for Protective Order filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19)(Shukur, Omavi) (Entered: 12/16/2020)

12/18/2020

118 STIPULATION of Dismissal by Wesley Bray, Price Brown, Charles Czarnetzki, John Doe, John Doe, Aaron Elrod, Nicholas Frazier, Alvin Hampton, Joseph Head, Darryl Hussey, Marvin Kent, Michael Kouri, Jimmy Little, Jonathan Neeley, Alfred Nickson, Harold Otwell, Lee Owens, Torris Richardson, Trinidad Serrato, Cedric Sims, Robert Stiggers, Roderick Wesley, Victor Williams. (Shukur, Omavi) (Entered: 12/18/2020)

12/28/2020

119 ORDER adopting 118 joint stipulation of dismissal; dismissing Jerry Bradshaw from this action without prejudice; and dismissing all claims by plaintiffs Nicholas Frazier, Harold S. Otwell, and Cedric Sims without prejudice. Signed by Judge Kristine G. Baker on 12/28/2020. (jbh) (Entered: 12/28/2020)

12/30/2020

120 MOTION to Stay re 116 MOTION for Protective Order Combined Renewed Motion to Stay Discovery and Response in Opposition to Plaintiffs' Motion for Protective Order by Tyronne Broomfield, John Felts, Whitney Gass, Bobby Glover, Solomon Graves, Benny Magness, Dexter Payne, Jose Romero, Lee Watson, and William Byers. (Attachments: # 1 Exhibit 1 - State Defendants' Objections & Responses to Plaintiffs' First Set of Requests for Production of Documents, # 2 Exhibit 2 - State Defendants' Objections & Responses to Plaintiffs' Second Set of Requests for Production of Documents, # 3 Exhibit 3 - Email Serving Separate Defendant Romero's Objections & Responses to Plaintiffs' First & Second Set of Requests for Production, with written discovery responses, # 4 Exhibit 4 - State Defendants' Objections & Answers to Plaintiffs' First Set of Interrogatories, # 5 Exhibit 5 - August 19, 2020, Email re: Authority to Stipulate to Protective Order, # 6 Exhibit 6 - State Defendants' Objections & Response to Plaintiffs' Rule 34 Request for Inspection, # 7 Exhibit 7 - Email Serving Third-Party Deposition Notices, # 8 Exhibit 8 - 12-30-20 Email from Secretary Graves re: DOC Lockdown, # 9 Exhibit 9 - Shukur Email re Objection to Stay & Rule 34 Request to Inspect)(Merritt, Jennifer) (Docket entry modified on 12/31/2020 to correct the filing parties.)(cmn) (Entered: 12/30/2020)

12/30/2020 121 AFFIDAVIT by Jimmy Shane Cantrell filed by Nicholas Frazier. (llg) (Entered: 12/30/2020)

12/31/2020

NOTICE OF DOCKET CORRECTION re 120 Motion. CORRECTION: The docket entry was modified to correct the filing parties as "Tyronne Broomfield, John Felts, Whitney Gass, Bobby Glover, Solomon Graves, Benny Magness, Dexter Payne, Jose Romero, Lee Watson, and William Byers." (cmn) (Entered: 12/31/2020)

01/06/2021 122 MOTION for Extension of Time to File Response/Reply as to 116 MOTION for Protective Order by All Plaintiffs (Irish, Corrine) (Entered: 01/06/2021)

01/07/2021

123 ORDER granting 122 plaintiffs' unopposed motion for extension of time to reply to the State defendants' response to plaintiffs' motion for protective order and to the State defendants' renewed motion to stay discovery. Plaintiffs shall have up to, and including, 1/13/2021, to file their reply. Signed by Judge Kristine G. Baker on 1/7/2021. (ljb) (Entered: 01/08/2021)

01/08/2021

124 MOTION to Stay re 120 MOTION to Stay re 116 MOTION for Protective Order Combined Renewed Motion to Stay Discovery and Response in Opposition to Plaintiffs' Motion for Protective Order by Wellpath LLC (Almefty, Kynda) (Entered: 01/08/2021)

01/13/2021

125 RESPONSE in Opposition re 124 MOTION to Stay re 120 MOTION to Stay re 116 MOTION for Protective Order Combined Renewed Motion to Stay Discovery and Response in Opposition to Plaintiffs' Motion for Protective Order , 120 MOTION to Stay re 116 MOTION for Protective Order Combined Renewed Motion to Stay Discovery and Response in Opposition to Plaintiffs' Motion for Protective Order filed by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Shukur, Omavi) (Entered: 01/13/2021)

01/13/2021

126 REPLY to Response to Motion re 116 MOTION for Protective Order filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 - Compare of Plaintiff's and Defendants Proposed Orders)(Irish, Corrine) (Entered: 01/13/2021)

01/14/2021

127 MOTION to Compel Expert Inspection of Dr. Homer Venters and Depositions of Aundrea Culclager, Rex Lay, and Shirley Lubin Wilson by All Plaintiffs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Shukur, Omavi) (Entered: 01/14/2021)

01/14/2021

128 BRIEF IN SUPPORT re 127 Motion to Compel, Expert Inspection of Dr. Homer Venters and Depositions of Aundrea Culclager, Rex Lay, and Shirley Lubin Wilson filed by All Plaintiffs. (Shukur, Omavi) Additional attachments added on 1/14/2021: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F,

# 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I). (kbc) (Entered: 01/14/2021)

01/14/2021

129 MOTION for Leave to Appear pro hac vice by Victor Genecin. Fee $100 receipt number AAREDC-3912527. Filed by All Plaintiffs (Attachments: # 1 Affidavit)(Shukur, Omavi) (Entered: 01/14/2021)

01/14/2021

130 NOTICE OF DOCKET CORRECTION re 128 Brief in Support. CORRECTION: Exhibits A-I were not submitted during docketing. These documents have been added to 128 based on the attached correspondence. (kbc) (Entered: 01/14/2021)

01/15/2021

131 ORDER granting 129 motion for admission pro hac vice of attorney Victor Genecin. Mr. Genecin shall appear as counsel for plaintiffs in this matter and in all matters consolidated with this matter by 5 order of the Court. Signed by Judge Kristine G. Baker on 1/15/2021. (jbh) (Docket text modified on 1/19/2021 to establish linkage) (jak) (Entered: 01/15/2021)

01/19/2021

NOTICE OF DOCKET CORRECTION re 131 Order. CORRECTION: The docket text was modified to establish linkage to 5 Order as marked on the document. (jak) (Entered: 01/19/2021)

01/28/2021

132 RESPONSE to Motion re 127 MOTION to Compel Expert Inspection of Dr. Homer Venters and Depositions of Aundrea Culclager, Rex Lay, and Shirley Lubin Wilson filed by Wellpath LLC. (Almefty, Kynda) (Entered: 01/28/2021)

01/28/2021

133 RESPONSE in Opposition re 127 MOTION to Compel Expert Inspection of Dr. Homer Venters and Depositions of Aundrea Culclager, Rex Lay, and Shirley Lubin Wilson filed by Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Solomon Graves, Benny Magness, Dexter Payne, Jose Romero, Lee Watson. (Merritt, Jennifer) (Entered: 01/28/2021)

01/28/2021

134 MOTION to Continue Trial Date and for Issuance of Amended Final Scheduling Order After Immunity Issue Finally Resolved by Tyronne Broomfield, William Byers, John Felts, Whitney Gass, Bobby Glover, Solomon Graves, Benny Magness, Dexter Payne, Jose Romero, Lee Watson (Merritt, Jennifer) (Entered: 01/28/2021)

02/03/2021

135 NOTICE of Appearance by Thomas W. Nichols on behalf of All Plaintiffs (Nichols, Thomas) Additional attachment added on 2/4/2021: # 1 Main Document - Correct. (kbc) (Entered: 02/03/2021)

02/03/2021 136 MOTION to Substitute Attorney by All Plaintiffs (Nichols, Thomas) (Entered: 02/03/2021)

02/04/2021

137 ORDER granting 136 motion to substitute counsel of Cristy Park and Thomas Nichols; and directing the Clerk to terminate Ms. Park and substitute Mr. Nichols as counsel of record for plaintiffs. Signed by Judge Kristine G. Baker on 2/4/2021. (jbh) (Entered: 02/04/2021)

02/04/2021

138 NOTICE OF DOCKET CORRECTION re 135 Notice of Appearance. CORRECTION: The original document was submitted in error (document was editable). The correct document was added to 135 based on the attached correspondence. (kbc) (Entered: 02/04/2021)

02/04/2021

139 REPLY to Response to Motion re 127 MOTION to Compel Expert Inspection of Dr. Homer Venters and Depositions of Aundrea Culclager, Rex Lay, and Shirley Lubin Wilson filed by All Plaintiffs. (Shukur, Omavi) (Entered: 02/04/2021)

02/04/2021

140 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Wellpath LLC (Attachments: # 1 Exhibit EXHIBIT A)(Almefty, Kynda) (Entered: 02/04/2021)

02/04/2021 141 BRIEF IN SUPPORT re 140 Motion to Dismiss for Failure to State a Claim filed by Wellpath LLC. (Almefty, Kynda) (Entered: 02/04/2021)

02/11/2021

142 RESPONSE in Opposition re 134 MOTION to Continue Trial Date and for Issuance of Amended Final Scheduling Order After Immunity Issue Finally Resolved filed by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Shukur, Omavi) (Entered: 02/11/2021)

02/18/2021 143 RESPONSE in Opposition re 140 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by All Plaintiffs. (Irish, Corrine) (Entered: 02/18/2021)

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Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 1 of 50

FILED ·,-
1N THE UNITED STATES DISTRICT COURT us DISTRICT COURT ' EASTERN DISTRICT OF ARKANSAS EASTERN DISTRICT ARKANSAS

CENTRAL DIVISION

APR 2 1 2020

NICHOLAS FRAZIER, ALVIN HAMPTON, MARVIN KENT, MICHAEL KOURI, JONATHAN NEELEY, ALFRED NICKSON, HAROLD ("SCOTT") OTWELL, TRINIDAD SERRATO, ROBERT STIGGERS, VICTOR WILLIAMS, JOHN DOE, individually and on behalf of all others similarly situated,
Plaintiffs/Petitioners, v.
WENDY KELLEY, Secretary of Arkansas Department ofCorrections; DEXTER PAYNE, Division of Correction Director, Arkansas Department of Corrections; JERRY BRADSHAW, Division of Community Correction Director, Arkansas Department ofCorrections; ASA HUTCHINSON, Governor of Arkansas; BENNY MAGNESS, Chairman of Arkansas Board of Corrections; BOBBY GLOVER, Vice Chairman of Arkansas Board of Corrections; BUDDY CHADICK, Secretary of Arkansas Board of Corrections; TYRONNE BROOMFIELD, Member of Arkansas Board of Corrections; JOHN FELTS, Member of Arkansas Board of Corrections; WILLIAM ("DUBS") BYERS, Member ofArkansas Board of Corrections; WHITNEY GASS, Member of Arkansas Board of Corrections; all in their official capacities,
Defendants/Respondents.

Case No. 4:20-cv-00434-KGB-JJV
Judge: CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS TRO REQUESTED
This cass a-::.sir:-,~d to District Judge_l2tA,,J;,,cu and to Magi.strntt. ,Juc1ge_i,f.JC'~=,,"""""'~-.- - - - -

Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Scott Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and John Doe (collectively, "Named Plaintiffs"), individually and on behalfofall others similarly situated, bring this emergency class action lawsuit and petition for writ of habeas corpus to seek immediate relief

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against the substantial risk of COVID-19 infection, illness, and death while incarcerated m facilities operated by the Arkansas Department of Corrections ("ADC").
PRELIMINARY STATEMENT 1. Arkansas-like the rest of the United States and nations throughout the world-is facing an unprecedented public health crisis due to the COVID-19 pandemic. As of the filing of this Complaint, 786,638 Americans have been infected with the virus, leading to 42,295 deaths nationwide. 1 The risk of infection, serious illness, and possible death from the coronavirus, especially among vulnerable populations, has led Arkansas to take the extraordinary measure of declaring a public health emergency and closing public schools for the rest of the year. 2. While Arkansas is faring better than many other parts of the country, with 1,971 COVID-19 infections and 42 deaths statewide,2 the situation in the state's correctional facilities stands in stark contrast. It is not a matter of ifor when the pandemic will wreak havoc in Arkansas' state prison system: the crisis is already underway. It is now beyond debate that the measures put in place by Defendants to suppress COVID-19 are completely inadequate. Only a week ago, a single person confined at Cummins Unit tested positive for COVID-19.3 To date, Cummins Unit has about 600 confirmed infections4-which is a 1300% increase from only four days earlier.5
Arkansas COVID-19 Update, Arkansas Dep't of Health, https://adem.maps.arcgis.com/apps/opsdashboard/index.html#/f533ac8a8b6040e5896b05b47b 17 a647 (last visited Apr. 20, 2020).
2 Id. 3 First inmate tests positive for COVID-19 at Arkansas prison, KATV, Apr. 12, 2020, https ://katv.com/news/coronavirus/arkansas-department-o f-correction-inmate-tests-pos iti ve- forcovid-19. 4 Meghan Rhoos, One Arkansas Prison Makes Up Almost a Third ofState's Coronavirus Cases, Newsweek, Apr. 20, 2020, https://www.newsweek.com/one-arkansas-prison-makesalmost-third-states-coronavirus-cases-1499045. 5 Max Brantley, Coronavirus update: Big jump in Cummins prison cases; a goal of beginning a return to work May 4, Ark. Times, April 17, 2020, 2:19 PM,
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Currently, incarcerated people make up at least one in three confirmed COVID-19 infections statewide. And these numbers are likely gross underestimates due to the lack ofwidespread testing in all ofthe correctional facilities throughout the State.
3. As we know with near certainty from the COVID-19 outbreaks in nursing home facilities, cruise ships, and a naval aircraft carrier, congregate environments like prisons are a breeding ground for this highly contagious virus. Prisoners eat together, sleep together, share restroom facilities, and have minimal control over their physical space. On a daily basis, they can have physical contact with up to hundreds of prisoners and corrections staff. There are multiple opportunities on any given day when the COVID-19 virus could spread quickly from one infected person to several more. For reasons entirely beyond their control, people in ADC facilities cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear adequate protective clothing, obtain specific products for cleaning or laundry, or avoid high-touch surfaces.
4. President Trump's Coronavirus Guidelines for America, which are now ubiquitous, highlight the importance of avoiding social gatherings of 10 or more people, washing your hands after touching a frequently used item or surface, and disinfecting frequently used items and surfaces as much as possible.6 These general guidelines have been translated into correctional settings in the Centers for Disease and Control and Prevention's ("CDC") Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities ("CDC Guidance"), which emphasize, inter alia, operational preparedness for the virus, enhanced
https://arktimes.com/arkansas-blog/2020/04/17/coronavirus-update-big-jump-in-cumminsprison-cases-a-goal-of-beginning-a-retum-to-work-may-4.
6 The President's Coronavirus Guidelines for America, The White House, Mar. 16, 2020, https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20 coronavirus-guidance 8.5x11 315PM.pdf.
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cleaning/disinfecting and hygiene practices, social distancing, infection control with use of personal protective equipment ("PPE"), medical isolation of confirmed or suspected cases and contacts, clinical care for confirmed or suspected cases, and considerations of individuals at higher risk of severe disease from COVID-19.7
5. Despite the availability of the CDC Guidance since March 23, 2020, Defendants have utterly failed to comply with these guidelines through both their official policies and the actual practices of corrections staff in the prisons. Most importantly, Plaintiffs' personal experiences demonstrate Defendants' complete disregard for their health and safety during the crisis of this pandemic.
6. Some Plaintiffs continue to physically interact with well over a hundred people each day, often without PPE or ready access to hygiene products. Corrections officers and prisoners serving meals often do not properly use masks and gloves-if they use them at allexposing everyone to transmission ofthe virus. Showers are cleaned after everyone in the barracks (dozens of people) have used them, and restroom facilities are often in unsanitary conditions. Beds are within three feet of one another, far short of the recommended six feet. Prisoners who exhibit symptoms are not immediately tested and are forced to wait days for a sick call. Those who test positive are kept in punitive isolation conditions. Through all of this, prisoners are not fully informed of any plans Defendants may have to protect them from COVID-19, nor are they adequately apprised of their medical condition and medical care should they be suspected or confirmed of infection.
7 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control & Prev., Mar. 23, 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
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7. Of particular concern is the vulnerability of prisoners with disabilities, advanced age, and/or underlying medical conditions that could easily render COVID-19 infection a death sentence. Those prisoners with chronic underlying health conditions, such as diabetes, heart disease, chronic lung and liver diseases, respiratory disease, and compromised immune systems, are at particular risk for grave outcomes from infection. Prisoners overall have a greater likelihood of infectious diseases, hypertension, diabetes, heart disease, and respiratory illness that have been found to increase the mortality of COVID-19 infection. And many of the Named Plaintiffs have severe conditions like heart disease, asthma, and cancer that would make them especially susceptible to serious illness or death from COVID-19. At the same time, prison medical facilities are limited; they lack vital equipment, expertise, and treatment mechanisms that are critical to providing adequate COVID-19 treatment and care.
8. Plaintiffs are in the custody and care of Defendants while they serve their prison sentences, and it is Defendants' responsibility to ensure that Plaintiffs' constitutional and statutory rights are protected during their confinement. Needlessly and recklessly subjecting Plaintiffs to the known risk of COVID-19 infection, with a likelihood of severe illness and possible death, is a wholesale abdication ofthat responsibility. Without court intervention, Plaintiffs fear that they will be left to suffer and possibly die as expendable casualties of this pandemic.
9. The outbreak of a highly infectious, deadly virus in a closed detention setting requires urgent and decisive action to protect the health and safety of those confined, those who work there, and the medical professionals who will treat the infected. A failure to take appropriate action will not only threaten all these lives, but also the lives ofArkansans far beyond prison walls, as the virus inevitably boomerangs back into surrounding communities, straining limited medical capacity, and continuing to spread across the State.
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10. While this lawsuit centers on the violation of Plaintiffs' rights and the extreme suffering they will endure should immediate relief not be granted, it also raises significant public health concerns for Arkansans in communities surrounding the correctional facilities. No prison is fully isolated from neighboring communities, and any COVID-19 infection can easily pass between prisoners and corrections staffwith later transmission to friends, families, neighbors, store clerks, and others. And with at least 25% of COVID-19 carriers exhibiting no symptoms, it would be impossible to screen individuals entering and leaving correctional facilities without the sort of widespread and immediate testing that is currently unavailable.
11. The prison crisis in this pandemic is a ticking time bomb that will have ramifications throughout Arkansas when it fully explodes-and this time bomb will undoubtedly explode without court intervention. Importantly, the prison crisis-like the pandemic at largewill disproportionately harm Black Arkansans who are imprisoned at a rate four times that ofwhite Arkansans. Already, the percentage of Black Arkansans who are infected with, and die from, COVID-19 is roughly double their percentage in the statewide population.8 The spread ofCOVID19 from correctional facilities to the surrounding communities will further exacerbate this extreme racial disparity, as ADC facilities are mostly located in Southeastern Arkansas, which has a disproportionately higher population of Black residents than the rest ofthe state. The containment of the COVID-19 infection in ADC facilities, therefore, not only relates to Plaintiffs' rights to be free from unnecessary harm, but is also a larger racial justice issue regarding state officials' failures to equitably respond to this pandemic for all Arkansans.
12. Accordingly, Defendants must take serious, immediate action to prevent a public
8 ADH COVID-19 Demographic Slide Deck, Ark. Dep't of Health, https://www.healthy.arkansas.gov/images/uploads/pdf/Presentation - Demographics PPT.pdf (last updated Apr. 19, 2020, 12:00 PM).
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health crisis the likes of which have never been encountered, not only to protect persons confined to their facilities, but also for the sake of corrections staff and neighboring communities.
JURISDICTION AND VENUE 13. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343,2241,& 1651,and42U.S.C.§ 1983. 14. Venue is proper in this Court under 28 U.S.C. § 139l(e)(l) because a substantial part ofthe events, acts, and/or omissions giving rise to this action occurred, and continue to occur, in this District.
PARTIES I. Plaintiffs
15. Plaintiff Michael Kouri is 40 years old and is incarcerated in the Ouachita River Correctional Unit, an ADC prison. Mr. Kouri is housed in the 7 barracks. Mr. Kouri has been diagnosed with heart disease, specifically, aortic heart valve degeneration. He has an artificial heart valve and is on blood thinners. He also suffers from hypertension and extreme obesity. Mr. Kouri has difficulty walking more than 20 feet without stopping to catch his breath. Recently, Mr. Kouri experienced more severe shortness ofbreath, headaches, chills, coughing, and was diagnosed with pink eye. According to the American Academy of Ophthalmology, conjunctivitis could be a symptom of COVID-19.9 Mr. Kouri is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions.
16. Mr. Kouri has not been tested for COVID-19. He shares a small cell with one other person and lives in a barracks unit with approximately 80 other incarcerated people. His entire
9 Reena Mukamal, Coronavirus Eye Safety, American Academy of Ophthalmology, Mar. 10, 2020, https ://www.aao.org/eye-health/tips-prevention/coronavirus-covid19-eye-infectionpinkeye.
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barracks goes to meal service together, where there are four people per table, easily within six feet of one another. At recreation, Mr. Kouri's barracks goes to the yard with another barracks, which means that approximately 150 people-separate and apart from staff-are on the yard during recreation. On an average day, Mr. Kouri closely interacts with well over 100 people during meal service, recreation, and educational classes, making social distancing impossible. Mr. Kouri has been issued one mask, which he handwashes with soap and water to clean. He is without a mask while it dries. Mr. Kouri filed a grievance related to his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread of the virus. Mr. Kouri is a member of the Class and both Subclasses.
17. Plaintiff Trinidad Serrato is 33 years old and is incarcerated in the Ouachita River Correctional Unit. Mr. Serrato is a carrier for tuberculosis and suffers from asthma. He resides in a barracks unit with approximately 44 other people. Mr. Serrato is critically vulnerable to COVID19 because of his underlying health issues.
18. He sleeps in a bed that is 2.5 feet away from neighboring beds. Mr. Serrato is assigned to work in the kitchen, where he comes into contact with approximately 2,000 other people daily. Food is delivered to the kitchen from Cummins Unit, which has the highest number of documented COVID-19 cases of all ADC facilities. Mr. Serrato has not been provided any disinfectant to wipe down food items before placing them into storage. Mr. Serrato also has not been provided gloves or a mask. Mr. Serrato's current living and working conditions make social distancing impossible. Mr. Serrato filed a grievance regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread of the virus. Mr. Serrato is a member ofthe Class and both Subclasses.
19. PlaintiffNicholas Frazier is 36 years old and is incarcerated in the Varner Supermax
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facility, an ADC prison. Mr. Frazier suffers from seizures and asthma. Mr. Frazier is critically vulnerable to COVID-19 because of his underlying health conditions. Mr. Frazier interacts with other incarcerated people every day for at least an hour during yard call. Mr. Frazier comes in close contact with staff when he is escorted to yard call, sick call, and to use the phone. Mr. Frazier has not been provided a mask or any other PPE. He also has not been provided with disinfectant to sanitize his cell. Mr. Frazier filed a grievance regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread ofthe virus. Mr. Frazier is a member of the Class and both Subclasses.
20. Plaintiff Marvin Kent is 39 years old and is incarcerated in the Varner Supermax facility. Mr. Kent has been diagnosed with heart failure and has a pacemaker. He suffers from chest pain daily. Mr. Kent also has hypertension and high cholesterol. Mr. Kent is currently experiencing COVID-19 symptoms, including headaches, body aches, coughing, and nausea, but has not been tested for the virus. Mr. Kent fears that his symptoms may worsen rapidly. Since staff do not check on him regularly, he is afraid he will be critically ill and alone in his cell without assistance. Mr. Kent is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions. In the past, it has taken between three weeks and one month for Mr. Kent to be seen by a doctor after submitting a medical request. Despite his written and verbal requests for a mask, he has not received one.
21. Mr. Kent is in a single occupant cell. However, he interacts with other incarcerated people every day for at least an hour during yard call. Mr. Kent comes in close contact with staff when he is escorted to yard call, sick call, and to use the phone. Mr. Kent is a member of the Class and both Subclasses.
22. Plaintiff Harold Otwell is 49 years old. He is incarcerated in the Ouachita River
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Correctional Unit and is housed in the Alpha barracks. Mr. Otwell is a first-time, non-violent offender who is expected to be reviewed for release in December 2020. Mr. Otwell is obese, prediabetic, and has osteoarthritis. He receives physical therapy for his right hip and has limited mobility. Mr. Otwell is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions.
23. Mr. Otwell resides in a barracks unit with approximately 46 other people. He sleeps in a bed that is 2.5 feet away from neighboring beds. Mr. Otwell is assigned to work in the laundry and comes into contact with approximately 150-200 incarcerated people and 30 guards daily. Mr. Otwell's laundry assignment also requires frequent interaction with newly incarcerated people who have recently been committed to the facility. Despite his job ofhandling soiled laundry, he has not been provided with gloves. Mr. Otwell's current living and working conditions make social distancing impossible. Mr. Otwell filed a grievance regarding his vulnerability to COVID-19. His grievance was denied. Mr. Otwell is a member of the Class and both Subclasses.
24. Plaintiff Robert Stiggers is 35 years old and is incarcerated in the Cummins Unit, an ADC prison. Mr. Stiggers suffers from asthma, which makes him critically vulnerable to complications from COVID-19. He lives in a cell with another inmate, where they share a toilet and sink. Mr. Stiggers has not been provided with disinfectant to sanitize his cell. In Mr. Stiggers' housing unit, five people shower at a time. The showers are not cleaned until after everyone in the barracks has showered, which is approximately 90 people. During recreation time, Mr. Stiggers is placed outside with ten other incarcerated people.
25. Mr. Stiggers has not been provided with a mask or any other PPE. His current living conditions make social distancing impossible. Mr. Stiggers filed a grievance regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or
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prevent the spread ofthe virus. Mr. Stiggers is a member of the Class and both Subclasses. 26. Plaintiff Alfred Nickson is 61 years old and is incarcerated in the Cummins Unit.
Mr. Nickson suffers from diabetes, rheumatoid arthritis, and osteoarthritis. For the past two weeks, he has experienced COVID-19 symptoms, including shortness of breath, fatigue, coughing, and repeated vomiting. Despite his symptoms and age, Mr. Nickson has not been tested for COVID19. Mr. Nickson is critically vulnerable to complications from COVID-19 because of his age and significant underlying health conditions.
27. Mr. Nickson lives in a cell with another inmate, where they share a toilet and sink. Mr. Nickson has not been provided with disinfectant to sanitize his cell. He also has not been provided with a mask or any other PPE. Since the COVID-19 pandemic, Mr. Nickson has refused communal showers because of the unsanitary conditions. Instead, he washes his body with water from the sink inside his cell. Mr. Nickson filed a grievance regarding his vulnerability to COVID19 and the prison's non-compliance with procedures to decrease or prevent the spread ofthe virus. Mr. Nickson is a member of the Class and both Subclasses.
28. Plaintiff Victor Williams is 56 years old. He is incarcerated in the Ouachita River Correctional Unit. Mr. Williams' lymphoma is in remission. He also suffers from a collapsed lung, hypertension, and bruised tissue surrounding his heart. Mr. Williams is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions. Mr. Williams is housed with 46 other people. He sleeps in a bed that is 2.5 feet away from neighboring beds. In Mr. Williams's housing unit, multiple people shower at a time, and showers are not disinfected daily.
29. Mr. Williams is a peer counselor in his barracks. He has been exposed to a lot of people who are currently sick, and he fears that it is only a matter oftime before he starts exhibiting
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COVID-19 symptoms. Also, many of the same guards move throughout different barracks. Some guards have been sent home with high fevers.
30. On an average day, Mr. Williams closely interacts with numerous guards and over 100 other people on his barracks, during meal service, and during recreation; this makes social distancing impossible. Mr. Williams filed a grievance on regarding his vulnerability to COVID19 and the prison's non-compliance with procedures to decrease or prevent the spread ofthe virus. His grievance was denied. Mr. Williams is a member of the Class and both Subclasses.
31. Plaintiff Alvin Hampton is 42 years old and is incarcerated in the Ouachita River Correctional Unit. Mr. Hampton suffers from seizures, Bell's palsy, and bipolar disorder. Despite reporting having difficulty breathing in the morning, constant coughing, and congestion, Mr. Hampton has not been tested for COVID-19. Many people housed in Mr. Hampton's barracks are sick with COVID-19 symptoms. Mr. Hampton is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions. He resides in a barracks unit with approximately 46 other people. He sleeps in a bed that is 2.5 feet away from neighboring beds. In Mr. Hampton's housing unit, multiple people shower at a time, and showers are not disinfected daily. He does not have access to bleach, disinfectant, or hand sanitizer.
32. Mr. Hampton also closely interacts with other people during meal service, during recreation, and in the line to receive his medicine. Mr. Hampton's current living conditions make social distancing impossible. Mr. Hampton filed a grievance regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread of the virus. His grievance was denied. Mr. Hampton is a member of the Class and both Subclasses.
33. Plaintiff Jonathan Neeley is 36 years old and is incarcerated in the Ouachita River Correctional Unit. He is housed in the Special Needs Unit. Mr. Neeley was diagnosed with rectal
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cancer in January 2020, and has not received treatment or chemotherapy. Mr. Neeley is critically vulnerable to complications from COVID-19 because of his significant underlying health condition. He has traveled to three local hospitals recently related to his cancer diagnosis. He resides in the SNU barracks with approximately 46 other people. Mr. Neeley sleeps in a bed that is approximately 1.5-2 feet away from neighboring beds. Mr. Neeley does not have access to cleaning supplies or disinfectant.
34. Due to his health condition, Mr. Neeley frequently visits the medical clinic. While waiting to be seen by a clinician, he is put in a small holding cell with approximately ten other incarcerated people. On average, Mr. Neeley interacts daily with approximately 100-150 other people, 10-15 staff (program staff, nurses, etc.), and 30 officers. Mr. Neeley's current living conditions make social distancing impossible. Mr. Neeley filed a grievance regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread of the virus. His grievance was denied. Mr. Neeley is a member of the Class and both Subclasses.
35. Plaintiff John Doe is in his twenties and is incarcerated in the Cummins Unit. Mr. Doe is housed in the barracks with approximately 50 other people. Mr. Doe recently tested positive for COVID-19. He suffers from severe asthma, which requires use of an inhaler throughout the day. Mr. Doe is critically vulnerable to complications from COVID-19 because of his significant underlying health condition. Mr. Doe reported feeling unwell and suffering from fatigue on April 11, 2020. Mr. Doe was placed in lock down as retaliation for disclosing the unconstitutional conditions at Cummins Unit. Mr. Doe is a member of the Class and both Subclasses. II. Defendants
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36. Defendant Wendy Kelly is the Secretary of the ADC. As such, she is the executive head ofthe ADC and commanding officer of all ADC correctional officers, guards, employees and contractors, and is responsible for their training, supervision, and conduct. At all times described herein, she was acting under color of state law. She is sued in her official capacity for declaratory and injunctive relief.
37. Defendant Dexter Payne is the Director of the ADC Division of Correction. As such, he is the executive and administrative officer ofthe Division ofCorrection, and is responsible for supervising the administration of all ADC correctional institutions, facilities and services; ensuring adequate staffing levels at correctional institutions; instituting training and development of correctional staff; and coordinating with judicial districts, counties, and municipalities to provide guidance and services to ensure a full range ofcorrectional options for the State as a whole. Defendant Payne, as the Director ofthe ADC Division ofCorrection, has the power to make people incarcerated in ADC correctional facilities eligible for release. He is sued in his official capacity for declaratory and injunctive relief.
38. Defendants Benny Magness, Bobby Glover, Buddy Chadick, Tyronne Broomfield, John Felts, Dr. William Byers, and Whitney Gass are members of the Arkansas Board of Corrections ("BOC") (collectively, "BOC Defendants"). The BOC is the governing authority of the ADC and performs all functions with respect to the management and control of ADC. The BOC, along with the Director of the Division of Correction, has the power to release people incarcerated in ADC facilities. At all times described herein, the BOC Defendants were acting under color of state law. They are being sued in their official capacity for declaratory and injunctive relief.
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39. Defendant Jerry Bradshaw is the Director of the ADC Division of Community Corrections ("ACC"). As such, he is the administrative officer of the ACC, and is responsible for supervising the administration of all ACC facilities, programs and services; maintaining adequate staffing levels; providing ACC staff with training and professional development opportunities; and coordinating with judicial districts, counties, and municipalities to provide guidance and services to ensure a full range of correctional options for the State as a whole. He is sued in his official capacity for declaratory and injunctive relief.
40. Defendant Asa Hutchinson is the Governor ofArkansas. As such, he has executive power over the State of Arkansas. Defendant Hutchinson has the ultimate authority for ensuring that all executive agencies, including ADC, function in compliance with state and federal law, and has the power to release people incarcerated in ADC correctional facilities. He is sued in his official capacity for declaratory and injunctive relief
CLASS ALLEGATIONS 41. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual Named Plaintiffs bring this action on behalf of themselves and a class consisting of people who are currently incarcerated, or will be in the future, in an ADC detention facility during the duration of the COVID-19 pandemic. Plaintiffs also propose the following Subclasses:
a) High Risk Subclass: People in the custody of an ADC facility aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy,
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hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of stroke; and people with any condition specifically identified by CDC, currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19; and
b) Disability Subclass: People in custody who suffer from a disability that substantially limits one or more oftheir major life activities and who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability. 42. A class action is the only practicable means by which the individual Named Plaintiffs and the putative class members may challenge Defendants' unconstitutional actions. Many members ofthe Class are without the means to retain an attorney to represent them in a civil rights lawsuit. 43. The Class and Subclasses are so numerous that joinder of all members is impractical. The number of people in custody exceeds 15,000 on any given day, and each Subclass contains hundreds, and possibly thousands, of people. Disposition of this matter as a class action will provide substantial benefits and efficiencies to the parties and the Court. 44. There are questions of law and fact common to all class members and to the subclass members, including: (a) does COVID-19 present a substantial risk of harm to people in ADC custody; (b) have Defendants failed to adequately protect the Class from the immediate threat ofCOVID-19; (c) what practices are Defendants actually implementing with respect to COVID19; (d) whether Defendants' actions and/or inactions constitute deliberate indifference to the rights of putative class members; (e) whether members of the High Risk Subclass are entitled to habeas corpus relief; (f) whether the rights of the Disability Subclass under the Americans with
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Disabilities Act ("ADA") are being violated by ADC's policies and practices; and (g) whether ADC illegally discriminated against the Disability Subclass by denying their reasonable accommodations recommended by the CDC, both in policy and practice.
45. The claims of the Named Plaintiffs are typical of those of the Class, the High Risk Subclass, and the Disability Subclass. This typicality stems from Plaintiffs' claims that Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk ofCOVID-19 throughout ADC. The claims of Plaintiffs, the Class, and Subclasses arise from the same conduct by Defendants and are based not only on identical legal theories, but also seek identical relief. All members of the Class and Subclasses are similarly injured by Defendants' wrongful conduct, and the harms Plaintiffs suffer are typical of the harms suffered by the Class and Subclasses.
46. A class action is superior to other available methods for fairly and efficiently adjudicating this controversy, especially since joinder of all Class and Subclass members is impracticable.
47. Each class member is irreparably harmed as a result of Defendants' wrongful conduct. Litigating this case as a class action will reduce the risk of repetitious litigation relating to the Defendants' conduct.
48. The individual Named Plaintiffs will fairly and adequately represent the interest of the Class and Subclasses. The Named Plaintiffs have no conflicts with the unnamed members of the proposed Class and Subclasses. In addition, their lawyers are experienced in complex civil rights cases, including federal class actions against governmental entities.
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49. Defendants have engaged in unlawful actions and/or inactions in a manner that

applies generally to the Class and Subclasses, rendering class-wide injunctive and declaratory

relief appropriate.

STATEMENT OF FACTS

I.

COVID-19 is a Highly Contagious, Deadly Disease that Poses a Serious Risk of

Death or Injury to Anyone Who Becomes Infected.

50. The COVID-19 pandemic has created a public health emergency of historic

proportions. Currently, more than two million individuals worldwide have tested positive for COVID-19, and more than 146,000 have died from the disease. 10 The pandemic has affected every

comer of the world, and the United States sits at its epicenter.

51. In the United. States alone, 786,638 individuals have tested positive for COVID-19, and 42,295 have died. 11 The number of deaths and the number of individuals who have tested positive are both increasing swiftly. 12 Every state in the country has recorded numerous positive

tests, including Arkansas, where the CDC has described ''widespread" "community transmission."13 Arkansas has reported 1,971 positive tests and 42 deaths. 14 And the official death

toll in the United States "is widely believed to be an undercount" because testing has been

"severely limited," and federal officials have included only individuals with positive test results in the total. 15

10 See Coronavirus Disease 2019 (COVID-19): Situation Report-89, World Health Organization, (Apr. 18, 2020), https://www.who.int/docs/default-source/coronaviruse/situationreports/20200418-sitrep-89-covid-19.pdf?sfvrsn=3643dd38 2.
11 Arkansas COVID-19 Update, supra n.1 12 Coronavirus disease (COVID-19) Situation Dashboard, World Health Organization, https://who.sprinklr.com/region/amro/country/us (last updated Apr. 20, 2020). 13 Centers for Disease Control and Prevention, supra n.11. 14 Arkansas COVID-19 Update, supra n.1 15 Emma Brown, Beth Reinhard, and Reis Thebault, Which deaths count toward the covid19 death toll? It depends on the state, Wash. Post (Apr. 16, 2020, 6:30 AM),
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52. The World Health Organization ("WHO") declared COVID-19 a pandemic on March 11, 2020. 16 The same day, Governor Asa Hutchinson signed Executive Order 20-03 ("EO 20-03") declaring a state of emergency, 17 and confirmed the first presumptive case of COVID-19 in Arkansas. 18 Governor Hutchinson noted, "For months, Arkansas has been well prepared to respond to COVID-19. More than two months ago, the Arkansas Department ofHealth, under the leadership of Dr. Nathaniel Smith, designated more than 70 of its employees to work exclusively on COVID-19 ... [I have] asked each ofmy Cabinet secretaries to prepare a continuity ofoperation plan in the event of an outbreak of the virus." 19 EO 20-03 has since been amended to specify procedures to be undertaken across the State, encouraging social distancing, disinfecting, and other reasonable precautions.
53. On March 13, 2020, President Trump declared "that the COVID-19 outbreak in the United States constitutes a national emergency."20
54. COVID-19 is a highly contagious disease. When ''unconstrained, the coronavirus

https://www.washingtonpost.com/investigations/which-deaths-count-toward-the-covid-19-death-

toll-it-depends-on-the-state/2020/04/16/bca84ae0-7991-11 ea-al 30-df573469f094 story.html. 16 WHO Director-General's opening remarks at the media briefing on COVID-19 - 11

March

2020,

World

Health

Organization

(Mar.

11,

2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

17

Ark.

Proclamation

No.

20-03

(Mar.

11,

2020),

https://governor.arkansas.gov/images/uploads/executiveOrders/EO 20-03. 1.pdf. 18 Governor Asa Hutchinson, Press Release, Mar. 11, 2020,

https://governor.arkansas.gov/news-media/press-releases/governor-hutchinson-confirms-states-

first-presumptive-positive-covid-19-cas. 19 See id. 20 President Donald Trump, Proclamation on Declaring a National Emergency Concerning

the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020),

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-

concerning-novel-coronavirus-disease-covid-19-outbreak/

19

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 20 of 50
spreads exponentially, the caseload doubling at a steady rate."21 Infected individuals can pass the virus to others by coughing, sneezing, or talking.22 Individuals may become infected ifthey breathe
in a respiratory droplet containing the virus, or touch a surface that has the virus on it and then touch their mouth, nose, or eyes.23 The virus can survive in the air in droplet form for at least three hours, and it can survive up to one day on cardboard, two days on plastic, and three days on steel.24
There is evidence that transmission ofthe virus can occur before the onset of symptoms or through infected individuals who never develop symptoms. 25
55. Because COVID-19 is a novel virus, no vaccine exists, and no cure has been developed. 26 Unlike the flu, there is no effective antiviral medication to prevent or treat infection.27
56. The combination ofCOVID-19's highly contagious nature and the lack ofa vaccine
or effective antiviral treatment mean that the disease spreads rampantly absent substantial public
health interventions. Without such interventions, the CDC projects that 200 million people in the United States could become infected, and 1.5 million people could die. 28
57. The only known effective means of controlling the virus are social distancing-
21 Kenneth Chang, A Different Way to Chart the Spread ofCoronavirus, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/2020/03/20/health/coronavirus-data-logarithm-chart.html.
22 Coronavirus disease 2019 (COVID-19) Factsheet, Centers for Disease Control and Prevention (Mar. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncovfactsheet. pdf.
23 See id 24 Neeltje van Doremalen et al., Correspondence, Aerosol and Surface Stability ofSARSCo V-2 as Compared with SARS-CoV-1, New England J. Medicine (Mar. 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973.
25 Exhibit 1, Declaration of Dr. Jonathan Louis Golob ("Golob Deel.") at ,r 6; Wycliffe E.
Wei et al., Presymptomatic Transmission ofSARS-CoV-2-Singapore, January 23 -March 16, 2020, Morbidity and Mortality Weekly Report, 411-15 (Apr. 10, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm69l 4e l .htm.
26 Exhibit 2, Declaration of Dr. Marc Stem ("Stem Deel.") at ,r 5. 27 Golob Deel. at ,r 10. 28 See id at ,r 11.
20

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 21 of 50
remaining physically separated from known or potentially infected individuals-and the use of hygienic measures, including frequent hand washing.29 For purposes of social distancing, the CDC
recommends that individuals stay at least six feet away from others and "stay out of crowded places."30
58. Even maintaining a distance of six feet of separation from others is not sufficient
to avoid the risk of infection. Researchers have demonstrated that particles from a cough may spread as far as 16 feet, while a sneeze may spread particles as far as 26 feet. 31 The virus also
spreads more quickly in poorly ventilated spaces. An infected person who speaks for five minutes
in a poorly ventilated area can produce as many infection droplets of the virus as one infectious cough.32 That effect is magnified when multiple people share a space, which "build[s] up" the concentration of infectious droplets in the air. 33
59. The time period between when an individual becomes infected and the time that the individual exhibits symptoms varies from person to person.34 The typical period is five days, but
it can be as short as two days, and some people will never develop symptoms while still potentially spreading the disease. 35 As a result, the only way to establish the lack of risk from COVID-19 is through an aggressive testing regime.36
29 See id at , 10-11; Stem Deel. at , 1. 30 Public Health Recommendations after Travel-Associated COVID-19 Exposure, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/php/riskassessment.html (last visited Apr. 19, 2020). 31 Yuliya Parshina-Kottas, Bedel Saget, Karthik Patanjali, Or Fleisher and Gabriel Gianordoli, This 3-D Simulation Shows Why Social Distancing Is So Important, N.Y. Times (Apr. 14 2020), https://www.nytimes.com/interactive/2020/04/14/science/coronavirus-transmissioncough-6-feet-ar-ul.html. 32 See id 33 See id 34 Golob Deel. at, 6. 35 See id at, 6. 36 See id
21

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 22 of 50
60. People of all ages risk serious illness, injury, or death ifthey contract COVID-19.37
Even mild cases of COVID-19 generally involve about two weeks of fevers and dry coughs and
are more severe than the flu. 38
61. According to the WHO, approximately 20% of people who contract COVID-19
require treatment by a specialist, and one in six becomes seriously ill. 39 In serious cases,
individuals' lungs "become filled with inflammatory material [and] are unable to get enough
oxygen to the bloodstream."40
62. Severe cases of COVID-19 cause acute respiratory distress syndrome ("ARDS") in
which fluid displaces air in the lungs. COVID-19 patients with ARDS "are essentially drowning
in their own blood and fluids because their lungs are so full."41
63. The virus frequently causes extreme symptoms, including fever and chills that can
last for weeks, excruciating pain, debilitating fatigue, an unremitting cough, uncontrollable
diarrhea, and an inability to keep down food and water.42 CNN Anchor Chris Cuomo contracted
37 CDC COVID-19 Response Team, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) - United States, February 12-March 16, 2020, Morbidity and Mortality Weekly Report (Mar. 18, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/ mm6912e2.htm?s cid=mm6912e2 w.
38 Holly S~con and Aria B~ndix, There is a wide misconception of what a 'mild' case of COVID-19 looks like. It can be ugly and brutal., Business Insider (Apr. 16, 2020, 2:34 PM), https://www.businessinsider.com/mild-coronavirus-cases-high-fever-dry-cough-2020-3.
39 Graham Readfeam, What Happens to People's Lungs When They Get Coronavirus?, The Guardian (Mar. 24, 2020), https://www.theguardian.com/world/2020/apr/15/what-happensto-your-lungs-with-coronavirus-covid-19.
40 See id 41 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 -Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/amedical-worker-describes--terrifying-lung-failure-from-covidl 9-even-in-his-young-patients. 42 See, e.g., id; Leah Groth, Is Diarrhea a Symptom of COVID-19? New Study Says Digestive Issues May Be Common With Coronavirus, Health (Mar. 20, 2020), https://www.health.com/condition/infectious-diseases/coronavirus/is-diarrhea-a-symptom-ofcovid-l 9.
22

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 23 of 50
COVID-19 and explained that "[i]t was like somebody was beating me like a pifiata."43 Cuomo
shivered so much that he chipped a tooth, hallucinated, and experienced a fever in excess of I03 degrees.44 And Cuomo's illness was not one of the more serious manifestations of the illness that
required hospitalization. Others have characterized the experience of COVID-19 as "the most excruciating pain I've ever felt."45
64. Even among young and healthy people, a COVID-19 infection requires supportive
care, including supplemental oxygen, positive pressure ventilation, and extracorporeal mechanical oxygenation. 46
65. For a significant number of people, contracting COVID-19 will end in death. In the
United States, the fatality rate continues to rise. Although the recorded death rate was 1.35% in late March, it has now increased to nearly 5%.47
66. Beyond the initial symptoms and the risk of death, COVID-19 also causes serious long-term medical conditions.48 It severely damages lung tissue and can cause a permanent loss of
43 Quint Forgey, 'Like somebody was beating me like a pinata': Chris Cuomo describes coronavirus battle, Politico (Apr. 2, 2020, 7:30 AM), https://www.politico.com/news/ 2020/04/02/chris-cuomo-coronavirus-experience-161057.
44 See id. 45 Edward Pevos, WDIV-TV anchor, Evrod Cassimy, recovered from coronavirus, describes 'most excruciating pain I've ever felt', MLive (Apr. 6, 2020), https://www.mlive.com/coronavirus/2020/04/wdiv-tv-anchor-evrod-cassimy-recovered-fromcoronavirus-describes-most-excruc iating-pain-ive-ever-felt.htm 1.
46 Golob Deel. at ,r 5.
47 Chris Mooney, Juliet Eilperin and Joel Achenbach, As U.S. coronavirus fatality rate rises to 5 percent, experts are still trying to understand how deadly this virus is, Wash. Post (Apr. 17, 2020), https://www.washingtonpost.com/health/as-officials-plan-to-reopen-the-economy-akey-unknown-remains-how-deadly-is-the-coronavirus/2020/04/l 7/0bd2f938-7e49-l l ea-a3ee13el ae0a3571 story.html
48 Tian-Yuan Xiong et al., Coronaviruses and the cardiovascular system: acute and longterm implications, EURO. HEART J (Mar. 18, 2020), https://academic.oup.com/eurheartj/article/ doi/10.1093/eurheartj/ehaa231/5809453.
23

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 24 of 50
lung capacity.49 COVID-19 targets the heart muscle, causing inflammation of the muscle called myocarditis.50 Myocarditis affects both the heart muscle and electrical system leading to heart failure that limits an individual's ability to work and exercise for the remainder of their life. 51 COVID-19 also triggers an exaggerated response of the immune system called cytokine release syndrome, which can result in damage to various organs, including permanent kidney injury that requires dialysis and neurological injury.52
67. Although COVID-19 can cause serious symptoms for any individual, up to and including death, its effects are much more severe for certain populations.
68. Among the highest risk populations, the fatality rate from COVID-19 is approximately 15%.53 For high risk patients who do not die from the disease, the recovery period is prolonged, and individuals have a "profound" "need for extensive rehabilitation."54
69. Individuals older than 50 are more vulnerable to COVID-19, and those over 70 face a particularly serious risk of death from the disease.55
70. Various medical conditions also increase the risk of serious consequences from COVID-19 for individuals of any age. These conditions include lung disease, heart disease, diabetes, being immunocompromised (from cancer, HIV, autoimmune disease, etc.), blood disorders (including sickle cell disease), chronic liver or kidney disease, inherited metabolic disorders, stroke, developmental delay, or pregnancy.56
49 Golob Deel. at ,i 9. 50 See id. 51 See id. 52 See id. 53 Id. at ,J 4. 54 Id. 55 See Stem Deel. at ,i 4; Golob Deel. at ,i 3. 56 Golob Deel. at ,i 3.
24

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 25 of 50
71. Black individuals have faced significantly increased risks of both infection and
death from COVID-19 in Arkansas, making up less than 16% of the population but accounting for 29.4% of confirmed cases and 36.8% of deaths. 57 This is consistent with the severe racial
disparities with respect to the pandemic in other parts of the country. In Illinois, Black people
comprise less than 15% of the population but account for 30% of the state's cases and 40% of deaths. 58 Similarly, 40% of those who have died in Michigan from COVID-19 are Black as compared to 14% of the state's population. 59 And the same trend is evident in Louisiana, where
° Black people make up 33% of the population but account for 70% of deaths. 6 COVID-19 has a
disproportionately harmful effect on Black people because they are more likely to have pre-
existing conditions that exacerbate the symptoms of the disease due to environmental and economic factors and because of inequalities in the health care system.61
II. Conditions in ADC Facilities Create Serious Risk of COVID-19-Related Infection, Disease, and Death. 72. On March 27 and April 15, 2020, Arkansas Secretary of the Department of Health
Nathaniel Smith acknowledged that the correctional facility "setting[] pose[s] a high risk for
transmission ofCOVID-19."
73. Indeed, correctional facilities are epicenters for infectious diseases, like COVID-
57 ADH COVID-19 Demographic Slide Deck, Ark. Dep't of Health, https://www.healthy.arkansas.gov/images/uploads/pdf/Presentation - Demographics PPT.pdf (last updated Apr. 19, 2020).
58 Jan Wolfe, African Americans more likely to die from coronavirus, early data shows, Reuters, Apr. 6, 2020, https://www.reuters.com/article/us-health-coronavirus-usa-race/africanamericans-more-likely-to-die-from-coronavirus-illness-early-data-shows-idUSKBN2102B6 .
59 See id 60 Lauren Zannolli, Datafrom US south shows African Americans hit hardest by Covid-19, The Guardian, Apr. 8, 2020, https://www.theguardian.com/world/2020/apr/08/black-americanscoronavirus-us-south-data. 61 Wolfe, supra n.62; Colleen Walsh, COVID-19 Targets Communities ofColor, Harvard Gazette, Apr. 14, 2020.
25

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 26 of 50
19, because of they have higher levels of risk factors for infection; conditions that unavoidably entail close contact in often overcrowded, poorly ventilated, and unsanitary facilities; and poor access to healthcare services relative to that available in community settings.62
74. Prisons are congregate environments (i.e., places where people live and sleep in close proximity).63 In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread, and therefore present an increased danger for the spread of COVID-19 if and when it is introduced into the facility. 64
75. COVID-19 has been especially dangerous in areas of close confinement, such as cruise ships and assisted living facilities. In early March 2020, the highest known person-to-person transmission rates for the virus were in a nursing home in Kirkland, Washington and on cruise ships in Japan and off the coast of Califomia.65 More recently, the highest recorded transmission rates have been in Rikers Island, a jail facility in New York City, with a rate of transmission that is over seven times higher than the city overall.66
76. Similarly, on March 30, 2020, the captain of the aircraft carrier USS Theodore Roosevelt, Captain Brett Crozier, raised alarms about the spread of COVID-19 infection among the thousands of sailors on board.67 In his letter to Navy officials, Captain Crozer noted that the
62 Stuart A. Kinner et al., Comment, Prisons and custodial settings are part of a comprehensive response to COVID-19, 5 Lancet Public Health e 188 (2020), https://www.thelancet.com/action/showPdf?pii=S2468-2667%2820%2930058-X; see also Bethany Young and Katie Robertson, How Should Prisons and Jails Prepare for COVID-19?, Urban Institute (Mar. 20, 2020), https://www.urban.org/urban-wire/how-should-prisons-and-jailsprepare-covid-19.
63 Stem Deel. at ,r 9.
64 Id.
65 Golob Deel. at ,r 12.
66 Id. 67 Matthias Gafui and Joe Garofoli, &elusive: Captain of aircraft carrier with growing coronavirus outbreak pleads for help from Navy, San Francisco Chronicle, Mar. 31, 2020,
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Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 27 of 50
"environment most conducive to spread of the disease is the environment the crew of the [Theodore Roosevelt] is in right now," including:
a. "Large amounts of Sailors in a confined space"; b. "Open, shared berthing"; c. "Shared restroom facilities"'; d. "Confined, shared workspaces ..."; e. "Shared messing for large numbers"; and f. "Meals cooked/ food provided by exposed personnel ...."68 77. In order to "[p]revent unnecessary deaths, reduce the number of Sailors that contract COVID-19 and eliminate future virus spread," Capt. Crozier agreed that "[e]very Sailor must be guaranteed virus-free and the ship environment must be disinfected. One infected Sailor introduced to the ship will spread the virus."69 Capt. Crozier further asserted that"[d]ecisive action is required.... Sailors do not need to die."70 78. As ofApril 17, 2020, 660 crew members (13%) tested positive for the virus, 71 with one casualty-41-year-old Aviation Ordnanceman ChiefPetty Officer Charles Robert Thacker Jr., who is from Fort Smith, Arkansas.72
https://www.sfchronicle.com/bayarea/article/Exclusive-Captain-of-aircraft-carrier-with15167883.php.
68 Id, Letter from Capt. Brett E. Crozier, U.S. Navy, Subj: Request for Assistance in Response to COVID-19 Pandemic, Mar. 30, 2020, at 2.
69 Id at 3. 70 Id at 3-4. 71 Matthew Impelli, 660 Crew Members on USS Theodore Roosevelt Test Positive for Coronavirus, Newsweek, Apr. 17, 2020, at https://www.newsweek.com/660-crew-members-usstheodore-roosevelt-test-positive-coronavirus-1498612. 72 Sam LaGrone, Navy Identifies Carrier Roosevelt Sailor Who Died.from COVID-19, U.S. Naval Institute News, Apr. 16, 2020, https://news.usni.org/2020/04/16/navy-identifies-carrierroosevelt-sailor-who-died-from-covid-19.
27

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 28 of 50
79. Because ADC prisoners are housed in close quarters, unable to maintain a six-foot distance from others, and share or touch objects used by others, the risks of contracting COVID19 are greatly, if not exponentially, increased, as is already evidenced by the spread ofCOVID-19 in other congregate environments.73 Indeed, despite the significant resources and discipline of the U.S. military, over 600 sailors have become infected and one sailor has died from widespread infection in a single aircraft carrier.
80. The risk of COVID-19 spreading throughout ADC facilities is exceptionally high, in part, because of the presence of outsiders and staff, who may be asymptomatic or presenting COVID-19 symptoms in these facilities.74 Dr. Robert Redfield, Director of the CDC, has warned that as many as 25% of individuals infected with COVID-19 may not show symptoms.75 In fact, of the 600 confirmed infections in Cummins Unit, most are asymptomatic.76 Thus, screening outsiders, including staff and visitors, for symptoms of COVID-19, will not necessarily prevent the introduction ofCOVID-19 from the outside because the virus can spread "before people show symptoms."77
81. Arkansas has already witnessed the spread of COVID-19 in its correctional facilities. At the end of March 2020, an agricultural worker at the Cummins Unit tested positive. Subsequently, on April 12, 2020, a person incarcerated at Cummins Unit tested positive for
73 Stem Deel. at, 9. 74 Stem Deel. at, 9. 75 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times, Mar. 30, 2020, at https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html. 76 Meghan Rhoos, One Arkansas Prison Makes Up Almost a Third ofState 's Coronavirus Cases, Newsweek, Apr. 20, 2020, https://www.newsweek.com/one-arkansas-prison-makesalmost-third-states-coronavirus-cases-1499045. 77 See Ctrs. for Disease Control & Prevention, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html.
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Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 29 of 50
COVID-19; this was the first known positive case in the AOC incarcerated population. 78 People
housed in that individual's barracks were tested in the following days, revealing that 44 of the 46 other incarcerated people housed in his barracks were positive.79
82. The Cummins Unit now has the most confirmed cases of COVID-19 of any
correctional facility in Arkansas with 600 incarcerated people testing positive as of April 19, 202080-a more than 1,300% increase from April 13, when fewer than 50 incarcerated people in Cummins were confirmed positive.81 In addition, 57 prisoners in a federal prison in Forrest City
and 62 incarcerated parole and probation violators in Little Rock have tested positive for the virus.82 Currently, incarcerated people make up approximately one in three verified COVID-19
infections statewide. Even with these alarming figures, the actual number of COVID-19 infections
in AOC facilities is likely much higher due to the lack of widespread testing.
83. Along with facing greater risk of infection, prisoners in Arkansas are also more
likely to have underlying medical conditions that render them especially vulnerable to severe
illness and even death from COVID-19. The Department ofJustice has found that "[b]oth prisoners
and jail inmates were more likely than the general population to report ever having a chronic
78 John Moritz, Arkansas prison farm worker has covid-19, official says, Arkansas Democrat Gazette, Apr. 1, 2020, https://www.arkansasonline.com/news/2020/apr/Ol/prison-farmworker-has-covid-l 9-officia-l/.
79 Max Brantley, Coronavirus update: Big jump in Cummins prison cases; a goal of beginning a return to work May 4, Ark. Times, April 17, 2020, https://arktimes.com/arkansasblog/2020/04/17/coronavirus-update-big-jump-in-cummins-prison-cases-a-goal-of-beginning-areturn-to-work-may-4.
80 Meghan Roos, One Arkansas prison makes up almost a third of State's coronavirus cases, Newsweek, Apr. 20, 2020, https://www.newsweek.com/one-arkansas-prison-makesalmost-third-states-coronavirus-cases-1499045.
81 Max Brantley, Coronavirus update: Big jump in Cummins prison cases; a goal of beginning a return to work May 4, Ark. Times (Apr. 17, 2020), https://arktimes.com/arkansasb log/2020/04/ 17Icoronavirus-update-big-j um p-in-cummins-prison-cases-a-goal-o f-beginning-areturn-to-work-may-4.
s2 Id 29

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 30 of 50
condition or infectious disease."83 "[H]alf of state and federal prisoners and local jail inmates reported ever having a chronic condition," such as "cancer, high blood pressure, stroke-related problems, diabetes, heart-related problems, kidney-related problems, arthritis, asthma, and cirrhosis of the liver," and "[t]wenty-one percent of prisoners ... reported ever having an infectious disease," including "including tuberculosis, hepatitis B and C, and other sexually transmitted diseases (STDs)."84
84. Health profiles of incarcerated people show that they are significantly sicker and more vulnerable to COVID-19 than the general population.85 For example, incarcerated people are more likely to have medical conditions such as asthma, tuberculosis, hypertension, diabetes, and heart disease, as compared to the general population.86 Also, the prevalence of tuberculosis is 12 times higher in state and federal prisons compared to overall U.S. population. 87
83 U.S. Dep't of Justice, Bureau of Justice Statistics, Medical Problems of State and Federal Prisons and Jail Inmates, 2011-12 p. 1 (2016), https://www.bjs.gov/content/pub/pdf/mpsfpji 1112.pdf.
84 Jd 85 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/. 86 Jd s1 1d
30

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 31 of 50

Health condition Ever tested positive for Tuberculosis Asthma Cigarette smoking HIV positive High blood pressure/hypertension Diabetes/high blood sugar Heart-related problems Pregnancy

Prevalence of health condition by population

State

Federal

United

Jails

prisons

prisons

States

2.5%

6.0%

0.5%

20.1% n/a 1.3%
30.2% 7.2% 10.4% 5.0%

64.7% 4.0%

14.9% 45.2%
1.3% 26.3% 9.0% 9.8%
3.0%

10.2% 21.2% 0.4% 18.1% 6.5% 2.9% 3.9%

Health conditions that make respiratory diseases like CO\]D-10 more dangcro11s are ]<1r more cm1w10n in the i11carc1?rated

pop11/ation than in the general l:.S. population. Pregnancy data come Ji-om 011r repor't.

. the cvc•s

.and datafi·orn the

Cigarette

smoking data arefi·om a 2016 study,

, and all other data are from the 2015

BJS report..'.: :·

, 1chich does not otJ<•r separate dotafor

the federal and state prison pop11/atio11s. Cigarette smoking

o( the lrigherfatality rate in China

among lll<'n, who m·<'for 111or<' likely to smoke than 11•omc11.

Source: Prison Policy Initiative, https://www.prisonpolicy.org/blog/2020/03/06/pandemic

85. Like tuberculosis, the hazardous combination of overcrowding and poor ventilation, along with prisoners living in close quarters and without available means to ensure preventative hygiene practices, causes correctional facilities to become a known breeding ground for a highly infectious respiratory illness like COVID-19.
86. "Chronic health conditions, such as diabetes, hypertension, and asthma, ... [are a] growing proportion of correctional health care needs" due to "two trends: the aging prison population and the nation's general obesity epidemic. About 40% of all inmates are estimated to have at least one chronic health condition. With a few exceptions, nearly all chronic health conditions are more prevalent among inmates than in the general population."88
87. The Department of Justice has reported 74% of prisoners to be overweight, obese,

88 Alexandria Macmadu and Josiah D. Rich, Correctional Health Is Community Health, 13 Issues in Science and Technology, Vol. XXXII, No. 1 (2015), https://issues.org/correctionalhealth-is-community-health/.
31

Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 32 of 50
or morbidly obese.89 Problems with obesity within the prison population is especially troubling in this pandemic because obesity may be an important predictor of severe COVID-19-related illness, especially among younger people.90 This is because people with obesity may already have a compromised respiratory system, and "[a]bdominal obesity, [which is] more prominent in men, can cause compression ofthe diaphragm, lungs and chest capacity."91
88. In addition, a growing elderly prison population is especially at risk of serious COVID-19 disease or death. In fact, the "percentage of people in state prisons who are 55 and older more than tripled between 2000 and 2016," and, "[f]or the first time, older adults make up a larger share of the state prison population than people from 18 to 24."92
89. Because individuals in jails and prisons are considered physiologically comparable to individuals in the community several years older, many state departments ofcorrections and the Federal Bureau of Prisons define "elderly" or "older" variously between 50 and 60 years of age.93 Accordingly, people over the age of 50 in correctional settings are considered vulnerable to the COVID-19 virus.94

89 U.S. Dep't of Justice, Bureau of Justice Statistics, Medical Problems of State and

Federal Prisons and Jail Inmates, 2011-12 p. 1 (2016), https://www.bjs.gov/content/pub/pdf/

mpsfpjil 112.pdf.

90 Roni Caryn Rabin, Obesity Linked to Severe Coronavirus Disease, Especially for

Younger

Patients,

N.Y.

Times

(Apr.

16,

2020),

https://www.nytimes.com/2020/04/l 6/health/coronavirus-obesity-higher-risk.html.

91 Id.

92 Weihua Li and Nicole Lewis, This Chart Shows Why The Prison Population Is So

Vulnerable to COVID-19, Marshall Project (Mar. 19, 2020),

https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-population-is-

so-vulnerable-to-covid-l 9.
93 Stem Deel. at ,r 9.

94 Id.

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Case 4:20-cv-00434-KGB Document 1 Filed 04/21/20 Page 33 of 50
III. The Spread of Covid-19 In ADC Facilities Jeopardizes the Public Health of Surrounding Communities, Especially Black Communities. 90. Prisons are not fully closed environments. When the COVID-19 virus is introduced
to a prison, all persons within the facility-whether they are staff or a incarcerated people-are at heightened risk of contracting the virus and, in tum, spreading the virus to others with whom they live or come into contact with in their own homes and neighborhoods.95 The harm caused by a COVID-19 outbreak in a correctional facility, therefore, is not confined to those who are incarcerated or work in that facility. Instead, this harm poses a serious health risk to the surrounding community.96
91. For example, scarce community health resources like emergency departments, hospital beds, and ventilators would inevitably become more scarce in the event of a COVID-19 outbreak in a detention facility, because incarcerated people are more likely to have underlying medical conditions that carry a significantly increased risk of severe complications from COVID19. 97
92. A COVID-19 outbreak would exceed the capacity of the local health infrastructure because treatment for serious cases requires significant medical intervention, including ventilator assistance and intensive care support. 98 Ifthe need for ICU beds and life-saving medical equipment exceeds supply, the death rate will increase for the entire population of Arkansas.
93. The distribution ofcorrectional facilities also poses a substantial risk that a COVID19 outbreak in ADC facilities will create a dangerous shortage of ICU beds in surrounding areas.
95 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/.
96 Stem Deel. at ,i 11. 97 Stem Deel. at ,i 9. 98 See id. at ,i 8.
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Of the 20 ADC facilities, nine are located in counties with no ICU beds in surrounding
communities.99 Six more are located in Jefferson County, which has only 34 ICU beds. 100 All three
of the facilities with the largest detention capacities-Cummins Unit, East Arkansas Regional
Unit, and Varner Unit-are in counties with no ICU beds. 101
94. The geographic distribution of ADC facilities greatly increases the risk of a
COVID-19 outbreak in communities surrounding those facilities, which would disproportionately
impact Arkansas's Black residents.
95. The ADC runs twenty detention facilities across the State. 102 These facilities are
not evenly distributed across Arkansas. Instead, they are concentrated in the southeastern part of
the State, near Pine Bluff. 103
96. Black people make up 15.7% of the Arkansas population. 104 Yet eight of the 20
ADC facilities are located in counties where Black individuals comprise a majority ofresidents. 105
In total, 16 ofthe 20 ADC detention facilities are located in counties that have a higher percentage
99 These facilities are Cummins Unit, Delta Regional Unit, East Arkansas Regional Unit, Grimes Unit, McPherson Unit, North Central Unit, Texarkana Regional Corrections Center, Varner and Varner Supermax Unit, Wrightsville Unit. See Facilities, Ark. Dep't of Correction,, https://adc.arkansas.gov/facilities (listing facilities and locations) (last visited Apr. 20, 2020); Ninette Sosa, A Closer Look: Arkansas and ICU Beds by County, KNWA Fox (Mar. 27, 2020), https://www.nwahomepage.com/lifestyle/health/coronavirus/a-closer-look-arkansas-and-icubeds-per-county/ (listing ICU beds by county).
100 See id. 101 See id. 102 Facilities, Ark. Dep't of Correction, https://adc.arkansas.gov/facilities (last visited Apr. 20, 2020). 103 See id. 104 Quick Facts: Arkansas, United States Census, https://www.census.gov/quickfacts/AR (last visited Apr. 20, 2020). 105 See Facilities, Ark. Dep't of Correction,, https://adc.arkansas.gov/facilities (last visited Apr. 20, 2020) (listing facilities and locations); Arkansas Demographics, https://www.arkansasdemographics.com/counties-cities-that-begin-with-A (last visited Apr. 20, 2020) (providing demographic data for all Arkansas counties).
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of Black people than the State-usually by a significant margin. 106 97. If COVID-19 spreads throughout ADC's facilities, Black Arkansans will
disproportionately suffer consequences from that spread, as compared to their percentage of the Arkansas state population. IV. Defendants Intentionally Fail to Adopt and Implement Adequate Policies and
Procedures to Prevent and Mitigate the Spread of COVID-19. 98. On March 11, 2020, Defendant Kelley issued a memorandum outlining ADC's protocols to reduce the risk and combat the spread of COVID-19 within ADC facilities. This memorandum only encouraged regular hand washing, covering coughs and sneezes, avoiding handshakes, continuing cleaning (instead of intensifying it), and telling staff members to stay at home if ill. 107 99. On March 23, 2020, the CDC published the CDC Guidance. 108 The purpose of the CDC Guidance is, in part, to help correctional facilities ensure the protection of the health and safety of incarcerated people. The ADC leadership, including Defendant Kelly, were made aware ofthe CDC guidance on March 23, 2020. 100. Defendants' departures from the CDC Guidance are many and have placed incarcerated people in ADC facilities at a significant and unnecessary heightened risk of infection, severe illness, and/or death despite widespread knowledge of the highly contagious nature of COVID-19 and the severe consequences of infection, especially among older people and people with underlying health and medical conditions.
106 See id. 107 Wendy Kelley, Sec. of Corrections, Memorandum (Mar. 11, 2020), https://ssladc.ark.org/images/uploads/Coronavirus Notice for Web - 3-11-2020.pdf. 108 The CDC is a federal agency and the leading national public health institute of the United States. It is charged with protecting public health and safety through the control and prevention of disease.
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101. Defendants' failures to adopt and implement adequate policies and procedures to prevent and mitigate the spread ofCOVID-19 fall into seven broad categories, which are discussed below.
102. First, Defendants failed to adequately plan to prevent or mitigate the spread of COVID-19 in ADC facilities. Importantly, the CDC Guidance recommends that correctional facilities should develop contingency plans for reduced workforces due to staff absences.
103. As a result of Defendants' failure to adequately plan for staff shortages, ADC facilities are experiencing unmitigated staffing shortages amid the COVID-19 pandemic. These shortages place Named Plaintiffs and the putative class members at great risk. For example, some Ouachita River Unit staff are not being screened for COVID-19 symptoms, because the facility is desperate for staff due to staffing shortages amid the COVID-19 pandemic. Notably, this failure to screen staff is also in contravention ofthe CDC Guidance.
104. The CDC Guidance also calls for the provision of PPE and contingency planning for shortages of PPE, but Defendants do not have any such plans. Consequently, several of the Named Plaintiffs and the putative class members are being housed with incarcerated people who have symptoms of COVID-19 but have not been provided face masks to protect others in their barracks.
105. Other Named Plaintiffs have not received any masks, despite having severe underlying medical conditions, reporting symptoms ofCOVID-19, and repeatedly requesting PPE. For example, Mr. Kent, who has reported having COVID-19 symptoms, has not received a mask even though he submitted his request for one over three weeks ago.
106. When a mask is provided, any attempt to clean the mask requires incarcerated people being without the mask for an unsafe period. After a mask is handwashed, it cannot be worn
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while it is drying. Also, an incarcerated person who sends their mask to the laundry goes without the mask until it is returned to them, and even then, they risk their mask being damaged by the laundry machines. Alarmingly, many of the masks that are provided to incarcerated people were made by incarcerated people in Cummins Unit, which has the greatest known COVID-19 infection rate ofany ADC facility. Some ofthe incarcerated people making the masks at Cummins Unit are known to have COVID-19.
107. Second, Defendants have failed to implement the training and educational interventions necessary to prevent the spread of COVID-19 in correctional facilities. The CDC Guidance states that correctional staff and incarcerated people should be trained on donning, doffing, and disposing of PPE. However, Plaintiffs and the putative class members have not been instructed on how to properly don, doff, or dispose of PPE. Many ADC staff members wear their face masks below their nose-if they wear them at all-and do not change their protective gloves regularly, in contravention of the CDC Guidance for the use of PPE. Moreover, those class members who have received face masks only have one, which, as mentioned above, they are required to wash themselves, leading to frequent handling of contaminated masks or no mask at all while it is drying.
108. Whereas the CDC Guidance recommends correctional facilities post signage informing staff and incarcerated people how to report COVID-19 symptoms and telling staff to stay at home when sick, Defendants do not require any such signage. Also, the limited signage required by Defendants is only directed towards visitors to correctional facilities and staff, but not incarcerated people. Many Named Plaintiffs and putative class members are therefore being deprived of needed reminders of how they can protect themselves and others from infection. For
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example, Mr. Kent, who is incarcerated in the Varner Unit, reports not seeing any signage related to COVID-19 in the prison.
109. Third, Defendants have not implemented the heightened hygienic, cleaning, and disinfecting practices called for by the CDC Guidance. Named Plaintiffs also do not have access to the cleaning supplies necessary to sanitize themselves, their personal items, or their living areas. Indeed, ADC rules continue to restrict access to such crucial cleaning supplies, even in the midst ofthe COVID-19 pandemic.
110. Defendants' failures are also reflected in the unsanitary conditions of ADC facilities. ADC has not intensified cleaning and disinfecting its facilities amid the pandemic. For example, Mr. Otwell's bathroom in Ouachita River Unit is only cleaned once a week, at the most. Mr. Nickson's shared showers in Cummins Unit is similarly filthy, which is why he chooses to clean himself using the sink in his cell instead of the prison's shared showers.
111. Notably, a man who works in sanitation at Ouachita River Unit has confirmed that the sanitation work crew does not clean the prison's kitchen. Indeed, Mr. Serrato believes the kitchen at Ouachita River Unit is the dirtiest place in the prison. Food from this unsanitary kitchen is served on dining tables that are washed with recycled and soiled brownish water.
112. In addition, the ADC has not followed the CDC's recommendation that staff clean shared surfaces several times a day. Even though Mr. Serrato shares a barracks with over 40 people, frequently touched surfaces in his barracks are only disinfected bi-monthly, instead of several times a day as recommended by the CDC.
113. These unsanitary conditions and inadequate levels of cleaning and disinfecting, which are in contravention of the CDC Guidance, place Named Plaintiffs and the putative class memhers at an inexcusably higher risk of contracting COVID-19.
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114. Fourth, Defendants have failed to adequately implement measures to reduce crowding, minimize interpersonal contact, and encourage social distancing. The ADC has not heeded the CDC's caution against unnecessarily transferring incarcerated people from one facility to another. As was the case before the COVID-19 pandemic, dozens of incarcerated people are currently being transported from Ouachita Unit to other ADC facilities daily. Similarly, the transfer of incarcerated people into Varner Unit from other ADC facilities has continued unabated amid the pandemic.
115. Dozens of incarcerated people are currently engaging in recreational activities and having meals together in the same place, at the same time. For example, Mr. Kouri and Mr. Serrato have spent recreation time with incarcerated people from other barracks amid the COVID-19 pandemic. Also, people incarcerated in ADC facilities sit within two feet of each other while dining; this is in contravention of the CDC's recommendation of six feet of social distancing.
116. Named Plaintiffs and the putative class members are similarly unable to social distance in their barracks, where they sleep. Mr. Otwell is housed in a barracks in which the beds are located within 2.5 feet of each other. Mr. Serrato's bed is similarly situated within 2.5 feet of the beds of men around him.
117. This inability to social distance, paired with a failure to adequately implement measures to reduce overcrowding, place Named Plaintiffs and the putative class members at a heightened risk of contracting COVID-19.
118. Fifth, Defendants do not adequately address suspected cases of COVID-19. If an incarcerated person exhibits symptoms of COVID-19, the CDC Guidance calls for them to be immediately given a face mask, placed in isolation, provided a medical evaluation and treatment,
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and evaluated for possible testing. In contrast, the ADC is not providing symptomatic people a mask, are not medically evaluating or treating them, and/or do not evaluate them for testing.
119. Named Plaintiffs have firsthand experience with AOC' s inadequate treatment of incarcerated people exhibiting symptoms of COVID-19. For example, Mr. Kent has informed prison staff that he has symptoms of COVID-19, but has not received medical treatment, despite being especially vulnerable to contracting COVID-19 due to his serious heart condition. When Mr. Kouri, who is severely obese and therefore vulnerable to COVID-19, reported COVID-19 symptoms, such as shortness of breath and a cough, he was not evaluated for testing. Instead, he was provided eyedrops and sent back to his regular barracks. Alarmingly, Mr. Kouri comes into contact with over a hundred people in the prison per day, including people in his barracks, some ofwhom are bedridden and exhibiting symptoms ofCOVID-19. Similarly, Mr. Nickson-who, as a 61-year-old diabetic, has an increased risk of contracting and dying from COVID-19-was not placed in isolation, despite his reporting symptoms of COVID-19. Instead, he is still being housed with his non-symptomatic roommate.
120. Defendants' cavalier, unconstitutionally inadequate manner of handling suspected COVID-19 cases places Named Plaintiffs and the putative class members at a heightened risk of contracting COVID-19.
121. Sixth, Defendants do not adequately handle incarcerated people or staff who have had contact with people known to have tested positive for COVID-19 ("Close Contact Case"). In contravention of the CDC Guidance, Defendants have not implemented a 14-day quarantine of Close Contact Cases (with the exception of positive incarcerated people's cellmates), nor does it call for monitoring Close Contact Cases for COVID-19 symptoms. Defendants also depart from the CDC Guidance by not requiring ADC staff who have had close contact with a COVID-19-
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positive person to not return to work unless they are asymptomatic 14 days after their exposure to COVID-19. Instead, Defendants permit staff members who actually test positive to go to work, provided they only come into contact with infected incarcerated people. These omissions place Named Plaintiffs and the putative class members in great peril.
122. Seventh, Defendants have woefully inadequate policies and procedures for addressing the presence of a person who has tested positive for COVID-19 in an ADC facility. In the event of an incarcerated person or staff member testing positive for COVID-19, the CDC Guidance calls for the facility to close off the areas used by the person who contracted COVID19. These areas are to be well ventilated for at least 24 hours before they are disinfected by people equipped with proper PPE. Defendants, however, have not implemented any of these measures.
123. In addition, Defendants have departed from the CDC Guidance by not informing incarcerated people that someone in their correctional facility has tested positive for COVID-19, thereby foregoing an opportunity to encourage incarcerated people to exercise more vigilance in their hygiene and cleaning habits when such extra vigilance is needed most. Not even people incarcerated at Cummins Unit, with its alarmingly high COVID-19 infection rate, have been informed of the extent of the outbreak in the prison.
124. ADC has policies concerning precautions that can be taken when dealing with incarcerated people diagnosed with diseases that can be transmitted via air, respiratory droplets, or contact with surfaces containing a virus, but these years-old policies do not explain when these precautions should be taken.
125. Defendants know that the above-mentioned failures to adequately prevent and mitigate against the risk ofCOVID-19 spreading throughout ADC facilities unnecessarily heighten the risk of Plaintiffs and the putative class members contracting COVID-19.
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126. On April 8, 2020, the Arkansas Civil Liberties Union sent a letter to Governor Hutchinson, emphasizing the need to comply with the CDC Guidance in ADC facilities, in part, by mandating social distancing and minimizing the transfer of incarcerated people from one detention facility to another. This letter was also sent to Defendant Kelley. Despite receipt of the serious warnings in this letter, Defendants have failed to implement any of the recommendations.
CAUSES OF ACTION COUNT ONE
Violation of the Eighth Amendment
(42 u.s.c. § 1983)
All Plaintiffs/Petitioners versus All Defendants 127. Plaintiffs/Petitioners incorporate by reference all allegations contained m the preceding paragraphs as if set forth fully herein. 128. The Eighth Amendment to the Constitution of the United States, as incorporated through the Fourteenth Amendment, provides that individuals who are incarcerated following a conviction have the right to be free from cruel and unusual punishment. That right entails, among other things, the State's obligation to protect incarcerated individuals from a substantial risk of serious harm to their health and safety. See generally Farmer v. Brennan, 511 U.S. 825 (1994). 129. The State's failure to provide adequate protection and, if necessary, medical care in response to the rapid spread of a deadly virus constitutes deliberate indifference to the serious medical needs of incarcerated individuals in violation of the Eighth Amendment. 130. Plaintiffs/Petitioners, and the class they represent, suffer a substantial risk of serious harm to their health and safety due to the spread of COVID-19 in ADC facilities. 131. Defendants/Respondents have acted with deliberate indifference to the risks posed by COVID-19 to Plaintiffs/Petitioners. 132. Defendants/Respondents knew, and know, of the obvious and well-established
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risks to Plaintiffs/Petitioners caused by COVID-19. 133. Defendants/Respondents have failed to act with reasonable care to mitigate the risk
posed by COVID-19. 134. As a result of Defendants/Respondents' actions, Plaintiffs/Petitioners and members
ofthe proposed Class are suffering irreparable injury. 135. At all times, Defendants/Respondents acted under color of state law. COUNT TWO Petition for Writ of Habeas Corpus Violation of the Eighth Amendment
(28 u.s.c. § 2241)
High Risk Subclass versus All Defendants 136. Plaintiffs/Petitioners repeat and re-allege the preceding paragraphs as if set forth herein. 137. 28 U.S.C. § 2241(c)(3) permits this Court to order the release of incarcerated individuals like Plaintiffs/Petitioners who are being held "in violation of the Constitution or laws ... of the United States." See also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("It is clear, not only from the language of§§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function ofthe writ is to secure release from illegal custody."). 138. Defendants/Respondents are currently holding Plaintiffs/Petitioners in custody in violation of the Eighth Amendment. Given the highly contagious nature of COVID-19 and the deadly and debilitating threat that it poses to Plaintiffs/Petitioners, Defendants/Respondents cannot currently mitigate the risks to Plaintiffs/Petitioners sufficiently to satisfy the Eighth Amendment by any means short of release from custody.
COUNT THREE Violation of the Americans with Disabilities Act
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(42 U.S.C. § 12101 et seq.) Disability Subclass versus All Defendants 139. Plaintiffs/Petitioners repeat and re-allege the preceding paragraphs as if set forth herein. 140. Defendants/Respondents have intentionally discriminated against Named Plaintiffs and the members ofthe Disability Subclass by denying them reasonable accommodations that have been recommended by the CDC and are necessary to protect them from COVID-19. 141. Reasonable accommodations necessary to protect incarcerated individuals with disabilities include, but are not limited to: a. Access to alcohol-based sanitizer; b. Provision of cleaning supplies, including products containing bleach, adequate to clean individuals' housing areas; c. Provision of PPE; d. Access to antibacterial hand soap and towels to enable individuals to wash their hands as necessary; e. Implementation of social distancing measures m all locations where incarcerated people are required to congregate; and f. Release or transfer to home confinement if social distancing is not practicable. 142. The failure to provide these accommodations constitutes illegal discrimination under the ADA and entitles Plaintiffs/Petitioners to injunctive and declaratory relief. 143. Under Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits ofthe services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42
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u.s.c. § 12132.
144. ADC is a public entity covered by Title II of the ADA. 42 U.S.C. § 12131. 145. For purposes of the ADA, medical treatment and safe conditions of confinement are programs or services that ADC facilities provide to Plaintiffs/Petitioners. 146. Named Plaintiffs/Petitioners and other members of the Disability Subclass have a physical impairment that substantially limits one or more oftheir major life activities. 147. Named Plaintiffs/Petitioners and other members of the Disability Subclass are qualified individuals with a disability under the meaning of both the ADA and the Rehabilitation Act. 148. The ADC knows that Named Plaintiffs/Petitioners and other members of the Disability Subclass are qualified individuals with a disability. The ADC knows that individuals with disabilities are in especially acute need of access to accommodations during the COVID-19 pandemic, including without limitation hand sanitizer and the other items identified above, yet it has denied these reasonable accommodations to Named Plaintiffs/Petitioners and other members ofthe Disability Subclass.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs/Petitioners and proposed class members respectfully request that this Court:
a. Certify the proposed Class and Subclasses; b. Enter an order declaring that Defendants/Respondents' policies and practices regarding COVID-19 violate the Eighth Amendment to the United States Constitution; c. Enter an order declaring that the Defendants/Respondents have violated the
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ADA by failing to reasonably accommodate incarcerated individuals with disabilities; d. Enter a temporary restraining order, preliminary injunction, permanent
injunction, and/or writs of habeas corpus requiring Defendants/Respondents to immediately release members ofthe High Risk Subclass and Disability Subclass or transfer them to home confinement;
e. Appoint a special master or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding the number of incarcerated people that each ADC facility can house while following the CDC guidance on best practices to prevent the spread of COVID-19.
f. Enter a temporary restraining order, preliminary injunction, permanent injunction, and/or writs of habeas corpus requiring that Defendants/Respondents:
i. Ensure that incarcerated individuals can remain six feet apart to practice social distancing in compliance with CDC Guidance;
ii. Ensure that each incarcerated individual receives a free and adequate personal supply of: hand soap sufficient to permit frequent hand washing, paper towels, facial tissues, cleaning implements such as sponges or brushes, and disinfectant products that are effective against COVID-19.
iii. Ensure that all individuals have access to hand sanitizer containing at least 60% alcohol;
iv. Provide daily access to showers and clean laundry, including clean towels after each shower;
v. Require that all ADC staff wear PPE consistent with the CDC Guidance, including masks and gloves, when interacting with visitors and
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incarcerated individuals or when touching surfaces in common areas; vi. Provide an anonymous mechanism for incarcerated individuals to
report staff who violate these guidelines so that appropriate corrective action may be taken;
vii. Take each incarcerated person's temperature daily (with a properly disinfected and accurate thermometer) to identify potential COVID-19 infections;
viii. Assess each incarcerated individual daily through questioning to identify potential COVID-19 infections;
ix. Conduct immediate testing for anyone displaying known symptoms ofCOVID-19;
x. Immediately provide clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary;
xi. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, commissary, phone and video visitation with loved ones, communication with counsel, and personal property;
xn. Clean and disinfect frequently touched surfaces with disinfectant products effective against the virus that causes COVID-19 (at the manufacturer's recommended concentration), as well as surfaces in common areas, every two hours during waking hours, and at least once during the night;
xiii. Ensure incarcerated people are provided guidance on how to protect
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themselves from COVID-19 and reduce COVID-19 transmission; xiv. Assure incarcerated people are told that they will not be retaliated
against for reporting COVID-19 symptoms; xv. Respond to all emergency (as defined by the medical community)
requests for medical attention within an hour; xvi. Provide incarcerated individuals with sufficient and effective
cleaning supplies free of charge so that they may clean frequently touched items, such as phones, before use;
xv11. Indefinitely waive all medical co-pays for individuals experiencing possible COVID-19 symptoms;
xviii. Provide frequent communication to all incarcerated individuals regarding COVID-19, measures taken to reduce the risk of infection, best practices for incarcerated people to avoid infection, and any changes in policies or practices;
xix. Appoint an independent monitor with medical expertise to ensure compliance with these conditions, and provide the monitor with unfettered access to medical units, confidential communication with detained individuals in and out of quarantine, and surveillance video of public areas of the facilities; and g. Retain jurisdiction over this case until Defendants/Respondents have fully complied with the orders of this Court, and there is a reasonable assurance that they will continue to comply in the future, absent continuing jurisdiction; h. Issue an order granting reasonable attorneys' fees and costs pursuant to 42 U.S.C. §§ 1988 and 12205; and i. Grant any further relief that this Court deems necessary.
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Dated: April 21, 2020
Samuel Spital* Jin Hee Lee* Natasha Merle* Omavi Shukur NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Christopher Kemmitt* Ajmel Quereshi* NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall* Jenay Nurse* Corrine Irish* Squire Patton Boggs (US) LLP 1211 Avenue of the Americas, 26th Floor New York, NY 10036 (212) 872-9800
Laura Fernandez* 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 72201 (501) 296-1775
Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202 (501) 374-2660
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*Pro hac vice motions forthcoming Attorneys for Plaintiffs and the Putative Class
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 Case 4:20-cv-00434-KGB Document 2 Filed 04/21/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, ALVIN HAMPTON, MAVIN KENT, MICHAEL KOURI, JONATHAN NEELEY, ALFRED NICKSON, HAROLD (“SCOTT”) OTWELL, TRINIDAD SERRATO, ROBERT STIGGERS, VICTOR WILLIAMS, JOHN DOE, individually and on behalf of all others similarly situated,
Plaintiffs/Petitioners, v.
WENDY KELLEY, Secretary of Arkansas Department of Corrections; DEXTER PAYNE, Division of Correction Director, Arkansas Department of Corrections; JERRY BRADSHAW, Division of Community Correction Director, Arkansas Department of Corrections; NATHANIEL SMITH, Secretary of Arkansas Department of Health; ASA HUTCHINSON, Governor of Arkansas; BENNY MAGNESS, Chairman of Arkansas Board of Corrections; BOBBY GLOVER, Vice Chairman of Arkansas Board of Corrections; BUDDY CHADICK, Secretary of Arkansas Board of Corrections; TYRONNE BROOMFIELD, Member of Arkansas Board of Corrections; JOHN FELTS, Member of Arkansas Board of Corrections; WILLIAM (“DUBS”) BYERS, Member of Arkansas Board of Corrections; WHITNEY GASS, Member of Arkansas Board of Corrections; all in their official capacities,
Defendants/Respondents.

Case No. 4:20-cv-434-KGB

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs Nicholas Frazier, Alvin Hampton, Mavin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold (“Scott”) Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and John Doe file this memorandum in support of their emergency motion for a temporary restraining order and a preliminary injunction to seek immediate relief against the substantial risk of COVID-

Case 4:20-cv-00434-KGB Document 2 Filed 04/21/20 Page 2 of 5
19 infection, illness, and death while incarcerated in Arkansas Department of Correction (“ADC”) facilities.
Plaintiffs are entitled to a temporary restraining order and a preliminary injunction because they are substantially likely to succeed on the merits of their claim that the Defendants’ failure to take steps to address the imminent risk caused by COVID-19 constitutes deliberate indifference in violation of Plaintiffs’ Eighth Amendment rights. Further, Defendants have violated, and will continue to violate, the Americans with Disabilities Act (ADA) by failing to provide Plaintiffs with disabilities with reasonable accommodations that would allow them to have safe housing while serving their prison sentence that does not place them at substantial risk of COVID-19 infection, illness, or death by virtue of their disability.
The United States is in the throes of an unprecedented crisis. Plaintiffs are requesting that the Court grant emergency relief today to protect Plaintiffs from the imminent risk of severe illness or death from exposure to COVID-19. Defendants are aware of the substantial risk posed by the virus and the recommended CDC steps to prevent its spread; nevertheless, they have failed to take steps to protect Plaintiffs. Plaintiffs and putative class members are also entitled to relief because they will suffer irreparable harm absent relief, and traditional legal remedies will not adequately protect their rights. Further, the harm to Plaintiffs and Arkansans outweighs any putative harm to Defendants, and the relief Plaintiffs seek is in the public interest.
On Tuesday, April 21, Plaintiffs provided Defendants notice of the Plaintiffs’ claims and the imminent risks caused by their failure to take appropriate steps in light of COVID-19. Defendants have acknowledged receipt of the Complaint via email. However, they have not communicated to Plaintiffs their position on the federal violations alleged and whether they intend to remedy said violations. Plaintiffs now seek an immediate temporary restraining order to prevent

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immediate and irreparable injuries to Plaintiffs caused by COVID-19 pending determination of their motion for preliminary injunction.
Plaintiffs respectfully request that this Court grant a Temporary Restraining Order and a Preliminary Injunction as requested in Plaintiffs’ Prayer for Relief in their complaint filed contemporaneously with this motion. Compl. pp. 45-48. Plaintiffs further request that Defendants refrain from destroying any information related to Plaintiffs’ claims to preserve relevant discovery in this lawsuit including, but not limited to, video footage within its facilities, medical records, grievances and other complaints from prisoners, ADC responses to grievances and complaints, disciplinary records, and ADC policies and procedures related to COVID-19.
Dated this 21st day of April, 2020.

Respectfully submitted,

By: /s/ Omavi Shukur Samuel Spital* Jin Hee Lee* Natasha Merle* Omavi Shukur NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Christopher Kemmitt* Ajmel Quereshi* NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall* Jenay Nurse* Corrine Irish* Squire Patton Boggs (US) LLP 30 Rockefeller Plaza, 23rd Floor New York, NY 10112

Case 4:20-cv-00434-KGB Document 2 Filed 04/21/20 Page 4 of 5
(212) 872-9800
Laura Fernandez* 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 72201 (501) 296-1775
Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202 (501) 374-2660
*Pro hac vice motions forthcoming
Attorneys for Plaintiffs and the Putative Classes

Case 4:20-cv-00434-KGB Document 2 Filed 04/21/20 Page 5 of 5
CERTIFICATE OF SERVICE
I certify that on April 21, 2020, I filed the foregoing Plaintiffs’ Emergency Motion for a
Temporary Restraining Order and Preliminary Injunction electronically via the Court’s CM/ECF
system, which will send a copy to all counsel of record.
/s/ Omavi Shukur Omavi Shukur NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 Phone: (212) 965-2200 Fax: (212) 226-7592 oshukur@naacpldf.org

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 1 of 60

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, ALVIN HAMPTON, MARVIN KENT, MICHAEL KOURI, JONATHAN NEELEY, ALFRED NICKSON, HAROLD (“SCOTT”) OTWELL, TRINIDAD SERRATO, ROBERT STIGGERS, VICTOR WILLIAMS, JOHN DOE, individually and on behalf of all others similarly situated,
Plaintiffs, v.
WENDY KELLEY, Secretary of Arkansas Department of Corrections; DEXTER PAYNE, Division of Correction Director, Arkansas Department of Corrections; JERRY BRADSHAW, Division of Community Correction Director, Arkansas Department of Corrections; ASA HUTCHINSON, Governor of Arkansas; BENNY MAGNESS, Chairman of Arkansas Board of Corrections; BOBBY GLOVER, Vice Chairman of Arkansas Board of Corrections; BUDDY CHADICK, Secretary of Arkansas Board of Corrections; TYRONNE BROOMFIELD, Member of Arkansas Board of Corrections; JOHN FELTS, Member of Arkansas Board of Corrections; WILLIAM (“DUBS”) BYERS, Member of Arkansas Board of Corrections; WHITNEY GASS, Member of Arkansas Board of Corrections; all in their official capacities,
Defendants.

Case No. 4:20 cv434-RGB

MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 2 of 60
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii
MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION................................................. 1
FACTUAL BACKGROUND ......................................................................................................... 2
I. COVID-19 is a Highly Contagious, Deadly Disease that Poses a Serious Risk of Death or Injury to Anyone Who Becomes Infected. .................................................................. 2
II. Conditions in ADC Facilities Create Serious Risk of COVID-19-Related Infection, Disease, and Death. .......................................................................................................... 7
III. The Spread of Covid-19 In ADC Facilities Jeopardizes the Public Health of Surrounding Communities, Especially Black Communities. ............................................................. 12
IV. Defendants Intentionally Fail to Adopt and Implement Adequate Policies and Procedures to Prevent and Mitigate the Spread of COVID-19......................................................... 13
LEGAL STANDARD................................................................................................................... 20
ARGUMENT ................................................................................................................................ 21
I. Plaintiffs are Likely to Succeed on the Merits of their Constitutional and ADA Claims............................................................................................................ 24 A. Plaintiffs Are Likely to Succeed on the Merits of their Constitutional Claims.........24
1. Plaintiffs in the General Class and High-Risk Subclass Are at Substantial Risk of Serious Harm. ............................................................................................. 26
2. Despite Being Aware of This Risk, Defendants Have Failed to Address It. .. 29 B. Plaintiffs Are Likely to Succeed on the Merits of Their ADA Claims for the Disability
Subclass. ............................................................................................................................... 33 II. Infection With a Lethal Virus That Lacks Any Vaccine or Cure Constitutes Irreparable
Harm. ............................................................................................................................. 37 III. There is a Strong Public Interest in Minimizing the Spread of COVID-19 Through Social
Distancing and Hygiene Practices. ................................................................................ 40
i

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 3 of 60 IV. The Balance of Equities Favors Releasing Vulnerable Plaintiffs and Complying with
CDC Guidelines Over Continued Detention and Inadequate Prevention in the Midst of this Public Health Crisis................................................................................................. 43 CONCLUSION............................................................................................................................. 46 CERTIFICATE OF SERVICE ..................................................................................................... 48
ii

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 4 of 60
TABLE OF AUTHORITIES
Page(s)
Cases
ACLU of Minnesota v. Kiffmeyer, No. 04-CV-4653, 2004 WL 2428690 (D. Minn. Oct. 28, 2004) .............................................21
Allen v. Morris, No. 4:93cv00398 BSM-JWC, 2010 WL 1382112 (E.D. Ark. Jan. 6, 2010), report and recommendation adopted, No. 4:93CV00398 BSM-JWC, 2010 WL 1382116 (E.D. Ark. Apr. 2, 2010) ........................................................................33, 34, 36
Austin v. Pa. Dep’t of Corr., No. 90cv7497, 1992 WL 277511 (E.D. Pa. Sept. 29, 1992)....................................................39
Bahl v. County of Ramsey, 695 F.3d 778 (8th Cir. 2012) ...................................................................................................34
Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466 (8th Cir. 1994) ...................................................................................................40
Boone v. Brown, No. 05cv750, WL 2006997 (D.N.J. Aug. 22, 2005)................................................................39
Brown v. Moore, 93 F. Supp. 3d 1032 (W.D. Ark. 2015)....................................................................................26
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................22
Cody v. Hillard, 599 F. Supp. 1025 (D.S.D. 1984), aff’d, 799 F.2d 447 (8th Cir. 1986), on reh’g, 830 F.2d 912 (8th Cir. 1987).........................................................................................26
Crow v. Montgomery, 403 F.3d 598 (8th Cir. 2005) ...................................................................................................25
D.M. by Bao Xiong v. Minn. State High Sch. League, 917 F.3d 994 (8th Cir. 2019) ...................................................................................................41
Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109 (8th Cir. 1981) .......................................................................................20, 23, 24
Davis v. Or. Cty., 607 F.3d 543 (8th Cir.2010) ........................................................................................24, 25, 26
iii

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 5 of 60
Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178 (2d Cir. 2015).....................................................................................................37
DiGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990) ...........................................................................................25
Farmer v. Brennan, 511 U.S. 825 (1994)...........................................................................................................24, 45
Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367 (8th Cir. 1991) ...................................................................................................43
Harris v. Blue Cross Blue Shield of Mo., 995 F.2d 877 (8th Cir. 1993) ...................................................................................................39
Helling v. McKinney, 509 U.S. 25 (1993)...................................................................................................................25
Henderson v. Bodine Aluminum, Inc., 70 F.3d 958 (8th Cir. 1995) .....................................................................................................38
Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721 (7th Cir. 2009) ...................................................................................................21
Hutto v. Finney, 437 U.S. 678 (1978).................................................................................................................22
J.D. v. Sherman, No. 06-4153-CV-C-NKL, 2006 WL 3163053 (W.D. Mo. Oct. 27, 2006) ..............................44
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).......................................................................................................39
Jones’El v. Burge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001) .................................................................................39
Kai v. Ross, 336 F.3d 650 (8th Cir. 2003) ...................................................................................................39
Kroupa v. Nielsen, 731 F.3d 813 (8th Cir. 2013) ...................................................................................................20
Mason v. Corr. Med. Servs., Inc., 559 F.3d 880 (8th Cir. 2009) ...................................................................................................34
Maxwell v. Olmsted Cty., No. 10cv3668, 2012 WL 466179 (D. Minn. Feb. 13, 2012) ...................................................36
iv

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 6 of 60
Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80 (8th Cir. 1995) .......................................................................................................20
Nemnich v. Stangler, No. 91-4517-CV-C-5, 1992 WL 178963 (W.D. Mo. Jan. 7, 1992).........................................44
Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249 (4th Cir.2003) ....................................................................................................41
Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89 (2d Cir. 2015).......................................................................................................37
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).................................................................................................................34
Peebles v. Potter, 354 F.3d 761 (8th Cir. 2004) ...................................................................................................35
Phelps–Roper v. Nixon, 509 F.3d 480 (8th Cir. 2007), modified on reh’g, 545 F.3d 685 (8th Cir. 2008)...............24, 41
Phipps v. Sheriff of Cook Cty., 681 F. Supp. 2d 899 (N.D. Ill. 2009) .......................................................................................36
Planned Parenthood of Wisconsin v. Van Hollen, 963 F. Supp. 2d 858 (W.D. Wis. 2013) .............................................................................20, 21
Sak v. City of Aurelia, 832 F. Supp. 2d 1026 (N.D. Iowa 2011)..................................................................................35
Seremeth v. Board of County Commissioners of Frederick County, 673 F.3d 333 (4th Cir. 2012) ...................................................................................................34
Tennessee v. Lane, 541 U.S. 509 (2004).................................................................................................................33
Todd v. Sorrell, 841 F.2d 87 (4th Cir.1988) ......................................................................................................44
United States v. Georgia, 546 U.S. 151, 157, 160 (2006)...........................................................................................33, 36
Federal Statutes
42 U.S.C. § 12102(2) .....................................................................................................................35
42 U.S.C. § 12132..........................................................................................................................34
v

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 7 of 60
State Statutes
Ark. Admin. Code 004.00.2-812 ...................................................................................................37
Ark. Code Ann. § 12-28-604 .........................................................................................................31
Ark. Code Ann. § 12-41-104 .........................................................................................................37
Federal Regulations
28 C.F.R. § 35.130(b)(7)(i) ............................................................................................................34
Fed. R. Civ. P. 65(b)(1)(A) ............................................................................................................21
Federal Rule of Civil Procedure 65(b)...........................................................................................21
Legislative History
H.R. Rep. No. 101-485(II) (1990), reprinted in 1990 U.S.C.C.A.N. 367, 1990 WL 125563......................................................................................................................................34
Other Authorities
ADC, Arkansas Joint Information Center, COVID-19 (Mar. 17, 2020), https://adc.arkansas.gov/images/uploads/FAQs_Prepare_Your_Home_and_Ch ildren_ADEM-3-17-20.pdf ......................................................................................................31
ADC, Coronavirus Disease (COVID-19) Precautions for Entering Correctional and Detention Facilities (2019), https://adc.arkansas.gov/images/uploads/COVID-19__Facility_Entrance_Precautions_-_POSTER_11x17_-_March_20_2020FINAL.pdf ...............................................................................................................................30
ADC, Minutes of the Arkansas Parole Board (Feb. 27, 2020), https://www.paroleboard.arkansas.gov/Websites/parole/images/02%2027%20 Mins.pdf ...................................................................................................................................31
ADC Mission, Vision, Core Values and Goals, ADC, https://adc.arkansas.gov/goals-and-objectives .........................................................................35
ADH COVID-19 Demographic Slide Deck, Ark. Dep’t of Health, https://www.healthy.arkansas.gov/images/uploads/pdf/Presentation__Demographics_PPT.pdf (last updated Apr. 19, 2020 ..............................................................6
Alexandria Macmadu and Josiah D. Rich, Correctional Health Is Community Health, 13 Issues in Science and Technology, Vol. XXXII, No. 1 (2015), https://issues.org/correctional-health-is-community-health/. ..................................................10
vi

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 8 of 60
Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times, Mar. 30, 2020 ......................................................................................8
Ark. Democrat Gazette (Mar. 23, 2020), https://www.arkansasonline.com/news/2020/mar/23/prisons-jails-take-stepsto-protect-inm/?bcsubid=1b2ea125-2aec-4788-b130dbbbe56f1502&pbdialog=covid19-login .................................................................................32
Ark. Proclamation No. 20-03 (Mar. 11, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_2003.__1.pdf ..................................................................................................................................2
Ark. Times (Apr. 17, 2020), https://arktimes.com/arkansasblog/2020/04/17/coronavirus-update-big-jump-in-cummins-prison-cases-agoal-of-beginning-a-return-to-work-may-4 ...............................................................................9
Arkansas Demographics, https://www.arkansas-demographics.com/countiescities-that-begin-with-A ...........................................................................................................13
Bethany Young and Katie Robertson, How Should Prisons and Jails Prepare for COVID-19? ................................................................................................................................7
CDC COVID-19 Response Team, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020, Morbidity and Mortality Weekly Report (Mar. 18, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e 2_w. ............................................................................................................................................5
Chris Mooney, Juliet Eilperin and Joel Achenbach, As U.S. coronavirus fatality rate rises to 5 percent, experts are still trying to understand how deadly this virus is, Wash. Post (Apr. 17, 2020) ......................................................................................5, 6
Colleen Walsh, COVID-19 Targets Communities of Color, Harvard Gazette, Apr. 14, 2020......................................................................................................................................7
CORONAVIRUS (COVID-19) UPDATES, ADC, https://adc.arkansas.gov/coronavirus-covid-19-updates. .........................................................29
CORONAVIRUS (COVID-19) UPDATES, ADC, https://adc.arkansas.gov/coronavirus-covid-19-updates (reporting the number of individuals infected on April 14, 2020 and April 17, 2020)................................................22
CORONAVIRUS (COVID-19) UPDATES (Apr. 16, 2020), ADC..............................................30
CORONAVIRUS (COVID-19) UPDATES (Mar. 15, 2020), ADC .............................................31
vii

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 9 of 60
Coronavirus disease 2019 (COVID-19) Factsheet, Centers for Disease Control and Prevention (Mar. 3, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/2019-ncov-factsheet.pdf. ................................................................................3
Coronavirus Disease 2019 (COVID-19): Situation Report—89, World Health Organization, (Apr. 18, 2020), https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200418-sitrep-89-covid19.pdf?sfvrsn=3643dd38_2. ......................................................................................................2
COVID View, A Weekly Surveillance Summary of COVID-19 Activity, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/covid-data/covidview/index.html (last visited April 20, 2020........................................42
COVID-19 Infection Tracking in NYC Jails, Legal Aid Soc’y, https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last visited April 20, 2020). ............................................................................................................30
Disease Control & Prevention, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html .................................8
Facilities, Ark. Dep’t of Correction, https://adc.arkansas.gov/facilities (last visited April 20, 2020)...................................................................................................................12, 13
Governor Asa Hutchinson (@AsaHutchinson), Twitter (April 19, 2020, 2:31 P.M.), https://twitter.com/AsaHutchinson/status/1251941439216521217 ..............................29
Governor Asa Hutchinson, Press Conference, April 20, 2020, https://www.youtube.com/watch?v=rhbt9s0dLuk&feature=youtu.be; .......................22, 30, 32
Governor Asa Hutchinson, Press Release, Mar. 11, 2020, https://governor.arkansas.gov/news-media/press-releases/governorhutchinson-confirms-states-first-presumptive-positive-covid-19-cas .......................................2
Graham Readfearn, What Happens to People’s Lungs When They Get Coronavirus? .............................................................................................................................5
Guardian (Mar. 24, 2020), https://www.theguardian.com/world/2020/apr/15/whathappens-to-your-lungs-with-coronavirus-covid-19 ...................................................................5
Holly Secon and Aria Bendix, There is a wide misconception of what a 'mild' case of COVID-19 looks like. It can be ugly and brutal., Business Insider (Apr. 16, 2020, 2:34 PM), https://www.businessinsider.com/mild-coronavirus-caseshigh-fever-dry-cough-2020-3 ....................................................................................................5
Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalguidance-management-patients.html (last visited April 20, 2020) ..........................................42
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Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 10 of 60
Jan Wolfe, African Americans more likely to die from coronavirus, early data shows, Reuters (Apr. 6, 2020)................................................................................................6, 7
John Moritz, 44 of 47 Inmates Infected in Cummins Prisons Barracks, Ark. Democrat Gazette, (Apr. 14, 2020), https://www.arkansasonline.com/news/2020/apr/14/44-of-47-inmatesinfected-in-cummins-pr/. ...................................................................................................29, 30
John Moritz, Arkansas' Prisons, Jails Take Steps to Protect Inmates' health ...............................32
Justice Statistics, Medical Problems of State and Federal Prisons and Jail Inmates, 2011-12 p. 1 (2016), https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf ...........................................................10
Kenneth Chang, A Different Way to Chart the Spread of Coronavirus, N.Y. TIMES (Mar. 20, 2020) .............................................................................................................3
Lauren Zannolli, Data from US south shows African Americans hit hardest by Covid-19, The Guardian (Apr. 8, 2020), https://www.theguardian.com/world/2020/apr/08/black-americanscoronavirus-us-south-data. .........................................................................................................7
Marshall Project (Mar. 19, 2020), https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-theprison-population-is-so-vulnerable-to-covid-19 ......................................................................11
Max Brantley, Coronavirus update: Big jump in Cummins prison cases; a goal of beginning a return to work May 4 .............................................................................................9
Max Brantley, Coronavirus update: Big jump in Cummins prison cases; a goal of beginning a return to work May 4, Ark. Times, April 17, 2020, https://arktimes.com/arkansas-blog/2020/04/17/coronavirus-update-big-jumpin-cummins-prison-cases-a-goal-of-beginning-a-return-to-work-may-4 ..................................9
Meghan Roos, One Arkansas prison makes up almost a third of State's coronavirus cases, Arkansas Times, Apr. 20, 2020, https://www.newsweek.com/one-arkansas-prison-makes-almost-third-statescoronavirus-cases-1499045........................................................................................................9
Neeltje van Doremalen et al., Correspondence, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Medicine (Mar. 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973...............................3
Ninette Sosa, A Closer Look: Arkansas and ICU Beds by County, KNWA Fox (Mar. 27, 2020), https://www.nwahomepage.com/lifestyle/health/coronavirus/a-closer-lookarkansas-and-icu-beds-per-county/ ..........................................................................................12
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Paige Cushman, ‘It’s Like Mad Max in Here’, Arkansas Inmate Says Conditions Woeful Amid Outbreak, ABC7 News (KATV), (Apr. 15, 2020), https://katv.com/news/local/its-like-mad-max-in-here-inmates-at-arkansasprison-panic-amid-outbreak .....................................................................................................29
Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/ .....................................................10
Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/. ....................................................11
President Donald Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamationdeclaring-national-emergency-concerning-novel-coronavirus-disease-covid19-outbreak ................................................................................................................................3
Press Release, ADC, DOC Takes Steps to Prevent Spread of COVID-19 (Mar. 16, 2020), https://adc.arkansas.gov/images/uploads/COVID_News_Release__Inmate_Visitation_Suspension_ADC-3-16-2020.pdf ............................................................32
Public Health Recommendations after Travel-Associated COVID-19 Exposure, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html (last visited Apr. 19, 2020) ................................................................................................................4
Quick Facts: Arkansas, United States Census, https://www.census.gov/quickfacts/AR (last visited April 20, 2020)......................................13
Roni Caryn Rabin, Obesity Linked to Severe Coronavirus Disease, Especially for Younger Patients, N.Y. Times (Apr. 16, 2020) .................................................................10, 11
Stuart A. Kinner et al., Comment, Prisons and custodial settings are part of a comprehensive response to COVID-19, 5 Lancet Public Health e188 (2020), https://www.thelancet.com/action/showPdf?pii=S24682667%2820%2930058-X ...........................................................................................................7
U.S. Dep’t of Justice, Bureau of Justice Statistics, Medical Problems of State and Federal Prisons and Jail Inmates, 2011-12 p. 1 (2016), https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf ...........................................................10
UAMS Health Resources, COVID-19 Health Care Resources, https://adc.arkansas.gov/images/uploads/COVID19_in_Arkansas_UAMSACH-ADH-3-15-2020.pdf .......................................................................................................31
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Urban Institute (Mar. 20, 2020), https://www.urban.org/urban-wire/how-shouldprisons-and-jails-prepare-covid-19 ............................................................................................7
Weihua Li and Nicole Lewis, This Chart Shows Why The Prison Population Is So Vulnerable to COVID-19 .........................................................................................................11
Wendy Kelley, Sec. of Corrections, Memorandum (Mar. 11, 2020), https://ssladc.ark.org/images/uploads/Coronavirus_Notice_for_Web_-_3-11-2020.pdf .......................13
WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020, World Health Organization (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020 ..................................................2
Wycliffe E. Wei et al., Presymptomatic Transmission of SARS-CoV-2 — Singapore, January 23 – March 16, 2020, Morbidity and Mortality Weekly Report, 411-15 (Apr. 10, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e1.htm ...................................................3
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MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold (“Scott”) Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams and Joe Doe file this memorandum in support of their emergency motion for a temporary restraining order and a preliminary injunction to seek immediate relief against the substantial risk of COVID-19 infection, illness, and death while incarcerated in Arkansas Department of Correction (“ADC”) facilities.
Plaintiffs are requesting that the Court grant emergency relief today to protect Plaintiffs from the imminent risk of severe illness or death from exposure to COVID-19. Defendants are aware of the substantial risk posed by the virus and the recommended CDC steps to prevent its spread; nevertheless, they have failed to take steps to protect Plaintiffs. Defendants’ failure to take steps to address the imminent risk caused by COVID-19 constitutes deliberate indifference in violation of Plaintiffs’ Eighth Amendment rights. Further, Defendants’ failure to provide Plaintiffs with disabilities with reasonable accommodations that would allow them to safely access the facility and maintain their health in light of the pandemic violates the Americans with Disabilities Act (ADA). The harms Plaintiffs will suffer as a result of their constitutional and statutory rights being violated are irreparable, and the balance of equities and public interest weigh in favor of immediate court intervention.
On Tuesday, April 21, Plaintiffs provided Defendants notice of Plaintiffs’ claims and the imminent risks caused by their failure to take appropriate steps in light of COVID-19. Defendants have acknowledged receipt of the Complaint via email. However, they have not communicated to
1

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 14 of 60

Plaintiffs their position on the federal violations alleged and whether they intend to remedy said

violations.

FACTUAL BACKGROUND

I.

COVID-19 is a Highly Contagious, Deadly Disease that Poses a Serious Risk of

Death or Injury to Anyone Who Becomes Infected.

The COVID-19 pandemic has created a public health emergency of historic proportions.

Currently, more than two million individuals worldwide have tested positive for COVID-19, and

more than 146,000 have died from the disease.1 The pandemic has affected every corner of the

world, and the United States sits at its epicenter.

The World Health Organization (“WHO”) declared COVID-19 a pandemic on March 11,

2020.2 The same day, Governor Asa Hutchinson signed Executive Order 20-03 (“EO 20-03”)

declaring a state of emergency,3 and confirmed the first presumptive case of COVID-19 in

Arkansas.4 Governor Hutchinson noted,

For months, Arkansas has been well prepared to respond to COVID19. More than two months ago, the Arkansas Department of Health, under the leadership of Dr. Nathaniel Smith, designated more than 70 of its employees to work exclusively on COVID-19 . . . [I have] asked each of my Cabinet secretaries to prepare a continuity of operation plan in the event of an outbreak of the virus.”5

1 See Coronavirus Disease 2019 (COVID-19): Situation Report—89, World Health

Organization, (Apr. 18, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-

reports/20200418-sitrep-89-covid-19.pdf?sfvrsn=3643dd38_2. 2 WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11

March 2020, World Health Organization (Mar. 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

3

Ark.

Proclamation

No.

20-03

(Mar.

11,

2020),

https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-03.__1.pdf. 4 Governor Asa Hutchinson, Press Release, Mar. 11, 2020,

https://governor.arkansas.gov/news-media/press-releases/governor-hutchinson-confirms-states-

first-presumptive-positive-covid-19-cas. 5 See id.

2

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 15 of 60
EO 20-03 has since been amended to specify procedures to be undertaken across the State,
encouraging social distancing, disinfecting, and other reasonable precautions.
On March 13, President Trump declared “that the COVID-19 outbreak in the United States constitutes a national emergency.”6
COVID-19 is a highly contagious disease. When “unconstrained, the coronavirus spreads exponentially, the caseload doubling at a steady rate.”7 Infected individuals can pass the virus to others by coughing, sneezing, or talking.8 Individuals may become infected if they breathe in a
respiratory droplet containing the virus, or touch a surface that has the virus on it and then touch their mouth, nose, or eyes.9 The virus can survive in the air in droplet form for at least three hours, and it can survive up to one day on cardboard, two days on plastic, and three days on steel.10 There
is evidence that transmission of the virus can occur before the onset of symptoms or through infected individuals who never develop symptoms.11
6 President Donald Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/
7 Kenneth Chang, A Different Way to Chart the Spread of Coronavirus, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/2020/03/20/health/coronavirus-data-logarithm-chart.html.
8 Coronavirus disease 2019 (COVID-19) Factsheet, Centers for Disease Control and Prevention (Mar. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncovfactsheet.pdf.
9 See id. 10 Neeltje van Doremalen et al., Correspondence, Aerosol and Surface Stability of SARSCoV-2 as Compared with SARS-CoV-1, New England J. Medicine (Mar. 17, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2004973. 11 Ex. 1, Golob Decl. at ¶ 6; Wycliffe E. Wei et al., Presymptomatic Transmission of SARSCoV-2 — Singapore, January 23 – March 16, 2020, Morbidity and Mortality Weekly Report, 41115 (Apr. 10, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e1.htm
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Because COVID-19 is a novel virus, no vaccine exists and no cure has been developed.12 Unlike the flu, there is no effective antiviral medication to prevent or treat infection.13
The combination of COVID-19’s highly contagious nature and the lack of a vaccine or effective antiviral treatment mean that the disease spreads rampantly absent substantial public health interventions. Without such interventions, the CDC projects that 200 million people in the United States could become infected, and 1.5 million people could die.14
The only known effective means of controlling the virus are social distancing—remaining physically separated from known or potentially infected individuals—and the use of hygienic measures including hand washing.15 For purposes of social distancing, the CDC recommends that individuals stay at least six feet away from others and “stay out of crowded places.”16
The virus also spreads more quickly in poorly ventilated spaces. An infected person who speaks for five minutes in a poorly ventilated area can produce as many infection droplets of the virus as one infectious cough.17 That effect is magnified when multiple people share a space, which “build[s] up” the concentration of infectious droplets in the air.18
The time period between when an individual becomes infected and the time that the individual exhibits symptoms varies from person to person.19 The typical period is five days, but it can be as short as two days, and some people will never develop symptoms while still potentially
12 Ex. 2, Stern Decl.”), at ¶ 5. 13 Ex. 1 at ¶ 10. 14 See id. at ¶ 11. 15 See id. at ¶ 10-11; Ex. 2 at ¶ 1. 16 Public Health Recommendations after Travel-Associated COVID-19 Exposure, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/php/riskassessment.html (last visited Apr. 19, 2020). 17 See id. 18 See id. 19 Ex. 1 at ¶ 6.
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Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 17 of 60

spreading the disease.20 As a result, the only way to establish the lack of risk from COVID-19 is through an aggressive testing regime.21 People of all ages risk serious illness, injury, or death if they contract COVID-19.22 Even mild cases of COVID-19 generally involve about two weeks of fevers and dry coughs and are more severe than the flu.23
According to the WHO, approximately 20% of people who contract COVID-19 require treatment by a specialist, and one in six becomes seriously ill.24 In serious cases, individuals’ lungs “become filled with inflammatory material [and] are unable to get enough oxygen to the bloodstream.”25
For a significant number of people, contracting COVID-19 will end in death. In the United States, the fatality rate continues to rise. Although the recorded death rate was 1.35% in late March, it has now increased to nearly 5%.26
Although COVID-19 can cause serious symptoms for any individual, up to and including death, its effects are much more severe for certain populations.

20 See id. at ¶ 6.

21 See id. 22 CDC COVID-19 Response Team, Severe Outcomes Among Patients with Coronavirus

Disease 2019 (COVID-19) — United States, February 12–March 16, 2020, Morbidity and

Mortality

Weekly

Report

(Mar.

18,

2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w.

23 Holly Secon and Aria Bendix, There is a wide misconception of what a 'mild' case of

COVID-19 looks like. It can be ugly and brutal., Business Insider (Apr. 16, 2020, 2:34 PM),

https://www.businessinsider.com/mild-coronavirus-cases-high-fever-dry-cough-2020-3.

24 Graham Readfearn, What Happens to People’s Lungs When They Get Coronavirus?,

The Guardian (Mar. 24, 2020), https://www.theguardian.com/world/2020/apr/15/what-happens-

to-your-lungs-with-coronavirus-covid-19

25 See id.

26 Chris Mooney, Juliet Eilperin and Joel Achenbach, As U.S. coronavirus fatality rate

rises to 5 percent, experts are still trying to understand how deadly this virus is, Wash. Post (Apr.

17, 2020), https://www.washingtonpost.com/health/as-officials-plan-to-reopen-the-economy-a-

key-unknown-remains-how-deadly-is-the-coronavirus/2020/04/17/0bd2f938-7e49-11ea-a3ee-

13e1ae0a3571_story.html

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Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 18 of 60
Among the highest risk populations, the fatality rate from COVID-19 is approximately 15%.27 For high risk patients who do not die from the disease, the recovery period is prolonged, and individuals have a “profound” “need for extensive rehabilitation.”28
Individuals older than 50 are more vulnerable to COVID-19, and those over 70 face a particularly serious risk of death from the disease.29
Various medical conditions also increase the risk of serious consequences from COVID-
19 for individuals of any age. These conditions include lung disease, heart disease, diabetes, being
immunocompromised (from cancer, HIV, autoimmune disease, etc.), blood disorders (including
sickle cell disease), chronic liver or kidney disease, inherited metabolic disorders, stroke, developmental delay, or pregnancy.30
Black individuals have faced significantly increased risks of both infection and death from
COVID-19 in Arkansas, making up less than 16% of the population, but accounting for 29.4% of confirmed cases, and 36.8% of deaths.31 This is consistent with the severe racial disparities with
respect to the pandemic in other parts of the country. In Illinois, Black people comprise less than 15% of the population but account for 30% of the state’s cases and 40% of deaths.32 Similarly,
40% of those who have died in Michigan from COVID-19 are Black as compared to 14% of the state’s population.33 The same trend is evident in Louisiana, where Black people make up 33% of
27 Id. at ¶ 4. 28 Id. 29 See Ex. 2 at ¶ 4; Ex. 1 at ¶ 3. 30 Ex. 1 at ¶ 3. 31 ADH COVID-19 Demographic Slide Deck, Ark. Dep’t of Health, https://www.healthy.arkansas.gov/images/uploads/pdf/Presentation_-_Demographics_PPT.pdf (last updated Apr. 19, 2020) 32 Jan Wolfe, African Americans more likely to die from coronavirus, early data shows, Reuters (Apr. 6, 2020), https://www.reuters.com/article/us-health-coronavirus-usa-race/africanamericans-more-likely-to-die-from-coronavirus-illness-early-data-shows-idUSKBN21O2B6 . 33 See id.
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Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 19 of 60

the population but account for 70% of deaths.34 COVID-19 has a disproportionately harmful effect

on Black people because they are more likely to have pre-existing conditions that exacerbate the

symptoms of the disease due to environmental and economic factors and because of inequalities

in the health care system.35

II.

Conditions in ADC Facilities Create Serious Risk of COVID-19-Related Infection,

Disease, and Death.

On March 27 and April 15, 2020, Arkansas Secretary of the Department of Health

Nathaniel Smith acknowledged that the correctional facility “setting[] pose[s] a high risk for

transmission of COVID-19.”

Indeed, correctional facilities are epicenters for infectious diseases, like COVID-19,

because they have higher levels of risk factors for infection; conditions that unavoidably entail

close contact in often overcrowded, poorly ventilated, and unsanitary facilities; and poor access to

healthcare services relative to that available in community settings.36

Prisons are congregate environments (i.e., places where people live and sleep in close

proximity).37 In such environments, infectious diseases that are transmitted via the air or touch are

34 Lauren Zannolli, Data from US south shows African Americans hit hardest by Covid-19, The Guardian (Apr. 8, 2020), https://www.theguardian.com/world/2020/apr/08/black-americanscoronavirus-us-south-data.
35 Wolfe, supra n.62; Colleen Walsh, COVID-19 Targets Communities of Color, Harvard Gazette, Apr. 14, 2020.
36 Stuart A. Kinner et al., Comment, Prisons and custodial settings are part of a comprehensive response to COVID-19, 5 Lancet Public Health e188 (2020), https://www.thelancet.com/action/showPdf?pii=S2468-2667%2820%2930058-X; see also Bethany Young and Katie Robertson, How Should Prisons and Jails Prepare for COVID-19?, Urban Institute (Mar. 20, 2020), https://www.urban.org/urban-wire/how-should-prisons-and-jailsprepare-covid-19
37 Ex. 2 at 2 ¶ 9.
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more likely to spread, and therefore present an increased danger for the spread of COVID-19 if and when it is introduced into the facility.38
COVID-19 has been especially dangerous in areas of close confinement, such as cruise ships and assisted living facilities. In early March 2020, the highest known person-to-person transmission rates for the virus were in a nursing home in Kirkland, Washington and on cruise ships in Japan and off the coast of California.39 More recently, the highest recorded transmission rates have been in Rikers Island, a jail facility in New York City, with a rate of transmission that recently was over seven times higher than the city overall.40
Because ADC prisoners are housed in close quarters, unable to maintain a six-foot distance from others, and share or touch objects used by others, the risks of contracting COVID-19 are greatly, if not exponentially, increased, as is already evidenced by the spread of COVID-19 in other congregate environments.41
The risk of COVID-19 spreading throughout ADC detention facilities is exceptionally high, in part, because of the presence of outsiders and staff, who may be asymptomatic or presenting COVID-19 symptoms in these facilities.42 In fact, Dr. Robert Redfield, Director of the CDC, has warned that as many as 25% of individuals infected with COVID-19 may not show symptoms.43 Thus, screening outsiders, including staff and visitors, for symptoms of COVID-19,
38 Id. 39 Ex. 1 at 3 ¶ 12. 40 Id. 41 Ex. 2 at 2 ¶ 9. 42 Ex. 2. at 2 ¶ 9. 43 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times, Mar. 30, 2020, at https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html
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will not necessarily prevent the introduction of COVID-19 from the outside because the virus can spread “before people show symptoms.”44
Arkansas has already witnessed the spread of COVID-19 in its correctional facilities. At
the end of March 2020, an agricultural worker at the Cummins Unit tested positive. Subsequently,
on April 12, 2020, a person incarcerated at Cummins Unit tested positive for COVID-19; this was
the first known positive case in the ADC incarcerated population. People housed in that
individual’s barracks were tested in the following days, revealing that 44 of the 46 other incarcerated people housed in his barracks were positive.45
The Cummins Unit now has the most confirmed cases of COVID-19 of any correctional facility in Arkansas with 600 incarcerated people testing positive as of April 19, 202046—a more
than 1,000% increase from April 13, when less than 50 incarcerated people in Cummins were confirmed positive.47 In addition, 57 prisoners in a federal prison in Forrest City and 62 incarcerated parole and probation violators in Little Rock have tested positive for the virus.48
Currently, incarcerated people make up approximately one in six verified COVID-19 infections
44 See Ctrs. for Disease Control & Prevention, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html.
45 Max Brantley, Coronavirus update: Big jump in Cummins prison cases; a goal of beginning a return to work May 4, Ark. Times, April 17, 2020, https://arktimes.com/arkansasblog/2020/04/17/coronavirus-update-big-jump-in-cummins-prison-cases-a-goal-of-beginning-areturn-to-work-may-4.
46 Meghan Roos, One Arkansas prison makes up almost a third of State's coronavirus cases, Arkansas Times, Apr. 20, 2020, https://www.newsweek.com/one-arkansas-prison-makesalmost-third-states-coronavirus-cases-1499045.
47 Max Brantley, Coronavirus update: Big jump in Cummins prison cases; a goal of beginning a return to work May 4, Ark. Times (Apr. 17, 2020), https://arktimes.com/arkansasblog/2020/04/17/coronavirus-update-big-jump-in-cummins-prison-cases-a-goal-of-beginning-areturn-to-work-may-4
48 Id.
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statewide.49 Even with these alarming figures, the actual number of COVID-19 infections in ADC detention facilities is likely much higher due to the lack of widespread testing.
Along with facing greater risk of infection, prisoners in Arkansas are also more likely to have underlying medical conditions that render them especially vulnerable to severe illness and even death from COVID-19. The Department of Justice has recognized that “[b]oth prisoners and jail inmates were more likely than the general population to report ever having a chronic condition or infectious disease.”50
Health profiles of incarcerated people show that they are significantly sicker and more vulnerable to COVID-19 than the general population.51 For example, incarcerated people are more likely to have medical conditions such as asthma, tuberculosis, hypertension, diabetes, and heart disease, as compared to the general population.52
“Chronic health conditions, such as diabetes, hypertension, and asthma, . . . [are a] growing proportion of correctional health care needs” due to “two trends: the aging prison population and the nation’s general obesity epidemic. About 40% of all inmates are estimated to have at least one chronic health condition. With a few exceptions, nearly all chronic health conditions are more prevalent among inmates than in the general population.”53
49 Id. 50 U.S. Dep’t of Justice, Bureau of Justice Statistics, Medical Problems of State and Federal Prisons and Jail Inmates, 2011-12 p. 1 (2016), https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf. 51 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/. 52 Id. 53 Alexandria Macmadu and Josiah D. Rich, Correctional Health Is Community Health, 13 Issues in Science and Technology, Vol. XXXII, No. 1 (2015), https://issues.org/correctionalhealth-is-community-health/.
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Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 23 of 60
The Department of Justice has reported 74% of prisoners to be overweight, obese, or morbidly obese.54 Problems with obesity within the prison population is especially troubling in this pandemic because obesity may be an important predictor of severe COVID-19-related illness, especially among younger people.55 This is because people with obesity may already have a compromised respiratory system, and “[a]bdominal obesity, [which is] more prominent in men, can cause compression of the diaphragm, lungs and chest capacity.”56
In addition, the growing elderly prison population is especially at risk of serious COVID19 disease or death. In fact, the “percentage of people in state prisons who are 55 and older more than tripled between 2000 and 2016,” and, “[f]or the first time, older adults make up a larger share of the state prison population than people from 18 to 24.”57
Because individuals in jails and prisons are considered physiologically comparable to individuals in the community several years older, many state departments of corrections and the Federal Bureau of Prisons define “elderly” or “older” variously between 50 and 60 years of age.58 Accordingly, people over the age of 50 in correctional settings are considered vulnerable to the COVID-19 virus.59

54 U.S. Dep’t of Justice, Bureau of Justice Statistics, Medical Problems of State and

Federal Prisons and Jail Inmates, 2011-12 p. 1 (2016),

https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf. 55 Roni Caryn Rabin, Obesity Linked to Severe Coronavirus Disease, Especially for

Younger

Patients,

N.Y.

Times

(Apr.

16,

2020),

https://www.nytimes.com/2020/04/16/health/coronavirus-obesity-higher-risk.html. 56 Id.

57 Weihua Li and Nicole Lewis, This Chart Shows Why The Prison Population Is So

Vulnerable to COVID-19, Marshall Project (Mar. 19, 2020),

https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-population-is-

so-vulnerable-to-covid-19.

58 Ex. 2 at ¶ 9. 59 Id.

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III.

The Spread of Covid-19 In ADC Facilities Jeopardizes the Public Health of

Surrounding Communities, Especially Black Communities.

Prisons are not fully closed environments. When the COVID-19 virus is introduced to a prison, all persons within the facility—whether they are staff or a incarcerated people—are at heightened risk of contracting the virus and, in turn, spreading the virus to others with whom they live or come into contact with in their own homes and neighborhoods.60 The harm caused by a COVID-19 outbreak in a correctional facility, therefore, is not confined to those who are incarcerated or work in that facility. Instead, this harm poses a serious health risk to the surrounding community.61
For example, scarce community health resources like emergency departments, hospital beds, and ventilators would inevitably become more scarce in the event of a COVID-19 outbreak in a detention facility, because incarcerated people are more likely to have underlying medical conditions that carry a significantly increased risk of severe complications from COVID-19.62
A COVID-19 outbreak could exceed the capacity of the local health infrastructure because treatment for serious cases requires significant medical intervention, including ventilator assistance and intensive care support.63 Of the twenty ADC facilities, nine are located in counties with no ICU beds in surrounding communities.64 If the need for ICU beds and life-saving medical equipment exceeds supply, the death rate will increase for the entire population of Arkansas.

60 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/.
61 Ex. 2 at ¶ 11. 62 Ex. 2 at ¶ 9. 63 See id. at ¶ 8. 64 These facilities are Cummins Unit, Delta Regional Unit, East Arkansas Regional Unit, Grimes Unit, McPherson Unit, North Central Unit, Texarkana Regional Corrections Center, Varner and Varner Supermax Unit, Wrightsville Unit. See Facilities, Ark. Dep’t of Correction,
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The ADC runs twenty detention facilities across the state.65 These facilities are not evenly

distributed across Arkansas. Instead, they are concentrated in the southeastern part of the State,

near Pine Bluff.66

Black people make up 15.7% of the Arkansas population.67 Yet eight of the twenty ADC

detention facilities are located in counties where Black individuals comprise a majority of

residents.68 In total, sixteen of the twenty ADC detention facilities are located in counties that have

a higher percentage of Black people than the state—usually by a significant margin.69

If COVID-19 spreads throughout ADC’s facilities, Black Arkansans will

disproportionately suffer consequences from that spread, as compared to their percentage of the

Arkansas state population.

IV.

Defendants Intentionally Fail to Adopt and Implement Adequate Policies and

Procedures to Prevent and Mitigate the Spread of COVID-19.

On March 11, 2020, Defendant Kelley issued a memorandum outlining the ADC’s

protocols to reduce the risk and combat the spread of COVID-19 within ADC facilities. This

memorandum only encouraged regular hand washing, covering coughs and sneezes, avoiding

https://adc.arkansas.gov/facilities (listing facilities and locations) (last visited Apr. 20, 2020); Ninette Sosa, A Closer Look: Arkansas and ICU Beds by County, KNWA Fox (Mar. 27, 2020), https://www.nwahomepage.com/lifestyle/health/coronavirus/a-closer-look-arkansas-and-icubeds-per-county/ (listing ICU beds by county).
65 Facilities, Ark. Dep’t of Correction, https://adc.arkansas.gov/facilities (last visited April 20, 2020).
66 See id. 67 Quick Facts: Arkansas, United States Census, https://www.census.gov/quickfacts/AR (last visited April 20, 2020). 68 See Facilities, Ark. Dep’t of Corrections, https://adc.arkansas.gov/facilities (last visited April 20, 2020) (listing facilities and locations); Arkansas Demographics, https://www.arkansasdemographics.com/counties-cities-that-begin-with-A(last visited April 20, 2020) (providing demographic data for all Arkansas counties). 69 See id.
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handshakes, continuing cleaning (instead of intensifying it), and telling staff members to stay at home if ill.70
On March 23, 2020, the CDC published the CDC Guidance on COVID-19.71 The purpose of the CDC Guidance is, in part, to help correctional facilities ensure the protection of the health and safety of incarcerated people. The ADC leadership, including Defendant Kelly, were made aware of the CDC guidance on March 23, 2020.
Defendants’ departures from the CDC Guidance are many and have placed incarcerated people in ADC facilities at a significant and unnecessary heightened risk of infection, severe illness, and/or death despite widespread knowledge of the highly contagious nature of COVID-19 and the severe consequences of infection, especially among older people and people with underlying health and medical conditions.
Defendants failures to adopt and implement adequate policies and procedures to prevent and mitigate the spread of COVID-19 fall into seven broad categories, which are discussed below.
First, Defendants failed to adequately plan to prevent or mitigate the spread of COVID-19 in ADC correctional facilities. Importantly, the CDC Guidance recommends that correctional facilities should develop contingency plans for reduced workforces due to staff absences.
As a result of Defendants’ failure to adequately plan for staff shortages, ADC correctional facilities are experiencing unmitigated staffing shortages amid the COVID-19 pandemic. These shortages place Named Plaintiffs and the putative class members at great risk. For example, some Ouachita River Unit staff are not being screened for COVID-19 symptoms, because the facility is
70 Wendy Kelley, Sec. of Corrections, Memorandum (Mar. 11, 2020), https://ssladc.ark.org/images/uploads/Coronavirus_Notice_for_Web_-_3-11-2020.pdf.
71 The CDC is a federal agency and the leading national public health institute of the United States. It is charged with protecting public health and safety through the control and prevention of disease.
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desperate for staff due to staffing shortages amid the COVID-19 pandemic. This failure to screen staff is also in contravention of the CDC Guidance.
Another glaring departure from the CDC Guidance is the failure of Defendants to mandate plans to prevent the transfer of incarcerated people who have contracted COVID-19 from one ADC facility to another unless necessary. This lack of planning has resulted in COVID-19-positive people being transferred from one correctional institution to another. For example, one person recently transported to Ouachita River Unit from another ADC-affiliated correctional institution tested positive for COVID-19 upon arrival.
The CDC Guidance also calls for the provision of Personal Protective Equipment (PPE) and contingency planning for shortages of PPE, but Defendants do not have any such plans. Consequently, several of the Named Plaintiffs and the putative class members are being housed with incarcerated people who have symptoms of COVID-19, but have not been provided face masks to protect others in their barracks.
Other Named Plaintiffs have not received any masks, despite having severe underlying medical conditions, reporting symptoms of COVID-19, and repeatedly requesting PPE. For example, Mr. Kent, who has reported having COVID-19 symptoms, has requested a mask but has not received one, even though he submitted his request for a mask over three weeks ago.
When a mask is provided, any attempt to clean the mask requires incarcerated people being without the mask for an unsafe period. After a mask is handwashed, it cannot be worn while it is drying. Also, an incarcerated person who sends their mask to the laundry goes without the mask until it is returned to them, and even then, they risk their mask being damaged by the laundry machines. Alarmingly, many of the masks that are provided to incarcerated people come from Cummins Unit, which has the greatest known COVID-19 infection rate of any ADC detention
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Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 28 of 60
facility. Some of the incarcerated people making the masks at Cummins Unit are known to have COVID-19.
Second, Defendants have failed to implement the training and educational interventions necessary to prevent the spread of COVID-19 in correctional facilities. The CDC Guidance states that correctional staff and incarcerated people should be trained on donning, doffing, and disposing of PPE. However, Plaintiffs and the putative class members have not been instructed on how to properly don, doff, or dispose of PPE. Many ADC staff members wear their face masks below their nose—if they wear them at all—and do not change their protective gloves regularly, in contravention of the CDC Guidance for the Use of PPE. Moreover, those class members who have received face masks only have one, which, as mentioned above, they are required to wash themselves, leading to frequent handling of contaminated masks or no mask at all while it is drying.
Many Named Plaintiffs and putative class members are therefore being deprived of needed reminders of how they can protect themselves and others in the event they become symptomatic. For example, Mr. Kent, who is incarcerated in the Varner Unit, reports not seeing any signage related to COVID-19 in the prison.
Third, Defendants have not implemented the heightened hygienic, cleaning, and disinfecting practices called for by the CDC Guidance. Named Plaintiffs also do not have access to the cleaning supplies necessary to sanitize themselves, their personal items, or their living areas. Indeed, ADC rules continue to restrict access to such crucial cleaning supplies, even in the midst of the COVID-19 pandemic.
Defendants’ failures are also reflected in the unsanitary conditions of ADC’s correctional facilities. For example, Mr. Otwell’s bathroom in Ouachita River Unit is only cleaned once a week,
16

Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 29 of 60
at the most. Mr. Nickson’s shared showers in Cummins Unit are similarly filthy, which is why he chooses to clean himself using the sink in his cell instead of the prison’s shared showers.
Notably, a man who works in sanitation at Ouachita River Unit has confirmed that the sanitation work crew does not clean the prison’s kitchen. Food from this unsanitary kitchen is served on dining tables that are washed with recycled, soiled brownish water.
In addition, ADC has not followed the CDC’s recommendation that staff clean shared surfaces several times a day. Even though Mr. Serrato shares a barracks with over 40 people, frequently touched surfaces in his barracks are only disinfected bi-monthly, instead of several times a day as recommended by the CDC.
These unsanitary conditions and inadequate levels of cleaning and disinfecting, which are in contravention of the CDC Guidance, place Named Plaintiffs and the putative class members at an inexcusably higher risk of contracting COVID-19.
Fourth, Defendants have failed to adequately implement measures to reduce crowding, minimize interpersonal contact, and encourage social distancing. The ADC has not heeded the CDC’s caution against unnecessarily transferring incarcerated people from one facility to another. As was the case before the COVID-19 pandemic, dozens of incarcerated people are currently being transported from Ouachita Unit to other ADC correctional facilities daily. Similarly, the transfer of incarcerated people into Varner Unit from other ADC correctional facilities has continued unabated amid the pandemic.
Dozens of incarcerated people are currently engaging in recreational activities and having meals together in the same place, at the same time. For example, Mr. Kouri and Mr. Serrato have all spent recreation time with incarcerated people from other barracks amid the COVID-19
17

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pandemic. Also, people incarcerated in ADC detention facilities sit within two feet of each other while dining; this is in contravention of the CDC’s recommendation of six feet of social distancing.
Named Plaintiffs and the putative class members are similarly unable to social distance in their barracks, where they sleep. Mr. Otwell is housed in a barracks in which the beds are located within 2.5 feet of each other. Mr. Serrato’s bed is similarly situated within 2.5 feet of the beds of men around him.
This inability to social distance, paired with a failure to adequately implement measures to reduce overcrowding, place Named Plaintiffs and the putative class members at a heightened risk of contracting COVID-19.
Fifth, Defendants do not adequately address suspected cases of COVID-19. If an incarcerated person exhibits symptoms of COVID-19, the CDC Guidance calls for them to be immediately given a face mask, placed in isolation, provided a medical evaluation and treatment, and evaluated for possible testing. In contrast, the ADC is not providing symptomatic people a mask, is not medically evaluating or treating them, and does not evaluate them for testing.
Named Plaintiffs have firsthand experience with ADC’s inadequate treatment of incarcerated people exhibiting symptoms of COVID-19. For example, Mr. Kent has informed prison staff that he has symptoms of COVID-19, but has not received medical treatment, despite being especially vulnerable to contracting COVID-19 due to his serious heart condition. When Mr. Kouri, who is severely obese and therefore vulnerable to COVID-19, reported COVID-19 symptoms, such as shortness of breath and a cough, he was not evaluated for testing. Instead, he was provided eyedrops and sent back to his regular barracks. Alarmingly, Mr. Kouri comes into contact with over a hundred people in the prison per day, including people in his barracks, some of whom are bedridden and exhibiting symptoms of COVID-19. Similarly, Mr. Nickson, who, as
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a 61-year-old diabetic, has an increased risk of contracting and dying from COVID-19, was not placed in isolation, despite his reporting symptoms of COVID-19. Instead, he is still being housed with his non-symptomatic roommate.
Sixth, Defendants do not adequately handle incarcerated people or staff who have had contact with people known to have tested positive for COVID-19 (“Close Contact Case”). In contravention of the CDC Guidance, Defendants have not implemented a 14-day quarantine of Close Contact Cases (with the exception of positive incarcerated people’s cellmates), nor does it call for monitoring Close Contact Cases for COVID-19 symptoms. Defendants also depart from the CDC Guidance by not requiring ADC staff who have had close contact with a COVID-19positve person to not return to work unless they are asymptomatic 14 days after their exposure to COVID-19. Instead, Defendants permit staff members who actually test positive to go to work, provided they only come into contact with infected incarcerated people. These omissions place Named Plaintiffs and the putative class members in great peril.
Seventh, Defendants have woefully inadequate policies and procedures for addressing the presence of a person who has tested positive for COVID-19 in an ADC detention facility. In the event of an incarcerated person or staff member testing positive for COVID-19, the CDC Guidance calls for the facility to close off the areas used by the person who contracted COVID-19. These areas are to be well ventilated for at least 24 hours before they are disinfected by people equipped with proper PPE. Defendants, however, have not implemented any of these measures.
In addition, Defendants have departed from the CDC Guidance by not informing incarcerated people that someone in their correctional facility has tested positive for COVID-19, thereby foregoing an opportunity to encourage incarcerated people to exercise more vigilance in their hygiene and cleaning habits when such extra vigilance is needed most. Not even people
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incarcerated at Cummins Unit, with its alarmingly high COVID-19 infection rate, have been informed of the extent of the outbreak in the prison.
While ADC has policies concerning precautions that can be taken when dealing with incarcerated people diagnosed with diseases that can be transmitted via air, respiratory droplets or contact with surfaces containing a virus, these years-old policies do not explain when these precautions should be taken.
Defendants know that the above-mentioned failures to adequately prevent and mitigate against the risk of COVID-19 spreading throughout ADC correction facilities unnecessarily heighten the risk of Plaintiffs and the putative class members contracting COVID-19.
On April 8, 2020, the Arkansas Civil Liberties Union sent a letter to Governor Hutchinson, emphasizing the need to comply with the CDC Guidance in ADC facilities, in part, by mandating social distancing and minimizing the transfer of incarcerated people from one detention facility to another. This letter was also sent to Defendant Kelley. Despite receipt of the serious warnings in this letter, Defendants have failed to implement any of the recommendations.
LEGAL STANDARD When determining whether to grant a TRO or preliminary injunction, the Court must consider: (1) the threat of irreparable harm to the movant; (2) the movant’s likelihood of success on the merits; (3) the balance between the harm to the movant and the injury that granting an injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (internal quotation marks omitted) (citing Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (8th Cir. 1981)). While no single factor is determinative, Dataphase, 640 F.2d at 114, the Eighth Circuit has made clear that in weighing whether to grant a preliminary injunction, the “likelihood of success
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on the merits is most significant.” Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 59 F.3d 80, 83 (8th Cir. 1995) (internal citation omitted). Despite the importance of the likelihood of success on the merits, the inquiry should focus on “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113. A court may also apply a “sliding scale in weighing whether preliminary relief is warranted.” Planned Parenthood of Wisconsin v. Van Hollen, 963 F. Supp. 2d 858, 864 (W.D. Wis. 2013) (internal citations omitted). “[T]he more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while . . . supporting some preliminary relief.” Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009).
The same showing is required to obtain either a temporary restraining order or a preliminary injunction. See ACLU of Minnesota v. Kiffmeyer, No. 04-CV-4653, 2004 WL 2428690, at *2 (D. Minn. Oct. 28, 2004).
Further, under Federal Rule of Civil Procedure 65(b), a court may issue a temporary restraining order without notice to Defendants if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). Where the adverse party has received notice of a motion for a temporary restraining order and a hearing has been held on the motion, it is proper for the court to consider the motion as one for a preliminary injunction. See Van Hollen, 963 F. Supp. 2d at 865.
ARGUMENT As outlined in the Complaint, Plaintiffs are individual prisoners in the custody of the State of Arkansas seeking to represent all prisoners in ADC custody. Named Plaintiffs in the High Risk
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and Disability Subclasses are individual prisoners who are especially vulnerable to COVID-19

because of their advanced age, underlying medical conditions, and/or disability, seeking to

represent other prisoners who are similarly situated. Under current conditions, it is

overwhelmingly likely that thousands of Plaintiffs will contract a serious, and sometimes lethal,

virus with no cure. There are nearly 600 prisoners in ADC custody who have contracted COVID-

19, nearly ten times the number of persons who were infected just five days before. See Governor

Asa

Hutchinson,

Press

Conference,

April

20,

2020,

https://www.youtube.com/watch?v=rhbt9s0dLuk&feature=youtu.be; CORONAVIRUS (COVID-

19) UPDATES, ADC, https://adc.arkansas.gov/coronavirus-covid-19-updates (reporting the

number of individuals infected on April 14, 2020 and April 17, 2020). Without urgent action,

countless more prisoners will become seriously ill or die within a matter of weeks or months.

Plaintiffs, therefore, request that the Court grant a temporary restraining order or a preliminary

injunction ordering: 1) ADC to undertake essential preventative measures within facilities, in line

with the recommendations of the CDC and Plaintiffs’ experts, to prevent the further spread of

COVID-19; and 2) the appointment of an expert to determine the members of the High Risk and

Disability Subclasses, who, due to age, medical condition or disability, merit temporary medical

furlough from confinement.

Once a plaintiff demonstrates entitlement to preliminary relief, courts have broad power to

fashion equitable remedies to address constitutional violations in prisons. Hutto v. Finney, 437

U.S. 678, 687 n.9 (1978). Although courts must “be sensitive to the state’s interest[s],” courts

“must not shrink from their obligation to enforce the constitutional rights of all persons, including

prisoners [and] . . . may not allow constitutional violations to continue simply because a remedy

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would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011).
Plaintiffs in this case are likely to succeed on the merits of their claims under both the U.S. Constitution and the ADA. COVID-19 is an extremely contagious and dangerous disease, the effects of which are exacerbated in ADC facilities where, due to overcrowding, Plaintiffs are not able to appropriately social distance, adequately clean themselves and their surroundings and sufficiently protect themselves without necessary equipment. The Defendants are well aware of these dangers. ADC tracks on its website the soaring rates of infection among prisoners and staff, as well as the measures that must be taken to prevent COVID-19’s spread and the particular danger it poses to medically vulnerable prisoners. Nonetheless, Defendants have repeatedly refused to take even the most basic preventative measures.
Injunctive relief is necessary because the danger here, vulnerable people condemned to prolonged illness and potential death, is the quintessential irreparable harm. There is also an overwhelming public interest in limiting the spread of COVID-19, both to minimize further infections and to reduce strain on overwhelmed health systems. See Ex. 2, ¶¶ 11, 15 (explaining that the elevated risk in correctional facilities “poses a risk not only to the health of the individuals who contract COVID-19, but to the community at large”). Finally, during this global COVID-19 pandemic, given that Defendants have failed to implement even the most basic preventive measures, and any interest Defendants would otherwise have in keeping especially vulnerable inmates imprisoned is substantially outweighed by the imminent risks to the Plaintiffs’ safety, the balance of equities weighs heavily in favor of the Plaintiffs.
Accordingly, this Court should order: 1) that immediate protective measures be taken in all ADC facilities, in line with the recommendations of Plaintiffs’ experts and the CDC; and 2) the
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appointment of an expert to determine those people who are at risk of serious illness or death due

to serious underlying medical conditions, people over the age of 50, and people with disabilities

particularly vulnerable to COVID-19 who shall be immediately transferred on medical furlough

to home confinement.

I.

Plaintiffs are Likely to Succeed on the Merits of their Constitutional and ADA

Claims.

To show a likelihood of success on the merits, a movant need not show “a greater than fifty

per[cent] likelihood that he will prevail on the merits.” Dataphase, 640 F.2d at 113. Instead, the

question is whether the movant has a “fair chance of prevailing.” Phelps–Roper v. Nixon, 509 F.3d

480, 485 (8th Cir. 2007), modified on reh’g, 545 F.3d 685 (8th Cir. 2008) (internal citation

omitted). Given the importance of this factor to the ultimate decision, the Eighth Circuit has

advised against a “wooden application” of the probability test. Dataphase, 640 F.2d at 113.

Plaintiffs in the General Class and High Risk Subclass are likely to establish that their

conditions of confinement in ADC custody place them at substantial risk of serious harm from

COVID-19, in violation of their Eighth Amendment rights. Additionally, Plaintiffs in the

Disability Subclass are likely to also establish that the denial of cleaning supplies, protective

equipment, and medical furlough places them in significant harm’s way in violation of the

Americans with Disabilities Act’s reasonable accommodations provision.

A. Plaintiffs Are Likely to Succeed on the Merits of their Constitutional Claims.

Plaintiffs are likely to establish that their conditions of confinement in ADC custody render

them at substantial risk of contracting COVID-19 and suffering prolonged injury and possible

death. The Supreme Court has long held that when state officials “strip[] [prisoners] of virtually

every means of self-protection and foreclose[] their access to outside aid, [they] are not free to let

the state of nature take its course.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). State officials

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instead have a responsibility under the Eighth Amendment to “take reasonable measures to guarantee the safety of the inmates . . . .” Id. at 832.
“The Eighth Amendment standard for conditions of confinement is whether the defendants acted with deliberate indifference.” Davis v. Or. Cty., 607 F.3d 543, 548 (8th Cir.2010). A prison official is deliberately indifferent if he “knows of and disregards” a substantial risk of serious harm to an inmate. Farmer, 511 U.S. at 837. “There is both an objective component and a subjective component to a claim of deliberate indifference . . . : (1) whether a substantial risk to the inmate’s safety existed, and (2) whether the officer had knowledge of the substantial risk to the inmate’s safety but nevertheless disregarded it.” Davis, 607 F.3d at 548. “The subjective component requires that the official was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and he must also draw the inference.” Id. at 548–49 (internal citations omitted). “[D]eliberate indifference includes something more than negligence[,] but less than actual intent to harm; it requires proof of a reckless disregard of the known risk.” Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005) (internal citations and quotations omitted).
In Helling v. McKinney, 509 U.S. 25 (1993), the Supreme Court held that the Eighth Amendment forbids deliberate indifference to conditions that “pose an unreasonable risk of serious damage to . . . future health.” Id. at 35. The Supreme Court in Helling addressed exposure to secondhand smoke, but it recognized that “deliberate[] indifferen[ce] to the exposure of inmates to a serious, communicable disease” would similarly violate the Eighth Amendment, even if a prisoner currently shows no serious symptoms. Id. at 33.
Courts in the Eighth Circuit have followed suit. In DiGidio v. Pung, the Eighth Circuit, agreeing with various other circuits, upheld the district court’s decision that “a consistent pattern of reckless or negligent conduct [in response to a tuberculosis outbreak] [wa]s sufficient to
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establish deliberate indifference to serious medical needs.” 920 F.2d 525, 533 (8th Cir. 1990). The Court specifically cited “the failure to develop written infection control policies, the failure to keep adequate medical records and charts, and the failure to provide a full-time doctor and medical director.” Id. at 531.
“A court need not wait until an inmate bleeds to death or until institutional health care deficiencies reach catastrophic proportions in order to exercise its declaratory or injunctive powers.” Cody v. Hillard, 599 F. Supp. 1025, 1055 (D.S.D. 1984), aff’d, 799 F.2d 447 (8th Cir. 1986), on reh’g, 830 F.2d 912 (8th Cir. 1987), (internal citation omitted) (citing Todaro v. Ward, 565 F.2d 48, 53 (2d Cir. 1977) (institutional practices need not be defective in maximum degree before eighth amendment violation is found)). A “[p]laintiff need not have contracted the disease for an actionable claim to be stated.” Brown v. Moore, 93 F. Supp. 3d 1032, 1041 (W.D. Ark. 2015).
Here, Plaintiffs have a strong likelihood of success on their Eighth Amendment claim because they satisfy both the objective and subjective components of the deliberate indifference test. Conditions in Arkansas prisons undeniably create a “substantial risk to [the Plaintiffs’] safety,” and Defendants have “knowledge of [that] substantial risk . . . but nevertheless disregarded it.” Davis, 607 F.3d at 548 (internal citation omitted).
1. Plaintiffs in the General Class and High-Risk Subclass Are at Substantial Risk of Serious Harm.
Plaintiffs are objectively at substantial risk of serious harm. There is no vaccine or cure for COVID-19. Ex. 1, ¶ 5, Ex. 1, ¶ 10. Once an individual contracts the illness, the consequences are serious. Ex. 1, ¶ 9 (“COVID-19 can severely damage the lung tissue, requiring an extensive period of rehabilitation and in some cases a permanent loss of respiratory capacity.”).
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The conditions in prisons inherently make it difficult for prisoners to engage in social distancing and undertake other imperative protective measures prisoners on their own. See Ex. 1, ¶ 9 (“Prisons are congregate environments, i.e. places where people live and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread.”); Ex. 1, ¶ 13 (“Given the avid spread of COVID-19 in skilled nursing facilities and cruise ships, it is reasonable to expect that COVID-19 will also spread rapidly in detention centers such as prisons and jails, particularly when residents cannot engage in social distancing measures, cannot practice proper hygiene, and cannot isolate themselves from infected residents and staff.”).
Plaintiffs in this case are being detained in conditions that dramatically increase the likelihood that they will contract COVID-19 and fall seriously ill because they cannot maintain adequate social distancing as mandated by the CDC. Plaintiffs are housed in close quarters, forced to eat, sleep, bathe, and perform all daily life activities in a communal setting. Ex. 3, Kouri Decl., ¶¶ 7 (noting that he interacts with at least 110 other prisoners daily); Ex. 4, Serrato Decl., ¶ 4 (reporting that there are 46 racks in each barrack with only 2.5 feet between each bed); Ex. 5, Otwell Decl., ¶ 6 (reporting that he comes into contact with at least 150 prisoners and 30 correctional staff each day and sleeps 3 feet from the next bed); Ex. 2, ¶ 9; Ex. 1, ¶ 13.
The risks posed by ADC’s congregate settings are exacerbated by lack of access to PPE for prisoners and many staff members, Ex. 3, ¶ 12 (noting that only two officers within the facility properly wear masks); Ex. 6, Kent Decl., ¶ 5 (reporting that the facility has refused to provide prisoners protective masks); Ex. 7, Stiggers Decl., ¶ 3 (same); Ex. 8, Frazier Decl., ¶¶ 5-6 (describing how he had to make a mask out of a shirt because the prison refused to provide them), and a lack of per-use cleaning of shared items like toilets, sinks, and showers, which are almost
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always accessed by numerous individuals before they are sanitized. Ex. 3, ¶ 14 (noting that he cannot clean himself, but must rely on porters); Ex. 8., ¶ 7 (reporting that prisoners do not have enough cleaning supplies).
Prisoners simply cannot maintain proper social distancing under these conditions. Prisoners share their dayrooms and showers, Ex. 7, ¶ 4 (noting that he shares toilet and sink and that he uses the shower at the same time as 5 other individuals); Ex. 9, Nickson Decl., ¶ 7 (noting that only option for showers is communal), and must rely on multiple staff to prepare and deliver their meals and medications. Ex. 5, ¶¶ 7, 11 (describing the delivery of food by workers without masks). Plaintiffs are at the mercy of security and medical staff, who may carry the virus without showing symptoms, and who often fail to take even simple precautions like wearing face masks and disposable gloves. Id; Ex. 3, ¶ 13 (recounting that nurses distributing medication were not wearing masks and told prisoners to stop worrying about it and asking about it); Ex. 4, ¶ 6 (reporting that half of correctional officials do not wear masks).
Under these circumstances, Plaintiffs in the General Class, as well as the High-Risk Subclass – Plaintiffs who are over the age of 50 and are medically vulnerable – are likely to succeed on the merits. Ex. 2, ¶ 9; Ex. 1, ¶ 13. Plaintiffs in the High Risk Subclass are at an especially high risk of harm from the virus due to the high rate of chronic health conditions within the subclass. Ex. 6, ¶ 3 (history of heart failure and high cholesterol); Ex. 3, ¶ 3 (heart disease, high blood pressure, and extreme obesity); Ex. 4, ¶ 3 (tuberculosis and asthma); Ex.9, ¶ 3 (diabetes); Ex. 8., ¶ 3 (asthma); Ex. 7, ¶ 3 (same); see also Ex. 10 Hampton Decl.; Ex. 11 Neeley Decl.; Ex. 12 Williams Decl. Elderly prisoners and those with underlying medical conditions are in particular danger; they not only face a near-certain risk of serious illness, but also death. Ex. 1, ¶ 7 (“Vulnerable people include people over the age of 50, and those of any age with underlying health problems
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such as – but not limited to – weakened immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.”). They typically experience COVID-19 symptoms more severely and are far more likely to develop complications as a result of the virus. Ex. 2, ¶ 8 (“Vulnerable people who are infected by the COVID-19 virus can experience severe respiratory illness, as well as damage to other major organs.”).
2. Despite Being Aware of This Risk, Defendants Have Failed to Address It.
Simply put, Plaintiffs are risking their lives every moment they remain in custody in current conditions in prisons throughout Arkansas. Defendants have long been aware of this fact and, also, aware of what must be done to prevent these harms. As ADC’s spokesperson recently admitted, ADC “knew the virus would eventually make its way into the state’s prison system.” Paige Cushman, ‘It’s Like Mad Max in Here’, Arkansas Inmate Says Conditions Woeful Amid Outbreak, ABC7 News (KATV), (Apr. 15, 2020), https://katv.com/news/local/its-like-mad-max-in-hereinmates-at-arkansas-prison-panic-amid-outbreak.
The Arkansas Department of Corrections tracks, twice per week, the number of prisoners and staff who have contracted COVID-19. CORONAVIRUS (COVID-19) UPDATES, ADC, https://adc.arkansas.gov/coronavirus-covid-19-updates. According to this tracker, COVID-19 is already in ADC facilities across the state: as of April 17, 2020, 34 ADC employees had tested positive and 163 ADC prisoners had tested positive. Id. The number of incarcerated persons infected nearly tripled over the number three days immediately prior. See id. (reporting that as of April 14, 2020, 61 individuals were infected). Conditions in the Cummins Unit, within ADC, have already become catastrophic. Forty-four prisoners in one barracks in the unit have contracted the virus. John Moritz, 44 of 47 Inmates Infected in Cummins Prisons Barracks, Ark. Democrat Gazette, (Apr. 14, 2020), https://www.arkansasonline.com/news/2020/apr/14/44-of-47-inmates-
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infected-in-cummins-pr/. On April 19, 2020, Arkansas Governor Asa Hutchinson announced that 348 prisoners in all at the Cummins Unit had tested positive for the virus. Governor Asa Hutchinson (@AsaHutchinson), Twitter (April 19, 2020, 2:31 P.M.), https://twitter.com/AsaHutchinson/status/1251941439216521217. As the State’s Director of Health explained, “you can understand how efficiently COVID-19 can be spread in that setting.” Moritz, 44 of 47 Inmates Infected in Cummins Prisons Barracks, supra. On April 20, 2020, state representatives stated that they believe the total number of infected prisoners is now close to 600. See Governor Asa Hutchinson, Press Conference, April 20, 2020, supra.
All evidence indicates that the number of individuals with COVID-19 will increase by multiples in the coming days and weeks. History teaches that when an epidemic occurs nationally, people in custody experience a disproportionately high number of cases. At Rikers’ Island, for example, the infection rate is currently more than six times the rate of infection for New York City, and more than 42 times the national infection rate. See COVID-19 Infection Tracking in NYC Jails, Legal Aid Soc’y, https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last visited April 20, 2020).
Defendants are aware of the dangers COVID-19 poses to not only medically vulnerable Plaintiffs, such as those in High Risk Subclass, but also the General Class. On March 20, 2020, the ADC posted a flyer stating: “COVID-19 is known to cause a greater risk for severe illness in older adults and persons with underlying health conditions or compromised immune conditions. Younger people can be infected and spread the disease to others, too.” ADC, Coronavirus Disease (COVID-19) Precautions for Entering Correctional and Detention Facilities (2019), https://adc.arkansas.gov/images/uploads/COVID-19_-_Facility_Entrance_Precautions__POSTER_11x17_-_March_20_2020-FINAL.pdf.
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Additionally, Defendants are aware of what, at a minimum, must be done to prevent the

spread of COVID-19. The ADC website provides that face masks help prevent the spread of

COVID-19 and the steps that must be taken to keep these coverings sanitary. See CORONAVIRUS

(COVID-19) UPDATES (Apr. 16, 2020), ADC, citing Use Cloth Face Coverings to Help Slow

Spread, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-

coverings.html (last reviewed Apr. 13, 2020). The website goes on to link to a separate Frequently

Asked Questions document that outlines the “steps” that can be “take[n] to reduce our risk of

getting COVID-19[.]” ADC, Arkansas Joint Information Center, COVID-19, (Mar. 17, 2020),

https://adc.arkansas.gov/images/uploads/FAQs_Prepare_Your_Home_and_Children_ADEM-3-

17-20.pdf. Among other things, it provides that individuals should regularly clean surfaces that

are frequently used. Id. If someone contracts the virus, the document provides that they should

“get immediate medical attention.” Id. As early as March 15, 2020, ADC posted a separate

informational document entitled “COVID-19 Health Care Resources” outlining the steps being

undertaken to prevent the spread of the virus among the general public. See CORONAVIRUS

(COVID-19) UPDATES (Mar. 15, 2020), ADC, citing UAMS Health Resources, COVID-19

Health

Care

Resources,

https://adc.arkansas.gov/images/uploads/COVID19_in_Arkansas_UAMS-ACH-ADH-3-15-

2020.pdf. These include free screenings, available 24 hours a day, 7 days a week to anyone who

believes they may have contracted the virus. Id.

Under Arkansas law, Defendants have the ability to address this matter by not only

ensuring that proper cleaning supplies are available, suitable distance between prisoners is

possible, and regular care is provided to those infected, but they also have the ability to release

individuals who, given their extreme vulnerability, cannot be safely confined in a congregative

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setting. Under Ark. Code Ann. § 12-28-604, once an emergency due to overcrowding is declared, as it was on March 2, 2020, the Director of the ADC may recommend prisoners for parole, transfer or discharge. See ADC, Minutes of the Arkansas Parole Board (Feb. 27, 2020), https://www.paroleboard.arkansas.gov/Websites/parole/images/02%2027%20Mins.pdf, at 4 (declaring an emergency).
Yet, as discussed above, despite this knowledge and their ability to address the matter, Defendants have failed to take appropriate action, but have chosen instead to leave individuals in ADC custody to suffer. In response to a letter from the ACLU of Arkansas, on March 18, 2020, raising concerns about the combined effect of overcrowding and COVID-19, Arkansas Governor Asa Hutchinson said that he was not considering the release of additional prisoners. John Moritz, Arkansas' Prisons, Jails Take Steps to Protect Inmates' health, Ark. Democrat Gazette, (Mar. 23, 2020), https://www.arkansasonline.com/news/2020/mar/23/prisons-jails-take-steps-to-protectinm/?bcsubid=1b2ea125-2aec-4788-b130-dbbbe56f1502&pbdialog=covid19-login. Likewise, although, on March 16, 2020, ADC issued a press release entitled “DOC Takes Steps to Prevent Spread of COVID-19”, it discussed nothing more than limits on visitation. Press Release, ADC, DOC Takes Steps to Prevent Spread of COVID-19, (Mar. 16, 2020), https://adc.arkansas.gov/images/uploads/COVID_News_Release__Inmate_Visitation_Suspension_ADC-3-16-2020.pdf. On April 19, 2020, only after news of the outbreak at Cummins Unit and reports that hundreds of prisoners had been infected, the Governor announced the creation of a task force to study the release of a small subset of prisoners with less than six months left on their sentence. Governor Asa Hutchinson, Press Conference, April 19, 2020, supra. It is unclear when this will occur, and how many individuals will actually be released.
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At a minimum, as ADC’s own website attests, Defendants must, among other things, institute immediate testing, immediate screening, appropriate use of quarantine, and significant improvements in hygiene. Ex. 2, ¶ 13. Nonetheless, even these actions will not completely eliminate the risk, particularly for those individuals who are at increased risk of serious illness and death once they become sick. Ex. 2, ¶¶ 11, 14-15. The only way to fully protect against the imminent risk of substantial harm and possible death for the members of the subclasses of prisoners who are most vulnerable to the virus—people at advanced risk of serious illness or death due to age, disability, or sickness—is to immediately transfer them on temporary medical furlough to their homes to shelter in place before they contract the virus. Id.
A failure to meaningfully act in the face of an unprecedented pandemic that is killing thousands is clear indifference that leaves Plaintiffs—and particularly the vulnerable Plaintiffs in the High Risk Subclass for whom emergency medical release is sought—at imminent risk of serious harm and death.
B. Plaintiffs Are Likely to Succeed on the Merits of Their ADA Claims for the Disability Subclass.
Defendants’ failure to provide Plaintiffs in the Disability Subclass with reasonable accommodations that would allow them to safely access the facility – as well as their failure to place prisoners with disabilities that make them particularly vulnerable to COVID-19 on furlough or home detention, where they could quarantine safely – is discrimination within the meaning of the Americans with Disabilities Act (ADA).
While the same conduct that violates the Eighth Amendment may also violate Title II of the ADA, the Supreme Court has recognized that Title II prohibits “a somewhat broader swath of conduct” than the Constitution itself forbids. Allen v. Morris, No. 4:93cv00398 BSM-JWC, 2010 WL 1382112, *7 (E.D. Ark. Jan. 6, 2010), report and recommendation adopted, No. 4:93CV00398
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BSM-JWC, 2010 WL 1382116 (E.D. Ark. Apr. 2, 2010), quoting United States v. Georgia, 546 U.S. 151, 157, 160 (2006); Tennessee v. Lane, 541 U.S. 509, 533 n. 24 (2004). ADA claims, for example, do not require proof of deliberate indifference. Morris, 2010 WL 1382112, at *7.
The ADA prohibits public entities, including state prisons, from discriminating on the basis of disability. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Under the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; see also Mason v. Corr. Med. Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009).
Courts in the Eighth Circuit have broadly construed the “services, programs, or activities” language in the ADA to encompass “anything a public entity does.” Bahl v. County of Ramsey, 695 F.3d 778, 787 (8th Cir. 2012) (internal citations omitted). Department of Justice regulations further confirm that “title II applies to anything a public entity does.” Seremeth v. Board of County Commissioners of Frederick County, 673 F.3d 333, 338 (4th Cir. 2012), quoting 28 C.F.R. Pt. 35, App. B; see also H.R. Rep. No. 101-485(II) (1990), reprinted in 1990 U.S.C.C.A.N. 367, 1990 WL 125563 (stating that Title II is intended to apply to “all actions of state and local governments.”).
Discrimination under the ADA includes failing to make reasonable modifications or accommodations that would allow a person with a disability to participate in a service, program or activity. The regulations implementing Title II of the ADA require that a public entity:
make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7)(i). 34

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In a failure-to-accommodate claim under the ADA, “the ‘discrimination’ is framed in terms of the failure to fulfill an affirmative duty—the failure to reasonably accommodate the disabled individual’s limitations. . . . The known disability triggers the duty to reasonably accommodate and, if the [defendant] fails to fulfill that duty, [the Court] does not care if he was motivated by the disability.” Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004) (internal citation omitted); see also Sak v. City of Aurelia, 832 F. Supp. 2d 1026, 1040 (N.D. Iowa 2011) (failure to accommodate is an independent basis for liability under the ADA, but accommodation is only required when necessary to avoid discrimination on the basis of disability, and accommodation must be reasonable) (citing 28 C.F.R. § 35.130(b)(7)).
Plaintiffs in the Disability Subclass, those who have serious medical conditions that make them particularly vulnerable to COVID-19, are qualified individuals with disabilities under the ADA. The ADA defines disability as having an impairment that substantially limits “major life activities.” 42 U.S.C. § 12102(2). “Major life activities” include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. By definition, Plaintiffs have substantial physical impairments that already constitute disabilities under the ADA. See e.g. Ex. 6, ¶ 3 (history of heart failure and high cholesterol); Ex. 3, ¶ 3 (heart disease, high blood pressure, and extreme obesity); Ex. 4, ¶ 3 (Tuberculosis and asthma); Ex. 9, ¶ 3 (diabetes); Ex. 8., ¶ 3 (asthma); Ex. 7, ¶ 3 (same). By virtue of being incarcerated, they are qualified for the “programs and services” of ADC at issue, including the safe use of facilities and the safe care that ADC has a duty to provide to those in its custody. ADC Mission, Vision, Core Values and Goals, ADC, https://adc.arkansas.gov/goals-and-
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objectives (stating that the department’s mission is to “provide a safe and humane environment” for staff and prisoners).
ADC has discriminated against Plaintiffs in the Disability Subclass in violation of the ADA by denying them access to cleaning supplies, PPE and medical care, and not allowing them to shower and access common areas at appropriate distances that would allow them to use these facilities safely and preserve their health. “[D]eliberate refusal of prison officials to accommodate [a prisoner’s] disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs” constitutes a violation of Title II. See Georgia, 546 U.S. at 157; see also Phipps v. Sheriff of Cook Cty., 681 F. Supp. 2d 899, 916 (N.D. Ill. 2009) (collecting cases holding that “showering, toileting, and lavatory use [are] regarded as programs and/or services under the ADA”); Maxwell v. Olmsted Cty., No. 10cv3668, 2012 WL 466179, at *4 (D. Minn. Feb. 13, 2012) (“If [plaintiff] in fact made requests for accessible bathing facilities, and those requests went unanswered by the [detention center], he was denied access to a fundamental service or benefit under Title II.”); Morris, 2010 WL 1382112, at *8 (considering, and allowing to go forward, claim that prison’s failure to make reasonable accommodations that would enable obviously disabled plaintiff to safely shower constituted discriminatory intent under Title II of the ADA).
Additionally, for certain members of the Disability Subclass, additional cleaning supplies and protective measures will be insufficient due to the severity of their underlying medical condition, their particular vulnerability to COVID-19, and the dire consequences that would ensue were they infected. Thus, ADC has violated Title II by failing to provide them with the available accommodation of furlough or home detention that would allow them to enjoy the basic amount of safety necessary to preserve their health. “The hallmark of a reasonable accommodation is
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effectiveness.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 189 (2d

Cir. 2015) (internal citation omitted). For certain individuals in the Disability Subclass, given their

vulnerability, the likelihood of serious illness or death were they to acquire the disease, the

extraordinary circumstances created by the virus and its prevalence in ADC facilities, release is

the only effective measure of ensuring that they are not denied access to basic services and a basic

level of health. Admittedly, temporary release is not a common accommodation, but these are

uniquely dangerous circumstances. As courts have acknowledged, determining the

“reasonableness of an [ ] accommodation is a ‘fact-specific’ question[.]” Noll v. Int'l Bus. Machs.

Corp., 787 F.3d 89, 94 (2d Cir. 2015) (internal quotation omitted). Finally, any argument that such

an accommodation would “fundamentally alter” the nature of Defendants’ system is undercut by

the fact that ADC already allows for a limited class of individuals to be temporarily released in the

case of serious illness or death of a family member. Ark. Admin. Code 004.00.2-812; see also Ark.

Code Ann. § 12-41-104 (allowing for emergency furloughs from local correctional facilities “for

occasions such as serious illness or death of a member of the inmate's family or other proper

emergency”). Given the extraordinary risk posed by the virus to the Disability Subclass, an

extension of the program to prisoners who themselves will be seriously ill or die unless they receive

an accommodation is more than reasonable.

Accordingly, Plaintiffs are also likely to prevail on their claim that Defendants’ refusal to

provide Plaintiffs in the Disability Subclass appropriate cleaning supplies and protective

equipment, as well as Defendants’ failure to provide for the release of those individuals in the

Disability Subclass acutely at risk, constitutes a denial of a reasonable accommodation in violation

of the ADA.

II.

Infection With a Lethal Virus That Lacks Any Vaccine or Cure Constitutes

Irreparable Harm.

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Each Plaintiff and class member incarcerated in ADC suffer an imminent risk of severe illness or death in light of COVID-19. There could be no greater irreparable harm. Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 961 (8th Cir. 1995) (“It is hard to imagine a greater harm than losing a chance for potentially life-saving medical treatment.”).
Cases of COVID-19 across the country have increased exponentially in a matter of weeks and months. The virus has already spread to detention facilities throughout Arkansas. Plaintiffs have moved for a temporary restraining order and preliminary injunction for prisoners, including those prisoners who are most vulnerable, because the difference of even just a few days is a matter of life and death. The first positive COVID-19 test in the ADC system was reported on April 3, 2020, and identified four ADC staff members. On April 10, thirteen ADC staff members tested positive. Only four days later, on April 14, 2020, 61 incarcerated persons testified positive for the coronavirus along with 34 staff members. As of the date of this filing, nearly 600 incarcerated persons have testified positive for COVID-19 and at least 34 staff.
Given how quickly the disease spreads, there is a substantial probability that absent immediate relief from the Court, vulnerable prisoners will be infected with COVID-19. Further, Plaintiffs in the High-Risk Subclass are older adults or people with pre-existing medical conditions that increase the likelihood of severe illness or death if they contract COVID-19. Even for those who survive infection, there may be a prolonged recovery, including the need for extensive rehabilitation, neurological damage, and the loss of respiratory capacity.
In serious cases, an individual’s lungs “become filled with inflammatory material [and] are unable to get enough oxygen to the bloodstream.” Compl. at ¶ 11. Severe cases of COVID-19 cause acute respiratory distress syndrome (“ARDS”) in which fluid displaces air in the lungs. COVID-19 patients with ARDS “are essentially drowning in their own blood and fluids because
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their lungs are so full.” Id. The virus’s symptoms also include fever and chills that can last for weeks, excruciating pain, debilitating fatigue, an unremitting cough, uncontrollable diarrhea, and an inability to keep down food and water. Id.
It is undeniable that the effects of COVID-19 – a “life threatening illness” – are an irreparable injury. Harris v. Blue Cross Blue Shield of Mo., 995 F.2d 877, 879 (8th Cir. 1993) (“We entertain no question but that irreparable injury exist[s]” when the harm contemplated is “a life threatening illness.”); see also Kai v. Ross, 336 F.3d 650, 656 (8th Cir. 2003) (noting that danger to plaintiffs’ health is evidence of irreparable injury). The life-and-death stakes of the virus are sufficient to establish a likelihood of irreparable harm in support of injunctive relief. The meaningful risk of serious injury or death faced by Plaintiffs is also supported by Plaintiffs’ experts and the CDC.
Moreover, even the failure to test for a disease has been sufficient to support a finding of irreparable harm. See Boone v. Brown, No. 05cv750, WL 2006997, at *14 (D.N.J. Aug. 22, 2005) (allegation of refusal to provide adequate testing for highly contagious infectious disease sufficient to demonstrate irreparable harm); Austin v. Pa. Dep’t of Corr., No. 90cv7497, 1992 WL 277511, at *7 (E.D. Pa. Sept. 29, 1992) (granting preliminary injunction for prison to develop testing and protocol for Tuberculosis); see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (state officials have an affirmative obligation to protect prisoners from infectious disease).
ADC’s ongoing failure to provide conditions that allow people in its custody to perform the CDC-mandated protective measures, including social distancing, risks irreparable harm to Plaintiffs. See Jones’El v. Burge, 164 F. Supp. 2d 1096, 1125-26 (W.D. Wis. 2001) (recognizing that constitutionally inadequate conditions at supermax justified granting injunctive relief). The Constitution does not require that the vulnerable Plaintiffs whose request for relief is at issue in
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this motion wait until they have contracted, been exposed to, or display symptoms of COVID-19

before obtaining injunctive relief. Mem. and Order, Thaker v. Doll, No. 20 C 0480, ECF No. 47,

at *8 (M.D. Pa. Mar. 31, 2020) (“Petitioners face the inexorable progression of a global pandemic

creeping across our nation—a pandemic to which they are particularly vulnerable to due to age

and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter

Pennsylvania prisoners, but when it is finally detected therein.”); Op. and Order, Coronel v.

Decker, No. 20cv2472, ECF No. 26, at *5 (S.D.N.Y. Mar. 27, 2020) (“Due to their serious

underlying medical conditions, all Petitioners face a risk of severe, irreparable harm if they contract

COVID-19.”).

A review of the medical conditions suffered by several of the Named Plaintiffs

demonstrates the irreparable harm these vulnerable prisoners will face if this Court does not grant

them relief. Plaintiff Mr. Kouri, for example, suffers from aortic heart valve degeneration and is

on blood thinners. He also suffers from hypertension and extreme obesity. Ex. 3, ¶ 3. Plaintiff

Serrato has tuberculosis and suffers from asthma. Ex. 4, ¶ 3. Plaintiffs Mr. Frazier and Mr. Stiggers

both suffer from asthma. Ex. 8., ¶ 3; Ex. 7, ¶ 3. Each one of these Plaintiffs, and others, see Compl.

¶¶ 20-34, and unnamed putative class members, suffer an imminent risk of severe illness or death

when a COVID-19 positive individual comes into the prison. Simply put, their lives are on the line

and the harm they face is clearly irreparable.

Further, for the purposes of a TRO, Plaintiffs have no adequate remedy at law. Only

ordering Plaintiffs’ requested remedies can prevent the impending serious illness or death. See

Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1473 (8th Cir. 1994).

Therefore, the “irreparable harm” factor weighs strongly in Plaintiffs’ favor.

III.

There is a Strong Public Interest in Minimizing the Spread of COVID-19 Through

Social Distancing and Hygiene Practices.

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The public is served by the preservation of constitutional rights. D.M. by Bao Xiong v. Minn. State High Sch. League, 917 F.3d 994, 1004 (8th Cir. 2019) (internal quotation and citations omitted). Indeed, it is always in the public interest to prevent the continuing violation of a plaintiff’s constitutional rights. Phelps-Roper, 509 F.3d at 485 (holding that protecting constitutional rights is always in the public interest); see also Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir.2003) (“Surely, upholding constitutional rights serves the public interest.”). As stated above, Plaintiffs’ constitutional rights are being violated.
Here, the public interest in minimizing the spread of COVID-19 is overwhelming and cannot be overstated. COVID-19 is highly contagious and can lead to serious illness and death. This is especially true for the sub-classes of Plaintiffs here. The virus has no vaccine or cure, meaning that each new infection will likely result in several more individuals becoming infected. Ex. 2, ¶ 5, Ex. 1, ¶ 10. Public health experts have thus unanimously agreed that the most critical actions that can be taken are preventive measures like self-isolating, maintaining a distance of six feet from all other individuals, and frequent disinfection. See Ex. 2, ¶ 13.
There is also a public interest in limiting the spread of COVID-19 within the prisons and in the community, as well as reducing the strain on overwhelmed health systems. Disturbingly, there is a dangerous shortage of ICU beds in the communities surrounding correctional facilities. Of the twenty ADC facilities, nine are located in counties with no ICU beds. Compl., ¶ 92. Six more are located in Jefferson County, which has 34 ICU beds. Id. All three of the facilities with the largest detention capacities and a growing number of COVID-19 cases—Cummins Unit, East Arkansas Regional Unit, and Varner Unit—are in counties with no ICU beds. Id.
As the virus has progressed throughout the country, it has become clear that if the need for ICU beds and life-saving medical equipment exceeds supply, the death rate will increase. The
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overall hospitalization rate is 20.0 per 100,000, with the highest rates in persons 65 years and older (63.8 per 100,000) and 50-64 years (32.8 per 100,000). COVID View, A Weekly Surveillance Summary of COVID-19 Activity, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html (last visited April 20, 2020). The hospitalization rates for COVID-19 in older people are higher than what is typically seen early in a flu season. Id.
Further, among all hospitalized patients, a range of 26% to 32% of patients were admitted to the ICU. Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited April 20, 2020). It is likely that the healthcare system of Arkansas will not be able to keep up with the needed supply of medical supplies if the virus continues to spread through its prisons uninhibited.
Prisoners in ADC are destined to become vectors of disease, and will inevitably infect several other prisoners, ADC employees, prison medical staff, and eventually, the surrounding communities when infected staff and employees leave the prisons and return to their homes. The results will be devastating for the Arkansas communities immediately surrounding ADC prisons. See Ex. 2, ¶¶ 11, 14 (explaining that the elevated risk in correctional facilities “poses a risk not only to the health of the individuals who contract COVID-19, but to the community at large”).
As stated above, Defendants are aware of what, at a minimum, must be done to prevent the spread of COVID-19 within the prison and surrounding communities. As they have acknowledged, this includes providing free screening to anyone who believes they may have contracted the virus, face masks, and regular cleaning supplies for frequently used surfaces. See supra at 13.
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Nevertheless, Defendants have failed to consistently take these minimal steps. It is in the public

interest for ADC to immediately institute immediate testing, immediate screening, appropriate use

of quarantine, and significant improvements in hygiene. Ex. 2, ¶ 13. Defendants have the ability

to do each.

The public interest weighs heavily in favor of Plaintiffs.

IV.

The Balance of Equities Favors Releasing Vulnerable Plaintiffs and Complying with

CDC Guidelines Over Continued Detention and Inadequate Prevention in the Midst

of this Public Health Crisis.

In evaluating the balance of equities, the Court should consider the harm of granting or

denying the injunction upon both Plaintiffs and Defendants, as well as other interested parties,

including the public. Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 372 (8th Cir.

1991) (considering the effect of granting or denying the injunction on the parties’ and public’s

interest). Here, the balance of equities weighs in favor of ordering the remedies Plaintiffs seek in

order to drastically reduce prisoners’ risk of contracting the virus and facilitating its spread to

surrounding communities.

For the vulnerable prisoners seeking relief—prisoners with underlying medical conditions

or disabilities who face a particular risk of severe illness and death from exposure to COVID-19,

and those who are medically vulnerable because of their age—Plaintiffs’ request is a matter of life

and death. The balance of the equities in this case favors life.

There is no legitimate harm to Defendants in ADC from undertaking essential preventative

measures within facilities, in line with the recommendations of the CDC and Plaintiffs’ experts, to

prevent the further spread of COVID-19.

Defendants may argue that a balance of equities does not favor Plaintiffs’ request because

of the costs of a preliminary injunction. But, even if it were obvious that Defendants could save

money by continuing their inadequate response to COVID-19, the fiscal harm is outweighed by 43

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the risk of serious illness and death faced by those incarcerated in ADC, ADC staff, and the surrounding community. Todd v. Sorrell, 841 F.2d 87, 88 (4th Cir.1988) (holding that financial harm to state was negligible in comparison to potentially fatal harm to plaintiff); Nemnich v. Stangler, No. 91-4517-CV-C-5, 1992 WL 178963 at *3 (W.D. Mo. Jan. 7, 1992) (holding that “harm to the plaintiffs’ [lives] and health clearly outweighs any fiscal harm the state may suffer.”). J.D. v. Sherman, No. 06-4153-CV-C-NKL, 2006 WL 3163053, at *8 (W.D. Mo. Oct. 27, 2006) (same).
Moreover, Plaintiffs acknowledge that they are in custody after having been found guilty of committing a crime. The remedies they seek are reasonable in light of the current pandemic. Plaintiffs do not seek unconditional release; rather, Plaintiffs request ADC take steps necessary to ensure compliance with the CDC guidelines. This may include, but not be limited to, particularly vulnerable Plaintiffs being transferred to their homes to self-isolate, while still in ADC custody and being monitored via electronic monitoring, until the emergency abates. These vulnerable prisoners’ lives are on the line, as are the lives of ADC staff and members of the community who face greater exposure as a result of the prisoners’ continued detention under current conditions.
Though Defendants’ interests in incarceration may include retribution and deterrence, it does not include incarcerating individuals in a manner that creates a substantial risk of illness and death. Defendants have no interest in the inhumane treatment of Plaintiffs who have no means of self-protection from COVID-19. Farmer, 511 U.S. at 833. Under the extraordinary circumstances of this pandemic, any interests Defendants may have in the incarceration of Plaintiffs in its detention facilities are outweighed by Plaintiffs’ interest in their health, safety, and life.
Recognizing such, federal courts across the country have granted temporary restraining orders brought on behalf of vulnerable individuals in custody. See, e.g., Op. and Order, Cameron
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v. Bouchard, No. 20-10949 (E.D. Mich. Apr. 17, 2020), ECF No. 12; Prelim. Inj. Order, Valentine v. Collier, No. 4:20cv1115 (S.D. Tex. April 16, 2020), ECF No. 40; Mem. and Order, Thaker, No. 20-cv-0480 (M.D. Pa. Mar. 31, 2020), ECF No. 47; Op. and Order, Coronel., No. 20-cv-2472 (S.D.N.Y. Mar. 27, 2020), ECF No. 26; Mem. and Order, Basank v. Decker, No. 20-cv-2518 (S.D.N.Y. Mar. 26, 2020), ECF No. 11; Order, Flores v. Barr, No. 85-cv-4544 (C.D. Cal. Mar. 28, 2020), ECF No. 740.
These orders have provided precisely the relief Plaintiffs ask for here. In Valentine, the court recognized that prisoners face a high risk of serious illness or death from exposure to COVID-19 and, therefore, issued a preliminary injunction requiring Defendants to undertake preventative efforts similar to those Plaintiffs request here. Valentine, No. 20-cv-1115, ECF No. 40, at *1. These included, among other things, requirements that correctional facilities provide prisoners and staff sufficient cleaning supplies and PPE; establish regular cleaning protocols sufficient to prevent the outbreak; and suspend co-pays for medical treatment. Id., at *2-5.
In Thaker, the district court recognized that “the status quo of a mere few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly . . . . The choice we now make must reflect this new reality.” Thaker, No. 20-cv-0480, ECF No. 47 at 24. Accordingly, the district court found that even though the conditions in the local federal detention facilities were not insufficient because of intent or malice, “should we fail to afford relief” to medically vulnerable prisoners “we will be a party to an unconscionable and possibly barbaric result.” Id.; see also id. (“Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue.”). The district court, as a result, granted a temporary restraining order requiring the immediate release
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of eleven prisoners in federal custody who suffer from chronic medical conditions and face a serious threat of injury or death if exposed to COVID-19. Id. at 2, 24–25.
The balance of equities weighs in favor of ordering the remedies Plaintiffs seek in order to drastically reduce prisoners’ risk of contracting the virus and its spread to surrounding communities.
CONCLUSION For the reasons stated above, Plaintiffs respectfully request that this Court grant a Temporary Restraining Order and a Preliminary Injunction as requested in Plaintiffs’ Prayer for Relief in their complaint filed contemporaneously with this motion. Compl. pp. 45-48. Plaintiffs further request that Defendants refrain from destroying any information related to Plaintiffs’ claims to preserve relevant discovery in this lawsuit including, but not limited to, video footage within its facilities, medical records, grievances and other complaints from prisoners, ADC responses to grievances and complaints, disciplinary records, and ADC policies and procedures related to COVID-19. Dated: April 21, 2020
Respectfully submitted, By: /s/Omavi Shukur
Samuel Spital* Jin Hee Lee* Natasha Merle* Omavi Shukur (Arkansas Bar No. 2016067) NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200 Christopher Kemmitt*
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Ajmel Quereshi* NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall* Jenay Nurse* Corrine Irish* Squire Patton Boggs (US) LLP 1211 Avenue of the Americas, 26th Floor New York, NY 10036 (212) 872-9800
Laura Fernandez* 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 72201 (501) 296-1775
Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202 (501) 374-2660
*Pro hac vice motions forthcoming
Attorneys for Plaintiffs and the Putative Classes
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Case 4:20-cv-00434-KGB Document 3 Filed 04/21/20 Page 60 of 60 CERTIFICATE OF SERVICE
I certify that on April 21, 2020, I filed the foregoing Plaintiffs’ Emergency Motion for a Temporary Restraining Order and Preliminary Injunction electronically via the Court’s CM/ECF system, which will send a copy to all counsel of record.
/s/ Omavi Shukur Omavi Shukur NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 Phone: (212) 965-2200 Fax: (212) 226-7592 oshukur@naacpldf.org
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Exhibit 1

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Case 4:20-cv-00434-KGB Document 3-1 Filed 04/21/20 Page 4 of 5

Case 4:20-cv-00434-KGB Document 3-1 Filed 04/21/20 Page 5 of 5

Case 4:20-cv-00434-KGB Document 3-2 Filed 04/21/20 Page 1 of 19
Exhibit 2

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DECLARATION OF DR. MARC STERN
I, Marc Stern, MD, suffer from no disability which would disqualify me from swearing an oath, under penalty of perjury, hereby affirm:
1. I am a physician, board-specialized in internal medicine, specializing in correctional health care. On a regular basis, I investigate, evaluate, and monitor the adequacy of health care delivery systems in correctional institutions on behalf of a variety of parties including federal courts. My prior experience includes working with state departments of corrections and county jails, the Office of Civil Rights and Civil Liberties of the U.S. Department of Homeland Security; the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice. Through 2013, I taught the National Commission on Correctional Health Care’s (NCCHC) correctional health care standards semi-annually to correctional health care administrators at NCCHC’s national conferences. I authored a weeklong curriculum commissioned by the National Institute of Corrections of the U.S. Department of Justice to train jail and prison wardens and health care administrators in the principles and practice of operating safe and effective correctional health care operations, and served as the principal instructor for this course. In the past four years alone, I have been qualified as an expert in several jurisdictions on correctional health care systems and conditions of confinement. Attached as Exhibit A is a copy of my curriculum vitae.
2. I authored a week-long curriculum commissioned by the National Institute of Corrections of the U.S. Department of Justice to train jail and prison wardens and health care administrators in the principles and practice of operating safe and effective correctional health care operations, and served as the principal instructor for this course.
3. I am not receiving payment in exchange for providing this affidavit to the NAACP Legal Defense Fund, Squire Patton Boggs, the ACLU of Arkansas, and Disability Rights Arkansas regarding appropriate correctional healthcare measures during the COVID-19 pandemic. In light of the emergency conditions occurring in jails and prisons across the country, I am providing my services pro bono.
4. COVID-19 is a serious disease and has reached pandemic status. Over 1.9 million people around the world have received confirmed diagnoses of COVID-19 as of April 16, 2020, including 640,524 people in the United States. At least 130,000 people have died globally as a result of COVID-19 as of April 16, 2020, including 32,313 in the United States. These numbers will continue to increase. As of April 19, Arkansas officials report 40 deaths linked to corona virus among
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1,781 cases, including over 400 known cases among prisoners and correctional staff in Arkansas prison facilities statewide. At the Cummins Unit, the situation has become dire. 44 of 47 prisoners in a single barracks have contracted COVID19. On April 19, 2020, Arkansas Governor Asa Hutchinson announced that, as a result of facility wide testing, officials could now confirm 348 cases of COVID-19 among prisoners at the facility.
5. COVID-19 is a novel virus. There is no vaccine for COVID-19, and there is no cure for COVID-19. No one who has not been previously infected has immunity. The only way to control the virus is to use preventive strategies, including social distancing.
6. The time course of the disease can be very rapid. Individuals can show the first symptoms of infection in as little as two days after exposure and their condition can seriously deteriorate in as little as five days (perhaps sooner) after that.
7. The effects of COVID-19 are very serious, especially for people who are most vulnerable. It is well known in correctional health sciences that individuals in jails and prison are physiologically comparable to individuals in the community several years older. Many state departments of corrections and the Federal Bureau of Prisons therefore define “elderly” or “older” variously between 50 and 60 years of age. Accordingly, vulnerable people include people over the age of 50, and those of any age with underlying health problems such as – but not limited to – weakened immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.
8. Vulnerable people who are infected by the COVID-19 virus can experience severe respiratory illness, as well as damage to other major organs. Treatment for serious cases of COVID-19 requires significant advanced support, including ventilator assistance for respiration and intensive care support. An outbreak of COVID-19 could put significant pressure on or exceed the capacity of local health infrastructure.
9. Prisons are congregate environments, i.e. places where people live and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch are more likely to spread. This therefore presents an increased danger for the spread of COVID-19 if and when it is introduced into the facility. To the extent that detainees or prisoners are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, the risks of spread are greatly, if not exponentially, increased as already
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evidenced by the spread of COVID-19 in another congregate environment: nursing homes and cruise ships. 10. The U.S. Center for Disease Control (CDC) and other public health authorities recommend a number of preventive steps to help prevent or decrease the spread of COVID-19. Social distancing in ways that are recommended by public health officials can be difficult, if not impossible in jails and prisons, placing people at risk, especially when the number of residents is high. 11. The aforementioned elevated risk poses a risk not only to the health of the individuals who contract COVID-19, but to the community at large. It does so by two mechanisms. First, because staff and some visitors travel each day from the facilities back to their homes, when infection develops in the facility, there is significant risk that the infection will be transmitted to the family and friends of the staff and visitors. Second, to the extent that jails and prisons house individuals who at markedly increased risk of severe complications from COVID-19, when such individuals do become infected, they are more likely to utilize scarce community resources, such as emergency departments, hospital beds, and ventilators. 12. Although it is important for prisons to comply with the CDC recommendations for correctional and detention facilities, it is equally important to understand that compliance with these standards alone is not enough to create a carceral setting that fully protects the health and safety of the people detained there. For example, the CDC guidance, like public health guidance everywhere, states that social distancing should permit 6 feet or more of social distancing between sleeping quarters, but also states that such distancing should be provided “if space allows.” This does not mean that it is safe to have less than 6 feet of social distance in a prison, and in fact a carceral setting that does not allow for such social distancing is not a safe one and is likely to facilitate the spread of COVID19.
13. If not already doing so, the Department of Corrections should be engaged in the following activities to reduce the risk of transmission of COVID-19 in prisons:
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a Immediate testing. Patients who require testing, based on public health recommendations and the opinion of a qualified medical professional, should be tested for COVID-19. b Immediate Screening. Defendants must be required to screen each employee or other person entering the facility every day to detect fever over 100 degrees, cough, shortness of breath, and other symptoms currently recommended to be used for screening by the CDC, exposure to someone who is symptomatic or under surveillance for COVID-19, or other screening as required by local public health authorities. A record should be made of each screening. c Quarantine and Isolation. The prison must establish clinically effective non-punitive quarantine for all individuals believed to have been exposed to COVID-19, but not yet symptomatic, and non-punitive clinically isolation for those believed to be infected with COVID-19 and potentially infectious. Any individual who must interact with those potentially or likely inflicted with COVID-19 must utilize protective equipment as directed by public health authorities. In short, every possible effort must be made to separate infected or potentially infected individuals from the rest of the incarcerated population. Once individuals have been potentially infected, they should be quarantined for an appropriate period of time and during that time period no new individual should be added to the quarantined cohort. Individuals requiring continued quarantine, isolation, or health care after release should be transferred from the institution to the appropriate outside venue. d Institutional Hygiene. The prison must be required to provide adequate disinfection of all high use/high touch surfaces and houses and bathrooms in accordance with CDC or local health authority guidelines. e Personal Hygiene. The prison must be required to provide hand soap, disposable paper towels, and access to water to allow residents to wash their hands on a regular basis, free of charge, and ensure replacement products are available as needed. Correctional staff should be allowed to carry hand sanitizer with alcohol on their person, and residents should be allowed to use hand sanitizer with alcohol when they are in locations or activities where hand washing is not available. f Limit Contact Visitation. Officials must be required to replace contact visitation with non-contact visitation such as video conferencing and/or telephone calls at no charge.
4

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g Waive Copays. There must be a waiving of copays for medical evaluation and care related in any way to COVID-19 and/or its symptoms. A waiver of these types of copays is necessary to avoid disincentivizing patients from requesting medical treatment. Patients with symptoms of possible COVID-19 should be seen quickly. Those with a cough should be provided masks as soon as they inform staff of this symptom or staff notice this symptom.
14. Additionally, to minimize the serious risk of COVID-19 transmission, it is important to reduce the number of persons incarcerated so that safe social distancing practices may be followed for individuals who remain in the prison. I recognize that in most institutions, this number cannot be reduced to zero. However, the lower the number of incarcerated persons in a facility, the lower the risk. For residents who are at high risk of serious illness or death should they contract the COVID-19 virus, release from custody is a critically important way to meaningfully mitigate that risk. Additionally, reducing the number of total individuals in a facility is an important mitigation strategy, which has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, cleaning supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of corrections staff such that they can continue to ensure the safety of residents.
15. The release of prisoners, especially those with increased health-related vulnerability, also provides public health benefits to the broader community because carceral and detention settings, regardless of the level of government authorities that oversee them, are integral parts of the community’s public health infrastructure. Reducing the spread and severity of infection in a jail or prison slows, if not reduces, the number of people who will become ill enough to require hospitalization, which in turn reduces the health and economic burden to the local community at large.
Executed this 20th day of April, 2020 in Tumwater, Washington.
__________________________________
Dr. Marc Stern 5

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Exhibit A
6

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MARC F. STERN, M.D., M.P.H., F.A.C.P.

April, 2020

marcstern@live.com +1 (360) 701–6520

SUMMARY OF EXPERIENCE

CORRECTIONAL HEALTH CARE CONSULTANT

2009 – PRESENT

Consultant in the design, management, and operation of health services in a correctional setting to assist in evaluating, monitoring, or providing evidence-based, cost-effective care consistent with constitutional mandates of quality.

Current activities include: • COVID-19 Medical Advisor, National Sheriffs Association (2020 - )
• Advisor to various jails in Washington State on patient safety, health systems, and related health care and custody staff activities and operations, and RFP and contract generation (2014 - )
• Consultant to the US Department of Justice, Civil Rights Division, Special Litigation Section. Providing investigative support and expert medical services pursuant to complaints regarding care delivered in any US jail, prison, or detention facility. (2010 - ) (no current open cases)
• Physician prescriber/trainer for administration of naloxone by law enforcement officers for the Olympia, Tumwater, Lacey, Yelm, and Evergreen College Police Departments (2017 - )
• Consultant to the Civil Rights Enforcement Section, Office of the Attorney General of California, under SB 29, to review the healthcare-related conditions of confinement of detainees confined by Immigration and Customs Enforcement in California facilities (2017 - )
• Rule 706 Expert to the Court, US District Court for the District of Arizona, in the matter of Parsons v. Ryan (2018 - )

Previous activities include: • Consultant to Human Rights Watch to evaluate medical care of immigrants in Homeland Security detention (2016 -
2018)
• Consultant to Broward County Sheriff to help develop and evaluate responses to a request for proposals (2017 2018)
• Member of monitoring team (medical expert) pursuant to Consent Agreement between US Department of Justice and Miami-Dade County (Unites States of America v Miami-Dade County, et al.) regarding, entre outre, unconstitutional medical care. (2013 - 2016)
• Jointly appointed Consultant to the parties in Flynn v Walker (formerly Flynn v Doyle), a class action lawsuit before the US Federal District Court (Eastern District of Wisconsin) regarding Eighth Amendment violations of the health care provided to women at the Taycheedah Correctional Institute. Responsible for monitoring compliance with the medical component of the settlement. (2010 - 2015)
• Consultant on “Drug-related Death after Prison Release,” a research grant continuing work with Dr. Ingrid Binswanger, University of Colorado, Denver, examining the causes of, and methods of reducing deaths after release from prison to the community. National Institutes of Health Grant R21 DA031041-01. (2011 - 2016)
• Consultant to the US Department of Homeland Security, Office for Civil Rights and Civil Liberties. Providing investigative support and expert medical services pursuant to complaints regarding care received by immigration detainees in the custody of U.S. Immigration and Customs Enforcement. (2009 - 2014)
• Special Master for the US Federal District Court (District of Idaho) in Balla v Idaho State Board of Correction, et al., a class action lawsuit alleging Eighth Amendment violations in provision of health care at the Idaho State Correctional Institution. (2011 - 2012)
• Facilitator/Consultant to the US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, providing assistance and input for the development of the first National Survey of Prisoner Health. (2010-2011 )
• Project lead and primary author of National Institute of Corrections’ project entitled “Correctional Health Care Executive Curriculum Development,” in collaboration with National Commission on Correctional Health Care. NIC commissioned this curriculum for its use to train executive leaders from jails and prisons across the nation to better manage the health care missions of their facilities. Cooperative Agreement 11AD11GK18, US Department of Justice, National Institute of Corrections. (2011 - 2015 )

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• Co-teacher, with Jaye Anno, Ph.D., for the National Commission on Correctional Health Care, of the Commission’s standing course, An In-Depth Look at NCCHC’s 2008 Standards for Health Services in Prisons and Jails taught at its national meetings. (2010 - 2013)
• Contributor to 2014 Editions of Standards for Health Services in Jails and Standards for Health Services in Prisons, National Commission on Correctional Health Care. (2013)
• Consultant to the California Department of Corrections and Rehabilitation court-appointed Receiver for medical operations. Projects included: o Assessing the Receiver’s progress in completing its goal of bringing medical care delivered in the Department to a constitutionally mandated level. (2009) o Providing physician leadership to the Telemedicine Program Manager tasked with improving and expanding the statewide use of telemedicine. (2009)
• Conceived, co-designed, led, and instructed in American College of Correctional Physicians and National Commission on Correctional Health Care’s Medical Directors Boot Camp (now called Leadership Institute), a national training program for new (Track “101”) and more experienced (Track “201”) prison and jail medical directors. (2009 - 2012)
• Participated as a member of a nine-person Delphi expert consensus panel convened by Rand Corporation to create a set of correctional health care quality standards. (2009)
• Convened a coalition of jails, Federally Qualified Health Centers, and community mental health centers in ten counties in Washington State to apply for a federal grant to create an electronic network among the participants that will share prescription information for the correctional population as they move among these three venues. (2009 2010)
• Participated as a clinical expert in comprehensive assessment of Michigan Department of Corrections as part of a team from the National Commission on Correctional Health Care. (2007)
• Provided consultation to Correctional Medical Services, Inc., St. Louis (now Corizon), on issues related to development of an electronic health record. (2001)
• Reviewed cases of possible professional misconduct for the Office of Professional Medical Conduct of the New York State Department of Health. (1999 – 2001)
• Advised Deputy Commissioner, Indiana State Board of Health, on developing plan to reduce morbidity from chronic diseases using available databases. (1992)
• Provided consultation to Division of General Medicine, University of Nevada at Reno, to help develop a new clinical practice site combining a faculty practice and a supervised resident clinic. (1991)

OLYMPIA BUPRENORPHINE CLINIC, OLYMPIA, WASHINGTON

2019 - PRESENT

Volunteer practitioner at a low-barrier clinic to providing Medication Assisted Treatment (buprenorphine) to opioid dependent individuals wishing to begin treatment, until they can transition to a long-term treatment provider

OLYMPIA FREE CLINIC, OLYMPIA, WASHINGTON

2017 - PRESENT

Volunteer practitioner providing episodic care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home

OLYMPIA UNION GOSPEL MISSION CLINIC, OLYMPIA, WASHINGTON

2009 – 2014

Volunteer practitioner providing primary care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home; my own patient panel within the practice focuses on individuals recently released jail and prison.

WASHINGTON STATE DEPARTMENT OF CORRECTIONS

2002 – 2008

Assistant Secretary for Health Services/Health Services Director, 2005 – 2008 Associate Deputy Secretary for Health Care, 2002 – 2005

Responsible for the medical, mental health, chemical dependency (transiently), and dental care of 15,000 offenders in total confinement. Oversaw an annual operating budget of $110 million and 700 health care staff.
• As the first incumbent ever in this position, ushered the health services division from an operation of 12 staff in headquarters, providing only consultative services to the Department, to an operation with direct authority and

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responsibility for all departmental health care staff and budget. As part of new organizational structure, created and filled statewide positions of Directors of Nursing, Medicine, Dental, Behavioral Health, Mental Health, Psychiatry, Pharmacy, Operations, and Utilization Management.
• Significantly changed the culture of the practice of correctional health care and the morale of staff by a variety of structural and functional changes, including: ensuring that high ethical standards and excellence in clinical practice were of primordial importance during hiring of professional and supervisory staff; supporting disciplining or career counseling of existing staff where appropriate; implementing an organizational structure such that patient care decisions were under the final direct authority of a clinician and were designed to ensure that patient needs were met, while respecting and operating within the confines of a custodial system.
• Improved quality of care by centralizing and standardizing health care operations, including: authoring a new Offender Health Plan defining patient benefits based on the Eighth Amendment, case law, and evidence-based medicine; implementing a novel system of utilization management in medical, dental, and mental health, using the medical staffs as real-time peer reviewers; developing a pharmacy procedures manual and creating a Pharmacy and Therapeutics Committee; achieving initial American Correctional Association accreditation for 13 facilities (all with almost perfect scores on first audit); migrating the eight individual pharmacy databases to a single central database.
• Blunted the growth in health care spending without compromising quality of care by a number of interventions, including: better coordination and centralization of contracting with external vendors, including new statewide contracts for hospitalization, laboratory, drug purchasing, radiology, physician recruitment, and agency nursing; implementing a statewide formulary; issuing quarterly operational reports at the state and facility levels.
• Piloted the following projects: direct issuance of over-the-counter medications on demand through inmates stores (commissary), obviating the need for a practitioner visit and prescription; computerized practitioner order entry (CPOE); pill splitting; ER telemedicine.
• Oversaw the health services team that participated variously in pre-design, design, or build phases of five capital projects to build complete new health units.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

2001 – 2002

Regional Medical Director, Northeast Region, 2001 – 2002

Responsible for clinical oversight of medical services for 14,000 offenders in 14 prisons, including one (already) under court monitoring.
• Oversaw contract with vendor to manage 60-bed regional infirmary and hospice.
• Coordinated activities among the Regional Medical Unit outpatient clinic, the Albany Medical College, and the 13 feeder prisons to provide most of the specialty care for the region.
• Worked with contracting specialists and Emergency Departments to improve access and decrease medical out-trips by increasing the proportion of scheduled and emergency services provided by telemedicine.
• Provided training, advice, and counseling to practitioners and facility health administrators in the region to improve the quality of care delivered.

CORRECTIONAL MEDICAL SERVICES, INC. (now CORIZON)

2000 – 2001

Regional Medical Director, New York Region, 2000 – 2001
Responsible for clinical management of managed care contract with New York State Department of Correctional Services to provide utilization management services for the northeast and northern regions of New York State and supervision of the 60-bed regional infirmary and hospice.
• Migrated the utilization approval function from one of an anonymous rule-based “black box” to a collaborative evidence-based decision making process between the vendor and front-line clinicians.

MERCY INTERNAL MEDICINE, ALBANY, NEW YORK Neighborhood three-physician internal medicine group practice. Primary Care Physician, 1999 – 2000 (6 months) Provided direct primary care to a panel of community patients during a period of staff shortage.

1999 – 2000

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ALBANY COUNTY CORRECTIONAL FACILITY, ALBANY, NEW YORK

1998 – 1999

Acting Facility Medical Director, 1998 – 1999

Directed the medical staff of an 800 bed jail and provided direct patient care following the sudden loss of the Medical Director, pending hiring of a permanent replacement. Coordinated care of jail patients in local hospitals. Provided consultation to the Superintendent on improvements to operation and staffing of medical unit and need for privatization.

VETERANS ADMINISTRATION MEDICAL CENTER, ALBANY, NY

1992 – 1998

Assistant Chief, Medical Service, 1995 – 1998 Chief, Section of General Internal Medicine and Emergency Services, 1992 – 1998
Responsible for operation of the general internal medicine clinics and the Emergency Department.
• Designed and implemented an organizational and physical plant makeover of the general medicine ambulatory care clinic from an episodic-care driven model with practitioners functioning independently supported by minimal nursing involvement, to a continuity-of-care model with integrated physician/mid-level practitioner/registered nurse/licensed practice nurse/practice manager teams.
• Led the design and opening of a new Emergency Department.
• As the VA Section Chief of Albany Medical College’s Division of General Internal Medicine, coordinated academic activities of the Division at the VA, including oversight of, and direct teaching in, ambulatory care and inpatient internal medicine rotations for medical students, residents, and fellows. Incorporated medical residents as part of the general internal medicine clinics. Awarded $786,000 Veterans Administration grant (“PRIME I”) over four years for development and operation of educational programs for medicine residents and students in allied health professions (management, pharmacy, social work, physician extenders) wishing to study primary care delivery.

ERIE COUNTY HEALTH DEPARTMENT, BUFFALO, NY

1988 – 1990

Director of Sexually Transmitted Diseases (STD) Services, 1989 – 1990 Staff Physician, STD Clinic, 1988 – 1989 Staff Physician, Lackawanna Community Health Center, 1988 – 1990
Provided leadership and patient care services in the evaluation and treatment of STDs. Successfully reorganized the county’s STD services which were suffering from mismanagement and were under public scrutiny. Provided direct patient care services in primary care clinic for underserved neighborhood.

UNION OCCUPATIONAL HEALTH CENTER, BUFFALO, NY Staff Physician, 1988 – 1990 Provided direct patient care for the evaluation of occupationally-related health disorders.

1988 – 1990

VETERANS ADMINISTRATION MEDICAL CENTER, BUFFALO, NY

1985 – 1990

Chief Outpatient Medical Section and Primary Care Clinic, 1986 – 1988 VA Section Head, Division of General Internal Medicine, University of Buffalo, 1986 – 1988
• Developed and implemented a major restructuring of the general medicine ambulatory care clinic to reduce fragmentation of care by introduction of a continuity-of-care model with a physician/nurse team approach.

Medical Director, Anticoagulation Clinic 1986 – 1990 Staff Physician, Emergency Department, 1985 – 1986

FACULTY APPOINTMENTS

2020 – present 2007 – present
1999 – present

Faculty Associate, Center for Human Rights, University of Washington
Affiliate Assistant Professor, Department of Health Services, School of Public Health, University of Washington
Clinical Professor, Fellowship in Applied Public Health (previously Volunteer Faculty, Preventive Medicine Residency), University at Albany School of Public Health

1996 – 2002 Volunteer Faculty, Office of the Dean of Students, University at Albany

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1992 – 2002 1993 – 1997 1990 – 1992 1985 – 1990 1982 – 1985

Associate Clinical/Associate/Assistant Professor of Medicine, Albany Medical College Clinical Associate Faculty, Graduate Program in Nursing, Sage Graduate School Instructor of Medicine, Indiana University Clinical Assistant Professor of Medicine, University of Buffalo Clinical Assistant Instructor of Medicine, University of Buffalo

2016 – present 2016 – present 2016 – 2017 2013 – present 2013 – 2016
2013 – present 2011 – 2012 2007 – present 2004 – 2006
2004 2003 – present
2001 – present 1999 – present
1999
1997 – 1998 1996 – 2002 1996 – 2002 1995 – 1998 1995
1994 – 1998
1993 1993
1988 – 1989
1987 – 1990 1987 – 1989
1987 – 1988 1987 1986 – 1988 1986 – 1988
1979 – 1980

OTHER PROFESSIONAL ACTIVITIES
Chair, Education Committee, Academic Consortium on Criminal Justice Health Washington State Institutional Review Board (“Prisoner Advocate” member) Mortality Reduction Workgroup, American Jail Association Conference Planning Committee – Medical/Mental Health Track, American Jail Association “Health in Prisons” course, Bloomberg School of Public Health, Johns Hopkins University/International Committee of the Red Cross Institutional Review Board, University of Washington (“Prisoner Advocate” member), Education Committee, National Commission on Correctional Health Care National Advisory Committee, COCHS (Community–Oriented Correctional Health Services) Fellow’s Advisory Committee, University of Washington Robert Wood Johnson Clinical Scholar
Program External Expert Panel to the Surgeon General on the “Call to Action on Correctional Health Care” Faculty Instructor, Critical Appraisal of the Literature Course, Family Practice Residency Program,
Providence St. Peter Hospital, Olympia, Washington Chair/Co-Chair, Education Committee, American College of Correctional Physicians Critical Appraisal of the Literature Course, Preventive Medicine Residency Program, New York State
Department of Health/University at Albany School of Public Health Co–Chairperson, Education Subcommittee, Workshop Submission Review Committee, Annual
Meeting, Society of General Internal Medicine Northeast US Representative, National Association of VA Ambulatory Managers Faculty Mentor, Journal Club, Internal Medicine Residency Program, Albany Medical College Faculty Advisor and Medical Control, 5 Quad Volunteer Ambulance Service, University at Albany Preceptor, MBA Internship, Union College Quality Assurance/Patient Satisfaction Subcommittee, VA National Curriculum Development
Committee for Implementation of Primary Care Practices, Veterans Administration Residency Advisory Committee, Preventive Medicine Residency, New York State Department of
Health/School of Public Health, University at Albany Chairperson, Dean's Task Force on Primary Care, Albany Medical College Task Group to develop curriculum for Comprehensive Care Case Study Course for Years 1 through 4,
Albany Medical College Teaching Effectiveness Program for New Housestaff, Graduate Medical Dental Education Consortium
of Buffalo Human Studies Review Committee, School of Allied Health Professions, University of Buffalo Chairman, Subcommittee on Hospital Management Issues and Member, Subcommittee on
Teaching of Ad Hoc Committee to Plan Incoming Residents Training Week, Graduate Medical Dental Education Consortium of Buffalo Dean's Ad Hoc Committee to Reorganize "Introduction to Clinical Medicine" Course Preceptor, Nurse Practitioner Training Program, School of Nursing, University of Buffalo Course Coordinator, Simulation Models Section of Physical Diagnosis Course, University of Buffalo Chairman, Service Chiefs' Continuity of Care Task Force, Veterans Administration Medical Center, Buffalo, New York Laboratory Teaching Assistant in Gross Anatomy, Université Libre de Bruxelles, Brussels, Belgium

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1973 – 1975 1972 – 1975
1972 – 1975

Instructor and Instructor Trainer of First Aid, American National Red Cross
Chief of Service or Assistant Chief of Operations, 5 Quad Volunteer Ambulance Service, University at Albany.
Emergency Medical Technician Instructor and Course Coordinator, New York State Department of Health, Bureau of Emergency Medical Services

2019 – present 2015 – present 2015 – present
2011 – present 2010 – present 2010 – present 2001 – present 2001 – 2004 1996
1990 – 1992

REVIEWER/EDITOR Criminal Justice Review (reviewer) PLOS ONE (reviewer) Founding Editorial Board Member and Reviewer, Journal for Evidence-based Practice in Correctional Health, Center for Correctional Health Networks, University of Connecticut American Journal of Public Health (reviewer) International Advisory Board Member and Reviewer, International Journal of Prison Health Langeloth Foundation (grant reviewer) Reviewer and Editorial Board Member (2009 – present), Journal of Correctional Health Care Journal of General Internal Medicine (reviewer) Abstract Committee, Health Services Research Subcommittee, Annual Meeting, Society of General Internal Medicine (reviewer) Medical Care (reviewer)

EDUCATION
University at Albany, College of Arts and Sciences, Albany; B.S., 1975 (Biology) University at Albany, School of Education, Albany; AMST (Albany Math and Science Teachers) Teacher Education
Program, 1975 Université Libre de Bruxelles, Faculté de Medecine, Brussels, Belgium; Candidature en Sciences Medicales, 1980 University at Buffalo, School of Medicine, Buffalo; M.D., 1982 University at Buffalo Affiliated Hospitals, Buffalo; Residency in Internal Medicine, 1985 Regenstrief Institute of Indiana University, and Richard L. Roudebush Veterans Administration Medical Center; VA/NIH
Fellowship in Primary Care Medicine and Health Services Research, 1992 Indiana University, School of Health, Physical Education, and Recreation, Bloomington; M.P.H., 1992 New York Academy of Medicine, New York; Mini-fellowship Teaching Evidence-Based Medicine, 1999

CERTIFICATION
Provisional Teaching Certification for Biology, Chemistry, Physics, Grades 7–12, New York State Department of Education (expired), 1975
Diplomate, National Board of Medical Examiners, 1983 Diplomate, American Board of Internal Medicine, 1985 Fellow, American College of Physicians, 1991 License: Washington (#MD00041843, active); New York (#158327, inactive); Indiana (#01038490, inactive) “X” Waiver (buprenorphine), Department of Health & Human Services, 2018

2019 – present 2005 – 2016 2004 – 2006
2000 – present

MEMBERSHIPS Washington Association of Sheriffs and Police Chiefs American Correctional Association/Washington Correctional Association American College of Correctional Physicians (Member, Board of Directors, Chair Education Committee) American College of Correctional Physicians

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RECOGNITION B. Jaye Anno Award for Excellence in Communication, National Commission on Correctional Health Care. 2019 Award of Appreciation, Washington Association of Sheriffs and Police Chiefs. 2018 Armond Start Award of Excellence, American College of Correctional Physicians. 2010 (First) Annual Preventive Medicine Faculty Excellence Award, New York State Preventive Medicine Residency Program, University at Albany School of Public Health/New York State Department of Health. 2010 Excellence in Education Award for excellence in clinical teaching, Family Practice Residency Program, Providence St. Peter Hospital, Olympia, Washington. 2004 Special Recognition for High Quality Workshop Presentation at Annual Meeting, Society of General Internal Medicine. 1996 Letter of Commendation, House Staff Teaching, University of Buffalo. 1986

WORKSHOPS, SEMINARS, PRESENTATIONS, INVITED LECTURES
It’s the 21st Century – Time to Bid Farewell to “Sick Call” and “Chronic Care Clinic”. Annual Conference, National Commission on Correctional Health Care. Fort Lauderdale, Florida. 2019
HIV and Ethics – Navigating Medical Ethical Dilemmas in Corrections. Keynote Speech, 14th Annual HIV Care in the Correctional Setting. AIDS Education and Training Program (AETC) Mountain West, Olympia, Washington. 2019
Honing Nursing Skills to Keep Patients Safe in Jail. Orange County Jail Special Training Session (including San Bernardino and San Diego Jail Staffs), Theo Lacy Jail, Orange, California. 2019
What Would You Do? Navigating Medical Ethical Dilemmas. Leadership Training Academy, National Commission on Correctional Health Care. San Diego, California. 2019
Preventing Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
How to Investigate Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
Executive Manager Program in Correctional Health. 4-day training for custody/health care teams from jails and prisons on designing safe and efficient health care systems. National Institute for Corrections Training Facility, Aurora, Colorado, and other venues in Washington State. Periodically. 2014 – present
Medical Ethics in Corrections. Criminal Justice 441 – Professionalism and Ethical Issues in Criminal Justice. University of Washington, Tacoma. Recurring seminar. 2012 – present
Medical Aspects of Deaths in ICE Custody. Briefing for U.S. Senate staffers, Human Rights Watch. Washington, D.C. 2018
Jails’ Role in Managing the Opioid Epidemic. Panelist. Washington Association of Sheriffs and Police Chiefs Annual Conference. Spokane, Washington. 2018
Contract Prisons and Contract Health Care: What Do We Know? Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Health Care Workers in Prisons. (With Dr. J. Wesley Boyd) Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Prisons, Jails and Medical Ethics: Rubber, Meet Road. Grand Rounds. Touro Medical College. New York, New York. 2017
Jail Medical Doesn’t Have to Keep You Up at Night – National Standards, Risks, and Remedies. Washington Association of Counties. SeaTac, Washington. 2017
Prison and Jail Health Care: What do you need to know? Grand Rounds. Providence/St. Peters Medical Center. Olympia, Washington. 2017
Prison Health Leadership Conference. 2-Day workshop. International Corrections and Prisons Association/African Correctional Services Association/Namibian Corrections Service. Omaruru, Namibia. 2016; 2018

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What Would YOU Do? Navigating Medical Ethical Dilemmas. Spring Conference. National Commission on Correctional Health Care. Nashville, Tennessee. 2016
Improving Patient Safety. Spring Provider Meeting. Oregon Department of Corrections. Salem, Oregon 2016
A View from the Inside: The Challenges and Opportunities Conducting Cardiovascular Research in Jails and Prisons. Workshop on Cardiovascular Diseases in the Inmate and Released Prison Population. The National Heart, Lung, and Blood Institute. Bethesda, Maryland. 2016
Why it Matters: Advocacy and Policies to Support Health Communities after Incarceration. At the Nexus of Correctional Health and Public Health: Policies and Practice session. Panelist. American Public Health Association Annual Meeting. Chicago, Illinois. 2015
Hot Topics in Correctional Health Care. Presented with Dr. Donald Kern. American Jail Association Annual Meeting. Charlotte, North Carolina. 2015
Turning Sick Call Upside Down. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas, 2015.
Diagnostic Maneuvers You May Have Missed in Nursing School. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
The Challenges of Hunger Strikes: What Should We Do? What Shouldn’t We Do? Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
Practical and Ethical Approaches to Managing Hunger Strikes. Annual Practitioners’ Conference. Washington Department of Corrections. Tacoma, Washington. 2015
Contracting for Health Services: Should I, and if so, how? American Jail Association Annual Meeting. Dallas, Texas. 2014
Hunger Strikes: What should the Society of Correctional Physician’s position be? With Allen S, May J, Ritter S. American College of Correctional Physicians (Formerly Society of Correctional Physicians) Annual Meeting. Nashville, Tennessee. 2013
Addressing Conflict between Medical and Security: an Ethics Perspective. International Corrections and Prison Association Annual Meeting. Colorado Springs, Colorado. 2013
Patient Safety and ‘Right Using’ Nurses. Keynote address. Annual Conference. American Correctional Health Services Association. Philadelphia, Pennsylvania. 2013
Patient Safety: Overuse, underuse, and misuse…of nurses. Keynote address. Essentials of Correctional Health Care conference. Salt Lake City, Utah. 2012
The ethics of providing healthcare to prisoners-An International Perspective. Global Health Seminar Series. Department of Global Health, University of Washington, Seattle, Washington. 2012
Recovery, Not Recidivism: Strategies for Helping People Who are Incarcerated. Panelist. NAMI Annual Meeting, Seattle, Washington, 2012
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Salem, Oregon. 2011
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Spokane, Washington. 2011
Patient Safety: Raising the Bar in Correctional Health Care. With Dr. Sharen Barboza. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee. 2010
Patient Safety: Raising the Bar in Correctional Health Care. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Achieving Quality Care in a Tough Economy. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee, 2010 (Co-presented with Rick Morse and Helena Kim, PharmD.)
Involuntary Psychotropic Administration: The Harper Solution. With Dr. Bruce Gage. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Evidence Based Decision Making for Non-Clinical Correctional Administrators. American Correctional Association 139th Congress, Nashville, Tennessee. 2009
Death Penalty Debate. Panelist. Seattle University School of Law, Seattle, Washington. 2009

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The Patient Handoff – From Custody to the Community. Washington Free Clinic Association, Annual Meeting, Olympia, Washington. Lacey, Washington. 2009
Balancing Patient Advocacy with Fiscal Restraint and Patient Litigation. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Staff Management. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Management Dilemmas in Corrections: Boots and Bottom Bunks. Annual Meeting, American College of Correctional Physicians, Chicago, Illinois. 2008
Public Health and Correctional Health Care. Masters Program in community–based population focused management – Populations at risk, Washington State University, Spokane, Washington. 2008
Managing the Geriatric Population. Panelist. State Medical Directors’ Meeting, American Corrections Association, Alexandria, Virginia. 2007
I Want to do my own Skin Biopsies. Annual Meeting, American College of Correctional Physicians, New Orleans, Louisiana. 2005
Corrections Quick Topics. Annual Meeting, American College of Correctional Physicians. Austin, Texas. 2003
Evidence Based Medicine in Correctional Health Care. Annual Meeting, National Commission on Correctional Health Care. Austin, Texas. 2003
Evidence Based Medicine. Excellence at Work Conference, Empire State Advantage. Albany, New York. 2002
Evidence Based Medicine, Outcomes Research, and Health Care Organizations. National Clinical Advisory Group, Integrail, Inc., Albany, New York. 2002
Evidence Based Medicine. With Dr. LK Hohmann. The Empire State Advantage, Annual Excellence at Work Conference: Leading and Managing for Organizational Excellence, Albany, New York. 2002
Taking the Mystery out of Evidence Based Medicine: Providing Useful Answers for Clinicians and Patients. Breakfast Series, Institute for the Advancement of Health Care Management, School of Business, University at Albany, Albany, New York. 2001
Diagnosis and Management of Male Erectile Dysfunction – A Goal–Oriented Approach. Society of General Internal Medicine National Meeting, San Francisco, California. 1999
Study Design and Critical Appraisal of the Literature. Graduate Medical Education Lecture Series for all housestaff, Albany Medical College, Albany, New York. 1999
Male Impotence: Its Diagnosis and Treatment in the Era of Sildenafil. 4th Annual CME Day, Alumni Association of the Albany–Hudson Valley Physician Assistant Program, Albany, New York. 1998
Models For Measuring Physician Productivity. Panelist. National Association of VA Ambulatory Managers National Meeting, Memphis, Tennessee. 1997
Introduction to Male Erectile Dysfunction and the Role of Sildenafil in Treatment. Northeast Regional Meeting Pfizer Sales Representatives, Manchester Center, Vermont. 1997
Male Erectile Dysfunction. Topics in Urology, A Seminar for Primary Healthcare Providers, Bassett Healthcare, Cooperstown, New York. 1997
Evaluation and Treatment of the Patient with Impotence: A Practical Primer for General Internists. Society of General Internal Medicine National Meeting, Washington D.C. 1996
Impotence: An Update. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1996
Diabetes for the EMT First–Responder. Five Quad Volunteer Ambulance, University at Albany. Albany, New York. 1996
Impotence: An Approach for Internists. Medicine Grand Rounds, St. Mary's Hospital, Rochester, New York. 1994
Male Impotence. Common Problems in Primary Care Precourse. American College of Physicians National Meeting, Miami, Florida. 1994
Patient Motivation: A Key to Success. Tuberculosis and HIV: A Time for Teamwork. AIDS Program, Bureau of Tuberculosis Control – New York State Department of Health and Albany Medical College, Albany, New York. 1994

Case 4:20-cv-00434-KGB Document 3-2 Filed 04/21/20 Page 17 of 19

Marc F. Stern, M.D.

Page 10

Recognizing and Treating Impotence. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1992
Medical Decision Making: A Primer on Decision Analysis. Faculty Research Seminar, Department of Family Practice, Indiana University, Indianapolis, Indiana. 1992
Effective Presentation of Public Health Data. Bureau of Communicable Diseases, Indiana State Board of Health, Indianapolis, Indiana. 1991
Impotence: An Approach for Internists. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Using Electronic Databases to Search the Medical Literature. NIH/VA Fellows Program, Indiana University, Indianapolis, Indiana. 1991
Study Designs Used in Epidemiology. Ambulatory Care Block Rotation. Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Effective Use of Slides in a Short Scientific Presentation. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Impotence: A Rational and Practical Approach to Diagnosis and Treatment for the General Internist. Society of General Internal Medicine National Meeting, Washington D.C. 1991
Nirvana and Audio–Visual Aids. With Dr. RM Lubitz. Society of General Internal Medicine, Midwest Regional Meeting, Chicago. 1991
New Perspectives in the Management of Hypercholesterolemia. Medical Staff, West Seneca Developmental Center, West Seneca, New York. 1989
Effective Use of Audio–Visual Aids. Nurse Educators, American Diabetes Association, Western New York Chapter, Buffalo, New York. 1989
Management of Diabetics in the Custodial Care Setting. Medical Staff, West Seneca Developmental Center, West Seneca, New York, 1989
Effective Use of Audio–Visuals in Diabetes Peer and Patient Education. American Association of Diabetic Educators, Western New York Chapter, Buffalo, New York. 1989
Pathophysiology, Diagnosis and Care of Diabetes. Nurse Practitioner Training Program, School of Nursing, University of Buffalo, Buffalo, New York. 1989
Techniques of Large Group Presentations to Medical Audiences – Use of Audio–Visuals. New Housestaff Training Program, Graduate Medical Dental Education Consortium of Buffalo, Buffalo, New York. 1988

PUBLICATIONS/ABSTRACTS
Borschmann, R, Tibble, H, Spittal, MJ, … Stern, MF, Viner, KM, Wang, N, Willoughby, M, Zhao, B, and Kinner, SA. The Mortality After Release from Incarceration Consortium (MARIC): Protocolfor a multi-national, individual participant data meta-analysis. Int. J of Population Data Science 2019 5(1):6
Binswanger IA, Maruschak LM, Mueller SR, Stern MF, Kinner SA. Principles to Guide National Data Collection on the Health of Persons in the Criminal Justice System. Public Health Reports 2019 134(1):34S-45S
Stern M. Hunger Strike: The Inside Medicine Scoop. American Jails 2018 32(4):17-21
Grande L, Stern M. Providing Medication to Treat Opioid Use Disorder in Washington State Jails. Study conducted for Washington State Department of Social and Health Services under Contract 1731-18409. 2018.
Stern MF, Newlin N. Epicenter of the Epidemic: Opioids and Jails. American Jails 2018 32(2):16-18
Stern MF. A nurse is a nurse is a nurse…NOT! Guest Editorial, American Jails 2018 32(2):4,68
Wang EA, Redmond N, Dennison Himmelfarb CR, Pettit B, Stern M, Chen J, Shero S, Iturriaga E, Sorlie P, Diez Roux AV. Cardiovascular Disease in Incarcerated Populations. Journal of the American College of Cardiology 2017 69(24):2967-76
Mitchell A, Reichberg T, Randall J, Aziz-Bose R, Ferguson W, Stern M. Criminal Justice Health Digital Curriculum. Poster, Annual Academic and Health Policy Conference on Correctional Health, Atlanta, Georgia, March, 2017

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Marc F. Stern, M.D.

Page 11

Stern MF. Patient Safety (White Paper). Guidelines, Management Tools, White Papers, National Commission on Correctional Health Care. http://www.ncchc.org/filebin/Resources/Patient-Safety-2016.pdf. June, 2016
Binswanger IA, Stern MF, Yamashita TE, Mueller SR, Baggett TP, Blatchford PJ. Clinical risk factors for death after release from prison in Washington State: a nested case control study. Addiction 2015 Oct 17
Stern MF. Op-Ed on Lethal Injections. The Guardian 2014 Aug 6
Stern MF. American College of Correctional Physicians Calls for Caution Placing Mentally Ill in Segregation: An Important Band-Aid. Guest Editorial. Journal of Correctional Health Care 2014 Apr; 20(2):92-94
Binswanger I, Blatchford PJ, Mueller SR, Stern MF. Mortality After Prison Release: Opioid Overdose and Other Causes of Death, Risk Factors, and Time Trends From 1999 to 2009. Annals of Internal Medicine 2013 Nov; 159(9):592-600
Williams B, Stern MF, Mellow J, Safer M, Greifinger RB. Aging in Correctional Custody: Setting a policy agenda for older prisoner health care. American Journal of Public Health 2012 Aug; 102(8):1475-1481
Binswanger I, Blatchford PJ, Yamashita TE, Stern MF. Drug-Related Risk Factors for Death after Release from Prison: A Nested Case Control Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Blatchford PJ, Forsyth S, Stern MF, Kinner SA. Death Related to Infectious Disease in Ex-Prisoners: An International Comparative Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Lindsay R, Stern MF, Blatchford P. Risk Factors for All-Cause, Overdose and Early Deaths after Release from Prison in Washington State Drug and Alcohol Dependence. Drug and Alcohol Dependence Aug 1 2011;117(1):1-6
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. American Journal of Public Health November 2010;100(11):2103-2110
Strick LB, Saucerman G, Schlatter C, Newsom L, Stern MF. Implementation of Opt-Out HIV testing in the Washington State Department of Corrections. Poster Presentation, National Commission on Correctional Health Care Annual Meeting, Orlando, Florida, October, 2009
Binswanger IA, Blatchford P, Stern MF. Risk Factors for Death After Release from Prison. Society for General Internal Medicine 32nd Annual Meeting; Miami: Journal of General Internal Medicine; April 2009. p. S164-S95
Stern MF. Force Feeding for Hunger Strikes – One More Step. CorrDocs Winter 2009;12(1):2
Binswanger I, Stern MF, Deyo RA, Heagerty PJ, Cheadle A, Elmore JG, Koepsell TD. Release from Prison – A High Risk of Death for Former Inmates. New England Journal of Medicine 2007 Jan 11;356(2):157–165
Stern MF, Hilliard T, Kelm C, Anderson E. Epidemiology of Hepatitis C Infection in the Washington State Department of Corrections. Poster Presentation, CDC/NIH ad hoc Conference on Management of Hepatitis C in Prisons, San Antonio, Texas, January, 2003
Phelps KR, Stern M, Slingerland A, Heravi M, Strogatz DS, Haqqie SS. Metabolic and skeletal effects of low and high doses of calcium acetate in patients with preterminal chronic renal failure. Am J Nephrol 2002 Sep–Dec;22(5–6):445–54
Goldberg L, Stern MF, Posner DS. Comparative Epidemiology of Erectile Dysfunction in Gay Men. Oral Presentation, International Society for Impotence Research Meeting, Amsterdam, The Netherlands, August 1998. Int J Impot Res. 1998;10(S3):S41 [also presented as oral abstract Annual Meeting, Society for the Study of Impotence, Boston, Massachusetts, October, 1999. Int J Impot Res. 1999;10(S1):S65]
Stern MF. Erectile Dysfunction in Older Men. Topics in Geriatric Rehab 12(4):40–52, 1997. [republished in Geriatric Patient Education Resource Manual, Supplement. Aspen Reference Group, Eds. Aspen Publishers, Inc., 1998]
Stern MF, Wulfert E, Barada J, Mulchahy JJ, Korenman SG. An Outcomes–Oriented Approach to the Primary Care Evaluation and Management of Erectile Dysfunction. J Clin Outcomes Management 5(2):36–56, 1998
Fihn SD, Callahan CM, Martin D, et al.; for the National Consortium of Anticoagulation Clinics.* The Risk for and Severity of Bleeding Complications in Elderly Patients Treated with Warfarin. Ann Int Med. 1996;124:970–979
Fihn SD, McDonell M, Martin D, et al.; for the Warfarin Optimized Outpatient Follow–up Study Group.* Risk Factors for Complications of Chronic Anticoagulation. Ann Int Med. 1993;118:511–520. (*While involved in the original proposal development and project execution, I was no longer part of the group at the time of this publication)
Stern MF, Dittus RS, Birkhead G, Huber R, Schwartz J, Morse D. Cost–Effectiveness of Hepatitis B Immunization Strategies for High Risk People. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992

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Marc F. Stern, M.D.

Page 12

Fihn SD, McDonell MB, Vermes D, Martin D, Kent DL, Henikoff JG, and the Warfarin Outpatient Follow–up Study Group. Optimal Scheduling of Patients Taking Warfarin. A Multicenter Randomized Trial. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
Fihn SD, McDonnell MB, Vermes D, Kent DL, Henikoff JG, and the Warfarin Anticoagulation Study Group. Risk Factors for Complications During Chronic Anticoagulation. Poster Presentation, Society of General Internal Medicine National Meeting, Seattle, May 1991
Pristach CA, Donoghue GD, Sarkin R, Wargula C, Doerr R, Opila D, Stern M, Single G. A Multidisciplinary Program to Improve the Teaching Skills of Incoming Housestaff. Acad Med. 1991;66(3):172–174
Stern MF. Diagnosing Chlamydia trachomatis and Neisseria gonorrhea Infections. (letter) J Gen Intern Med. 1991;6:183
Stern MF, Fitzgerald JF, Dittus RS, Tierney WM, Overhage JM. Office Visits and Outcomes of Care: Does Frequency Matter? Poster Presentation, Society of General Internal Medicine Annual Meeting, Seattle, May 1991. Clin Res 1991;39:610A
Stern MF. Cobalamin Deficiency and Red Blood Cell Volume Distribution Width. (letter) Arch Intern Med. 1990;150:910
Stern M, Steinbach B. Hypodermic Needle Embolization to the Heart. NY State J Med. 1990;90(7):368–371
Stern MF, Birkhead G, Huber R, Schwartz J, Morse D. Feasibility of Hepatitis B Immunization in an STD Clinic. Oral Presentation, American Public Health Association Annual Meeting, Atlanta, November 1990

EXPERT TESTIMONY Pajas v. County of Monterey, et al. US District Court for the Northern District of California, 2019 (trial) Dockery, et al. v. Hall et al. US District Court for the Southern District of Mississippi Northern Division, 2018 (trial) Benton v. Correct Care Solutions, et al. US District Court for the District of Maryland, 2018 (deposition) Pajas v. County of Monterey, et al. US District Court Northern District of California, 2018 (deposition) Walter v. Correctional Healthcare Companies, et al. US District Court, District of Colorado, 2017 (deposition) Winkler v. Madison County, Kentucky, et al. US District Court, Eastern District of Kentucky, Central Division at Lexington, 2016 (deposition) US v. Miami-Dade County, et al. US District Court, Southern District of Florida, periodically 2014 - 2016

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Exhibit 3

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Exhibit 4

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Exhibit 5

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Exhibit 6

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Exhibit 7

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Exhibit 8

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Exhibit 9

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Exhibit 10

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Exhibit 11

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Exhibit 12

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 Case 4:20-cv-00434-KGB Document 22 Filed 04/27/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

FRAZIER, et al., v.
KELLY, et al.,

Plaintiffs, Defendants.

Case No. 4:20cv434-KGB

PLAINTIFFS’ SUPPLEMENTAL MOTION FOR A TEMPORARY RESTRAINING ORDER
Plaintiffs respectfully request that the Court immediately enter a temporary restraining order requiring the Defendants to undertake certain basic social distancing and sanitation measures.
For the reasons stated in their supporting brief, along with those explained in Plaintiffs’ Memorandum in Support of a Temporary Restraining Order and Preliminary Injunction and supported by declarations from the Named Plaintiffs and Plaintiffs’ experts, Plaintiffs respectfully request the Court order Defendants to adopt the measures requested in the attached Proposed Order. Unless it would delay the Court’s consideration of the issues addressed herein, Plaintiffs
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further request an opportunity to present expedited oral argument to the Court on the urgent need
for this relief.
Dated: April 27, 2020
Respectfully submitted,
By: /s/Omavi Shukur
Samuel Spital Jin Hee Lee Natasha Merle Omavi Shukur NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Christopher Kemmitt Ajmel Quereshi NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall* Jenay Nurse* Corrine Irish* Squire Patton Boggs (US) LLP 1201 Avenue of the Americas New York, NY 10036 (212) 872-9800
Laura Fernandez* 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 72201 (501) 296-1775
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Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202 (501) 374-2660 *Pro hac vice motions forthcoming Attorneys for Plaintiffs and the Putative Classes CERTIFICATE OF SERVICE I, Omavi Shukur, hereby certify that on April 27, 2020. I caused the foregoing to be filed via the Court’s electronic filing system, which effectuated service upon all counsel. /s/ Omavi Shukur One of the Attorneys for Plaintiffs and the Putative Classes
3

Case 4:20-cv-00434-KGB Document 22-1 Filed 04/27/20 Page 1 of 8

FRAZIER, et al.,
v. KELLEY, et al.,

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

Plaintiffs/Petitioners,

Case No. 4:20cv434-KGB

Defendants/Respondents.

[PROPOSED] TEMPORARY RESTRAINING ORDER WHEREAS plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Scott Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and John Doe filed their Complaint in this matter on April 22, 2020 (Dkt. No. 1); WHEREAS, also on April 22, 2020, plaintiffs filed an emergency motion for temporary restraining order and preliminary injunction (Dkt. No. 2) and a memorandum in support of temporary restraining order and preliminary injunction with 12 supporting declarations (Dkt. No. 3), raising claims of violations of plaintiffs’ rights under the Eighth Amendment to the U.S. Constitution and the American with Disabilities Act with respect to defendants’ preparation for and response to the COVID-19 pandemic in Arkansas Department of Corrections correctional facilities; WHEREAS, on April 4, 2020, the parties submitted a Joint Status Report after having met and conferred about a briefing schedule and a date for a hearing on the emergency motion for temporary restraining order and preliminary injunction;
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WHEREAS, the Joint Status Report indicated that the parties could not agree on a briefing schedule and a date for a hearing on the emergency motion for temporary restraining order and preliminary injunction;
WHEREAS, after having received the Joint Status Report, the Court set the following schedule for consideration of plaintiffs’ emergency motion for temporary restraining order and preliminary injunction:
1. Defendants’ response to plaintiffs’ pending emergency motion for temporary restraining order and preliminary injunction—if it chooses to file one—is due by 5:00 p.m. CT on Thursday, April 30, 2020;
2. Plaintiffs’ reply brief in support of their motion for temporary restraining order and/or preliminary injunction—if it chooses to file one—is due by 12:00 noon CT on Monday, May 4, 2020;
3. The Court will conduct a hearing on plaintiffs’ pending emergency motion for temporary restraining order and preliminary injunction on Thursday, May 7, 2020, beginning at 9:00 a.m. CT;
4. If the parties wish to file supplemental briefings with argument only following the hearing, such simultaneous briefings are due by 5:00 p.m. CT on Friday, May 9, 2020;
WHEREAS, under the current schedule, all evidence and argument pertaining to plaintiffs’ emergency motion for temporary restraining order and preliminary injunction will be submitted to this court on Friday, May 9, 2020;
WHEREAS, on April 27, 2020, plaintiffs submitted a supplemental motion for temporary restraining order, requesting certain immediate temporary relief during the pendency
2

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of the emergency motion for temporary restraining order and preliminary injunction; WHEREAS, the number of prisoners in Arkansas Department of Corrections facilities
who are confirmed to be infected with COVID-19 increased dramatically from 61 prisoners on April 14, 2020, to 751 prisoners ten days later on April 24, 2020,https://adc.arkansas.gov/coronavirus-covid-19-updates, demonstrating the time-sensitive urgency of plaintiffs’ claims;
WHEREAS, the court finds that COVID-19 poses a serious, substantial, and immediate risks to the health, security, and lives of prisoners in the custody of the Arkansas Department of Corrections;
WHEREAS, the court finds that, once contracted, COVID-19 can have life-threatening consequences for incarcerated persons, particularly for those who have underlying medical conditions, have a disability, or are over the age of 50;
WHEREAS, the court finds that Defendants were aware of these serious, substantial, and immediate risks to the health, security, and lives of prisoners in the custody of the Arkansas Department of Corrections;
WHEREAS, the court finds that, on March 27, 2020, the Arkansas Department of Health recognized that “[b]ecause of the congregate nature of correctional facilities and detention centers, these settings pose a high risk for transmission of COVID-19.” Ark. Dept. of Health, COVID-19: Guidance for State Correctional Facilities and Local Detention Facilities, https://adc.arkansas.gov/images/uploads/ADH_Guidance_-_COVID19_Guidance_for_State_Correctional_Facilities_and_Local_Detention_Facilities__March_27_2020.pdf.
WHEREAS, the court finds that plaintiffs presented significant evidence that 3

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defendants’ policies and procedures departed significantly from the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, issued by the Centers for Disease Control & Prevention on March 23, 2020;
WHEREAS, the court finds that plaintiffs have presented significant evidence of defendants’ failures to comply with the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities;
WHEREAS, the court finds that plaintiffs have presented significant evidence that at least some plaintiffs have serious medical conditions that qualify as a disability under the American with Disabilities Act and that render them particularly vulnerable to serious illness or death if infected with COVID-19;
WHEREAS, the court finds that plaintiffs will likely succeed on the merits of their Eighth Amendment claims because they have presented sufficient evidence that defendants were deliberately indifferent to plaintiffs’ substantial risk of harm;
WHEREAS, the court finds that plaintiffs will likely succeed on the merits of their American with Disabilities Act claim because they have presented sufficient evidence that defendants failed to reasonably accommodate plaintiffs’ disabilities;
WHEREAS, the court finds that there is a threat of irreparable harm to plaintiffs, due to the serious, substantial, and immediate risks of COVID-19 infection and subsequent illness and possible death;
WHEREAS, the court finds that there is a strong public interest in granting a temporary restraining order to minimize the spread of COVID-19 within Arkansas Department of Corrections facilities, as well as the surrounding communities, and to avoid the depletion of limited and vital health care resources in the State of Arkansas;
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WHEREAS, the court finds that the balance of equities weigh heavily in favor of granting a temporary restraining order because defendants should already be implementing the specific practices in this temporary restraining order in accordance with the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, and the substantial benefits to plaintiffs, as well as the public at large, to minimize the spread of COVID-19 and to avoid depletion of health care resources far outweigh the harms, if any, to defendants;
IT IS, THEREFORE, HEREBY ORDERED that defendants shall undertake the following measures to protect individuals incarcerated in Arkansas Department of Corrections facilities and Arkansas Department of Corrections staff:
1. Ensure that each incarcerated individual receives a free and adequate personal supply of: hand soap sufficient to permit frequent hand washing, paper towels, facial tissues, cleaning implements such as sponges or brushes, and EPAregistered disinfectants that are effective against COVID-19 infection, without costs;
2. Ensure that all individuals have access to hand sanitizer containing at least 60% alcohol or, to the extent such hand sanitizer is not permitted, the best alternative, consistent with CDC Guidelines;
3. Provide daily access to showers and clean laundry, including clean towels after each shower;
4. Disinfect frequently touched surfaces, including but not limited to doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones, at least three times a day with EPA-registered
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disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface; 5. Thoroughly clean and disinfect all areas where people who have tested positive for COVID-19, or have been suspected of having COVID-19, spent time (e.g., cells, bathrooms, and common areas) with EPA-registered disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface; 6. Require that all Arkansas Department of Corrections staff wear personal protective equipment (“PPE”) consistent with the Centers for Disease and Control and Prevention’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, including masks and gloves, when interacting with visitors and incarcerated individuals or when touching surfaces in common areas; 7. Train all Arkansas Department of Corrections staff and people incarcerated in Arkansas Department of Corrections facilities on how to properly don, doff, and dispose of PPE; 8. Post signage through Arkansas Department of Corrections facilities communicating the following:
(a) For all: the symptoms of COVID-19 and hand hygiene instructions; (b) For incarcerated/detained persons: how to report symptoms to
staff; (c) For staff: to stay at home when sick; if symptoms develop while
on duty, leave the facility as soon as possible and follow CDCrecommended steps for persons who are ill with COVID-19
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symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor; and (d) Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision; 9. Provide an anonymous mechanism for incarcerated individuals to report staff who violate these guidelines so that appropriate corrective action may be taken; 10. Take each incarcerated person’s temperature daily (with a properly disinfected and accurate thermometer) to identify potential COVID-19 infections; 11. Assess each incarcerated individual daily through questioning to identify potential COVID-19 infections; 12. Conduct immediate testing for anyone displaying known symptoms of COVID19; 13. Immediately provide clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in a non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary; 14. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials,
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commissary, phone and video visitation with loved ones, communication with counsel, and personal property; 15. Assure incarcerated people are told that they will not be retaliated against for reporting COVID-19 symptoms; 16. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour; 17. Produce and implement a comprehensive written plan to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished (this plan shall include an account of current and projected numbers of incarcerated people in shared spaces at any given time); 18. Provide frequent communications to all incarcerated individuals regarding COVID-19, measures taken to reduce the risk of infection, best practices for incarcerated people to avoid infection, and any changes in policies and practices; and 19. Prohibit Arkansas Department of Corrections staff from entering correctional facilities if they test positive for COVID-19 or exhibit symptoms of having contracted COVID-19. So ordered this ____ day of April, 2020
______________________________ Kristine G. Baker United States District Judge
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Case 4:20-cv-00434-KGB Document 23 Filed 04/27/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

FRAZIER, et al., v.
KELLEY, et al.,

Plaintiffs, Defendants.

Case No. 4:20cv434-KGB

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ SUPPLEMENTAL MOTION FOR A TEMPORARY RESTRAINING ORDER
COMES NOW Plaintiffs, through undersigned counsel, and in support of their Supplemental Motion for a Temporary Restraining Order state as follows:
Plaintiffs respectfully request that the Court immediately enter a temporary restraining order requiring the Defendants to undertake certain basic social distancing and sanitation measures. Although the parties are set to present argument to the Court on Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction (“Motion”) ten days from now, it is essential that these basic preventive measures be taken immediately to slow the rapid spread of the virus in ADC facilities. If preventative measures are not taken immediately, hundreds of additional incarcerated people and staff in ADC facilities throughout Arkansas will likely contract the virus. Over the last ten days alone, the number of ADC incarcerated people infected has increased by
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more than 500 percent, see CORONAVIRUS (COVID-19) UPDATES, ADC,

https://adc.arkansas.gov/coronavirus-covid-19-updates (counting the number of incarcerated

people infected on April 17, 2020); Rachel Herzog, State Virus-Case Count Rises by 111 on

Sunday,

Arkansas

Democrat

Gazette,

Apr.

26,

2020,

https://www.arkansasonline.com/news/2020/apr/26/state-virus-case-count-rises-by-168-

202/?news-arkansas (reporting the number of cases as of April 25, 2020), including more than 800

cases at a single ADC facility. State Virus-Case Count Rises by 111 on Sunday, supra. Under these

unprecedented circumstances in the midst of a public health crisis, an immediate temporary

restraining order is more than warranted because “irreparable injury will occur before the hearing

for a preliminary injunction required by Rule 65(a) can be held.” Wright & Miller, 11A Fed. Prac.

& Proc. Civ. § 2951 (2020).

All of Plaintiffs’ requested relief should be implemented immediately in order to stem the

viral outbreak that is already underway. Nevertheless, Plaintiffs selectively chose the relief in the

Proposed Order because they are commonsense, precautionary measures that should not be

controversial to implement. For this reason, Plaintiffs’ counsel asked Defendants, during our meet

and confer this past Friday, on April 24, 2020, to jointly agree to much of the relief requested in

the Proposed Order. In response, Defendants have stated that they are unable to agree to the entry

of any partial temporary restraining order in advance of their written response and a court hearing.

Accordingly, Defendants’ refusal to agree to various basic life-saving measures in the Proposed

Order calls for this Court’s immediate intervention.

As outlined in Plaintiffs’ Memorandum in Support of a Temporary Restraining Order and

Preliminary Injunction, COVID-19 poses a serious and immediate threat to the lives of

incarcerated people in ADC custody throughout the State. Plaintiffs’ Mem. in Support, at 7-11.

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There is no cure for COVID-19, id. at 4, and once contracted, it can have life-threatening

consequences for incarcerated persons, particularly for those who have underlying medical

conditions, have a disability, or are over the age of 50. Id. at 10-11. Defendants are well aware of

these risks, as they have repeatedly stated publicly. Id. at 29-33. As ADC’s spokesperson recently

admitted, ADC “knew the virus would eventually make its way into the state’s prison system.”

Paige Cushman, ‘It’s Like Mad Max in Here’, Arkansas Inmate Says Conditions Woeful Amid

Outbreak, ABC7 News (KATV), (Apr. 15, 2020), https://katv.com/news/local/its-like-mad-max-

in-here-inmates-at-arkansas-prison-panic-amid-outbreak. Furthermore, as Defendant Wendy

Kelley, ADC Secretary, explained, “Once it gets in, it will be disastrous.” John Moritz, Federal

Prison Has Positive Virus Tests; Bureau Reports 3 Cases at Forrest City, Arkansas Democrat

Gazette, Apr. 4, 2020, https://www.arkansasonline.com/news/2020/apr/04/federal-prison-has-

positive-virus-tests/. This perilous situation is only compounded by the fact that ADC prisons are

so overpopulated that the Arkansas Board of Corrections declared a prison overcrowding

emergency that went into effect on March 2, 2020. Ark. Parole Bd. Minutes, (Feb. 27, 2020),

https://www.paroleboard.arkansas.gov/Websites/parole/images/02%2027%20Mins.pdf.

Defendants’ awareness of the unique danger that COVID-19 poses to incarcerated persons,

and the need for immediate action, are exemplified by the situation at the Cummins Unit, one of

ADC’s largest facilities. As of April 14, 2020, ADC reported only 61 COVID-19 cases among

people incarcerated in prisons statewide. CORONAVIRUS (COVID-19) UPDATES, supra. But,

as of April 27, 2020, 856 people incarcerated at Cummins alone have been confirmed to have

contracted the virus. John Moritz and Andrew Moreau, State’s Case Total Surpasses 3,000, April

27,

2020,

https://ao.pressreader.com/@Reader12758581/csb_AwGEJVWEgjMTdb0ivHdEbRQMD3LgtYf

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kVwe85rr0Oir1aIdn2pvdtygU2bAvIgNz. This ongoing, dramatic deterioration in health conditions due to Defendants’ failure to implement and follow adequate protective measures, despite prior knowledge of the substantial risks to people incarcerated in ADC facilities, demonstrates the need for this Court to order the basic social distancing and sanitation steps outlined in the Proposed Order.
The contrast between this case and Fifth Circuit’s recent decision in Valentine v. Collier, is instructive. In Valentine, the Fifth Circuit Court of Appeals stayed the district court’s “reticulated preliminary injunction” that “regulate[d] in minute detail” operations of the Texas Department of Criminal Justice (“TDCJ”) to mitigate the spread of COVID. Valentine v. Collier, --- F.3d ----, 2020 WL 1934431, at *3-4 (5th Cir. Apr. 22, 2020). In so doing, the Fifth Circuit stressed that TDCJ had already “adopted and implemented several rounds of measures guided by ever-changing CDC recommendations,” and that the district court’s injunction “largely overlap[ped] with TDCJ’s COVID-19 policy requirements and recommendations.” Id. at *3 (citation omitted)). Here, however, ADC has not implemented the CDC’s recommendations, and Plaintiffs are not seeking an injunction that would essentially overlap with what ADC is already doing, but simply in minute detail. See Complaint ¶¶ 100-24 (ECF No. 1) (detailing the ways in which ADC has departed from the CDC Guidance, which forms part of the basis for Plaintiffs’ requested relief). Instead, Plaintiffs are requesting that Defendants generally be required to take the essential measures that the CDC has recognized to be necessary to mitigate the spread of the virus. Because ADC (unlike TDCJ) has failed to take these measures voluntarily, this Court’s immediate intervention is required.
In addition, contrary to TDCJ, there is ample evidence that ADC “subjectively believed[d] the measures they are taking are inadequate,” as necessary to satisfy the subjective component of
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the Eighth Amendment standard. Valentine, 2020 WL 1934431, at *4. On March 27, 2020, the Arkansas Department of Health (ADH) issued its guidance for the management and mitigation of COVID-19 in state correctional facilities (ADH Guidance), in which ADH provided a link to the CDC Guidance, which calls for much of the relief Plaintiffs have requested. Ark. Dept. of Health, COVID-19: Guidance for State Correctional Facilities and Local Detention Facilities, https://adc.arkansas.gov/images/uploads/ADH_Guidance_-_COVID19_Guidance_for_State_Correctional_Facilities_and_Local_Detention_Facilities__March_27_2020.pdf. Notably, ADC has posted the ADH Guidance on its website. ADC, Coronavirus (COVID-19) Updates, https://adc.arkansas.gov/coronavirus-covid-19-updates. Moreover, in a letter, dated April 4, 2020, the Arkansas Civil Liberties Union advised Defendants to take many of the protective measures requested in the Proposed Order after an ADC facility staff had tested positive for the virus. Complaint ¶ 126. Defendants failed to implement those measures, and the first incarcerated person in Cummins Unit tested positive eight days later, on April 12, 2020. Max Brantley, Coronavirus Cases Explode at Cummins Prison, Arkansas Times, Apr. 13, 2020, https://arktimes.com/arkansas-blog/2020/04/13/coronavirus-cases-explode-atcummins-prison. The number of confirmed infections among incarcerated people in Cummins Unit has since skyrocketed to 856 in two weeks, as of April 27, 2020. State’s Case Total Surpasses 3,000, supra. Clearly, Defendants knew that their policies and procedures were inadequate to protect Plaintiffs from the risk of substantial harm from COVID-19. In refusing to institute the remedial measures requested by Plaintiffs, Defendants invite the same dire consequences in ADC facilities beyond the Cummins Unit, such as Varner Unit, which has had at least 383 medical grievances filed in 2020, or East Arkansas Regional Unit, which has had at least 663 medical grievances filed in 2020.
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Case 4:20-cv-00434-KGB Document 23 Filed 04/27/20 Page 6 of 10
Defendants should have undertaken these protective measures long before Plaintiffs filed this motion or brought this suit. They have no reasonable justification for failing to act because the measures necessary to slow the spread of coronavirus in carceral facilities are broadly agreed upon by public health and corrections experts. As explained in the expert declaration of Dr. Marc Stern, Defendants must, among other things, ensure that incarcerated people have sufficient protective equipment, are provided adequate cleaning supplies for themselves and their surroundings, be confined in settings that allow them to appropriately socially distance, and have regular access to free and immediate testing if they suspect they have contracted the virus. Stern Dec., ¶ 13. Additionally, Defendants must prohibit correctional officers and staff who have contracted the virus—or suspect they have contracted the virus—from entering correctional facilities until they have completely recovered.
Nonetheless, as demonstrated in Plaintiffs’ Motion and accompanying submissions, Plaintiffs are denied even the most basic ability to protect themselves, thereby increasing the likelihood that they will contract COVID-19 and fall seriously—and even fatally—ill. Plaintiffs’ Mem. in Support, at 28. Plaintiffs are housed in close quarters, where they are forced to eat, sleep, bathe, and perform all daily life activities in a communal setting. See Serrato Dec., ¶ 4 (reporting that there are only 2.5 feet between each bed in contravention of CDC recommendations that individuals remain 6 feet apart); see also How COVID-19 Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. The risks posed by ADC’s congregate settings are exacerbated by lack of access to PPE for incarcerated people, and a lack of per-use cleaning of shared facilities like toilets, sinks, and showers, which are used by an entire barrack before they are sanitized. See Stiggers Dec., ¶ 4 (noting that he shares toilet and sink and that he uses the shower at the same time as 5 other individuals in contravention
6

Case 4:20-cv-00434-KGB Document 23 Filed 04/27/20 Page 7 of 10
of CDC recommendations regarding regular cleaning of frequently used surfaces); Kent Dec., ¶ 5 (reporting that the facility has refused to provide incarcerated people protective masks in contravention of CDC recommendations that individuals wear protective masks in settings that they cannot appropriately social distance); see also Use of Cloth Face Coverings to Help Slow the Spread of COVID-19, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/diy-cloth-face-coverings.html; Cleaning And Disinfecting Your Home, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/disinfecting-your-home.html. Furthermore, Plaintiffs are at the mercy of security and medical staff, who may carry the virus without showing symptoms, and who often fail to take even simple precautions like wearing face masks and disposable gloves. See Kouri Dec., ¶ 13 (recounting that nurses distributing medication were not wearing masks and told incarcerated people to stop worrying and asking about it).
As outlined in Plaintiffs’ briefing, measures to improve sanitation and social distancing inside the prison will not eliminate the serious and urgent risk for incarcerated people who are ill, incarcerated people with disabilities, or incarcerated people aged 50 or older. Plaintiffs’ Mem. in Support, at 28-29, 36-37. Accordingly, Plaintiffs appreciate the opportunity to present their evidence and arguments at the May 7 hearing in support of the appointment of an independent monitor to identify those incarcerated people for whom temporary release to home confinement is necessary and appropriate. Complaint, Prayer for Relief, ¶ f.xix. However, in the interim, Defendants have no reasonable justification for failing to institute the basic preventative measures that Plaintiffs have requested. Such measures are recommended by Plaintiffs’ medical expert, who has extensive experience in corrections, Stern Dec., ¶¶ 1-2, 13, and courts have directed the institution of similar protective measures in response to COVID-19 in other prisons. See Plaintiffs’ Mem. in Support, at 44-45 (citing Op. and Order, Cameron v. Bouchard, No. 20-10949 (E.D. Mich.
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Case 4:20-cv-00434-KGB Document 23 Filed 04/27/20 Page 8 of 10
Apr. 17, 2020), ECF No. 12 (ordering Defendants to undertake protective measures on the basis of only Plaintiffs’ Complaint and TRO motion)).
As demonstrated by the conditions in ADC’s Cummins Unit, if these measures are not taken, it is highly likely that COVID-19 will continue to spread through ADC facilities, such as the Varner Unit and the East Arkansas Regional Unit, before this Court has an opportunity to hold the May 7 hearing. Under these circumstances, a TRO is amply justified. As explained at pages 24-26 of Plaintiffs’ Memorandum in Support of a Temporary Restraining Order and Preliminary Injunction, all of the four criteria for issuing such a TRO favor Plaintiffs. Most important is the need for a TRO to prevent irreparable injury over the next ten days. As another court in this Circuit recognized in granting a TRO to protect the plaintiff from serious health risks pending a determination of the plaintiff’s preliminary injunction motion, there is “‘no question but that irreparable injury exists’ when the harm contemplated is ‘a life threatening illness.’” Heather K. by Anita K. v. City of Mallard, Iowa, 887 F. Supp. 1249, 1260 (N.D. Iowa 1995) (quoting Harris v. Blue Cross Blue Shield of Mo., 995 F.2d 877, 879 (8th Cir. 1993)).
For the reasons stated above, along with those explained in Plaintiffs’ Memorandum in Support of a Temporary Restraining Order and Preliminary Injunction and supported by declarations from the Named Plaintiffs and Plaintiffs’ experts, Plaintiffs respectfully request the Court order Defendants to adopt the measures requested in the attached Proposed Order. Unless it would delay the Court’s consideration of the issues addressed herein, Plaintiffs further request an opportunity to present expedited oral argument to the Court on the urgent need for this relief.
Dated: April 27, 2020 Respectfully submitted,
By: /s/Omavi Shukur
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Case 4:20-cv-00434-KGB Document 23 Filed 04/27/20 Page 9 of 10
Samuel Spital Jin Hee Lee Natasha Merle Omavi Shukur NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Christopher Kemmitt* Ajmel Quereshi* NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall* Jenay Nurse* Corrine Irish* Squire Patton Boggs (US) LLP 1201 Avenue of the Americas New York, NY 10036 (212) 872-9800
Laura Fernandez* 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 72201 (501) 296-1775
Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202 (501) 374-2660
*Pro hac vice motions forthcoming
9

Case 4:20-cv-00434-KGB Document 23 Filed 04/27/20 Page 10 of 10 Attorneys for Plaintiffs and the Putative Classes
CERTIFICATE OF SERVICE I, Omavi Shukur, hereby certify that on April 27, 2020. I caused the foregoing to be filed via the Court’s electronic filing system, which effectuated service upon all counsel.
/s/ Omavi Shukur One of the Attorneys for Plaintiffs and the Putative Classes
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 Case 4:20-cv-00434-KGB Document 36 Filed 04/30/20 Page 1 of 73

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

v.

CASE NO. 4:20-CV-00434-KGB-JJV

WENDY KELLEY, et al.

PLAINTIFFS DEFENDANTS

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTIONS FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

INTRODUCTION Plaintiffs are murderers, rapists, armed robbers, arsonists, and repeat violent offenders. Each has a history of assaulting fellow inmates and staff. Many have a history of absconding from supervised release. And all are security risks. Yet under the guise of challenging the Arkansas Division of Correction’s response to the COVID-19 pandemic, they ask this Court to order their release or impose requirements that will put their fellow inmates, prison staff, and society at great risk. This Court should reject their requests. ADC’s response to the COVID-19 pandemic has been immediate, proactive, comprehensive, and exceeds recommendations by the Arkansas Department of Health and the Centers for Disease Control. As a result of ADC’s diligent efforts, none of the Plaintiffs has complained of COVID-19 symptoms and none has requested or needed medical attention. Indeed, had Plaintiffs—as required by the Prison Litigation Reform Act—exhausted their available administrative remedies before rushing to the courthouse to file this lawsuit, they would have discovered that ADC has already implemented nearly all of the remedial measures

Case 4:20-cv-00434-KGB Document 36 Filed 04/30/20 Page 2 of 73
that Plaintiffs request. Therefore, their claims fail for procedural, legal, and evidentiary reasons, and this Court should reject all their various requests for preliminary relief.
FACTUAL BACKGROUND A. ADC’s immediate and comprehensive response to COVID-19.
1. ADC quickly coordinates with multiple agencies to prepare for COVID-19.
As soon as it became apparent that COVID-19 might spread to Arkansas, the ADC began preparing to respond.1 (Payne Decl. [Ex. 1] ¶ 3). This preparation involved working closely with other state and federal agencies, in addition to national correctional organizations, to formulate and direct ADC’s preparation and response to COVID-19. (Payne Decl. ¶ 5). For instance, ADC officials worked closely with the Arkansas Department of Health, Arkansas Department of Emergency Management, the ADC’s contracted medical provider, Wellpath, LLC, the National Institute of Corrections, the American Correction Association, the Correctional Leaders Association, and others. (Payne Decl. ¶ 6).
ADC officials communicated regularly with Arkansas Department of Health officials, often multiple times per day. (Payne Decl. ¶ 7). This joint effort is ongoing, and ADC is continually adjusting to take advantage of new information and strategies developed by the CDC and others. (Payne Decl. ¶ 9). These efforts have helped ADC develop strategies for preventing the virus from entering ADC facilities and responding to potential outbreaks. (Payne Decl. ¶ 10). ADC worked with these entities both in terms of the formulation and implementation of ADC procedures and protocols generally, as well as specific involvement in working with ADC staff,
1 Certain aspects of ADC’s preparation for, and response to, COVID-19 are included in ADC’s Emergency Preparedness Manual. That manual is confidential and not subject to public disclosure. See Ark. Code Ann. § 12-27-137. This brief describes many of the ways ADC responded to the threat posed by COVID-19, but security concerns prohibit identification and explanation of every approach. (Payne Decl. ¶ 4).
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including unit wardens, with respect to that response. (Payne Decl. ¶ 11). At all times, ADC has worked diligently to combat the spread of COVID-19 and to ensure the health and safety of the inmates housed within ADC units, as well as the health and safety of staff and officials. (Payne Decl. ¶ 12).
2. COVID-19 reaches Arkansas: ADC immediately responds. On Wednesday, March 11, 2020, Arkansas Governor Asa Hutchinson announced the first presumptive case of COVID-19 in Arkansas. (Payne Decl. ¶ 13). That same day, the Arkansas Department of Corrections, the cabinet department of which ADC is one part, began immediately taking proactive steps in response to the virus. (Payne Decl. ¶ 14; Mar. 11, 2020 Memo [Ex. 2]). At that time, ADC reminded and encouraged inmates and staff to regularly wash their hands, practice respiratory etiquette, such as covering coughs and sneezes, avoid handshakes, and continue regular surface cleaning. (Payne Decl. ¶ 15; Mar. 11, 2020 Memo). ADC also encouraged employees to stay home when ill. (Payne Decl. ¶ 16; Mar. 11, 2020 Memo). ADC continued to diligently investigate what steps it could take to further protect inmates and staff at its units across the state. (Payne Decl. ¶ 19). On March 16, 2020, after discussion with the Arkansas Department of Health and Wellpath, LLC, ADC suspended inmate visitation in an effort to prevent the spread of COVID-19. (Payne Decl. ¶ 20; Mar. 16, 2020 Press Release [Ex. 3]). That suspension applied to all prisons and community correction centers, and it applied to regular and special visits. (Payne Decl. ¶ 21; Mar. 16, 2020 Press Release). Recognizing that suspending in-person visitation could negatively affect inmates’ well-being, ADC extended video visitation hours and reduced the price of phone calls, e-mails, and video visitation in order to keep family ties as strong as possible, and ADC promptly notified inmates of these changes. (Payne Decl. ¶ 22; Mar. 16, 2020 Press Release; Mar. 19, 2020 Visitation
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Poster [Ex. 4]). The Division of Community Correction—another agency within the Department of Corrections that is responsible for more than 60,000 offenders on parole and supervised probation and operates six licensed residential treatment centers—took similar steps, including waiving supervision fees, suspending face-to-face office visits, expanding the use of mobile applications to supervise offenders, and finding alternative means for individuals to participate in discretionary groups, such as Alcoholic Anonymous or substance abuse groups. (Payne Decl. ¶ 23).
ADC also worked to reduce the number of people entering correctional facilities across the state. (Payne Decl. ¶ 24). To that end, ADC restricted visitation so that only badged volunteers, as opposed to occasional volunteers, were allowed to enter facilities. (Payne Decl. ¶ 24; Mar. 16, 2020 Press Release). Later, ADC took even further steps to reduce the number of people entering facilities and stopped badged volunteers from entering its facilities to reduce potential exposure. (Payne Decl. ¶ 25). Inmates housed in ADC units were also no longer allowed to go on meritorious or emergency furloughs, except those inmates participating in a work-release program. (Payne Decl. ¶ 26; Mar. 16, 2020 Press Release; Mar. 19, 2020 Furlough Memo [Ex. 5]). Later, when a presumptively positive employee was tested at a work release site, that site was locked down and inmates were not sent out to work in the community until cleared in consultation with the Arkansas Department of Health. (Payne Decl. ¶ 27).
Importantly, ADC changed its practice relating to incoming inmates as well. (Payne Decl. ¶ 28). All new inmates into ADC’s prisons are housed together for a period of 14 days following intake. (Payne Decl. ¶ 28). Similarly, all new offenders sent into community correction centers are housed together for a period of 14 days. (Payne Decl. ¶ 28). By doing so, ADC sought to prevent COVID-19 from entering into an ADC or community corrections
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facility. (Payne Decl. ¶ 28). Relatedly, county jails housing inmates destined for an ADC unit are working with ADC to confirm incoming inmates do not exhibit symptoms of the virus. (Payne Decl. ¶ 28).
Likewise, ADC continued to ensure staff and visitors were not bringing the virus within ADC facilities. (Payne Decl. ¶ 29). At the direction of the Arkansas Department of Health, ADC began restricting access to correctional facilities for anyone that had: (1) traveled internationally within the previous 14 days to countries with sustained transmission of COVID19; (2) contact with anyone who had a confirmed diagnosis of, or was under investigation for, COVID-19; or (3) exhibited symptoms of a respiratory infection, including cough, shortness of breath, or a fever. (Payne Decl. ¶ 31; Mar. 20, 2020 Poster). ADC also began screening the temperature of all staff before they enter the facility prior to the start of their shifts, and employees who have a temperature of higher than 100.4 degrees Fahrenheit are sent home and advised to seek care from their doctor if they have other symptoms. (Payne Decl. ¶ 32; Mar. 20, 2020 Poster).
Wellpath, ADC’s medical provider, also worked with inmates to reduce the potential spread of the virus through ADC facilities. (Payne Decl. ¶ 33). On March 23, 2020, to encourage inmates to seek medical attention if they experienced symptoms of COVID-19, ADC immediately suspended the medical copays inmates would normally have paid for a health services visit. (Payne Decl. ¶ 34). This means that any inmate who believes he or she is experiencing symptoms of COVID-19 may seek immediate treatment from Wellpath, for free. (Payne Decl. ¶ 34). On March 27, 2020, Wellpath sent a memorandum to ADC inmates and Arkansas Community Correction residents informing them that non-urgent on- and off-site medical appointments could be rescheduled to limit the risk of spreading the virus. (Payne Decl.
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¶ 33; Mar. 27, 2020 Wellpath Memo [Ex. 8]). Inmates were also informed that urgent

consultations and emergencies would be treated as usual. (Payne Decl. ¶ 33; Mar. 27, 2020

Wellpath Memo).

3.

ADC continues preventative measures based on CDC &

Arkansas Department of Health guidance.

On Monday, March 23, 2020, following the extensive efforts explained above, CDC

issued guidance specifically directed to correctional institutions. (Payne Decl. ¶ 35; CDC

Guidance for Corr. Facilities [Ex. 9]). On Friday, March 27, 2020, the Arkansas Department of

Health issued its own recommendations, entitled “COVID-19: Guidance for State Correctional

Facilities and Local Detention Facilities.” (Payne Decl. ¶ 36; ADH Mar. 27, 2020, Guidance

[Ex. 10]; Garner Decl. [Ex. 11] ¶ 6). The Arkansas Department of Health’s guidance

synthesized many of the CDC’s recommendations and issued particularized guidance for

correctional facilities within the state. (Payne Decl. ¶ 37). As detailed above, ADC had already

implemented many of these recommendations, but it promptly implemented new procedures to

follow the Department of Health’s guidance. (Payne Decl. ¶ 37).

a. Enhanced cleaning, personal hygiene, and best practices.

ADC ordered enhanced cleaning and disinfection of its units. (Payne Decl. ¶ 52). See

also Garner Decl. ¶ 11 (observing the facility was clean and inmate porters were responsible for

continuously cleaning the facility). For example, barracks-style housing for general population

inmates are cleaned continuously throughout the day by inmate porters housed in those barracks.

(Payne Decl. ¶ 52). This includes cleaning the residential area, showers, bathrooms, and

recreational areas in the barracks. (Payne Decl. ¶ 52). Other inmate porters clean hallways

throughout the unit, the chow hall, gym, and other areas accessed by inmates. (Payne Decl.

¶ 52). Porters have been instructed to pay particular attention to high-touch surfaces throughout

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the units, and their cleaning efforts are monitored by security staff. (Payne Decl. ¶ 53). The porters use Razor Chemical Company’s Citrus Breeze III, which is a hospital-grade fungicide, disinfectant, deodorizer, and virucidal product. (Payne Decl. ¶ 54). See https://www.acicatalog.com/store/product_detail/437 (last accessed April 29, 2020). Inmates in restrictive housing are provided the same cleaning products twice per week in order to clean their cells. (Payne Decl. ¶ 55). Inmates in general housing are not, because providing inmates with unfettered access to chemicals, including bleach, poses a security threat to other inmates and staff. (Payne Decl. ¶ 56).
Likewise, inmates are provided ample supplies to ensure they can maintain their personal hygiene. (Payne Decl. ¶ 57). All inmates are provided soap free of charge and have constant access to warm water to ensure they can wash their hands as often as they would like in accordance with CDC and Arkansas Department of Health guidance. (Payne Decl. ¶ 57). Because soap and water are available to all inmates at ADC units, hand sanitizer is not necessary. (Payne Decl. ¶ 58). Neither CDC nor Arkansas Department of Health guidelines mandate or require the ADC to provide hand sanitizer to inmates. (Payne Decl. ¶ 58). Indeed, CDC’s correctional institution guidance specifically acknowledges that alcohol-based hand sanitizer may not be provided in prisons for security restrictions, because it is flammable, intoxicating, and potentially poisonous. (Payne Decl. ¶ 58). Alcohol-based hand sanitizer, moreover, is only needed if, unlike in ADC units, soap and water are unavailable. (Payne Decl. ¶ 58; CDC Guidance at *2, 7). ADC has, however, provided non-alcohol-based hand sanitizer stations for all general population inmates in different areas of the units, except for the inmates at the Cummins Unit because most of those inmates do not leave their barracks, for use once the inmates leave their barracks. (Payne Decl. ¶ 59).
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Inmates in general population housing have access to showers throughout the day and are free to shower as often as they deem fit. (Payne Decl. ¶ 60). Inmates in restrictive housing are able to shower multiple times per week. (Payne Decl. ¶ 60). Inmates also have access to toilet paper they can use as face tissue and to clean their personal belongings. (Payne Decl. ¶ 61). In addition, inmates are provided a free hand towel and bath towel that are laundered multiple times per week, and inmates receive clean hand and bath towels when their soiled towels are taken to be laundered. (Payne Decl. ¶ 62).
ADC also communicated with staff and inmates about COVID-19 and best practices to reduce the risk of infection. For example, the Arkansas Department of Health’s guidance recommends ADC communicate with staff, offenders, volunteers, and visitors about COVID-19 and educate them about how to prevent contracting and spreading the virus. (Payne Decl. ¶ 38; ADH Mar. 27, 2020, Guidance, at *1). By March 11, 2020, ADC had already taken steps to inform inmates, staff, and visitors about COVID-19 and the topics discussed in the Arkansas Department of Health’s guidance. (Payne Decl. ¶ 38; Mar. 11, 2020 Memo). ADC also posted signage throughout its facilities, in both English and Spanish, informing inmates and staff to wash their hands often with soap and water, for at least 20 seconds, wear face masks as much as possible, avoid touching their eyes, nose, or mouth without cleaning their hands first, clean their personal belongings, to keep as much distance between each other as possible. (Payne Decl. ¶¶ 29, 39-40; Mar. 20, 2020 Poster [Ex. 6]; Public Health Notice Poster [Ex. 7]; Protect Yourself Poster [Ex. 12]; Clean Hands Poster [Ex. 13]; Cover Your Cough Poster [Ex. 14]; Wash Hands English [Ex. 15]; Wash Hands Spanish [Ex. 16]; Wellpath Informational Posters [Ex. 17]). See also Garner Decl. ¶ 10 (observing signage and other information posted in Cummins Unit during
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site visit). Inmates were also informed to report any symptoms to ADC staff or medical personnel as soon as possible. (Payne Decl. ¶ 41).
b. Manufacturing and distribution of PPE. ADC worked diligently to manufacture and distribute personal protective equipment (“PPE”) to inmates and staff. In addition to educating inmates and staff, the Arkansas Department of Health recommended the use of PPE for inmates and staff to the extent possible. (Payne Decl. ¶ 42; ADH Mar. 27, 2020, Guidance, at *1). In response, ADC rapidly began a massive operation to manufacture and distribute 80,000 cloth masks for inmates and staff. (Payne Decl. ¶ 43). The masks are made by Arkansas Correctional Industries in the garment factory outside an adjacent ADC unit. (Payne Decl. ¶ 43). To date, over 42,000 masks and 250 face shields have been created and distributed to units, facilities, and offices across the state. (Payne Decl. ¶ 44). ADC also received a distribution of PPE, including masks, face shields, gloves, and other items, from the Arkansas Department of Emergency Management, and purchased PPE from the open market. (Payne Decl. ¶ 45). As recommended by the Arkansas Department of Health, every inmate housed in general population has already received one mask, and ADC is continuing production to ensure each inmate also has a second mask. (Payne Decl. ¶ 46). See also Garner Decl. ¶ 13 (observing inmates and staff wearing cloth masks during site visit of Cummins Unit). ADC staff also wear masks and gloves as precautionary measures throughout the units, including when interacting with inmates in restrictive housing. (Payne Decl. ¶ 49). Inmates and staff have been educated on best practices for wearing their masks and instructed to wear them as often as possible. (Payne Decl. ¶ 50). See also Garner Decl. ¶ 9 (discussing morning broadcast at Cummins Unit informing inmates of best practices regarding COVID-19). Only inmates in restrictive housing
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have not received masks. (Payne Decl. ¶ 48). As CDC has explained, masks reduce the risk of the wearer’s spreading the virus; they are not designed to prevent the wearer from contracting the virus. (Payne Decl. ¶ 47; CDC Cloth Mask Rec. [Ex. 18]). Because inmates in restrictive housing have extremely limited exposure to staff or other inmates, masks are unnecessary to safeguard against spread from those inmates. (Payne Decl. ¶ 48). If an inmate wishes to report that a staff member is not complying with health a safety procedures, they can anonymously submit a request for interview form making such a complaint. (Payne Decl. ¶ 51).
c. ADC’s efforts to detect the virus. ADC implemented new procedures for detecting the presence of COVID-19 in its facilities. (Payne Decl. ¶ 63). As an initial matter, every inmate in general population of each unit, except the inmates who have already tested positive at Cummins Unit and do not leave the barracks, has their temperature checked with a no-contact infrared laser thermometer each time they leave the barracks and move to the chow hall. (Payne Decl. ¶ 63). Any inmates who register a temperature in excess of CDC and Arkansas Department of Health guidelines then has a follow-up temperature screening using an under-the-tongue thermometer with a protective sheath to prevent transmission. (Payne Decl. ¶ 64). Inmates in restrictive housing have their temperatures checked when they exhibit symptoms. (Payne Decl. ¶ 64). Inmates who register a temperature indicating potential infection are taken to medical services. (Payne Decl. ¶ 65). In addition, all inmates who experience symptoms of COVID-19 are encouraged to submit a health services request to meet with Wellpath. (Payne Decl. ¶ 66). Beginning as early as March 23, 2020, all medical copays were waived to encourage inmates to seek medical care and report any symptoms they experience. (Payne Decl. ¶ 67).
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Likewise, staff have been educated on the symptoms of COVID-19 and instructed to be on the lookout for symptoms in inmates and staff and to take inmates exhibiting symptoms to the infirmary or some other area to be seen by medical staff. (Payne Decl. ¶ 68). As recommended by the Arkansas Department of Health, once an inmate exhibits symptoms, the inmate is isolated and treated by medical staff. (Payne Decl. ¶ 69). If medical staff determine the inmate is presenting COVID-19 symptoms, the inmate is tested for other respiratory ailments and, if necessary, the virus. (Payne Decl. ¶ 69). As also recommended by the Arkansas Department of Health, inmates remain isolated until the various, necessary test results are returned. (Payne Decl. ¶ 70). Wellpath has taken steps to reduce exposure as well by placing plastic, translucent barriers in the medical department to allow medical staff to see inmates while minimizing risk of spreading the virus. (Payne Decl. ¶ 71).
d. Social distancing and other efforts. ADC worked to encourage social distancing to the extent feasible with ADC facilities, consistent with Arkansas Department of Health guidance. The Arkansas Department of Health also recommends implementing strategies for social distancing, to the extent possible in the facilities. (Payne Decl. ¶ 72; ADH Mar. 27, 2020, Guidance, at *1). ADC has implemented several procedures to encourage social distancing. (Payne Decl. ¶ 72). ADC took steps to reduce inmates from gathering together in groups, including suspending congregational religious services, staggering meal times to reduce the number of inmates in the chow halls, requiring inmates to spread out while eating meals, and reducing the number of inmates going to areas such as the commissary, recreation, medical pill call, and other areas at any one time. (Payne Decl. ¶ 73). Inmates in restrictive housing who are assigned to one-man cells already do stay at least six feet away from other inmates and staff. (Payne Decl. ¶ 74).
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Security and space constraints, however, make it difficult to ensure all inmates remain six feet apart. (Payne Decl. ¶ 75; Garner Decl. ¶ 14) (explaining “socially distancing” of six-feet at all times is not feasible in a correctional facility). For example, ADC housing units are not large enough so that every inmate’s bed can be moved six-feet away from another. (Payne Decl. ¶ 75). Inmate beds are organized in compliance with American Correctional Association standards, including in regards to bed space within square foot parameters. (Payne Decl. ¶ 75). Temporarily moving inmates to non-secure housing areas would create significant security risks and put staff and other inmates in danger. (Payne Decl. ¶ 75). In light of the physical characteristics of ADC units, as well as security and staffing needs, a court order requiring additional social distancing measures would both risk the safety and security of the facilities and constitute an undue burden on the operations of ADC’s prison system. (Payne Decl. ¶ 76). ADC staff continue to develop additional ways to facilitate social distancing within the units, including, as explained further below, working to release certain inmates to create additional space in the units. (Payne Decl. ¶ 77).
ADC has taken many other precautions recommended by the Arkansas Department of Health as ADC continues to respond to the virus and work to protect inmates and staff. (Payne Decl. ¶ 78). As recommended by the Arkansas Department of Health, ADC has coordinated with local law enforcement and followed the procedures set out by court officials for hearings and other inmate appearances. (Payne Decl. ¶ 79). And, even before Arkansas Department of Health guidance, ADC amended its visitation policy to severely restrict the number of individuals entering and leaving the facility. (Payne Decl. ¶ 80). ADC also temporarily modified congregational religious services to avoid inmates interacting with individuals from other housing areas. (Payne Decl. ¶ 81). Non-urgent medical services were also postponed.
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(Payne Decl. ¶ 82; Mar. 27, 2020 Wellpath Memo). ADC also modified its inmate-transfer procedures to reduce inmate movement between units. (Payne Decl. ¶ 83). ADC also changed other procedures, such as staggering meal times in the chow hall to reduce the number of inmates in the room at once, encouraging inmates to spread out from each other as much as possible, limiting non-essential travel for ADC personnel, and many other procedures as recommended by the Department of Health. (Payne Decl. ¶ 84; ADH Mar. 27, 2020, Guidance).
4. ADC has implemented additional procedures at the Cummins Unit.
As recommended by the Arkansas Department of Health, ADC prepared a plan for how to respond in the event the virus reached a unit. (Payne Decl. ¶ 85). Importantly, as of April 30, 2020, COVID-19 has only been detected in inmates in one unit within ADC: the Cummins Unit. (Payne Decl. ¶ 85). On April 12, 2020, the first inmate tested positive for COVID-19. (Payne Decl. ¶ 86). Once ADC discovered COVID-19 had made it into the Cummins Unit, ADC implemented a host of new procedures directly aimed at reducing the spread of the virus as much as possible. (Payne Decl. ¶ 87). First, after an initial round of tests confirmed the virus had spread outside the first positive inmate’s housing area, ADC tested nearly every inmate in the Cummins Unit and a total of nearly 1,700 inmates were tested. (Payne Decl. ¶ 92). In fact, to ensure results on inmate tests as quickly as possible, ADC officials drove overnight to Memphis, Tennessee, to deliver cases full of inmate samples for testing. (Payne Decl. ¶ 93). ADC has also conducted widespread testing of its staff. (Payne Decl. ¶ 94). In total, over 400 employees have been tested for COVID-19 in two testing drives. (Payne Decl. ¶ 94). Wellpath has also planned a third clinic to test any remaining staff who were not tested during the two previous clinics. (Payne Decl. ¶ 95).
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Based on the test results, ADC restructured housing arrangements in compliance with Arkansas Department of Health guidance. (Payne Decl. ¶ 95). The Arkansas Department of Health recommends that inmates who have tested positive be housed with other positive inmates. (Payne Decl. ¶ 95; ADH Mar. 27, 2020, Guidance, at *3). The Cummins Unit has complied with that recommendation and created three housing groups and three discrete groups of security staff to monitor them. (Payne Decl. ¶ 95). First, all inmates who have tested positive for COVID-19 have been removed from the prison population and only housed with other positives. (Payne Decl. ¶ 96). The security staff assigned to this housing group do not work in any other areas of the unit. (Payne Decl. ¶ 96). Second, all inmates who have tested negative are separated from the prison population and housed with other negatives. (Payne Decl. ¶ 97). The security staff assigned to that group also work only in those areas of the unit. (Payne Decl. ¶ 97). Third, all inmates who are currently indeterminate, including inmates whose test results have not been returned, are housed only with other indeterminate inmates and, again, the security staff assigned to these areas only work in those locations. (Payne Decl. ¶ 98). As a result, in the last two days, there have been no new positive test results at the Cummins Unit. See Governor Hutchinson Provides COVID-19 Update (04.30.20), https://youtu.be/M6dby_zfIOY, Governor Hutchinson Provides COVID-19 Update (04.29.20), https://youtu.be/4lPEnGpf_88.
Further, all barracks are on “lockdown” and inmates may only leave the barracks to receive medical attention or after they have tested negative and they are being used for the assistance of daily operations. (Payne Decl. ¶ 89). Negative inmates who leave the barracks for work have their temperatures checked each time they leave the barracks and, if they exhibit symptoms of COVID-19, are isolated and tested again. (Payne Decl. ¶ 90). Meals are brought to the inmates in their barracks to reduce inmate movement throughout the unit. (Payne Decl.
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¶ 91). Lastly, all inmates at the Cummins Unit have been informed of their test results, given guidance on seeking additional medical treatment if needed, and further educated on best practices to avoid transmission. (Payne Decl. ¶ 99; Test Results Notification [Ex. 42]).
The Cummins Unit has also worked to balance the normal medical needs of the inmate population with the new needs posed by COVID-19. (Payne Decl. ¶ 100). More particularly, ADC has created a field hospital at the Cummins Unit to treat positive-tested inmates who need medical care. (Payne Decl. ¶ 100). Other inmates with non-COVID ailments who require medical attention are treated, and oftentimes housed, in the Unit’s infirmary. (Payne Decl. ¶ 101). This process ensures inmates who need medical attention for COVID-related illnesses receive medical treatment without risking potential exposure to other inmates requiring nonCOVID-related medical attention. (Payne Decl. ¶ 101).
5. ADC receives additional guidance and continues the fight against COVID-19.
The Arkansas Department of Health has issued additional guidance for correctional facilities. (Payne Decl. ¶ 102). For instance, on April 13, 2020, the Arkansas Department of Health issued “ADH Guidance for Reducing Spread of COVID-19 in Correctional Facilities.” (Payne Decl. ¶ 102; ADH Apr. 13, 2020, Guidance [Ex. 19]). Two days later, the Arkansas Department of Health released a slightly modified version of their new guidance. (Payne Decl. ¶ 102; ADH Apr. 15, 2020, Guidance [Ex. 20]). These documents make many of the recommendations previously suggested in prior Arkansas Department of Health guidance, and ADC continues to comply with these recommendations as best as possible. (Payne Decl. ¶ 102).
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The Arkansas Department of Corrections, including the Board of Corrections, have continued efforts to protect inmates while balancing the risk of other societal harms.2 (Payne Decl. ¶ 103). On Friday, April 24, 2020, the Board of Corrections voted unanimously to invoke the expanded Emergency Powers Act and certify a list of 1,244 inmates to be eligible for release, pending the Parole Board’s decision. (Payne Decl. ¶ 104). In so doing, the Board of Corrections suspended its normal requirement that inmates must spend at least six months in prison before being considered for release, in addition to relaxing offense restrictions, as authorized by Governor Hutchinson’s executive orders regarding the public health emergency. (Payne Decl. ¶ 105). All inmates under consideration have been convicted of non-sexual and non-violent crimes, and their release is determined by the Parole Board. (Payne Decl. ¶ 106). All such inmates will receive a COVID-19 symptoms screening before they are released, all symptomatic inmates will be tested for the virus, and no inmates who are known or presumed to be positive for the virus will be released into the community until they are medically cleared. (Payne Decl. ¶ 107). Any such inmates will have their parole delayed until the inmate is no longer contagious. (Payne Decl. ¶ 108). As an additional precautionary measure, the Department of Corrections enhanced its offender management information system to flag COVID-positive offenders. (Payne Decl. ¶ 108).
B. The Plaintiffs. 1. Nicholas Frazier
2 Plaintiffs claimed ADC enacted emergency release of inmates in early March 2020 in response to the COVID-19 pandemic. That is inaccurate. ADC frequently invokes the emergency release provision, around every 90 days, to release inmates to relieve the backlog of inmates headed to the ADC that are currently housed in jails around the state. (Payne Decl. ¶ 109).
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Plaintiff Nicholas Frazier is serving a 10-year prison sentence for commercial burglary, manufacture, delivery, and possession of controlled substances, criminal mischief, possession of drug paraphernalia, and theft of property. (Frazier Sentencing Orders [Ex. 21]); see also 12CR15-188 (Cleburne County Circuit Court, Sept. 3, 2015); 12CR-10-158 (Cleburne County Circuit Court, Nov. 15, 2010); 12CR-10-16 (Cleburne County Circuit Court, Feb. 18, 2010); 12CR-17140 (Cleburne County Circuit Court, Aug. 22, 2017). Frazier routinely violated the conditions of his parole, committed new crimes, and returned to prison. Frazier is housed in the Varner Super Maximum Security Unit, ADC’s most secure housing facility for inmates who have shown they cannot be safely housed in other units. (Frazier Decl. [DE 3-8], ¶ 1).
Frazier’s lawlessness has continued during his incarceration. Frazier has been found guilty of approximately 16 disciplinary violations, including assaulting other inmates, aggravated battery, trafficking and trading, possession and manufacture of contraband, and threats to inflict injury. (Frazier Disc. Summary and Rpts. [Ex. 22]). Frazier is also regularly disciplined for his participation in white nationalist organizations which incite violence and attack other inmates. (Frazier Disc. Summary and Rpts.). Due to his disruptive behavior, Frazier has spent much of his most recent incarceration in restrictive housing and punitive isolation.
Frazier is 36 years old and purports to suffer from seizures, asthma, and hepatitis C. (Frazier Decl. [DE 3-8], ¶ 3). Frazier is not currently on any asthma medication, and the condition is well controlled. (Gordon Decl. [Ex. 23] ¶ 14). Frazier has not submitted a health services request complaining of COVID-19 symptoms. (Gordon Decl. ¶ 15).
2. Robert Stiggers Plaintiff Robert Stiggers is serving a 40-year sentence for first-degree murder and a 20year sentence for battery, which are set to run consecutively. Stiggers’s convictions and sentences stem from a 2003 shooting in Little Rock. Stiggers encountered his victims at a liquor
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store and asked the two victims for a ride. Once in their car, he brandished a firearm. He told them to “say goodnight” and “say your prayers” because Stiggers was going to kill them, despite being friends with one of the victims for years. Stiggers then shot both victims. The first was shot behind the right ear and immediately lost consciousness, but survived the shooting. The second died. See generally Stiggers v. State, 433 S.W.3d 252, 254-55 (Ark. 2014). Stiggers is currently housed in the Cummins Unit. (Stiggers Decl. [DE 3-7], ¶ 1).
Stiggers’s life of violence has continued during his incarceration. Stiggers has been found guilty of nearly 40 disciplinary violations, many of which include assaults on other inmates and staff. (Stiggers Disc. Summary and Rpts. [Ex. 36]). For example, last September, Stiggers attacked another inmate, beating him with a fluorescent light bulb until both inmates were covered in blood. (Stiggers Disc. Summary and Rpts.). Earlier that same month, Stiggers attempted to stab another inmate with a homemade weapon, although Stiggers was able to destroy the weapon before correctional officers could take it from him. (Stiggers Disc. Summary and Rpts.). In addition, Stiggers has also been found guilty of throwing urine and feces at correctional staff. (Stiggers Disc. Summary and Rpts.). Stiggers also has an extensive history of possessing drugs, refusing orders, and destroying state property. (Stiggers Disc. Summary and Rpts.).
Stiggers is 35 years old and purports to suffer from asthma. (Stiggers Decl. [DE 3-7], ¶¶ 2-3). Stiggers has not submitted a health services request complaining of COVID-19 symptoms. (Gordon Decl. ¶ 37).
3. Jonathan Neeley Plaintiff Jonathan Neeley is serving a 10-year prison sentence for multiple counts of sexual assault. (Neeley Sentencing Order [Ex. 30). Neeley is currently housed in the Ouachita River Correctional Unit. (Neeley Decl. [DE 3-11], ¶ 1). Neeley was a youth minister at the
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Mineral Springs Church of Christ when he had an illegal sexual relationship with two underage girls in his congregation. The first victim met Neeley when he became her youth minister at her church, and she looked up to him and his wife. Texts and other conversations between the two eventually led to them having sexual intercourse and other sexual contact numerous times between January and May 2009. Shockingly, she stated that on one occasion, Neeley pulled out a Bible and made her place her hand on it and swear that she would continue to have sexual intercourse with him after she was married. See https://www.swarkansasnews.com/2015/09/former-youth-minister-pleads-guilty-to-sexualassault-4-more-charges-pending-in-pope-county/ (last accessed April 29, 2020).
Neeley is 36 years old and alleges he was diagnosed with rectal cancer in January 2020. (Neeley Decl. [DE 3-11], ¶¶ 2-3). In his complaint, Neeley implies he has not received necessary treatment for his colorectal cancer. (DE 1 at 12-13 ¶ 33). Neeley, however, received surgery for his condition in January, saw an oncologist last month, and visited another doctor, who ordered additional treatment. (Gordon Decl. ¶ 34). Neeley is currently scheduled to receive radiation treatment at an outside provider later this year, but radiation may compromise Neeley’s immune system. (Gordon Decl. ¶ 35). Neely has not submitted a health services request complaining of COVID-19 symptoms. (Gordon Decl. ¶ 36).
4. Alvin Hampton Plaintiff Alvin Hampton is serving a five-year prison sentence for battery, terroristic threatening, and fleeing and resisting arrest. (Hampton Sentencing Order [Ex. 24]). Hampton is currently housed in the Ouachita River Correctional Unit. (Hampton Decl. [DE 3-10], ¶ 1). On May 5, 2017, Hampton was released on parole after serving his sentence for a theft by receiving conviction. On November 2, 2017, Hampton absconded from his parole. A few weeks later, officers of the El Dorado Police Department were summoned to the office of the Salvation
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Army, where an intoxicated Hampton assaulted the director of the office. When officers attempted to contact Hampton, he began running away. Officers ordered Hampton to stop, but he refused and kept running away. (Hampton Crim. Info. & Affidavit [Ex. 25]).
When a female officer caught up with Hampton, he struck her on the right side of her fact. Officers then attempted to handcuff Hampton, but he again refused. Only with assistance of multiple officers and after using a Taser was Hampton placed into custody and into the rear of a patrol car. On his way to booking, Hampton told the officers transporting him that he would spend the rest of his life tracking officers and their families down and killing them. He told one officer that once released—as he asks this Court to do—he would put a bullet in her head. (Hampton Crim. Info. & Affidavit).
Hampton is 42 years old and purports to suffer from seizures, Bell’s palsy, and bipolar disorder. (Hampton Decl. [DE 3-10], ¶¶ 2-3). Hampton has not been diagnosed with bipolar disorder, and he has not been prescribed medication for that disorder. (Gordon Decl. ¶ 31). Hampton has not submitted a request for health services complaining of COVID-19 symptoms. (Gordon Decl. ¶ 32).
5. Marvin Kent Plaintiff Marvin Kent is a habitual offender serving an 18-year prison sentence for first degree battery, endangering the welfare of a minor, and serving the remainder of a prior conviction because he violated the terms of his probation. (Kent Sentencing Order [Ex. 26]). Kent is also housed in the Varner Super Maximum Security Unit. (Kent Decl. [DE 3-6], ¶ 1). Kent’s institutional history reveals approximately 70 disciplinary violations, many of which involve acts of violence against inmates and staff. (Kent Disc. Summary and Rpts. [Ex. 27]; Kent ADC Webpage [Ex. 28]). For instance, last year, Kent was found covered in blood after officers noticed another inmate holding a state-issued blanket to block the view of ADC
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staff. When officers investigated, Kent admitted attacking another inmate with a laundry bag he had filled with batteries. (Kent Disc. Summary and Rpts.). In February 2019, Kent received several major disciplinary infractions when he masturbated in front of female correctional officers. (Kent Disc. Summary and Rpts.). Kent has also been disciplined multiple times for possessing drugs and other contraband. (Kent Disc. Summary and Rpts.). Due to his disruptive behavior, Kent has spent much of his most recent incarceration in restrictive housing and punitive isolation.
Kent is 39 years old and purports to suffer from heart failure, hypertension, and high cholesterol. (Kent Decl. [DE 3-6], ¶ 3). Kent has not submitted a health services request complaining of COVID-19 symptoms. (Gordon Decl. ¶ 16). Kent has, however, submitted several health services requests in March and April 2020. (Gordon Decl. ¶ 17). For instance, on March 30, 2020, Kent complained of a skin rash and was given medication. (Gordon Decl. ¶ 18). Similarly, on April 17, 2020, Kent complained of a stomach ache but denied any pain when he met with health care professionals. (Gordon Decl. ¶ 19). Tellingly, Kent submitted other health services requests on April 2, 2020, and April 21, 2020, but he refused to be escorted by correctional staff for those health care visits. (Gordon Decl. ¶ 20).
6. Michael Kouri Plaintiff Michael Kouri, who is also known as Michael Mercouri, is serving a 10-year prison sentence for aggravated robbery. In April 2013, Kouri assaulted his former supervisor, threatened him with a gun, demanded money, and tried to kidnap him. Kouri was eventually arrested and convicted at trial. See generally Mercouri v. State, 2016 Ark. 37, 480 S.W.3d 864. While incarcerated, Kouri has received disciplinary violations for failure to obey orders and possession of drugs. (Kouri Disc. Summary [Ex. 29]). Kouri is currently housed at the Ouachita River Correctional Unit. (Kouri Decl. [DE 3-3], ¶ 1).
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Kouri is 40 years old and purports to suffer from heart disease, hypertension, and extreme obesity. Kouri also alleges he has an artificial heart valve, takes blood thinners, and has been diagnosed with “pink eye.” (Kouri Decl. [DE 3-3], ¶ 3; DE 1 at 7 ¶ 15). Kouri visited the Unit Infirmary on March 20, 2020, complaining of a cough, headache, and eye irritation. (Gordon Decl. ¶ 6). Kouri was examined by medical staff who determined Kouri had eye irritation, but he was not diagnosed with “pink eye.” (Gordon Decl. ¶ 7). Kouri has not submitted any infirmary requests describing symptoms of COVID-19 since his March 20 visit. (Gordon Decl. ¶ 8). Although Kouri claims he suffers from shortness of breath and has difficulty walking more than 20 feet, he recently submitted a health services request asking for his bottom-tier housing assignment to be removed so he can move to a housing unit on a different floor, which would require him to travel up flights of stairs. (Gordon Decl. ¶ 9).
7. Alfred Nickson Plaintiff Alfred Nickson is serving a 25-year prison sentence for murder. (Nickson Sentencing Order [Ex. 31]). Nickson is currently housed in the Cummins Unit. (Nickson Decl. [DE 3-9], ¶ 1). In 2013, Nickson stabbed and strangled 73-year old Freddie Cole inside Mr. Cole’s apartment in Hot Springs. Nickson also struck Mr. Cole in the head with a dumbbell. Mr. Cole, however, was not the first person Nickson has murdered. In 1987, Nickson was convicted of murder in Chicago, and ordered to serve a 30-year sentence after the victim in that case had also been strangled and his home set on fire. See https://www.kark.com/news/localnews/hot-springs-man-admits-to-neighbors-2013-murder/541904923/ (last accessed April 29, 2020). Nickson’s institutional history further highlights his lifetime of violence and inability to follow rules. As recently as April 8, 2020, Nickson was found guilty of possessing methamphetamine and synthetic marijuana hidden in his clothes. (Nickson Disc. Summary and
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Rpts. [Ex. 32]). Nickson has also received numerous disciplinary violations for violence against other inmates. For instance, in 2018, Nickson assaulted another inmate and was also found with contraband when he was detained. (Nickson Disc. Summary and Rpts.). Similarly, on March 3, 2017, Nickson received a disciplinary violation for fighting with another inmate. (Nickson Disc. Summary and Rpts.). Nickson also has multiple disciplinary violations related to his refusal to obey staff and follow orders. (Nickson Disc. Summary and Rpts.).
Nickson is 61 years old and purports to suffer from diabetes, rheumatoid arthritis, osteoarthritis, and hypertension. (Nickson Decl. [DE 3-9], ¶¶ 2-3). Nickson alleges in his complaint that “[f]or the past two weeks, he has experienced COVID-19 symptoms, including shortness of breath, fatigue, coughing, and repeated vomiting.” (DE 1 at 11 ¶ 26). Nickson, however, has not submitted a health services request complaining of any of those symptoms. (Gordon Decl. ¶ 26).
8. Harold “Scott” Otwell Plaintiff Harold Otwell is serving a 15-year sentence for conspiracy to commit arson and jury tampering. (Otwell Sentencing Orders [Ex. 33]). Otwell is currently housed in the Ouachita River Correctional Unit. (Otwell Decl. [DE 3-5], ¶ 1). In June 2018, Otwell attempted to set fire to an Arkansas Game and Fish Commission agent’s vehicle. Prior to trial, a potential juror told prosecutors in Otwell’s case that she had been contacted by a woman who told the juror that the juror could benefit if Otwell was found not guilty. Otwell subsequently pled guilty to conspiracy to commit arson and jury tampering. See https://www.eldoradonews.com/news/2019/may/02/man-sentenced-prison-attempted-truckarson-jury-ta/ (last accessed April 29, 2020). Otwell is 49 years old and purports to suffer from obesity, pre-diabetes, and osteoarthritis. (Otwell Decl. [DE 3-5], ¶ 3). Neither ADC nor Wellpath have records suggesting
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Otwell has been diagnosed with pre-diabetes, and he has not been prescribed diabetes medication. (Gordon Decl. ¶ 22). In addition, Otwell does not participate in physical therapy for any injury. (Gordon Decl. ¶ 23). Otwell has not submitted a health services request complaining of COVID-19 symptoms. (Gordon Decl. ¶ 24).
9. Trinidad Serrato Plaintiff Trinidad Serrato has been in and out of ADC prisons for decades. His most recent convictions include a 2017 conviction for felon in possession of a firearm, for which he was convicted as a habitual offender. (Serrato Sentencing Orders and Judgments [Ex. 34]). Serrato’s other convictions are legion, including multiple convictions in 2010 for theft and breaking and entering across multiple counties in central Arkansas, fraudulent use of a credit card, and possession of controlled substances. (Serrato Sentencing Orders and Judgments). Serrato typically returns to prison on parole violations not long after he has been released from incarceration. Serrato is currently housed in the Ouachita River Correctional Unit. (Serrato Decl. [DE 3-4], ¶ 1). Like his convictions, Serrato has a long list of disciplinary infractions while incarcerated. For instance, Serrato has a history of violence while incarcerated, including receiving disciplinary violations for assault and battery against other inmates. (Serrato Disc. Summary [Ex. 35]). He has been found guilty of introducing and possessing contraband, including drugs, on several occasions while incarcerated. (Serrato Disc. Summary). Serrato is 34 years old, claims to suffer from asthma, and alleges to be a “carrier” for tuberculosis, although he does not claim to suffer from it. (Serrato Decl. [DE 3-4], ¶ 3). Serrato has not been diagnosed with asthma. (Gordon Decl. ¶ 10). He tested positive for having previously contracted tuberculosis in 2006, and he has not actively suffered from the disorder at
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any time during his incarceration. (Gordon Decl. ¶ 11). Serrato has not submitted a health services request complaining of COVID-19 symptoms. (Gordon Decl. ¶ 13).
10. Victor Williams Plaintiff Victor Williams is serving a five-year sentence for manslaughter. See 18CR-11980 (Crittenden County Circuit Court, Aug. 31, 2011). Williams is currently housed at the Ouachita River Correctional Unit. (Williams Decl. [DE 3-12], ¶ 1). Williams’s incarceration stems from a 2004 double homicide in Crittenden County, Arkansas. On December 4, 2004, 68year-old Elisha Maxwell and 34-year-old Deanna Valarde were both found shot to death inside a home in Sunset, Arkansas. Both victims had been shot in the head. After they were shot, the house was set on fire. Seven years later, Williams, who had a domestic relationship with one of the victims, was arrested and pled guilty. See https://www.wmcactionnews5.com/story/15353766/man-charged-in-2004-double-homicide-incrittenden-county/ (last accessed April 23, 2020). Williams was also convicted of theft by receiving in 2016 and commercial burglary in 1998. Williams is 56 years old and claims to suffer from a collapsed lung, hypertension, bruised tissue around his heart, and is in remission from lymphoma. (Williams Decl. [DE 3-12], ¶¶ 2-3). There is no evidence that Williams has a collapsed lung. (Gordon Decl. ¶ 27). Williams has not been diagnosed with hypertension, and ADC’s medical provider has no records suggesting Williams has bruised tissue around his heart. (Gordon Decl. ¶ 28). In addition, Williams is not being treated for lymphoma. (Gordon Decl. ¶ 29). Williams has not submitted a health services request complaining of COVID-19 symptoms. (Gordon Decl. ¶ 30). C. ADC’s inmate grievance procedure & Plaintiffs’ non-exhaustion. At all times relevant to this lawsuit, ADC had a policy relating to grievances filed by inmates housed in its facilities. (Grigsby Decl. [Ex. 37] ¶ 4). This policy is designed to provide
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a timely administrative resolution of inmate complaints, problems, and other issues. (Grigsby Decl. ¶ 4). The version of the policy in effect since December 2, 2019, is Administrative Directive 2019-34 (“AD 19-34”). (Grigsby Decl. ¶¶ 4-5). AD 19-34 applies to both medical and non-medical grievances, and the exhaustion process is similar for both types of grievances. (Buterbaugh Decl. [Ex. 38] ¶ 3).
AD 19-34 provides detailed procedures for how inmates must grieve their problems and complaints with ADC. (Grigsby Decl. ¶ 6). In fact, AD 19-34 provides a step-by-step guide for inmates, including what actions to take if certain situations arise and instructions on how to complete the grievance documents. (Grigsby Decl. ¶ 6). The policy also explains the steps inmates must take in order to fully exhaust their grievance. (Grigsby Decl. ¶ 6). AD 19-34 explains that “an inmate must fully exhaust the grievance procedure as a prerequisite to pursuing any legal action related to the subject matter of the grievance.” (Grigsby Decl. ¶ 7). Likewise, AD 19-34 informs inmates that “exhaustion of an issue is a prerequisite to filing a lawsuit related to that issue in accordance with the Prison Litigation Reform Act of 1995.” (Grigsby Decl. ¶ 7).
AD 19-34 contains a multi-step process to file and exhaust a grievance, which includes both an informal resolution stage and a formal resolution stage. (Grigsby Decl. ¶ 8). Step One of the policy is the first deadline an inmate must meet in order to properly grieve, and therefore properly exhaust, a grievance with ADC. (Grigsby Decl. ¶ 10). If an inmate does not submit a Step One grievance within 15 days after the occurrence of the incident, then the grievance is untimely and can be rejected by ADC. (Grigsby Decl. ¶ 10). An inmate initiates Step One by submitting his Unit Level Grievance Form to the designated problem solver on duty. (Grigsby Decl. ¶ 12). The problem solver has three business days to respond to the inmate. (Grigsby Decl. ¶ 12).
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If the grievance cannot be resolved by the problem solver, the inmate has three business days after receiving a response from the problem solver to initiate Step Two. (Grigsby Decl. ¶ 12). Alternatively, if the problem solver fails to contact the inmate regarding his grievance within three business days, the inmate may proceed to Step Two directly. (Grigsby Decl. ¶ 13). In that instance, a formal Step Two grievance must be filed no later than six business days after the inmate submitted the original Unit Level Grievance Form. (Grigsby Decl. ¶ 13). As a result, the maximum timeframe for an inmate to file a Step Two Formal Grievance Resolution is six business days. (Grigsby Decl. ¶ 13).
ADC’s inmate grievance policy also accounts for emergencies and is designed to ensure that ADC staff act quickly to resolve emergencies. The policy defines an “emergency” as “a problem that, if not immediately addressed, subjects the inmate to a substantial risk of personal injury or other serious and irreparable harm such as, physical abuse.” (Grigsby Decl. ¶ 14). If the inmate believes the matter to be an emergency, the inmate is directed to designate the grievance as an emergency and present the form to any staff member. (Grigsby Decl. ¶ 15). If that staff recipient determines that an emergency does exist, corrective action should be taken as soon as possible and within no more than 24 hours. (Grigsby Decl. ¶ 15). See also AD 1934(IV)(E)(5). In addition, if the problem solver deems an emergency exists, the grievance is immediately submitted to the Warden without further completion of Step One. (Grigsby Decl. ¶ 15). In essence, an emergency grievance, which the problem solver deems to be an emergency, turns an informal grievance into a Step Two grievance. (Grigsby Decl. ¶ 15). See also AD 1934(IV)(E)(5).
At Step Two, the procedure is slightly different for medical and non-medical grievances. Compare (Grigsby Decl.) with (Buterbaugh Decl.). For non-medical grievances, the Warden or
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the Warden’s designee will consider the grievance, any other documents relevant to the grievance, and respond to the Step Two grievance within 20 business days from receipt. (Grigsby Decl. ¶ 16). After receiving a response from the Warden, if the inmate is not satisfied, he may appeal within 5 business days to the appropriate Chief Deputy/Deputy/Assistant Director who will attempt to resolve the matter or assign an appropriate staff member to do so. (Grigsby Decl. ¶ 17). To complete the appeal, the inmate must state a reason for disagreeing and must date, sign, and write the inmate’s ADC number on the attachment being appealed. (Grigsby Decl. ¶ 18). The grievance process ends when the appropriate Chief Deputy/Deputy/Assistant Director renders a written decision or rejection of an appeal. (Grigsby Decl. ¶ 19). The Chief Deputy/Deputy/Assistant Director has up 30 days to respond. See AD 19-34 § IV(G)(6). Only those non-medical grievances which meet the deadlines and requirements in AD 19-34, and are properly appealed according to the policy, are considered exhausted. (Grigsby Decl. ¶ 20).
For Step Two medical grievances, the Health Services Administrator at the Unit Medical Department will consider the grievance, any other documents relevant to the grievance, and respond within 20 business days from receipt. (Buterbaugh Decl. ¶ 8). After receiving a response from the Health Services Administrator, if the inmate is not satisfied, he may appeal to the Deputy Director for Health and Correctional Programs. (Buterbaugh Decl. ¶ 9). The Deputy Director for Health and Correctional Programs has up 30 days to respond. See AD 19-34 § IV(G)(6). The Deputy Director for Health and Correctional Programs’s written decision or rejection of an appeal is the end of the grievance process. (Buterbaugh Decl. ¶ 12). As with nonmedical grievances, only those medical grievances which meet the deadlines and requirements in AD 19-34 and are properly appealed according to the policy are considered exhausted. (Buterbaugh Decl. ¶ 14).
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Nicholas Frazier. Frazier claims to have filed a Step One grievance on April 18, 2020 (DE 3-8, ¶ 10), three days before filing this lawsuit. He does not assert that grievance concerned COVID-19. And the grievance office at the Varner Super Maximum Security Unit has no record of Frazier submitting any such grievance. (Thompson Decl. [Ex. 39] ¶ 6). ADC also has no record of Frazier filing any COVID-19-related grievances. (Thompson Decl. ¶ 7). Even assuming Frazier had filed a Step One grievance, Frazier has not exhausted any grievances related to the claims he raises in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
Alvin Hampton. On April 13, 2020, Hampton submitted an informal grievance regarding COVID-19, 8 days before filing this lawsuit. (Gray Decl. [Ex. 40] ¶ 6). Hampton submitted another informal grievance regarding COVID-19 on April 19, 2020. (Gray Decl. ¶ 7). By April 21, 2020, the date Hampton filed his complaint, Hampton had not submitted a Step Two grievance regarding COVID-19, let alone fully exhausted any such grievance in accordance with ADC’s inmate grievance procedure. (Gray Decl. ¶ 8). See also (Hampton Decl., [DE 3-10] ¶ 8) (only alleging he “filed a grievance on April 12, 2020”). Accordingly, Hampton has not exhausted any grievances related to the claims in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
Marvin Kent. Kent claims to have submitted various medical grievances, but he does not allege to have submitted any grievances relating to the claims at issue in this lawsuit. (Kent Decl., [DE 3-6] ¶ 3) (alleging he “submitted multiple grievances since December of 2019” which predates the spread of COVID-19). The grievance office at the Varner Super Maximum Security Unit has no record of Kent submitting any COVID-related grievance. (Thompson Decl. ¶¶ 7-8). Kent has not exhausted any grievances related to the claims he raises in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
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Michael Kouri. On April 17, 2020, four days before filing this lawsuit, Kouri submitted an informal grievance regarding COVID-19. (Gray Decl. ¶ 9; See also (Kouri Decl., [DE 3-3] ¶ 16)) (claiming he filed an emergency grievance on April 18, 2020, and received a response, but not claiming he appealed the decision). After the problem solver responded to Kouri’s informal grievance, Kouri filed a Step Two grievance. (Gray Decl. ¶ 10). The Warden responded to Kouri’s grievance on April 20, two days later. (Gray Decl. ¶ 10). By April 21, 2020, the date Kouri filed his complaint, Kouri had not appealed the Warden’s decision, and no written decision on any appeal had been issued. (Grigsby Decl. ¶ 22). Kouri has not exhausted any grievances related to the claims in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
Jonathan Neeley. On April 13, 2020, Neeley submitted an informal grievance regarding COVID-19. (Gray Decl. ¶ 11; See also Neeley Decl., [DE 3-11] ¶ 7) (only alleging he “filed a grievance on April 12, 2020”)). Neeley submitted another informal grievance regarding COVID-19 on April 19, 2020. (Gray Decl. ¶ 12). By April 21, 2020, the date Neeley filed his complaint, Neeley had not submitted a formal grievance regarding COVID-19, let alone fully exhausted any such grievance in accordance with ADC’s inmate grievance procedure. (Gray Decl. ¶ 13). As a result, Neeley has not exhausted any grievances related to the claims in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
Alfred Nickson. Although Nickson claims to have filed a grievance on April 17, 2020 (DE 3-9, ¶ 8), ADC’s grievance office at the Cummins Unit has no record of Nickson submitting any such grievance. (Gibson Decl. [Ex. 41] ¶ 6). ADC also has no record of Nickson filing any COVID-related grievances. (Gibson Decl. ¶ 7). Nickson has not exhausted any grievances related to the claims he raises in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
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Harold “Scott” Otwell. On April 13, 2020, Otwell submitted an informal grievance regarding COVID-19. (Gray Decl. ¶ 14). Otwell submitted another informal grievance regarding COVID-19 on April 19, 2020. (Gray Decl. ¶ 15). By April 21, 2020, the date Otwell filed his complaint, Otwell had not submitted a formal grievance regarding COVID-19, let alone fully exhausted any such grievance in accordance with ADC’s inmate grievance procedure. (Gray Decl. ¶ 16). See also (DE 1 at 10 ¶ 23) (claiming Otwell “filed a grievance” and that the “grievance was denied,” but not alleging Otwell appealed any such “denial”). As a result, Otwell has not exhausted any grievances related to the claims in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
Trinidad Serrato. On April 12, 2020, Serrato submitted an informal grievance regarding COVID-19. (Gray Decl. ¶ 17). Serrato submitted another informal grievance regarding COVID-19 on April 19, 2020. (Gray Decl. ¶ 18). By April 21, 2020, the date Serrato filed his complaint, Serrato had not submitted a Step Two grievance regarding COVID-19, let alone fully exhausted any such grievance in accordance with ADC’s inmate grievance procedure. (Gray Decl. ¶ 19). As a result, Serrato has not exhausted any grievances related to the claims in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
Robert Stiggers. Stiggers claims to have prepared a grievance on April 18, 2020, (Stiggers Decl. [DE 3-7], ¶ 6), three days before filing this lawsuit, but ADC’s grievance office at the Cummins Unit has no record of Stiggers submitting any such grievance. (Gibson Decl. ¶ 8). ADC also has no record of Stiggers filing any COVID-related grievances. (Gibson Decl. ¶ 9). Even taking Stiggers’s allegations as true, Stiggers has not exhausted any grievances related to the claims he raises in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
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Victor Williams. On April 13, 2020, Williams submitted an informal grievance regarding COVID-19. (Gray Decl. ¶ 20; see also (Williams Decl., [DE 3-12] ¶ 7) (only alleging he “filed a grievance on April 12, 2020”)). Williams submitted another informal grievance regarding COVID-19 on April 19, 2020. (Gray Decl. ¶ 21). By April 21, 2020, the date Williams filed his complaint, Williams had not submitted a formal grievance regarding COVID19, let alone fully exhausted any such grievance in accordance with the ADC’s inmate grievance procedure. (Gray Decl. ¶ 22). Williams has not exhausted any grievances related to the claims in this lawsuit. (Grigsby Decl. ¶ 22; Buterbaugh Decl. ¶ 16).
D. Procedural background. Plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold “Scott” Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and an unidentified John Doe are inmates housed at three of 20 units within ADC. (DE 1 at 7-13 ¶¶ 15-35). Plaintiffs filed this putative class action on April 21, 2020, naming 11 separate Defendants alleging ADC’s response to the COVID-19 pandemic violates the Eighth Amendment to the United States Constitution and Title II of the Americans with Disabilities Act. (DE 1 at 42-45 ¶¶ 127-148). More particularly, Plaintiffs allege that two sub-classes of inmates, including a “high-risk subclass” and a “disability subclass,” are at a heightened risk of harm from the virus and seek a myriad of injunctive and declaratory relief, including release from incarceration for inmates within those two subclasses, along with federal-court micromanagement of ADC’s comprehensive response to the COVID-19 pandemic. (DE 1 at 1516 ¶ 41) On the same day they filed their complaint, Plaintiffs filed an emergency motion for a temporary restraining order and preliminary injunction. (DE 2). In their first emergency motion,
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Plaintiffs request the same relief sought in the complaint. (DE 2). This requested relief includes a temporary restraining order, preliminary injunction, or writ of habeas corpus requiring Defendants “to immediately release” members of the two subclasses or transfer them to home confinement, appoint a special master or expert to make recommendations to the Court regarding the number of inmates that can be housed in ADC facilities while following CDC recommendations, and enter an order micromanaging ADC’s response to COVID-19 by requiring Defendants to do 19 different tasks, most of which they are already doing.
Defendants accepted service on April 22, 2020 (DE 4, 7), and the Court ordered Defendants to respond to Plaintiffs’ emergency filing by 5:00 p.m. on April 30, 2020, and set a hearing on the motion for May 7, 2020. (DE 20). On April 27, 2020, Plaintiffs filed a supplemental motion for temporary restraining order. (DE 22). In that motion, Plaintiffs sought similar injunctive relief as in their original motion, with some modifications. The supplemental motion still asks the Court to micromanage ADC’s response to COVID-19, but does not seek inmate release or ask the Court to appoint a special master or expert to monitor ADC’s response. As discussed in detail above, ADC has already implemented many of the measures Plaintiffs seek, and more, in its efforts to address the risk posed by COVID-19. And the other measures Plaintiffs seek are not feasible or are not within the control of ADC, such as the provision of medical services to inmates.
ARGUMENT The Supreme Court and the Eighth Circuit have made clear that injunctive relief is an extraordinary and drastic remedy and should not be granted unless Plaintiffs have clearly carried their burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should
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not be granted unless the movant, by a clear showing, carries the burden of persuasion.”) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, 129–130 (2d ed. 1995)); Sanborn Mfg. Co., Inc. v. Campbell/Hausfield Scott Fetzer Co., 997 F.2d 484, 485-96 (8th Cir. 1983) (noting the burden on the movant “is a heavy one”) (citing Dakota Indus., Inc. v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991)).
In resolving both preliminary injunction and TRO motions, courts consider: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on the other litigant; (3) the probability that the movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc); S.B. McLaughlin & Co. v. Tudor Oaks Condo. Project, 877 F.2d 707, 708 (8th Cir. 1989) (noting Dataphase standard generally governs TRO motions).
I. Plaintiffs lack standing to seek an order compelling Defendants to do what they do already; Plaintiffs cannot obtain the balance of their relief in this motion.
The goal of preliminary relief “is to maintain the status quo.” Kelley v. First Westroads Bank, 840 F.2d 554, 558 (8th Cir. 1988) (TRO); see also Butler v. Fed. Nat’l Mortg. Ass’n, 557 F. App’x 593, 596 (8th Cir. 2014) (“A temporary restraining order is just that: it merely preserves the status quo for a short time.”); Kansas City S. Transp. Co. v. Teamsters Local Union #41, 126 F.3d 1059, 1066 (8th Cir. 1997) (“The primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full, effective relief.”)
Here, many of the measures that Plaintiffs seek are already in place and Plaintiffs therefore lack standing to seek an order—either a TRO or PI—compelling Defendants to take
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those actions.3 And to the extent Plaintiffs seek to require Defendants to take additional actions, Plaintiffs’ request would not preserve the status quo; it would fundamentally alter it from what it is or ever has been. As such, Plaintiffs’ request fails as a matter of law and should be rejected.
II. Plaintiffs are unlikely to succeed on the merits. A. Plaintiffs’ habeas claims have no chance of success. 1. Condition-of-confinement claims are not cognizable in habeas. Under the Prison Litigation Reform Act (PLRA), Plaintiffs’ failure to exhaust their
administrative remedies bars their claims under Section 1983 and the Americans with Disabilities Act. See infra, Argument I.B; 42 U.S.C. 1997e(a) (“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.”). Recognizing that obstacle, Plaintiffs attempt to recast a portion of their claims as habeas claims, where the PLRA’s exhaustion requirements would not apply.4 Here too, however, Plaintiffs encounter an insurmountable obstacle: In the Eighth Circuit, “a habeas petition is not a proper remedy for a condition-of-confinement claim.” Holt v. Kelley, No. 5:18-cv-00264, 2019 WL 3928633, at *1 (E.D. Ark. Aug. 18, 2019) (Baker, J.) (citing Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014)).
Plaintiffs’ habeas claim challenges their conditions of confinement. They argue that, due to certain temporary conditions, a putative subclass of medically vulnerable plaintiffs have an
3 Importantly, Plaintiffs specifically lack standing to seek any relief whatsoever against Defendant Jerry Bradshaw, the Director of ADC’s Division of Community Corrections. Not one of the Plaintiffs is in that Division’s custody.
4 Given the nature of Plaintiffs’ claims, however, the PLRA’s conditions on the entry of a “prisoner release order” would govern regardless of whether they are treated as habeas claims or Section 1983 claims. See n.7, infra.
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Eighth Amendment right to be transferred from prisons to home confinement. See DE 1 at 43 ¶ 138; DE 3 at 56 (memorandum in support of TRO/PI motion) (clarifying that “Plaintiffs do not seek unconditional release,” but only seek, at maximum, “transfer[] to their homes to self-isolate, while still in ADC custody . . . until the emergency abates”) (emphasis added)); id. at 36 (describing Plaintiffs’ request as one for “transfer[] on medical furlough to home confinement”). Plaintiffs do not challenge their convictions; they “acknowledge that they are in custody after having been found guilty of” particularly heinous crimes. Id. at 56. Nor do they seek a reduction in sentence. Rather, Plaintiffs say, they seek a “temporary” change in where that sentence is served. Id. at 45 (requesting “temporary medical furlough” to home confinement).
That claim is not cognizable in habeas. In Spencer v. Haynes, the Eighth Circuit held that where a prisoner’s “constitutional claim relates to the conditions of his confinement . . . a habeas petition is not the proper claim to remedy his alleged injury.” 774 F.3d at 470. And that is how this Court understood Spencer in Holt. See Holt, 2019 WL 3928633, at *1-2 (reading Spencer as “holding that a habeas petition is not a proper remedy for a condition-of-confinement claim,” and “declin[ing] Mr. Holt’s invitation to distinguish or decline to follow . . . Spencer”). Plaintiffs’ claim “relates to the conditions of their confinement,” “as distinct from the fact or length of the confinement.” Spencer, 774 F.3d at 470 (quoting Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979)). Their claim is that, for some medically vulnerable prisoners, confinement in prison conditions, as opposed to the more socially isolated conditions of their homes, poses such a great risk of harm that it violates the Eighth Amendment. As such, they cannot bring that claim in a habeas proceeding.
Moreover, the relief that Plaintiffs seek is not cognizable in habeas. In Kruger v. Erickson, 77 F.3d 1071 (8th Cir. 1996), the Eighth Circuit held that “[i]f the prisoner is not
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challenging the validity of his conviction or the length of his detention, then a writ of habeas corpus is not the proper remedy . . . [and] the district court lacks the power or subject matter jurisdiction to issue the writ.” Id. at 1073. The Eighth Circuit reaffirmed that rule in Spencer and held that habeas relief was unavailable in that case because Spencer did “not challenge his conviction, nor . . . seek a remedy that would result in an earlier release.” Spencer, 774 F.3d at 469. Plaintiffs acknowledge the validity of their convictions and thus do not seek a writ that would invalidate them. Nor do they seek a writ that would reduce “the length of their state custody.” Kruger, 77 F.3d at 1073. Rather, under Plaintiffs’ proposed remedy they would “still [be] in ADC custody,” DE 3 at 56, just in a different location: their homes. During that “temporary medical furlough” to “home confinement,” id. at 36, 45, they would continue to serve their sentences, whose length Plaintiffs do not challenge in any way.
Plaintiffs will no doubt contend, as other prisoners pressing COVID-19-related habeas claims have, that a condition-of-confinement claim that seeks release from prison can be brought in habeas—Spencer and Kruger notwithstanding. That argument fails for three reasons.
First, to state the obvious, Plaintiffs’ claim is a condition-of-confinement claim, whatever relief it seeks, and Spencer unequivocally bars such claims from being brought in habeas. See Spencer, 774 F.3d at 468 (“Our precedent precludes conditions-of-confinement claims using the vehicle of a habeas petition.”). Plaintiffs cannot ask this Court to essentially discard Spencer for a subset of condition-of-confinement claims.
Second, as already noted, Plaintiffs do not even seek temporary release from state custody; they seek only a temporary change in that custody’s location. And numerous decisions in this circuit—including this Court’s own previous decisions—hold that under Spencer and
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Kruger, requests to change custodial locations are not cognizable in habeas.5 Additionally,
courts that have specifically addressed COVID-19-based claims for this sort of “release” have
held they cannot be brought in habeas. See Livas v. Myers, — F. Supp. 3d —, 2020 WL
1939583, at *8 (W.D. La. Apr. 22, 2020) (“[E]ven if it is theoretically possible to bring
conditions of confinement claims under § 2241 because petitioners seek ‘release’ from
confinement, such is not the case here. In actuality, Petitioners do not seek release from custody
. . . but seek to force this Court to order BOP to assign them to home confinement.”).
Likewise, other circuits have held condition-of-confinement claims seeking release from
prison to home furlough or work-release cannot be brought in habeas because they are no
different from other condition-of-confinement claims. See Wright v. Cuyler, 624 F.2d 455, 458
(3d Cir. 1980) (rejecting habeas as vehicle for home-furlough claim because “a prisoner . . . who
is challenging his failure to be admitted to [a] home furlough program, is attacking not the
ultimate duration of his confinement but rather the conditions under which he is confined”);
Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (rejecting habeas as vehicle for work-
5 See Watt v. Rivera, No. 2:15CV00081-JLH-JTR, 2016 WL 1689004, at *3 (E.D. Ark. Apr. 1, 2016), report and recommendation adopted, 2016 WL 1643837 (E.D. Ark. Apr. 25, 2016) (holding that because a prisoner’s claim “concern[ed] only where the remainder of his . . . sentence should be served . . . [he] ha[d] raised a conditions-of-confinement claim that cannot be properly brought and maintained in a federal habeas action” (emphasis added)); see also Smith v. Warden of Duluth Prison Camp, No. 18-CV-2555 (WMW/LIB), 2019 WL 3325837, at *3 (D. Minn. Apr. 23, 2019), report and recommendation adopted, 2019 WL 3323063 (D. Minn. July 24, 2019) (claim could not be heard in habeas because “Petitioner does not present any challenge to the validity of his conviction or the length of his detention; rather, Petitioner solely challenges the location where the remainder of his confinement should be carried out” (emphasis added)); Brakeall v. Kaemingk, No. 4:16-CV-04057-KES, 2016 WL 4014600, at *11 (D.S.D. July 26, 2016) (“A plaintiff seeking speedier release must use habeas remedies. But, ‘conditions of confinement including the issue of a less restrictive custodial setting may be addressed in a civil rights action.’” (citation omitted) (emphasis added) (quoting Brand v. Gibson, No. 4:05CV3194, 2006 WL 2009110, at *2 (D. Neb. July 17, 2006)).
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release claim because “[t]he prisoner remains confined” and “only the location differs—not the quantum of confinement”).
Third and last, even if a change in the location of custody from prison to home were tantamount to a fundamental change in the nature of Plaintiffs’ custody, Plaintiffs still could not bring a habeas claim because they do not ultimately attack “the fact or length” of their custody. Spencer, 774 F.3d at 470. They seek a temporary medical furlough while the COVID-19 pandemic persists, after which they would return to prison and serve the full, unreduced length of their sentences. It is not even clear that Plaintiffs’ proposed remedy would reduce the total amount of time they spend “in prison.”
Plaintiffs claim that a number of courts have “provided precisely the relief Plaintiffs ask for here.” DE 3 at 57; see id. at 56-57 (collecting cases). But none of the cases they cite suggest the relief they seek is available in habeas in this Circuit. None of Plaintiffs’ authorities were decided in the Eighth Circuit, so none were controlled by Spencer and Kruger. The several COVID-19 cases Plaintiffs cite where district courts granted habeas relief, as opposed to Section 1983 relief,6 come out of circuits that, unlike the Eighth, allow conditions-of-confinement claims in habeas. See, e.g., Thakker v. Doll, — F. Supp. 3d —, 2020 WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020) (entertaining habeas claims because the Third Circuit “ha[d] condoned conditions of confinement challenges through habeas”); Basank v. Decker, — F. Supp. 3d —, 2020 WL
6 Some of the decisions Plaintiffs cite only granted relief on prisoners’ section 1983 claims, not habeas relief. See Cameron v. Bouchard, No. CV 20-10949, 2020 WL 1952836, at *2 (E.D. Mich. Apr. 23, 2020) (disclaiming reliance on prisoners’ habeas theories in granting relief, notwithstanding that their suit was filed as a habeas petition); Valentine v. Collier, No. 4:20-CV-1115, 2020 WL 1916883, at *9 (S.D. Tex. Apr. 20, 2020), stayed pending appeal, — F.3d —, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) (granting relief—subsequently stayed for lack of administrative exhaustion—only on prisoners’ Section 1983 claims).
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1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (citing Second Circuit authority holding that “habeas . . . is the appropriate vehicle for an inmate in federal custody to challenge conditions . . . that pose a threat to his medical wellbeing”). The Eighth Circuit has expressly acknowledged that its precedent conflicts with the circuit precedent governing both Thakker and Basank. See Spencer, 774 F.3d at 470 n.6 (noting that unlike this Circuit and five others, the Second and Third Circuits “stand in the camp of allowing conditions-of-confinement claims to be brought in the habeas corpus context”).
By contrast, district courts in circuits with precedent barring condition-of-confinement claims in habeas have held COVID-19 claims for release to home confinement are conditions-ofconfinement claims that cannot be brought in habeas. See Benavides v. Gartland, No. 5:20-cv46, 2020 WL 1914916, at *5 (S.D. Ga. Apr, 18, 2020) (holding that under Eleventh Circuit precedent barring condition-of-confinement claims in habeas, prisoners could not seek release from prison on account of COVID-19 in habeas); Gayle v. Meade, No. 20-21553, 2020 WL 1949737, at *24-25 (S.D. Fla. Apr. 22, 2020) (same). In short, while Plaintiffs can cite favorable authority from jurisdictions that simply reject the Spencer rule, they do not cite a single case holding that under the Spencer rule (or rules like it), conditions-of-confinement claims seeking temporary transfer to home confinement are cognizable in habeas. Plaintiffs claims, therefore, fail as a matter of law.
2. Were Plaintiffs’ habeas claim cognizable, it would be barred for lack of exhaustion.
Even if Plaintiffs had brought their habeas claim in a circuit where condition-ofconfinement claims were cognizable in habeas, their claim would be barred for failure to exhaust. Plaintiffs style their habeas claim as one under 28 U.S.C. 2241. DE 1 at 43 ¶ 137. But in the Eighth Circuit, “[28 U.S.C.] § 2254 is the only means by which ‘a person in custody
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pursuant to the judgment of a State court’ may raise challenges to the validity of his conviction or sentence or to the execution of his sentence.” Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (en banc) (emphasis added) (citing Crouch v. Norris, 251 F.3d 720, 722-23 (8th Cir. 2001)). Indeed, Singleton specifically rejected a state prisoner’s argument that his habeas “claim [wa]s properly before the court under authority of § 2241,” id. at 1022, as did Crouch. See 251 F.3d at 722 (“According to Crouch, his proposed petition is properly classified as a habeas action under 28 U.S.C. § 2241 . . . We disagree.”).
Because in the Eighth Circuit, prisoners in custody pursuant to state-court judgments can only seek habeas relief under Section 2254, “[t]he petition at bar must . . . be construed as one pursuant to 28 U.S.C. 2254.” Jones v. Norris, No. 5:09CV00353, 2010 WL 346440, at *5 (E.D. Ark. Jan. 25, 2010) (Moody, J.); see also Murphy v. Bradly, No. 1:19cv00091, 2019 WL 5777712, at *1 n.1 (E.D. Ark. Sept. 20, 2019) (Volpe, J.), report and recommendation adopted, 2019 WL 5755886 (E.D. Ark. Nov. 5, 2019) (Miller, J.) (“constru[ing]” habeas petition that “purport[ed] to be pursuant to 28 U.S.C. § 2241 . . . as being pursuant to § 2254” because “where a habeas petitioner is in custody pursuant to a state court judgment, she ‘can only obtain habeas relief through § 2254, no matter how [her] pleadings are styled.’” (quoting Crouch, 251 F.3d at 723).
As a Section 2254 petition, however, Plaintiffs’ would-be habeas petition hits an insurmountable roadblock: Section 2254’s prohibition against granting relief “unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State”—which the “applicant shall not be deemed to have [done], within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. 2254(b)(1)(A), 2254(c).
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Plaintiffs do have both the right under Arkansas law to raise, and an available procedure by which to raise, their deliberate-indifference claims: the Arkansas Civil Rights Act, Ark. Code Ann. 16-123-105, which this Court has interpreted as providing identical protections to Section 1983. See Hess v. Ables, No. 5:11-cv-00249, 2012 WL 3882184, at *14 (E.D. Ark. Sept. 6, 2012) (Baker, J.), aff’d, 714 F.3d 1048, 1054 (8th Cir. 2013) (upholding this Court’s analysis). Indeed, the Arkansas Supreme Court has decided, under the Arkansas Civil Rights Act, deliberate-indifference claims. See Early v. Crockett, 436 S.W.3d 141 (Ark. 2014); Gentry v. Robinson, 361 S.W.3d 788 (Ark. 2009). Moreover, Plaintiffs could even have brought their Section 1983 claims themselves in state court. See Early, 436 S.W.3d at 147-50 (entertaining Section 1983 deliberate-indifference claims). And though Plaintiffs might argue that fully exhausting their claims would have taken too long, that assumes they would have been rejected; nothing would have barred Plaintiffs from seeking emergency relief in state circuit court, just as they have done here. Instead, Plaintiffs simply elected to bring identical claims in a federal forum before exhausting them or even bringing them in state court. Section 2254 does not give them that option.
This Court cannot even reach Plaintiffs’ non-exhaustion under Section 2254, because it “lacks the power or subject matter jurisdiction to issue the writ” on Plaintiffs’ condition-ofconfinement claims. Kruger, 77 F.3d at 1073. However, were the Court to conclude it has the power to issue the writ, district courts in circuits that do permit condition-of-confinement habeas claims have held they could not grant habeas relief on unexhausted COVID-19 claims. See Money v. Pritzker, — F. Supp. 3d —, 2020 WL 1820660, at *22 (N.D. Ill. Apr. 10, 2020) (“[W]aiving [habeas exhaustion requirements] here—when state courts clearly were available . . . —would turn the habeas system upside down.”); Mays v. Dart, — F. Supp. 3d —, 2020 WL
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1812381, at *6 (N.D. Ill. Apr. 9, 2020) (holding a “habeas corpus claim . . . barred due to [prisoners’] failure to exhaust available state court remedies,” and rejecting their futility arguments, reasoning that “it is rather incongruous to call an otherwise available process unnecessarily time-consuming or futile when one has made no effort to initiate it”); PetryBlanchard v. Louis, NO. 4:20-CV-P49, 2020 WL 1609493, at *4 (W.D. Ky. Apr. 1, 2020) (holding COVID-19 habeas claims barred for non-exhaustion, notwithstanding that state courts were temporarily closed for all but emergency matters, because prisoner’s claim purported to be an emergency matter). To Defendants’ knowledge, no court that has addressed habeas exhaustion in a COVID-19 case has excused it and neither can this Court.
B. Plaintiffs’ Section 1983 and ADA claims have no chance of success. 1. Under the PLRA, Plaintiffs’ failure to exhaust their administrative remedies bars their Section 1983 and ADA claims.
Unable to bring their claims in habeas, Plaintiffs’ only remedy in federal court is a civilrights claim. There, however, the PLRA applies. Its provision barring prisoner claims that have not been administratively exhausted bars this action in its entirety. Each Plaintiff has unarguably failed to exhaust his administrative remedies, and any argument the Plaintiffs may make that those remedies were unavailable has no realistic chance of success.
The PLRA provides that “[n]o 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). “[A] court may not excuse a failure to exhaust” under the PLRA, “even to take [special] circumstances into account.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). The only “exception to [Ross’s] mandatory exhaustion” requirement is the one contained
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in the PLRA’s text: the requirement is limited to “available” administrative remedies and therefore does not require prisoners to “exhaust unavailable ones.” Id. at 1858.
But remedies do not become unavailable merely because a prisoner “want[s] a type of relief that the administrative process does not provide.” Id. at 1857. Rather, under Ross, to be unavailable, a grievance procedure must not be “‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (emphasis added) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). Generally, prisoners can only meet this demanding test in three types of circumstances: “(1) where ‘[a remedy] operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates,’ (2) where the ‘administrative scheme’ is ‘so opaque’ as to be practically ‘incapable of use,’ and (3) where “administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.’” Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019) (quoting Ross, 136 S. Ct. at 1858-59).
As set forth above, the ADC has a well-publicized three-step grievance process. As the Gibson, Gray, and Thompson’s declarations set forth, and as Plaintiffs’ own declarations confirm: (1) the first COVID-19 related grievance any of the Plaintiffs submitted was filed only nine days before the filing of this action; (2) several Plaintiffs have filed no grievance; (3) only one Plaintiff has proceeded past the grievance process’s first step; and (4) that Plaintiff Michael Kouri had not proceeded to, much less completed, the process’s third and last step before filing this action. Thus, none of the Plaintiffs had exhausted their administrative remedies before bringing this action, and the PLRA therefore bars their claims. Indeed, even if the Plaintiffs were to fully exhaust their administrative remedies tomorrow, the Court could not grant them relief; their failure to exhaust before filing this action is dispositive. See Johnson v. Jones, 340
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F.3d 624, 627 (8th Cir. 2003) (“Under the plain language of section 1997e(a), an inmate must exhaust administrative remedies before filing suit in federal court . . . If exhaustion was not completed at the time of filing, dismissal is mandatory.”).
Plaintiffs cannot argue that ADC’s grievance process is a generally unavailable remedy. Both the Eighth Circuit and this Court have routinely held that ADC’s grievance process is an available remedy that prisoners must exhaust. See, e.g., Muhammad, 933 F.3d at 1000-01 (rejecting arguments that the ADC’s grievance process is a “dead end” or so “opaque” that it is “practically incapable of use”); Guess v. Ratcliff, No. 5:19-cv-00292, 2020 WL 1492798, at *1-2 (E.D. Ark. Mar. 26, 2020) (Baker, J.) (holding the ADC’s process was an available remedy that a prisoner was required to exhaust). To prevail, then, Plaintiffs must show that ADC’s administrative remedies were somehow specifically made unavailable to them. But nothing in Plaintiffs’ declarations supports such a finding.
Taking Plaintiffs’ possible theories of unavailability in turn, one of Plaintiffs’ declarations states that in response to their request for release, they received a response stating that release dates are not grievable. DE 3-4 at 3 ¶ 13, Decl. of Trinidad Serrato. That is true; a prisoner cannot obtain release through the grievance process. But, as noted above, the mere unavailability of “the remedial action a plaintiff demands” does not make an administrative remedy unavailable. Rather, so “as long as ‘the administrative process has authority to take some action in response’” to a prisoner’s grievance, “administrative remedies are ‘available.’” Muhammad, 933 F.3d at 1000 (quoting Booth, 532 U.S. at 737-38). And ADC officials unquestionably have authority to take any number of medical and risk-mitigating actions in response to COVID-19-related grievances.
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Second, Plaintiff Kouri’s declaration appears possibly intended to invoke Ross’s third category of unavailable procedures, those where “administrators thwart inmates from taking advantage of a grievance process through . . . intimidation.” Ross, 136 S. Ct. at 1860. There, Plaintiff Kouri alleges that when he signed for the response to his informal Step One grievance, a correctional officer confiscated his pen, in what he believes was retaliation for filing his grievance. DE 3-3 at 3 ¶ 16. If that incident occurred—and it is the only one of its kind Plaintiffs allege—it obviously did not thwart Plaintiff Kouri from taking advantage of the grievance process to the point of rendering it unavailable. For after the alleged confiscation of his pen, Plaintiff Kouri successfully completed Step Two of the grievance process—the only Plaintiff to have done so. See Gray Decl. ¶ 10.
Third, like other plaintiffs elsewhere, Plaintiffs largely rely on a supposed imminent danger exception to exhaustion. Indeed, the only COVID-19 case Plaintiffs cite that addressed the PLRA’s exhaustion requirement (the others either granting habeas relief in Circuits that permit condition-of-confinement habeas claims, or not being presented with a PLRA exhaustion defense) rested on this theory. See Valentine v. Collier, No. 4:20-CV-1115, 2020 WL 1916883, at *9 (S.D. Tex. Apr. 20, 2020) (asserting that “[w]here, as here, the circumstances present an imminent danger, TDCJ’s lengthy administrative procedure . . . presents no ‘possibility of some relief’”), stayed pending appeal, — F.3d —, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) (“Valentine II”). But the Fifth Circuit rejected this theory in an order staying the district court’s decision in Valentine. See Valentine II, 2020 WL 1934431, at *7. In any event, this theory does not help Plaintiffs.
To start, the Eighth Circuit has squarely held that even when a claim satisfies the PLRA’s textually codified “imminent danger” exception to the three-strikes rule, see 28 U.S.C. 1915(g)
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(providing an exception if “the prisoner is under imminent danger of serious physical injury”), that “claim . . . must nonetheless meet the mandatory exhaustion requirements of 42 U.S.C. § 1997e(a).” McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004). As this Court has recognized, in the Eighth Circuit, there simply is no “exception to the PLRA’s exhaustion requirements . . . where an inmate feels that he is in imminent danger of harm.” Brazell v. Ruh, No. 5:14-cv-00238, 2015 WL 2452410, at *3 (E.D. Ark. May 21, 2015) (Baker, J.).
Moreover, even supposing the Court were at liberty to recognize an imminent-danger exception, it would not apply here. The only caselaw suggesting such an exception, Fletcher v. Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010), merely theorized that an administrative remedy could be incapable of remedying an imminent danger, and thus “unavailable,” if an administrative procedure forbade prison officials from acting until some lengthy period of time ran. See Fletcher, 623 F.3d at 1173 (“Suppose the prison requires that its officials be allowed two weeks to respond to any prisoner grievance and that before the two weeks are up there can be no action taken to resolve it.” (emphasis added)).
But while in that fanciful hypothetical, grievance procedures might be “unavailable, that’s not the case here. Indeed, no prison grievance procedure like that exists. And that’s certainly not true of the ADC’s procedures. Rather, ADC’s policy, like all grievance policies, requires officials to act on a grievance no later than some period of time. It does not prohibit them from acting sooner, and in cases of emergencies it requires they act as soon as possible and no later than in 24 hours. ADC, then, like, all state prisons, offers a grievance procedure that is more than “capable,” Ross, 136 S. Ct. at 1859, of responding to imminent dangers in an appropriately urgent fashion.
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For that reason—with the exception of the Valentine district court, whose order the Fifth Circuit stayed—every court to consider the imminent danger theory in a COVID-19 case has concluded it does not excuse prisoners from exhausting real-world grievance procedures. See Valentine II, 2020 WL 1934431, at *7 (“TDCJ is empowered to act on a grievance any time up to—not after, as in Fletcher—the statutory limit. Relief by TDCJ therefore remains possible (and the procedure available), even if TDCJ has not acted as swiftly as Plaintiffs would like.”); id. at *8 (Higginson, J., concurring in the judgment) (concluding the theory would only apply if the plaintiffs had “no opportunity to expedite emergency medical grievances,” which the record did not support); Nellson v. Barnhart, No. 20-cv-00756, 2020 WL 1890670, at *4 (D. Colo. Apr. 18, 2020) (rejecting COVID-19 claimant’s imminent-danger argument where he failed to exhaust an emergency grievance procedure, and noting that, whatever the theoretical maximum duration of the exhaustion procedure, he could potentially “get relief at any stage of the administrative process”).7
At times like these, insisting on compliance with exhaustion requirements can seem inequitable—to prisoners, their advocates, and even courts understandably concerned for their welfare. But as the Third Circuit recently explained, it is precisely at times like these that “strict compliance with . . . exhaustion requirement[s] takes on added—and critical—importance.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). If courts could grant emergency relief
7 The Valentine district court reasoned that it could take Texas prison officials up to three weeks to respond to plaintiffs’ claims, and it concluded that fact rendered their grievance process unavailable to remedy imminent harms. See Valentine, 2020 WL 1916883, at *9. As the Fifth Circuit explained, the fatal flaw in this argument is that Texas prison officials were equally capable under their procedure of acting sooner. See Valentine II, 2020 WL 1934431, at *7. Thus, they were not incapable of addressing imminent dangers—as they would have to be to make the process “unavailable” with respect to imminent-danger claims. See Ross, 136 S. Ct. at 1859 (defining an “unavailable” procedure as one that is not capable of use to obtain some relief for the matter at issue).
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on individual prisoners’ unexhausted claims, before those in charge have a chance to weigh those claims in light of their objective of ensuring prisoner and public safety, the relief courts issue, however well-intended, will likely be counterproductive.
2. The PLRA’s prisoner release order provisions bars Plaintiffs’ requests for release.
As already explained, Plaintiffs’ condition-of-confinement claims for release from prison to home confinement are not cognizable in habeas and can only be brought in a civil-rights action. In a civil-rights action, however, Plaintiffs’ request for release is barred by the PLRA’s stringent restrictions on prisoner release orders.
The PLRA provides that “[i]n any civil action with respect to prison conditions, no court shall enter a prisoner release order unless” certain demanding conditions are met.8 18 U.S.C. 3626(a)(3)(A). Those conditions apply here because the relief Plaintiffs seek is “a prisoner release order”—a defined term in the PLRA that “includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. 3626(g). Notably, the definition does not require release from state custody altogether—just release from prison.
8 Were the Court to recognize a right to proceed in habeas on Plaintiffs’ request for release, this language would include Plaintiffs’ habeas petition. The PLRA defines a “civil action with respect to prison conditions” to include not just civil actions, but “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but . . . not [to] include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. 3626(g)(2) (emphasis added). It notably does not exclude habeas “proceedings” that, like Plaintiffs’, do not challenge the fact or duration of confinement in prison, and was plainly intended to capture condition-of-confinement habeas claims in those Circuits that—unlike the Eighth—allow them. See Mays v. Dart, — F. Supp. 3d —, 2020 WL 1987007, at *20 (N.D. Ill. Apr. 27, 2020)
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The order Plaintiffs seek here—insofar as it would provide for release from prison, as Plaintiffs request for a putative subclass—is a temporary restraining order or preliminary injunction that would both “direct[] the release from . . . a prison” and have at least the “effect,” if not the purpose, “of reducing or limiting the prison population.” It is, therefore, plainly a prisoner release order. See Brown v. Plata, 563 U.S. 493, 511 (2011) (holding that even an order that did not “necessarily require the State to release any prisoners” was a prisoner release order where it limited prison population to 137.5% of design capacity, thus requiring the state to either transfer prisoners, release them, or build new prisons).
Because the portion of the TRO/PI Plaintiffs seek that would order release from prison is a “prisoner release order,” it is subject to the PLRA’s conditions on entry of such orders. And Plaintiffs cannot meet those requirements.
First, in order to obtain a prisoner release order, “a court [must] ha[ve] previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order,” and “the defendant [must] ha[ve] had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. 3626(a)(3)(A)(i), (ii); see Brown, 563 U.S. at 512, 514-16. No court has previously entered an order for lesser relief that sought to remedy, and failed to remedy, the alleged Eighth Amendment COVID-19-related violations for which Plaintiffs seek release.
Second, if that first condition is met, a prisoner release order can “be entered only by a three-judge court.” 18 U.S.C. 3626(a)(3)(B). That requirement applies to emergency relief. The statute’s definition of a prisoner release order defines the term to “include[e] a temporary restraining order or preliminary injunctive relief.” 18 U.S.C. 3626(g). An individual “Federal judge” who “believes that a prison release order should be considered may . . . request the
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convening of a three-judge court to determine whether a prisoner release order should be entered,” 18 U.S.C. 3626(a)(3)(D), or transmit a plaintiff’s request for a three-judge court to their Circuit’s chief judge upon a showing that the prior-order requirement has been satisfied. See 18 U.S.C. 3626(a)(3)(C) (requiring plaintiff to file “materials sufficient to demonstrate that the requirements of subparagraph (A) have been met”), 28 U.S.C. 2284(b)(1). But that is all an individual district judge may do insofar as the entry of a prisoner release order is concerned.
Every court to address the issue in recent weeks has held that requests for release from prison to less restrictive custody on account of COVID-19 are requests for prisoner release orders that must satisfy the provisions just mentioned. See Coleman v. Newsom, — F. Supp. 3d —, 2020 WL 1675775, at *4 (E.D. Cal. Apr. 4, 2020) (three-judge court); id. at *9 (Mueller, J., concurring); Mays v. Dart, — F. Supp. 3d —, 2020 WL 1987007, at *30 (N.D. Ill. Apr. 27, 2020) (rejecting argument that a request for release from prison did not seek a prisoner release order because plaintiffs would remain in less restrictive state custody); Plata v. Newsom, — F. Supp. 3d —, 2020 WL 1908776, at *10-11 (N.D. Cal. Apr. 17, 2020) (same); Money v. Pritzker, — F. Supp. 3d —, 2020 WL 1820660, at *12-14 (N.D. Ill. Apr. 10, 2020) (rejecting that and other arguments that COVID-19-based requests for release from prison did not seek a prisoner release order in detail).9
Likewise, every court to consider the issue has held the PLRA’s prisoner release order provisions bar COVID-19-based requests for release. See Coleman, 2020 WL 1675775, at *4-7 (holding prisoners’ COVID-19 claims asserted different constitutional violations than those
9 It is difficult to imagine what arguments Plaintiffs might make that a request to literally release a sizable putative subclass of prisoners from prison is not a request for a prisoner release order. But should Plaintiffs make any argument to that effect, Defendants commend the comprehensive discussions in Money, Plata and Mays of why such requests do seek prisoner release orders to the Court’s attention.
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previously litigated before the three-judge court, such that the court’s prior orders in plaintiffs’ overcrowding suit did not satisfy the prior-order requirement); Plata, 2020 WL 1908776, at *10 (“To the extent Plaintiffs seek an order requiring inmate releases or an order requiring transfer of inmates to non-CDCR facilities, this Court lacks authority to grant that relief. A ‘prisoner release order’ may be issued only by a three-judge court.”); Money, 2020 WL 1820660, at *14 (denying release for lack of a less intrusive prior order and lack of authority to issue one as a single judge); Mays, 2020 WL 1987007, at *32-34 (recognizing lack of authority to grant release, and declining to request convening of a three-judge court despite entry of less intrusive prior order because it had not given that 18-day-old order a reasonable time to succeed). This Court too cannot grant Plaintiffs release from prison under the auspices of Section 1983 or the ADA.
3. Plaintiffs have no likelihood of success on their deliberate-indifference claims. Even if the Court could reach the merits of Plaintiffs’ procedurally barred and unexhausted deliberate-indifference claims for release, or their equally unexhausted claims for lesser measures, Plaintiffs would still be extremely unlikely to succeed on the merits. To prevail on an Eighth Amendment deliberate-indifference claim, a prisoner must, first, be exposed to a substantial risk of serious harm so grave that it violates the Eighth Amendment’s ban of cruel and unusual punishments. See Farmer v. Brennan, 511 U.S. 825, 832-34 (1994). Second, the prison officials he sues must be aware of that risk and deliberately disregard it by taking no action or grossly inadequate action that they know is inadequate to abate it. See Washington v. Denney, 900 F.3d 549, 559 (8th Cir. 2018); Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010).
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On the first, objective element of this test, ADC officials’ conscientious efforts have mitigated Plaintiffs’ risk of COVID-19 exposure to levels that, while not zero, cannot conceivably constitute cruel and unusual punishment. On the second, subjective element, even if the Court were to conclude that the risk of COVID-19 exposure in ADC prisons is so high as to violate the Eighth Amendment, Defendants have hardly disregarded that risk. They have taken a panoply of preventative measures that, far from grossly inadequate, are abundantly reasonable. And their declining to take the few measures Plaintiffs seek that have not been implemented is equally reasonable, amply justified by safety concerns and flat-out unfeasibility, and, at most, only amounts to a disagreement with Plaintiffs about the best mitigation response.
a. Plaintiffs’ risk of harm does not rise to the level of a constitutional violation. In the minerun of deliberate-indifference cases, a prisoner suffers some serious medical harm. He sues for damages and alleges that, before the harm occurred, he bore a substantial risk of that harm that prison doctors or officials knew of and deliberately disregarded. The inquiry is a retrospective one. This case is somewhat different. Plaintiffs do not suffer from COVID-19 disease or a coronavirus infection. Instead, they claim that they face a risk of future harm and that Defendants are allegedly indifferent to that risk. And they claim that risk amounts to a cruel and unusual punishment and seek prospective relief. Defendants agree that the Supreme Court recognized such prospective relief claims in Helling v. McKinney, 509 U.S. 25 (1993), and that Helling provides a useful (indeed, controlling) framework through which to analyze them. See DE 3 at 25. But there are important differences between such claims and traditional deliberate-indifference claims for retrospective relief. Most importantly, the objective inquiry in a case like this asks not whether Plaintiffs bore an unconstitutionally intolerable risk of COVID-19 at some point in the past (such as last month or
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even last week), but whether, “after accounting for the protective measures [ADC] has taken, the Plaintiffs have . . . shown a substantial risk of serious harm that amounts to cruel and unusual punishment,” as that risk exists today. Valentine II, 2020 WL 1934431, at *3 (emphasis added) (internal quotation marks omitted).
In Helling, a prisoner claimed that he was exposed to secondhand cigarette smoke, that the exposure posed serious risks of harm to his future health, and that those risks, and the prison’s deliberate indifference to them, violated the Eighth Amendment. The Court held a deliberate-indifference claim of that kind was cognizable in theory, but it set a high bar for the level of risk the prisoner would have to prove on remand that is highly relevant here.
The Court wrote, first, that the prisoner would have to prove that “he himself is being exposed to unreasonably high levels of ETS [environmental tobacco smoke].” Helling, 509 U.S. at 35 (emphasis added). The Court observed that it was “[p]lainly relevant to this determination” that the prisoner once was, but now was “no longer the cellmate of a five-pack-a-day smoker.” Id. The Court added that the prison’s new smoking policy, instituted after the start of the litigation, might “minimize the risk” to the prisoner “and make it impossible for him to prove that he will be exposed to unreasonable risk . . . or that he is now entitled to an injunction.” Id. at 36.
Next, the Court held that the prisoner would have to do still more than prove, by “scienc[e] and statistic[s],” the “seriousness of the potential harm and the likelihood” that it “will actually be caused by exposure to ETS.” Id. The prisoner would have to satisfy the court that the risk he proved, should he prove it, was “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Id.
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That is the showing Plaintiffs must make here to prevail on the first element of their prospective deliberate-indifference claim—that even after taking Defendants’ mitigation measures into account, Plaintiffs remain exposed to unreasonably high risks of COVID-19 infection that are so grave they violate standards of decency and are intolerable to “today’s society.” As the Fifth Circuit recently held of a state prison system taking protective measures similar to Arkansas’s, Plaintiffs are unlikely to show that the risk that remains “after accounting for the protective measures” ADC has taken rises to that extreme level. Valentine II, 2020 WL 1934431, at *3.
Plaintiffs’ whole case is about mitigating the risk that a disease that has not yet arrived will spread. Their theory is that, if coronavirus reaches the twenty ADC facilities whose inmates have thus far been successfully contained from its spread, it will rapidly spread within those facilities, due to the close living quarters in prisons, which they themselves liken to those of nursing homes and cruise ships. See DE 3 at 7-8, 26-29. Defendants have done everything they can to minimize that spread if coronavirus comes: the provision of masks to all inmates and the mandate that inmates wear those masks, the provision of masks and gloves to all staff, continuous disinfection of surfaces, regular temperature checks of inmates and staff, the isolation and testing of inmates who are feverish or otherwise symptomatic. But it cannot be denied that—as in an assisted-living home, a cruise ship, or indeed a densely populated city—the risk of spread should coronavirus arrive in any prisons is greater than in less close quarters.
Yet against that risk, the Court must weigh the limited presence of the virus in ADC prisons and must do so in light of ADC’s systematic containment efforts. Inmates have tested positive in one of twenty-one ADC facilities. In that facility, those who have tested negative are entirely isolated from those who have tested positive and the staff who serve them, with the
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result that new positives have dwindled to zero over the last two days. In the other twenty facilities, of the feverish or symptomatic inmates who have been tested, not one has tested positive—though it is ADC policy to test, at no expense, any inmate who has a fever (for which inmates are checked continually) or otherwise presents COVID-19 symptoms.
This record, which rivals not only that of other prison systems but the general population’s, is not an accident. Nor as Plaintiffs simply assert is it a function of limited testing. Rather, it is a function of the systematic exclusion of potentially infected persons from ADC prisons. That exclusion takes a number of forms: suspending visitation, temperature-checking staff and barring staff with fevers or other symptoms from entry, excluding staff and other persons who have had contact with anyone diagnosed with or under investigation for COVID-19, and housing incoming inmates separately from existing inmates for an isolation period of fourteen days. ADC’s record is also a function of the steps it has taken to protect inmates from possible asymptomatic carriers of the virus. Like anyone else in America, ADC inmates cannot be assured of never coming into proximity with an asymptomatic carrier. But if ADC inmates do come into proximity with an asymptomatic carrier from outside the prison walls, that person will be wearing a mask and gloves.
Given these measures, Plaintiffs have not shown that the risks they face are so great that they violate standards of decency, are ones that today’s society does not tolerate, and ultimately, violate the Eighth Amendment’s Cruel and Unusual Punishment Clause. As the Fifth Circuit has held, the risk of serious COVID-19-related illness left over after a similar raft of mitigation measures—which that court summarized as “soap, tissues, gloves, masks, regular cleaning, signage and education, quarantine of new prisoners, and social distancing during transport”— does not “amount[] to ‘cruel and unusual punishment.’” Valentine II, 2020 WL 1934431, at *3.
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Nor does the Eighth Amendment require state prisons “to do more to mitigate the risk of harm” to a still lower level. Id.
Indeed, notably, the sort of speculative risk of infection that Plaintiffs raise would not even be sufficient to authorize temporary release under the Bail Reform Act’s “compelling reason” provision. See 18 U.S.C. 3142(i). In United States v. Lunnie, No. 4:19-CR-00180 KGB, 2020 WL 1644495 (E.D. Ark. Apr. 2, 2020), Magistrate Judge Kearney held a federal prisoner’s “argu[ment] that an outbreak is inevitable” at a facility where there were no known cases was “speculative,” especially in light of the screening that facility did of staff entering the facility, and that his risk of infection was not even a “compelling reason” for release as a statutory matter. Id. at *3. As Judge Kearney put it, the prisoner in that case could not “predict the extent to which COVID-19 cases might arise at the facility any more than many Americans can predict how they might be exposed to the virus.” Id. at *4.
Two weeks later, addressing a request for release by a federal prisoner in a facility where there was a single coronavirus case, Magistrate Judge Harris held in a different case that the prisoner’s risk of infection was “speculation,” inadequate to ground a request for release under the Bail Reform Act’s compelling-reason standard. United States v. Villagran, No. 4:19CR00609-14 DPM, 2020 WL 1862188, at *5 (E.D. Ark. Apr. 13, 2020). Though Judge Harris acknowledged the risk of spread in the prison setting, she observed that those risks are “present for a number of persons who are not incarcerated, including frontline health care providers, and employees and patients in hospitals and nursing homes.” Id. Judge Harris also found it “speculat[ive]” that “temporary release would result in a safer environment” for that prisoner, given the unknown and unknowable risks of exposure to COVID-19 in that prisoner’s family home. Id.
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If the risk of infection in facilities with few or no confirmed cases is not even “compelling reason” enough to grant a statutory request for temporary release, it is impossible to see how that risk is of such magnitude that it violates the Eighth Amendment, especially when that risk is compared to the similar risks faced by residents of nursing homes or multi-family dwellings. Or even to Plaintiffs themselves were they released to the less contained and less mitigated environment of their homes. Likewise, it is impossible to see how the risk faced by non-infected inmates in Cummins violates the Eighth Amendment, when those inmates, uniquely, live in an environment where all residents have been tested and those who have tested positive are quarantined and separately staffed. Plaintiffs certainly cannot show that those risks are “not one[s] that today’s society chooses to tolerate.” Helling, 509 U.S. at 36. They are risks that today’s society as a whole is tolerating, though, like ADC, fighting to reduce.
b. Defendants have not deliberately disregarded the risk of COVID-19 infection. If Plaintiffs’ likelihood of proving that they are exposed to an unconstitutionally grave risk of harm is slim, their chances of proving that Defendants have deliberately disregarded the risk of COVID-19 infection (whatever that risk’s magnitude) are nonexistent. A decision that the sort of comprehensive containment and mitigation strategy Defendants have undertaken rises to the level of deliberate indifference would be simply unprecedented. First, the law. The deliberate-indifference standard has been stated many ways, but as this Court has put it, what it ultimately requires is “actual knowledge of the risk of harm, followed by deliberate inaction amounting to callousness.” Clarke v. Taylor, No. 2:13-cv-00026, 2014 WL 4854585, at *5 (E.D. Ark. Sept. 29, 2014) (quoting Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir. 1998)). In other words, a plaintiff “must demonstrate the [defendant] deliberately disregarded” the plaintiff’s risk. Letterman v. Does, 789 F.3d 856, 862 (8th Cir. 2015).
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One way to show this is to prove “a total deprivation of care,” Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010); another way is to show “[g]rossly incompetent or inadequate care.” Id. (quoting Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990)). But “more than negligence, more even than gross negligence,” and certainly more than “mere disagreement with treatment decisions” is required. Id. (quoting Alberson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006)). Rather, what a plaintiff must show, the Eighth Circuit has repeatedly held, is that prison officials “knew that their conduct was inappropriate in light of [plaintiff’s] risk.” Washington v. Denney, 900 F.3d 549, 559 (8th Cir. 2018) (emphasis added) (quoting Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009)). And though “the obvious inadequacy of [an official’s] response to a risk may support an inference that the officer recognized [its] inappropriateness . . . [i]t does not follow, however, that an unreasonable response—i.e., a negligent response—is sufficient to establish liability.” Krout, 583 F.3d at 567.
In light of that standard, the Eighth Circuit’s and other courts’ approach to suits alleging deliberate indifference to the risk of infection with communicable disease is a simple one. Plaintiffs who prove that a prison did little to nothing to combat the spread of a known communicable disease will prevail. But Plaintiffs who sue prisons that do have policies to combat the spread of a communicable disease will lose.
A case Plaintiffs cite, DE 3 at 25, illustrates the first half of that contrast. In DeGidio v. Pung, a prison allowed tuberculosis to spread unabated to hundreds of prisoners over four years. 920 F.3d 525, 529-31 (8th Cir. 1990). Though the first case of tuberculosis was diagnosed in 1982 (in a test conducted on an inmate seven months after he first showed symptoms), and more cases followed after that, the prison did not undertake prison-wide testing until 1986—the same year it finally got around to issuing a written protocol for tuberculosis testing and control. See
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id. Indeed, no one was even responsible for supervising health services at the prison during the four-year outbreak period. Id. at 529. Given these facts, the Eighth Circuit had little difficulty finding deliberate indifference.
Sixteen years later in Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006), the Eighth Circuit confronted a very different case of alleged deliberate indifference to the risk of tuberculosis infection. The prisoner in that case offered adequate evidence to survive summary judgment that while in prison, he was exposed to “inmates with active TB cases in a manner that created an unreasonable risk of serious harm to his health.” Id. at 345. But he failed to show deliberate indifference because the officials he sued had issued policies that “specifically acknowledged the risk [of TB infection] and promulgated detailed procedures for the diagnosis, segregation, and treatment of . . . inmates infected with active cases of TB.” Id. Thus, those officials “did not disregard the risk of tuberculosis infection.” Id.
Those principles resolve this case. Where a prison system “has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus,” it will be virtually impossible to prove that prison officials “subjectively believe the measures they are taking are inadequate.” Valentine II, 2020 WL 1934431, at *4. And where prison officials “are trying, very hard, to protect inmates against the virus and to treat those who have contracted it,” “[t]he record simply [will] not support any suggestion that [d]efendants have turned the kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern’ for the inmates’ welfare.” Plata, 2020 WL 1908776, at *9 (quoting Money, 2020 WL 1820660, at *18).
That language perfectly describes this case. Defendants are trying, very hard, to prevent COVID-19 from entering its facilities, to prevent its spread if it arrives, and to treat and isolate
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those inmates who have contracted it. Defendants have walled off their facilities to the symptomatic and to the outside world. They have manufactured tens of thousands of masks and provided them to all inmates and staff, while also outfitting staff with gloves. They continuously check inmates’ temperature, monitor them for other symptoms, and test anyone who exhibits COVID-19 symptoms. They continuously cleanse high-touch surfaces with hospital-grade disinfectant. They have tested virtually the entire facility, inmates and staff alike, where the virus has reached the inmate population, and have isolated those prisoners who tested positive and the staff who serve them from those prisoners who have not. This is simply not a case where prison officials have deliberately disregarded a known risk, much less acted in a fashion that Plaintiffs could ever prove Defendants know is inappropriate.
At most, Plaintiffs are left to claim that Defendants are deliberately indifferent in declining to ensure six-foot social distancing throughout the day, including when and where prisoners sleep, and declining to release multiple murderers and violent sexual offenders. Defendants’ declining to implement those measures does not amount to “[g]rossly incompetent or inadequate care” that they know to be inappropriate. Langford, 614 F.3d at 460.
First, as to social distancing, the CDC’s guidance that Plaintiffs rely upon recognizes that optimal social distancing is not always feasible, especially in the prison context. Echoing that, the district court in Plata found that there was “no basis . . . to conclude that planning for anything less than six-foot distancing between all prisoners (and all staff) at all times constitutes deliberate indifference.” Plata, 2020 WL 1908776, at *6. That court noted six-foot distancing “might prove impossible to implement . . . in light of security concerns,” would require the abandonment of dormitory housing, and “[p]erhaps most significantly,” was only recommended by the CDC for prisons as an “ideal[]” that “will need to be tailored to the individual space in the
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facility” and would “[n]ot . . . be feasible in all facilities.” Id. (quoting CDC guidance). In Mays, the district court similarly noted that “the CDC’s guidance expressly recognizes that complete social distancing may not be possible in the sleeping areas of a jail.” Mays, 2020 WL 1812381, at *10. It then held—under the less demanding objective-reasonableness standard applicable to pretrial detainees—that the failure to implement six-foot social distancing was not even objectively unreasonable because “[s]pace constraints at the Jail do not allow for the more preferable degree of social distancing that exists in the community at large.” Id. And as explained in detail above, that is equally true here.
Even the cases on which Plaintiffs rely recognize that optimal social distancing is impossible, and thus not constitutionally mandated, in some prison facilities. The stayed district court order on Valentine, for example, only granted much of the relief it did with respect to one prison because “[t]he environment is a dormitory, making social distancing in the living quarters impossible.” Valentine, 2020 WL 1916883, at *12. In response to that impossibility, the district court ordered testing of all inmates in that prison, admittedly “go[ing] beyond . . . CDC policies.” Id. For this, its order was stayed. See Valentine II, 2020 WL 1934431, at *4 (“Plaintiffs have cited no precedent holding that the CDC’s recommendations are insufficient to satisfy the Eighth Amendment.”). But at least it did not make the error Plaintiffs propose: ordering socialdistancing measures that even Plaintiffs’ request for release implicitly recognizes are impossible, and holding that failure to achieve the impossible is deliberate indifference.
As to release, Plaintiffs’ request, at best, amounts to a “mere disagreement,” Langford, 614 F.3d at 460, not only with Defendants but with medical experts’ guidance for correctional facilities, about what responses to COVID-19 are appropriate. In Plaintiffs’ view, it is inevitable that COVID-19 will eventually reach ADC’s twenty uninfected facilities and the quarantined
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negative population in Cummins and, that once it does, it will rapidly spread through those facilities, making release the only reasonable alternative for their putative high-risk subclass. But neither of these predictions is inevitable given Defendants’ containment and mitigation strategies. Nor is it clear that release to less contained and mitigated environments would make Plaintiffs safer. And failing to share Plaintiffs’ predictions of the future certainly does not amount to deliberately disregarding a known risk.
Finally, Plaintiffs may ask the Court to order Defendants to take the measures they already are taking, just to ensure they will continue to take them, on the theory that even Defendants recognize those measures—such as cleaning surfaces with disinfectants, the provision of masks, monitoring inmates’ temperatures, and the like—are appropriate. That request suffers from any number of flaws. To start, courts do not decide hypothetical questions. This Court’s jurisdiction is limited to actual cases and controversies, and it cannot decide in the abstract whether some hypothetical decision under unknown future circumstances might violate the Eighth Amendment. Moreover, as the Fifth Circuit explained in staying the district court’s order in Valentine, which ordered Texas to take an array of measures that its policies already required, federal courts cannot enjoin state officials to “follow [their] own laws and procedures.” Valentine II, 2020 WL 1934431, at *4 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)). And while it might constitute deliberate indifference to fail to implement the broadest outlines of ADC’s existing COVID-19 strategy, every detail of that strategy—or every detail of Plaintiffs’ requested injunction—is obviously not mandated by the Eighth Amendment, and enjoining adherence to what ADC does now would deprive it of the necessary flexibility to adapt its response as circumstances require.
4. Plaintiffs are unlikely to succeed on their ADA claim.
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Plaintiffs also assert a claim against all Defendants under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Plaintiffs allege that Defendants have intentionally discriminated against them “by denying them reasonable accommodations that have been recommended by the CDC and are necessary to protect them from COVID-19.” DE 1 at 44 ¶ 140. The “reasonable accommodations” they seek include: (1) access to alcohol-based hand sanitizer; (2) provision of cleaning supplies including products containing bleach, adequate to clean individuals’ housing areas; (3) provision of PPE; (4) access to antibacterial hand soap and towels for hand washing; (5) implementation of social distancing measures “in all locations where incarcerated people are required to congregate”; and (6) release from prison or transfer to home confinement “if social distancing is not practicable.” DE 1 at 44 ¶ 141. As above, Plaintiffs are unlikely to succeed on the merits of their Title II claim.
Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. 12132. Title II regulations require public entities, including prisons, to “make reasonable modifications in policies . . . when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity” at issue. 28 C.F.R. 35.130(b)(7)(i); see also Pa. Dep’t. of Corr. v. Yeskey, 524 U.S. 206 (1998) (holding that prisons are entities subject to Title II). The Supreme Court has explained that states may generally rely on the “reasonable assessments” of their own professionals in determining whether an individual is qualified for services and programs and whether “reasonable modifications” are available to
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prevent discrimination. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (citing 28 C.F.R. 35.130(b)(7) and (d)).
To succeed on their claim, Plaintiffs must show that Defendants refused to provide accommodations they requested “because of [their] disability.” DeBord v. Bd. of Educ., 126 F.3d 1102, 1105 (8th Cir. 1997). The Eighth Circuit has explained that plaintiffs may prove unlawful “discrimination” under Title II by offering evidence of disparate treatment based on disability or by showing that a facially-neutral policy has the “effect of discriminating against the disabled or the severely disabled.” Id. And as noted above, states need not make modifications that “would fundamentally alter the nature of the service, program, or activity” at issue. 28 C.F.R. 35.130(b)(7)(i). Nor must states make modifications that would impose an undue burden on the entity, service, or program. Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). Finally, and particularly important in the context of the state prison system, “[a] public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.” 28 C.F.R. 35.130(h).
Here, even assuming arguendo that the named Plaintiffs (and putative disability subclass members) are disabled within the meaning of the ADA, Plaintiffs have offered no evidence to show that Defendants denied their requests for reasonable accommodations because of their disabilities. Indeed, Plaintiffs’ complaint and TRO/PI motions ask for things that they have never requested from Defendants. (Payne Decl. ¶ 110). As a matter of law, Defendants cannot be found liable under Title II of the ADA for failing to provide unsolicited accommodations. Randolph, 170 F.3d at 858 (citing Lue v. Moore, 43 F.3d 1203, 1206 (8th Cir. 1994)).
Plaintiffs’ requests for various items—even if they were properly preserved—should be dismissed as moot. As detailed above, ADC has already provided the vast majority of requested
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items (or to inmate porters for their benefit). Indeed, Plaintiffs concede as much. See, e.g., Kouri Decl. (DE 3-3) ¶¶ 11-12, 14; Otwell Decl. (DE 3-5) ¶¶ 8-9, 12; Frazier Decl. (DE 3-8) ¶ 7. Plaintiffs also concede that ADC has implemented some social distancing measures that are feasible in the prison setting, such as taking only one barracks at a time to chow. See, e.g., Otwell Decl. (DE 3-5) ¶ 11. Under Olmstead, this Court should defer to ADC officials’ determination of what accommodations are reasonable in response to a global health crisis.
Plaintiffs’ request for a federal court order requiring ADC to provide every inmate incarcerated within one of its 20 units with access to alcohol-based hand sanitizer, cleaning supplies (including bleach), a guaranteed measure of social distance from other inmates and staff, and to release or transfer the Plaintiffs/putative class members to home confinement “if social distancing is not practicable” fails for three reasons. First, these measures would pose security risks to the ADC’s facilities and thus are not required under Title II. (Payne Decl. ¶ 56). As detailed above, alcohol-based hand sanitizer is not only unnecessary per Arkansas Department of Health and CDC guidance, it is a safety and security threat to the institution because it is an intoxicant, flammable, and toxic. Similarly, providing inmates with unfettered access to chemicals such as bleach poses a security threat to other inmates and staff, and such an order is completely unnecessary in light of the undisputed evidence that inmate porters are continuously cleaning inmate housing and other common areas, and that that work is monitored by security staff.
Second, in light of the physical characteristics of ADC’s units as well as security and staffing needs, a court order requiring such measures would pose an impossible burden. (Payne Decl. ¶ 76). For example, the Arkansas Department of Health has recognized the impracticability of ensuring social distancing measures in the correctional setting due to space
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and security constraints. (Garner Decl. ¶ 14). Indeed, in light of the architecture of the ADC’s units and security needs, it would be impossible for Defendants to comply with an order requiring them to guarantee that incarcerated inmates can remain six feet apart from each other and from staff in order to practice social distancing at all times. Likewise, it would be unduly burdensome to require the ADC to provide all inmates, including those in punitive or restrictive housing, with access to chemicals like bleach.
Third, Plaintiffs’ request to release them and countless others from prison or to transfer them to home confinement would fundamentally change the nature of the correctional institution and the sentences the ADC is charged with carrying out by state law. (Payne Decl. ¶ 111). Plaintiffs’ suggestion that it would not because ADC already affords emergency furloughs to inmates who are actually critically ill, and then only if they do not pose a security risk, see DE 3 at 49 (citing Ark. Admin. Code 004.00.2-812), is absurd; Plaintiffs seek, without regard to inmates’ offenses, disciplinary histories, or propensities for violence, the release of—among many others—any inmate over fifty or who has asthma. That would fundamentally change the nature of ADC institutions. As a matter of law, such an accommodation is not available under Title II.
For all of these reasons, the Court should hold that Plaintiffs are unlikely to succeed on the merits of their ADA claim and deny their request for temporary or preliminary injunctive relief.
5. Plaintiffs are unlikely to succeed on their requests for class certification. While this Court may issue preliminary injunctive relief to an uncertified class, to do so it must find that Plaintiffs are likely to succeed on their requests for class certification. See Mays,
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2020 WL 1987007, at *16. Otherwise, it can only grant preliminary relief to the named Plaintiffs.
Plaintiffs propose a class of all inmates in an ADC facility, a high-risk subclass of any ADC inmate over 50 or any inmate “with any condition specifically identified by CDC . . . as increasing their risk of contracting, having severe illness from, and/or dying from COVID-19,” and a disability subclass of inmates who have a disability, as defined in the ADA, that, whether or not identified as a risk factor by the CDC, does, in fact, place those inmates at increased risk of contracting, becoming seriously ill from, or dying from COVID-19. DE 1 at 15-16 ¶ 41. Plaintiffs contend that class, and those subclasses, could be certified under Fed. R. Civ. P. 23(b)(2). That provision permits class certification when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Without conceding that the threshold requirements of Rule 23(a) are met, particularly the requirements that Plaintiffs prove the existence of common questions of law or fact to the class (and subclasses) and that Plaintiffs’ claims and the defenses to those claims are typical to the class (and subclasses),10 “the sticking point” for Plaintiffs’ attempt to bring class claims here is Rule 23(b)(2) itself. Mays, 2020 WL 1987007, at *18.
In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court held that “[t]he key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” 564 U.S. 338, 360 (2011) (internal quotation marks omitted)
10 See Money, 2020 WL 1820660, at *14 (holding of a similar proposed class that there was no common question of law or fact that was likely to drive the resolution of the case, as the Supreme Court’s commonality precedent requires).
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(citation omitted). “In other words, Rule 23(b)(2) . . . does not authorize class certification when each class member would be entitled to a different injunction . . . against the defendant.” Id.
Ultimately, even if Plaintiffs’ legal theories had any purchase (and they do not), there is no reason relief must apply “to all of the class members or . . . to none of them.” Id. For instance, even if Plaintiffs could prevail on their request for mass release, whether an individual prisoner could be released would ultimately depend on this Court’s assessment of that individual’s health conditions and the risk that prisoner would reoffend. Indeed, it is barely conceivable, and is certainly not the only outcome, that were Plaintiffs to prevail, they would succeed in obtaining release for every inmate over 50 and every inmate with a condition identified as a risk factor for COVID-19, in every ADC facility. For these reasons, the district court in Mays recently concluded that class certification was a virtual impossibility for a subclass of prisoners seeking release. Mays, 2020 WL 1987007, at *19-21.
The same can be said for Plaintiffs’ proposed class as a whole. Plaintiffs would doubtless contend that this Court can decide, for the class of all ADC inmates, whether the Eighth Amendment requires six-foot social distancing. But—if Plaintiffs’ claims succeed at all—that too will depend on the circumstances of individual class members. It will depend on the design of each class member’s prison; on whether the levels or risks of infection at a given prison are great enough that it is deliberately indifferent not to institute social distancing; on whether inmates seeking that relief are at an extremely low risk, or a high risk, for serious illness in the event of infection.11 To be sure, Plaintiffs have a maximalist view of the merits on which the
11 The Mays court deemed a proposed subclass seeking social distancing conditionally certifiable. But that subclass sought social distancing in a single jail with a massive outbreak. Mays, 2020 WL 1987007, at *22. Thus, the court concluded it could address its request for social distancing, in its favor or in the jail’s, in “a single order.” Id. The logic does not extend to a statewide prison system.
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Eighth Amendment mandates optimal social distancing for all inmates. But that is not the “only” view the Court could or likely would take. The all-but-inevitable form relief would take in this case would be highly particularized injunctive relief for particular inmates at particular facilities.
III. Plaintiffs have not shown irreparable harm. Plaintiffs contend they are likely to suffer irreparable harm from outbreaks that have not
happened yet, from a virus that has not reached their facilities yet (or from which, in one facility, they are rigorously quarantined). That is a remarkable claim. “In order to demonstrate irreparable harm, a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895 (8th Cir. 2013) (internal quotation marks omitted) (quoting Ia. Utils. Bd. v. FCC, 109 F.3d 418, 425 (8th Cir. 1996)). “Speculative harm does not support a preliminary injunction,” S.J.W. ex rel. Wilson v. Lee’s Summit R-7 School District, 696 F.3d 771, 779 (8th Cir. 2012), nor does “[m]erely demonstrating the possibility of harm.” Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 915 (8th Cir. 2015). But that is all Plaintiffs have demonstrated here.
Plaintiffs assert that “there is a substantial probability” that unless this Court acts, prisoners at currently case-free facilities will be infected with COVID-19. DE 3 at 38. But all they offer to support that assertion is their say-so. In Tuesday’s telephonic hearing, Plaintiffs argued that outbreaks at ADC’s twenty uninfected facilities are likely to occur because an infection has occurred at a single facility. That makes no sense. Indeed, if anything, the fact that there have been no outbreaks at twenty facilities almost two months after COVID-19 first reached Arkansas would suggest the opposite. But whichever inference is more logical, Plaintiffs have not shown certain, imminent harm.
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Courts that have considered claims regarding as-yet uninfected prisons agree that speculation that COVID-19 will reach a prison’s inmates one day, and further speculation that staff will fail to contain COVID-19 and that it will rapidly spread once it arrives, does not amount to irreparable harm. In Verma v. Doll, No. 4:20-CV-14, 2020 WL 1814149 (M.D. Pa. Apr. 9, 2020), a district court held that where a prison had one positive test, and was taking similar steps to ADC’s to contain the prison and minimize spread, a 67-year-old prisoner with preexisting health conditions had failed to show irreparable harm, or even that he would “be safer if he were released from . . . custody.” Id. at *6. In Engelund v. Doll, No. 4:20-CV-00604, 2020 WL 1974389 (M.D. Pa. Apr. 24, 2020), a different judge of the same district found a lack of irreparable harm in two prisons with one and thirteen inmates who had tested positive, respectively, finding the “risk of exposure too speculative to constitute irreparable harm.” Id. at *12. In Thakker v. Doll, — F. Supp. 3d —, 2020 WL 2025384 (M.D. Pa. Apr. 27, 2020), the district court, after granting preliminary relief a month prior out of fear that “COVID-19 was inexorably marching towards the Facilities, tsunami-like in its looming catastrophic impact,” reversed course, finding that in the month that had passed, “[t]he fears which [it] reasonably harbored of a ‘tinderbox’ scenario have largely failed to appear within those Facilities” (which had zero, one, and forty cases each), and that plaintiffs had therefore failed to show irreparable harm except with respect to the facility with forty cases. Id. at *7-8. And as already discussed, two Magistrate Judges of this Court have held that speculation of an eventual outbreak in federal prisons is not even a compelling reason for release as a statutory matter, much less a certainty. Given such findings on similar records, the Court should not find irreparable harm, as much as Plaintiffs would like the Court to do what epidemiologists cannot and forecast the infections and outbreaks of the future.
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IV. The other factors weigh against a preliminary injunction. Arkansas has a significant interest in preserving the health, welfare, and safety of its
citizens, whether in prison or out, and its choices not to release any ADC prisoner over 50 or who has a condition that marginally enhances COVID-19 risk, or to institute six-foot social distancing in prisons that were not designed for it, are designed to do just that. The Arkansas Board of Correction has certified over 1,200 non-violent, non-sexual offenders for early release, but Plaintiffs, who are themselves either violent, sexual or habitual offenders, would have Defendants go further and release anyone at an even marginally heightened COVID-19 risk, without regard for offense or disciplinary history. That infusion of thousands of dangerous offenders into the population, during a pandemic, no less, would disserve the public interest and cause the State irreparable harm.
Plaintiffs’ request for six-foot social distancing would likewise impose a likelihood of irreparable harm. Should COVID-19 reach other ADC facilities, ADC will take appropriate measures to quarantine those inmates who are infected, as they have in Cummins. In the meantime, however, Plaintiffs’ requested measures would guard against the future risk of a virus that has not yet reached twenty of ADC’s twenty-one inmate populations at the expense of creating risks of present harm. Spreading inmates throughout prison facilities into unsecured areas, or areas that cannot simultaneously be adequately secured, would allow Plaintiffs and the putative class members they wish to represent to be harmed by, and harm, others.
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CONCLUSION The Court should deny the Plaintiffs’ various pending motions for preliminary injunctive relief.
Respectfully submitted, LESLIE RUTLEDGE
Arkansas Attorney General NICHOLAS J. BRONNI (2016097)
Arkansas Solicitor General VINCENT M. WAGNER (2019071)
Deputy Solicitor General ASHER STEINBERG (2019058)
Assistant Solicitor General JENNIFER L. MERRITT (2002148) Senior Assistant Attorney General JERRY GARNER (2014134) Assistant Attorney General OFFICE OF THE ARKANSAS
ATTORNEY GENERAL 323 Center St., Suite 200 Little Rock, AR 72201 asher.steinberg@arkansasag.gov
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

PLAINTIFFS

v.

CASE NO. 4:20-CV-00434-KGB-JJV

WENDY KELLEY, et al.

DEFENDANTS

DECLARATION OF DEXTER PAYNE

I, Dexter Payne, am competent to testify and have personal knowledge regarding

the statements contained in this declaration and under the penalty of perjury, do hereby

state and verify the following:

1. I am the Director of the Arkansas Division of Correction, an agency that

falls under the Arkansas Department of Corrections. Until July 1, 2019, the Arkansas

Division of Correction was known as the Arkansas Department of Correction. For the

purposes of this declaration, I will refer to the Arkansas Division of Correction, formerly

the Arkansas Department of Correction, as the “ADC.”

2. The ADC is responsible for the operations of prisons, typically referred to

as “units,” throughout Arkansas.

3. As soon as it became apparent that the spread of COVID-19 may reach

Arkansas, the ADC immediately began preparing to respond to the threat posed by the

virus.

4. Certain aspects of the ADC’s preparation for and response to COVID-19 are

included in the ADC’s Emergency Preparedness Manual, which is confidential and not

Page 1 of 20

EXHIBIT
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subject to public disclosure. See Ark. Code Ann. § 12-27-137. As a result, this declaration describes many of the ways the ADC responded to the threat posed by COVID-19, but security concerns prohibit identification and explanation of every approach.
5. From the very beginning, the ADC’s preparation involved working closely with other state and federal agencies, in addition to national correctional organizations, to formulate and direct the ADC’s preparation and response to the impact of the virus on staff and the inmate population within ADC facilities.
6. For instance, ADC officials worked closely with the Arkansas Department of Health, Arkansas Department of Emergency Management, the ADC’s contracted medical provider, Wellpath, LLC, the National Institute of Corrections, the American Correction Association, the Correctional Leaders Association, and others.
7. ADC officials communicated regularly with Department of Health officials, often multiple times per day.
8. ADC officials also attended webinars about COVID-19 to learn more about the virus and to assist in preparing a thorough and comprehensive response.
9. This joint effort between the ADC and other state agencies and entities is ongoing, and the ADC’s evidence-based approach to safely addressing the risks presented by COVID-19 continues to this day as new information and strategies become available through the Center for Disease Control and Prevention, and other partners.
10. The collaborative approach between these agencies and the ADC has included input into the ADC’s efforts to prevent the virus from entering ADC facilities,
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as well as input into the ADC’s operational response to the COVID-19 outbreak in Arkansas.
11. The ADC worked with these entities both in terms of the formulation and implementation of ADC procedures and protocols generally, as well as specific involvement in working with ADC staff, including unit wardens, with respect to that response.
12. At all times, the ADC has worked diligently to combat the spread of COVID-19 and to ensure the health and safety of the inmates housed within ADC units, as well as the health and safety of staff and officials.
13. On Wednesday, March 11, 2020, Arkansas Governor Asa Hutchinson announced the first presumptive case of COVID-19 in Arkansas.
14. That same day, the Arkansas Department of Corrections, the cabinet department of which the ADC is one part, began immediately taking proactive steps in response to the virus. (Mar. 11, 2020 Memo).
15. At that time, the ADC reminded and encouraged inmates and staff to regularly wash their hands, practice respiratory etiquette, such as covering coughs and sneezes, avoid handshakes, and continue regular surface cleaning. (Mar. 11, 2020 Memo).
16. The ADC also encouraged employees to stay home when ill. (Mar. 11, 2020 Memo).
17. In addition, the ADC created a website, which is updated multiple times per day in some instances, to inform the public about the ADC’s continued efforts in
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response to COVID-19. That website is located at https://adc.arkansas.gov/coronaviruscovid-19-updates.
18. The ADC also regularly updated its social media accounts to provide information about its response to COVID-19, as well as providing updates during Governor Hutchinson’s daily press conferences.
19. The ADC continued to diligently investigate what steps it could take to further protect inmates and staff at its units across the state and implement procedural changes to achieve that goal.
20. On March 16, 2020, after discussion with the Arkansas Department of Health and Wellpath, LLC, the ADC suspended inmate visitation in an effort to prevent the spread of COVID-19 to the employees and inmates at its correctional facilities. (Mar. 16, 2020 Press Release).
21. That suspension applied to all prisons and community correction centers, and it applied to regular and special visits. (Mar. 16, 2020 Press Release).
22. In recognition that suspending in-person visitation could negatively impact the mental and emotional wellbeing of inmates and their families, the ADC conferred with its telephone and video visitation providers and reduced the price of phone calls, emails, and video visitation in order to keep family ties as strong as possible, and the ADC promptly notified inmates of these changes. (Mar. 16, 2020 Press Release; Mar. 19, 2020 Visitation Poster). The ADC also extended video visitation hours.
23. The Division of Community Correction—another agency within the Department of Corrections that is responsible for more than 60,000 offenders on parole
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and supervised probation and operates six licensed residential treatment centers—took similar steps, including waiving supervision fees, suspending face-to-face office visits, expanding the use of mobile applications to supervise offenders, and finding alternative means for individuals to participate in discretionary groups, such as Alcoholic Anonymous or substance abuse groups.
24. The ADC also worked to reduce the number of people entering correctional facilities across the state. To that end, the ADC restricted visitation so that only badged volunteers, as opposed to occasional volunteers, were allowed to enter facilities. (Mar. 16, 2020 Press Release).
25. Later, the ADC took even further steps to reduce the number of people entering ADC facilities and stopped badged volunteers from entering its facilities to reduce potential exposure.
26. Inmates housed in ADC units were also no longer allowed to go on meritorious or emergency furloughs, except those inmates participating in a work-release program. (Mar. 16, 2020 Press Release; Mar. 19, 2020 Furlough Memo).
27. Other exceptions for work release included two “lockdowns” when a presumptively positive employee was tested at a work release site. The site was locked down and inmates were not sent out to work in the community until cleared in consultation with the Arkansas Department of Health.
28. Importantly, the ADC changed its practice relating to incoming inmates as well. All new intakes into ADC’s prisons are housed together for a period of 14 days following intake. Similarly, all new intakes into community correction centers are housed
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together for a period of 14 days. By doing so, the Department of Corrections sought to slow a potential spread of COVID-19 from the community into an ADC or community corrections facility. Relatedly, county jails housing inmates to be incarcerated in an ADC unit are working with the ADC to confirm incoming inmates do not exhibit symptoms of the virus.
29. Likewise, the ADC continued to ensure staff and visitors were not bringing the virus within ADC facilities. As early as March 20, 2020, the ADC posted signage throughout its facilities informing staff and visitors of new precautions. (Mar. 20, 2020 Poster; Public Health Notice Poster).
30. Those precautions include screening anyone entering ADC facilities for possible exposure to COVID-19. (Mar. 20, 2020 Poster).
31. At the direction of the Arkansas Department of Health, the ADC began restricting access to correctional facilities for anyone that had: (1) traveled internationally within the previous 14 days to countries with sustained transmission of COVID-19; (2) contact with anyone who had a confirmed diagnosis of, or was under investigation for, COVID-19; or (3) exhibited symptoms of a respiratory infection, including cough, shortness of breath, or a fever. (Mar. 20, 2020 Poster).
32. The ADC also began screening the temperature of all staff before they enter the facility prior to the start of their shifts, and employees who have a temperature of higher than 100.4 degrees Fahrenheit are sent home and advised to seek care from their doctor if they have other symptoms. (Mar. 20, 2020 Poster).
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33. Wellpath, the ADC’s medical provider, also worked with inmates to reduce the potential spread of the virus through ADC facilities. On March 27, 2020, Wellpath sent a memorandum to ADC inmates and Arkansas Community Correction residents informing them that non-urgent on- and off-site medical appointments could be rescheduled to limit the risk of spreading the virus. (Mar. 27, 2020 Wellpath Memo). Inmates were also informed that urgent consultations and emergencies would be treated as usual. (Mar. 27, 2020 Wellpath Memo).
34. On March 23, 2020, to encourage inmates to seek medical attention if they experienced symptoms of COVID-19, the ADC immediately suspended the medical copays inmates would normally have paid for a health services visit. This means that any inmate who believes he or she is experiencing symptoms of COVID-19 may seek immediate treatment from Wellpath, for free.
35. On Monday, March 23, 2020, following the extensive efforts explained above, the United States Centers for Disease Control and Prevention (“CDC”) issued guidance specifically directed to correctional institutions. (CDC Guidance for Corr. Fac.).
36. On Friday, March 27, 2020, the Arkansas Department of Health issued its own recommendations, entitled “COVID-19: Guidance for State Correctional Facilities and Local Detention Facilities.” (ADH Mar. 27, 2020, Guidance).
37. The Arkansas Department of Health’s guidance synthesized many of the CDC’s recommendations and issued particularized guidance for correctional facilities within the state. As detailed above, the ADC had already implemented many of these
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recommendations, but it promptly implemented new procedures to follow the Department of Health’s guidance.
38. For example, the Department of Health’s guidance recommends the ADC communicate with staff, offenders, volunteers, and visitors about COVID-19 and educate them about how to prevent contracting and spreading the virus. (ADH Mar. 27, 2020, Guidance, at *1). By March 11, 2020, and even before, the ADC had already taken steps to inform inmates, staff, and visitors about COVID-19 and the topics discussed in the Department of Health’s guidance. (Mar. 11, 2020 Memo).
39. The ADC also posted signage throughout its facilities informing inmates and staff to wash their hands often with soap and water, for at least 20 seconds, wear face masks as much as possible, avoid touching their eyes, nose, or mouth without cleaning their hands first, clean their personal belongings, to keep as much distance between each other as possible, and other important information recommended by the Department of Health. (Protect Yourself Poster).
40. The ADC posted additional signage throughout its facilities, in both English and Spanish, further educating inmates and staff. (Mar. 20, 2020 Poster; Clean Hands Poster; Cover Your Cough Poster; Wash Hands English; Wash Hands Spanish). Wellpath also provided educational posters in English and Spanish. (Wellpath Informational Posters).
41. Inmates were also informed to report any symptoms to ADC staff or medical personnel as soon as possible.
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42. In addition to educating inmates and staff, the Department of Health recommended the use of personal protective equipment (“PPE”) for inmates and staff to the extent possible. (ADH Mar. 27, 2020, Guidance, at *1).
43. Around the time the guidance was issued, the ADC rapidly began a massive operation to manufacture and distribute 80,000 cloth masks for inmates and staff. The masks are made by Arkansas Correctional Industries in the garment factory outside of the Cummins Unit.
44. To date, over 42,000 masks and 250 face shields have been created and distributed to units, facilities, and offices across the state.
45. The ADC also received a distribution of PPE, including masks, face shields, gloves, and other items, from the Arkansas Department of Emergency Management. The ADC purchased additional PPE from the open market.
46. As recommended by the Department of Health, every inmate housed in general population has already received one mask, and the ADC is continuing production to ensure each inmate also has a second mask.
47. My understanding of the CDC guidance and other reporting is that cloth masks are designed to reduce the risk of the wearer from spreading the virus, but they are not designed to prevent the wearer from contracting the virus. (CDC Cloth Mask Rec.). In other words, cloth masks protect others from the wearer, not the other way around.
48. As a result, inmates in restrictive housing have not received masks. Those inmates are housed in individual or two-man cells, do not come into contact with other
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inmates, and have very limited exposure to staff. Accordingly, a cloth mask is unnecessary for those inmates.
49. ADC staff also wear masks and gloves as precautionary measures throughout the units, including when interacting with inmates in restrictive housing.
50. Inmates and staff have been educated on best practices for wearing their masks and instructed to wear them as often as possible.
51. In addition, inmates have the ability to anonymously report staff members, or other inmates, for failing to comply with health and safety procedures by anonymously submitting a request for interview form.
52. The ADC also ordered enhanced cleaning and disinfection of its units. For example, barracks-style housing for general population inmates are cleaned continuously throughout the day by inmate porters housed in those barracks. This includes cleaning the residential area, showers, bathrooms, and recreational areas in the barracks. Other inmate porters clean hallways throughout the unit, the chow hall, gym, and other areas accessed by inmates.
53. Porters have been instructed to pay particular attention to high-touch surfaces throughout the units, and their cleaning efforts are monitored by security staff.
54. The porters use Razor Chemical Company’s Citrus Breeze III, which is a hospital-grade fungicide, disinfectant, deodorizer, and virucidal product to clean the barracks, common areas, high-touch items, and other areas of the unit.
55. Inmates in restrictive housing are provided the same cleaning products twice per week in order to clean their cells.
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56. Providing inmates with unrestricted access to alcohol-based hand sanitizer and chemicals such as bleach would provide security risks to other inmates and staff.
57. Likewise, inmates are provided ample supplies to ensure they can maintain their personal hygiene. All inmates within the ADC are provided soap free of charge and have constant access to warm water to ensure they can wash their hands as often as they’d like in accordance with CDC and Department of Health guidance.
58. Because soap and water are available to all inmates at ADC units, hand sanitizer is not necessary. Neither the CDC nor Department of Health guidelines mandate or require the ADC to provide hand sanitizer to inmates. In fact, the CDC guidance specifically acknowledges that alcohol-based hand sanitizer may not be permissible based on security restrictions, because it is flammable, intoxicating, and potentially poisonous. Alcohol-based hand sanitizer, moreover, is really only needed if, unlike in the ADC, soap and water are unavailable. (CDC Guidance at *2, 7).
59. The ADC has, however, provided non-alcohol-based hand sanitizer stations for all general population inmates in different areas of the units, except for the inmates at the Cummins Unit for reasons explained below, for use once the inmates leave their barracks.
60. Inmates in general population housing have access to showers throughout the day and are free to shower as often as they deem fit. Inmates in restrictive housing are able to shower multiple times per week.
61. Inmates also have access to free toilet paper they can use as face tissue and to clean their personal belongings if they wish.
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62. In addition, inmates are provided a free hand towel and bath towel that are laundered multiple times per week, and inmates receive clean hand and bath towels when their soiled towels are taken to be laundered.
63. The ADC implemented new procedures for detecting the presence of COVID-19 in its facilities. As an initial matter, every inmate in general population of each unit (except the Cummins Unit as explained below) has their temperature checked with a no-contact infrared laser thermometer each time they leave the barracks and move to the chow hall.
64. Any inmates who register a temperature in excess of CDC and Department of Health guidelines then have a follow-up temperature screening using an under-thetongue thermometer with a protective sheath to prevent transmission. Inmates in restrictive housing have their temperatures checked when they exhibit symptoms.
65. Inmates who register a temperature indicating potential infection are taken to medical services.
66. In addition, all inmates who experience symptoms of COVID-19 are encouraged to submit a health services request to meet with Wellpath.
67. Beginning as early as March 23, 2020, all medical copays were waived to encourage inmates to seek medical care and report any symptoms they experience.
68. Likewise, staff have been educated on the symptoms of COVID-19 and instructed to be on the lookout for symptoms in inmates and staff and to take inmates exhibiting symptoms to the infirmary or some other area to be seen by medical staff.
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69. As recommended by the Department of Health, once taken to medical for exhibiting symptoms, the inmate is isolated and treated by medical staff. If medical staff determine the inmate is presenting symptoms because of COVID-19, as opposed to some other, non-COVID reason, the inmate is tested for other respiratory ailments and, if necessary based on those results, the virus.
70. As also recommended by the Department of Health, inmates remain isolated until the various, necessary test results are returned.
71. Wellpath has taken steps to reduce exposure as well by placing plastic, translucent barriers in the medical department to allow medical staff to see inmates while minimizing risk of spreading the virus.
72. The Department of Health also recommends implementing strategies for social distancing, to the extent possible in the facilities. (ADH Mar. 27, 2020, Guidance, at *1). The ADC has implemented several procedures to encourage social distancing, including educating inmates about the practice.
73. The ADC also took steps to reduce inmates from gathering together in groups, including suspending congregational religious services, staggering meal times to reduce the number of inmates in the chow halls, requiring inmates to spread out while eating meals, and reducing the number of inmates going to areas such as the commissary, recreation, medical pill call, and other areas at any one time.
74. Inmates in restrictive housing who are assigned to one-man cells already do stay at least six feet away from other inmates and staff.
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75. Security and space constraints, however, make it difficult to ensure all inmates remain six feet apart at all times. For example, ADC housing units are not large enough so that every inmate’s bed can be moved six-feet away from another. Inmate beds are organized in compliance with American Correctional Association standards. Moving inmates to non-secure housing areas would create significant security risks and put staff and other inmates in danger.
76. In light of the physical characteristics of ADC units, as well as security and staffing needs, a court order requiring additional social distancing measures would both risk the safety and security of the facilities and constitute an undue burden on the operations of the ADC’s prison system.
77. ADC staff continue to develop additional ways to facilitate social distancing within the units, including, as explained further below, working to release certain inmates to create additional space in the units.
78. The ADC has taken many other precautions recommended by the Department of Health as the ADC continues to respond to the virus and work to protect inmates and staff.
79. As recommended by the Department of Health, the ADC has coordinated with local law enforcement and followed the procedures set out by court officials for hearings and other inmate appearances.
80. And, even before Department of Health guidance, the ADC amended its visitation policy to severely restrict the number of individuals entering and leaving the facility.
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81. The ADC also temporarily modified congregational religious services to avoid inmates interacting with individuals from other housing areas.
82. Non-urgent medical services were also postponed. (Mar. 27, 2020 Wellpath Memo).
83. The ADC also modified its inmate-transfer procedures to reduce inmate movement between units.
84. The ADC also changed other procedures, such as staggering meal times in the chow hall to reduce the number of inmates in the room at once, encouraging inmates to spread out from each other as much as possible, limiting non-essential travel for ADC personnel, and many other procedures as recommended by the Department of Health. (ADH Mar. 27, 2020, Guidance).
85. As recommended by the Department of Health, the ADC prepared a plan for how to respond in the event the virus reached a unit. Importantly, as of April 29, 2020, COVID-19 has only been detected in inmates in one unit within the ADC: the Cummins Unit.
86. On April 12, 2020, the first inmate tested positive for COVID-19. 87. Once the ADC discovered COVID-19 had in fact made it into the Cummins Unit, the ADC implemented a host of new procedures directly aimed at reducing the spread of the virus as much as possible. First, on April 13, 2020, the ADC tested every inmate housed in the barracks with the first confirmed positive inmate.
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88. The ADC then began randomly testing a sample of other inmates housed in the Cummins Unit to determine if the virus had spread to any other housing areas. Those tests confirmed the virus had indeed infected other areas.
89. To combat the spread of the virus within the unit, the ADC placed all barracks on “lockdown” so that inmates do not leave their barracks unless they are receiving medical attention or have tested negative and they are being used for the assistance of daily operations.
90. For those inmates who have tested negative, and are being used for the assistance of daily operations, those inmates have their temperatures checked each time they leave the barracks and, if they exhibit symptoms of COVID-19, are isolated and tested again.
91. Meals are brought to the inmates in their barracks to reduce inmate movement throughout the unit.
92. Next, the ADC tested nearly every inmate in the Cummins Unit and a total of nearly 1,700 inmates were tested.
93. In fact, to ensure results on inmate tests as quickly as possible, ADC officials drove overnight to Memphis, Tennessee, to deliver cases full of inmate samples for testing. ADC officials have also rushed inmate test samples to Little Rock, Arkansas, for quicker results.
94. The ADC has also conducted widespread testing of its staff. For instance, on April 21, 2020, Wellpath held a drive-through testing clinic for staff at the Cummins Unit and approximately 250 employees were tested for the virus. Wellpath held another
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testing clinic on April 23, 2020, in order to ensure testing for all the various shifts worked by ADC staff. In total, over 400 employees were tested for COVID-19. Wellpath has also planned a third clinic to test any remaining staff who were not tested during the two previous clinics.
95. Based on the test results, the ADC restructured housing arrangements in compliance with Department of Health guidance. The Department of Health recommends that inmates who have tested positive, if single cells are not available, should be housed with other positive-testing inmates. (ADH Mar. 27, 2020, Guidance, at *3). The Cummins Unit has complied with that recommendation and created three housing groups and made adjustments to security staffing in relation to the new housing arrangement.
96. First, all inmates who have tested positive for COVID-19 are removed from the prison population and only housed with other inmates who also tested positive. The security staff assigned to this housing group do not work in any other areas of the unit.
97. Second, all inmates who have tested negative are separated from the prison population and housed with other negative-tested inmates. The security staff assigned to that group also work only in those areas of the unit.
98. Third, all inmates who are currently indeterminate, including inmates whose test results have not been returned, are housed only with other indeterminate inmates and, again, the security staff assigned to these areas only work in those locations. Both the inmate housing adjustments, and attendant security staff procedures, were implemented in response to COVID-19’s presence in the unit.
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99. Inmates at the Cummins Unit have been informed of their test results, given guidance on seeking additional medical treatment if needed, and further educated on best practices to avoid transmission.
100. The Cummins Unit has also worked to balance the normal medical needs of the inmate population with the new needs posed by COVID-19. More particularly, the ADC has created a field hospital at the Cummins Unit to treat positive-tested inmates who need medical care.
101. Other inmates with non-COVID ailments who require medical attention are treated, and oftentimes housed, in the Unit’s infirmary. This process ensures inmates who need medical attention for COVID-related illnesses receive medical treatment without risking potential exposure to other inmates requiring non-COVID-related medical attention.
102. The Department of Health has issued additional guidance for correctional facilities. For instance, on April 13, 2020, the Department of Health issued “ADH Guidance for Reducing Spread of COVID-19 in Correctional Facilities.” (ADH Apr. 13, 2020, Guidance). Two days later, the Department of Health released a slightly modified version of their new guidance. (ADH Apr. 15, 2020, Guidance). These documents make many of the recommendations previously suggested in prior Department of Health guidance, and the ADC continues to comply with these recommendations as best as possible.
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103. The Arkansas Department of Corrections, including the Board of Corrections, have continued efforts to protect inmates while balancing the risk of other societal harms.
104. On Friday, April 24, 2020, the Board of Corrections voted unanimously to invoke the expanded Emergency Powers Act and certify a list of 1,244 inmates to be eligible for release, pending the Parole Board’s decision.
105. In doing so, the Board of Corrections suspended its normal requirement that inmates must spend at least six months in the ADC before being considered for release, in addition to relaxing offense restrictions, as authorized by Governor Hutchinson’s executive orders regarding the public health emergency.
106. All inmates under consideration have been convicted of non-sexual and non-violent crimes, as determined by Ark. Code Ann. § 5-4-501(d)(2), and their release is determined by the Parole Board.
107. All such inmates will receive a COVID-19 symptoms screening before they are released, all symptomatic inmates will be tested for the virus, and no inmates who are known or presumed to be positive for the virus will be released into the community until they are medically cleared.
108. Any such inmates will have their parole delayed until the inmate is no longer contagious. As an additional precautionary measure, the Department of Corrections enhanced its offender management information system to flag COVIDpositive offenders.
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From Wendy Kelley, Secretary of Corrections

Coronavirus and AR DOC Facilities & Offices
We are taking proactive steps to protect the health and safety of our communities, including for our employees and those held in our facilities and visiting our offices. DOC staff are in regular contact with the Department of Health to ensure that we have the necessary response protocols in place. We will continue to review our protocols and implement any necessary practice.

What are we doing to reduce the risk in facilities and offices?
Employees and offenders are being encouraged to follow appropriate hygiene protocols to limit spread of the virus. These protocols include:

• Practicing and encouraging regular hand washing; • Practicing and encouraging respiratory etiquette (covering coughs and
sneezes); • Avoiding handshakes; • Continuing regular surface cleaning; and • Employees are encouraged to stay home when ill (staff, volunteers,
vendors, visitors, etc.)

What about facility and office visitation?
Any changes to a facility’s visitation schedule, or entrance procedures, will be posted online and distributed via the Arkansas Department of Corrections Facebook Page. Potential visitors can also call a facility to inquire about visitation changes.

Parolees and probationers may call their supervising office for updates

regarding any changes to office visit policies.

EXHIBIT

2

As of March 11, 2020

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FOR IMMEDIATE RELEASE MARCH 16, 2020

Contact: Dina Tyler, Communications Director 870-267-6205, dina.tyler@arkansas.gov

DOC TAKES STEPS TO PREVENT SPREAD OF COVID-19

After much discussion with the Arkansas Health Department, the Administration, and its divisions and medical provider, the Department of Corrections is suspending inmate visitation for 21 days in an effort to prevent the spread of COVID-19 to the employees and inmates at its correctional facilities. The suspension includes all prisons and community correction centers, and it applies to regular and special visits.

Because DOC wants to keep family ties as strong as possible during this time, the price of phone calls has been reduced. There will be no connect fee on telephone calls and the per minute price will be 15 cents on calls with offenders in both the Division of Correction and the Division of Community Correction facilities. Video visitation will be $2.50 for a 30-minute visit at state prisons and 15 cents a minute for video visits at community correction centers.

To further reduce the number of people coming inside the facilities, only badged volunteers will be allowed to enter facilities for the next 21 days. Occasional volunteers, including those with faith-based groups, cannot enter during this time.

The Parole Board will hold its hearings by telephone and will not appear in person at the facilities Family members, victims, or anyone else wishing to support or protest parole for an inmate may email their comments to ParoleBoard@arkansas.gov. Offender attorneys can appear at the Parole Board office in Little Rock.

To further limit possible exposure to the virus, inmates will not be allowed to go on meritorious or emergency furloughs during the three-week period. The prohibition applies to all inmates, including 309 Program participants housed in county jails and those at the Arkansas Law Enforcement Training Academy and the Arkansas State Police. Our work release inmates will continue to work and be allowed furloughs.

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PUBLIC HEALTH NOTICE
Please notify medical staff if you have traveled outside of the United States in the past 14 days.
Visit wwwnc.cdc.gov/travel/notices for a list of international infections of concern. The Arkansas Department of Health is available for consultation 24/7 at 1-800-803-7847.
Do not visit if you have signs or symptoms of a respiratory infection, such as fever, cough, or sore throat.
All healthy visitors please:
• Clean your hands after arriving and before leaving. • Always cover your cough. • Use a tissue or your sleeve when you cough or
sneeze. • Clean your hands after coughing or sneezing.
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MEMORANDUM
Date: March 27, 2020 To: Inmates and/or Residents of ADC and ACC From: Wellpath Regional Office RE: COVID-19 IMPACT ON OFFSITE-ONSITE APPOINTMENTS
With the Pandemic of COVID-19 many things are changing and new federal recommendations are being made regarding medical appointments/procedures. Some of you have asked NOT to go out to your consults/appointments for fear of contracting the virus and that is understandable. According to CDC recommendations, non-urgent appointments may be rescheduled to limit the risk of spreading the virus. Otherwise, you could catch the virus and possibly spread it to others, and the virus may create serious health concerns, including death. Other appointments may be delayed due to the hospitals and clinics treating a large number of COVID-19 patients. This is outside the control of Wellpath. Rest assured we will schedule any urgent consultations in the meantime and emergencies will still be treated as usual! Your understanding is appreciated. We are trying to protect you, the community and provide all the services you need.

EXHIBIT
8

WellpathSM 1283 Murfreesboro Road, Suite 500
Nashville, TN 37217
www.wellpathcare.com

CasCea4s:e204-:c2v0--0c1v1-010543D4-oKcGumBenDto3c6u-m8 enFtile3d6-o9n 0F4il/e1d5/0240/3in0/T2X0SDPagPea1geof12o6f 26
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

EXHIBIT

cdc.gov/coronavirus

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
23

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ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
24

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Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

25

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Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26

Case 4:20-cv-00434-KGB Document 36-10 Filed 04/30/20 Page 1 of 4

New March 27, 2020

COVID-19: Guidance for State Correctional Facilities and Local Detention Facilities

Background:

Because of the congregate nature of correctional facilities and detention centers, these settings pose a high risk for transmission of COVID-19, caused by the novel coronavirus – SARS-CoV-2. It is imperative for, offenders, volunteers, staff, and visitors alike are aware of this rapidly changing situation. Symptoms include fever, cough, and shortness of breath. This document has been created in accordance with the Centers for Disease Control and Prevention (CDC) recommendations, based on what is currently known about COVID-19, in order to provide guidance for the management and mitigation of the highly infectious COVID-19 in the aforementioned settings.

Recommendations:

Communicate with staff, offenders, volunteers, and visitors.  Educate staff, residents, and family members of offenders about COVID-19.  Make sure they know the potential risks for offenders and basic prevention measures, such as: o Wash hands often with soap and water or use alcohol-based hand sanitizer. o Cough and sneeze into elbow or into a tissue. Throw away the tissue immediately after use and wash hands. o Frequently clean and disinfect surfaces. o Ask staff to use Personal Protective Equipment (PPE) when directly caring for COVID-19 patients, including a gown, gloves, mask (or respirator), and eye protection https://www.healthy.arkansas.gov/programs-services/topics/novel-coronavirus o Staff and visitors should remain home if they are sick with cough, shortness of breath, or fever. o Inform staff about leave policies and the ability to work from home, if possible. o Post signs at the entry, the reception area, and throughout the facility to help visitors, staff, and volunteers self-identify relevant symptoms and travel history. o Communicate with family members of offenders to share information about the measures you are taking to protect your offenders from COVID-19.
Post signage throughout the facility: o https://www.healthy.arkansas.gov/images/uploads/pdf/COVID-19_-_Facility_Entrance_Precautions__POSTER_11x17_-_March_20_2020-.._.pdf

Coordinate with local law enforcement and court officials.

 Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure

to reduce the risk of COVID-19 transmission.

 Explore strategies to prevent over-crowding of correctional and detention facilities during a community

outbreak.

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Case 4:20-cv-00434-KGB Document 36-10 Filed 04/30/20 Page 2 of 4
Amend the Visitors Policy:  Currently, visitation to correctional facilities, and most detention facilities, has been prohibited.  So that plans are in place when visitation restrictions are relaxed, criteria and protocols for enforcing visitor limitations and how you will communicate those limitations should be made. These protocols include: o Screening visitors for respiratory illness symptoms (fever, shortness of breath) and exclude those who are positive o Asking visitors and family members not to visit the facility if they are experiencing respiratory symptoms. Suggest other options such as visiting by phone or video, if possible. o Restrict transfers of offenders to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation or quarantine, clinical care, extenuating security concerns, preparation for reentry, or to prevent overcrowding. This restriction should not be interpreted as a prohibition on new intakes into a correctional or detention facility that are asymptomatic.
 Strongly consider postponing non-urgent outside medical visits.  If a transfer is necessary, perform verbal screening and a temperature check, before the offender leaves the
facility. If an offender does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case (unless medical staff advises another diagnosis exists) – including putting a face mask on the offender, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the offender upon arrival. Ensure that staff transporting the offender wear recommended PPE and that the transport vehicle is cleaned thoroughly after transport.
Suggested Prevention Practices for Offenders: o Stagger Meals o Rearrange seating in the dining hall so that there is more space between offenders (e.g., remove every other chair and use only one side of the table) o Provide meals inside housing units or cells o If possible, designate a room near each housing unit to evaluate offenders with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call. o Designate a room near the intake area to evaluate new offenders who are flagged by the intake screening process for COVID-19 symptoms or asCOVID-19 contacts, before they move to other parts of the facility. o Implement social distancing strategies to increase the physical space between offenders (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility, in addition to the needs of the offender population and staff. Not all strategies will be feasible in all facilities.
Create a plan for separating symptomatic offenders from the remaining population: o Confining symptomatic offenders and exposed offenders to their housing area. o Placing symptomatic offenders together in one area of the facility. o Restricting access to units where symptomatic and asymptomatic offenders reside. o Assigning staff on either affected or non-affected units to prevent transmission between units. o Canceling events in the facility where many people come together, unless events are limited to a single housing area. o Cleaning and disinfecting frequently touched surfaces with an EPA-registered disinfectant with a label indicating effectiveness against human coronavirus or emerging viral pathogens.
Suggested Mitigation Strategies
o Offenders with fever or respiratory symptoms should perform hand hygiene, wear masks if possible, or be placed in a unit with the door closed and a special precautions sign posted

Case 4:20-cv-00434-KGB Document 36-10 Filed 04/30/20 Page 3 of 4
o If single cells are not available, combine housing areas for offenders with laboratory-confirmed COVID 19 o All staff entering designated patient containment areas should wear appropriate personal protective
equipment, such as gowns, gloves and N95 masks. o Whenever possible, use social distancing and isolation o Limit points of entry to facility o Limit visitors to those essential for facility support. o Screen all persons entering the facility for fever and respiratory symptoms o Implement system for detecting and reporting signs and symptoms of staff reporting for duty before they
enter the building and ask them to call their supervisor immediately for direction. o Symptomatic employees will be screened regarding fitness for duty o Entry logs will be at all facility entrances to document all who enter the unit o Personnel assigned to combined patient care units should not float to other areas o If transportation of a symptomatic offender is necessary, have the offender wear mask to contain
respiratory secretions o o Facilities should utilize pre-designated isolation or quarantine areas for affected offenders to be
housed o Cellmates of sick offenders will be isolateduntil it is determined that the sickoffender is free of COVID-19. o Restrict movements of offenders to reduce the possibility of additional exposures o Consider limiting or suspending programming (such as: education, self-help, industries, work programs,
and volunteer programs) o Consider limiting exposure during meals, for example restricting movement to and from the dining
facilities to provide social distancing or serving meals in housing areas o If feasible, maintain incoming offenders in a designated isolation unit for 14 days prior to release into the
general population o Arrange appropriate aftercare for offenders who are sick and scheduled for release in collaboration
with their local health department o Create a policy for medical personnel to evaluate patients who have recovered from COVID-19
infection and are ready to be released from isolation. See below: (https://www.healthy.arkansas.gov/images/uploads/pdf/DiscontinuationHomeIsolationFinal3.27.20. pdf o Facility tours should be suspended
Other Considerations when creating your plan:
o A policy for when direct care staff should use personal protective equipment for offenders with symptoms of respiratory infection.
o A plan for implementing respiratory hygiene throughout the facility. o A proactive leave policy to address the needs of staff including:
o Advising staff, caregivers, or volunteers who have respiratory symptoms that they should not report to work and to immediately report their symptoms to an identified supervisor.
o Plans to accommodate staff who need to care for ill family members o Identifying staff who may be at higher risk for severe COVID-19 disease and assigning them to
unaffected units, or a duty assignment with limited exposure, if possible. o Contact local hospitals to learn who to coordinate with if one of your offenders needs to be
hospitalized or is being discharged from the hospital. o Offenders referred to the hospital: If an offender is referred to a hospital, you will need to coordinate transport with the hospital, local health department, and medical transport service/emergency medical service to ensure that the offender can be safely transported and received by the hospital.

Case 4:20-cv-00434-KGB Document 36-10 Filed 04/30/20 Page 4 of 4
o Offenders discharged from the hospital: When your offender is ready to be discharged, coordinate with the hospital regarding transportation and continued care needs, including any precautions to take in your facility. As the outbreak spreads, having open beds in hospitals is vitally important.
For specific questions regarding the guidance in this document, please call ADH Physicians hotline: 1-844-930-3023.
For more detailed information about the management within Correctional Facilities and Detention Centers, please visit the CDC website: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#Min_Mod_Trans

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Case 4:20-cv-00434-KGB Document 36-13 Filed 04/30/20 Page 1 of 1

A
IS

HEALTHY
IN YOUR

FUTU
HAN

RE
DS

CLEAN HANDS

KEEP YOU HEALTHY

EXHIBIT
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Accessible version: www.cdc.gov/handwashing
281776-A

Case 4:20-cv-00434-KGB Document 36-14 Filed 04/30/20 Page 1 of 1
Stop the spread of germs that can make you and others sick!
Cover your mouth and nose with a tissue when you cough or sneeze. Put your used tissue in the waste basket.

You may be asked to put on a facemask to protect others.

If you don’t have a tissue, cough or sneeze into your upper sleeve or elbow, not your hands.

Wash hands often with soap and warm water for 20 seconds. If soap and water are not available, use an alcohol-based hand rub.

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CS208322

 
 Case 4:20-cv-00434-KGB Document 36-15 Filed 04/30/20 Page 1 of 1
Hands that look clean can still have icky
germs!
Wash Your Hands!

This material was developed by CDC. The Life is Better with Clean Hands campaign is made possible by a partnership between the CDC Foundation, GOJO, and Staples. HHS/CDC does not endorse commercial products, services, or companies.

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Case 4:20-cv-00434-KGB Document 36-16 Filed 04/30/20 Page 1 of 1
¡Aunque las manos se vean limpias pueden tener microbios
asquerosos!

1 Moja

2 Enjabona

¡Lávate las
3 Restriega
manos!

4 Enjuaga
5 Seca
Este material fue elaborado por los CDC. La campaña “La Vida es Mejor con las Manos Limpias” es posible gracias a una asociación entre la Fundación de los CDC, GOJO Industries y Staples. Los CDC y el HHS no respaldan productos, servicios ni empresas comerciales.

EXHIBIT
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Case 4:20-cv-00434-KGB Document 36-17 Filed 04/30/20 Page 1 of 2
Sent on behalf of: Wellpath Clinical Team

What you need to know about the Coronavirus.

• What is it? 2019 Novel Coronavirus (2019-nCoV) is a virus identified as the cause of an outbreak of respiratory illness first detected in Wuhan, China.
• How is it spread? It is thought to spread via respiratory droplets produced when an infected person coughs or pathogens spread.
• What is the treatment? There is no specific treatment for 2019-nCoV infection. People infected with 2019-nCoV should receive supportive care to help relieve symptoms. For severe cases, treatment should include care to support vital organ functions.
What if I’m sick? If you were in China in the last 14 days or exposed to someone who is suspected or diagnosed with 2019-nCoV and feel sick with fever, cough, or difficulty breathing, you should seek medical care right away. Before you go to a doctor’s office or emergency room, call ahead and tell them about your recent travel and your symptoms. Avoid contact with others and do not travel. Cover your mouth and nose with a tissue or your sleeve (not your hands) when coughing or sneezing, then throw the tissue in the trash. Wash hands often with soap and water for at least 20 seconds to avoid spreading the virus to others. Use an alcohol-based hand sanitizer that contains at least 60% alcohol if soap and water are not available.

What you can do to prevent infection?
There is currently no vaccine to prevent 2019-nCoV infection. The best way to prevent infection is to avoid being exposed through everyday preventive actions, including:
•	Wash your hands often with soap and water for at least 20 seconds.
• Use an alcohol-based hand sanitizer that contains at least 60% alcohol if soap and water are not available.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Avoid close contact with people who are sick. •	Stay home when you are sick. •	Cover your cough or sneeze with a tissue,
then throw the tissue in the trash. •	Clean and disinfect frequently touched
objects and surfaces.

People who think they may have been exposed to 2019-nCoV should contact your healthcare provider immediately.

For more information, visit: www.cdc.gov/coronavirus/2019-ncov

Sent by the Wellpath Communications Team CRAIG DIAMOND // SVP // craig.diamond@wellpath.us | LESLEY KOLB // Manager // lesley.kolb@wellpath.us 1283 Murfreesboro Road, Suite 500 // Nashville, TN 37217 // www.wellpathcare.com

EXHIBIT
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Case 4:20-cv-00434-KGB Document 36-17 Filed 04/30/20 Page 2 of 2
Enviado en nombre del: Equipo Clínico de Wellpath

Lo que necesita saber del Coronavirus.

• ¿Qué es? - El 2019 Novel Coronavirus (2019-nCoV) es un virus identificado como la causa de un brote de enfermedades respiratorias detectadas por primera vez en Wuhan,China.
• ¿Cómo se propaga? - Se cree que se propaga por medio de gotas respiratorias que se producen cuando un sujeto infectado tose o se esparcen patógenos.
• ¿Cuál es el tratamiento? - No existe un tratamiento específico para la infección con el 2019-nCoV. Los individuos contagiados con 2019nCoV deben recibir tratamiento para ayudar a aliviar los síntomas. En casos severos, el tratamiento deberá incluir atención que apoye el funcionamiento de los órganos vitales.
¿Qué hago si estoy enfermo? Si usted visitó China en los últimos 14 días o ha estado expuesto a alguien bajo sospecha o diagnóstico de contagio de 2019nCoV y se siente enfermo con fiebre, tos o dificultades para respirar, deberá buscar atención médica de inmediato. Antes de acudir a un consultorio médico o sala de emergencia, llame y notifíqueles de su viaje reciente y de sus síntomas. Evite el contacto con otras personas y no viaje. Al toser o estornudar, cúbrase la boca y la nariz con una toalla de papel o con sus mangas (no con sus manos), y luego bote la toalla en la basura. Lávese las manos frecuentemente con agua y jabón por no menos de 20 segundos para evitar propagar el virus. Use un desinfectante de manos a base de alcohol que contenga por lo menos un 60% de alcohol si no tiene agua y jabón disponibles.

¿Qué puedo hacer para prevenir una infección?
En la actualidad no se cuenta con una vacuna que impida la infección con el 2019-nCoV. La mejor manera de prevenir una infección es evitar la exposición, tomando medidas preventivas diarias, tales como:
•	Lavarse las manos frecuentemente con agua y jabón por no menos de 20 segundos.
•	Usar un desinfectante de manos que contenga por lo menos un 60% de alcohol si no se tiene agua y jabón.
•	Evitar tocarse los ojos, la nariz y la boca con manos sin lavar.
•	Evitar el contacto cercano con personas enfermas.
• Quedarse en casa si está enfermo.
•	Cubrirse con una toalla de papel al toser o estornudar y luego botar la toalla en la basura.
•	Limpiar y desinfectar frecuentemente los objetos y superficies que se tocan con frecuencia.

Si sospecha que ha sido expuesto al 2019-nCoV comuníquese con su proveedor de servicios médicos de inmediato.
Para más información, visite: www.cdc.gov/coronavirus/2019-ncov Enviado por el Equipo de Comunicaciones de Wellpath CRAIG DIAMOND // SVP // craig.diamond@wellpath.us | LESLEY KOLB // Manager // lesley.kolb@wellpath.us 1283 Murfreesboro Road, Suite 500 // Nashville, TN 37217 // www.wellpathcare.com

4/24/2020

Case 4:20-cv-00434R-KecGomBmenDdaotiocnuRmegearndting3t6he-1U8se oFf CilloethdF0ac4e/C3o0v/e2rin0gs |PCDaCge 1 of 2


Use of Cloth Face Coverings to Help Slow the Spread of COVID-19
CDC continues to study the spread and e ects of the novel coronavirus across the United States. We now know from recent studies that a signi cant portion of individuals with coronavirus lack symptoms (“asymptomatic”) and that even those who eventually develop symptoms (“pre-symptomatic”) can transmit the virus to others before showing symptoms. This means that the virus can spread between people interacting in close proximity—for example, speaking, coughing, or sneezing—even if those people are not exhibiting symptoms. In light of this new evidence, CDC recommends wearing cloth face coverings in public settings where other social distancing measures are di cult to maintain (e.g., grocery stores and pharmacies) especially in areas of signi cant community-based transmission.
It is critical to emphasize that maintaining 6-feet social distancing remains important to slowing the spread of the virus. CDC is additionally advising the use of simple cloth face coverings to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others. Cloth face coverings fashioned from household items or made at home from common materials at low cost can be used as an additional, voluntary public health measure.
The cloth face coverings recommended are not surgical masks or N-95 respirators. Those are critical supplies that must continue to be reserved for healthcare workers and other medical rst responders, as recommended by current CDC guidance.
This recommendation complements and does not replace the President’s Coronavirus Guidelines for America, 30 Days to Slow the Spread  , which remains the cornerstone of our national e ort to slow the spread of the coronavirus. CDC will make additional recommendations as the evidence regarding appropriate public health measures continues to develop.
How to Make Your own Face Covering

Recent Studies:
Rothe C, Schunk M, Sothmann P, et al. Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany. The New England journal of medicine. 2020;382(10):970-971.

Zou L, Ruan F, Huang M, et al. SARS-CoV-2 Viral Load in Upper Respiratory Specimens of Infected Patients. The New England journal of medicine. 2020;382(12):1177-1179.

Pan X, Chen D, Xia Y, et al. Asymptomatic cases in a family cluster with SARS-CoV-2 infection. The Lancet Infectious diseases. 2020.

Bai Y, Yao L, Wei T, et al. Presumed Asymptomatic Carrier Transmission of COVID-19. Jama. 2020.

Kimball A HK, Arons M, et al. Asymptomatic and Presymptomatic SARS-CoV-2 Infections in Residents of a LongTerm Care Skilled Nursing Facility — King County, Washington, March 2020. MMWR Morbidity and mortality

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weekly report. 2020; ePub: 27 March 2020.
Wei WE LZ, Chiew CJ, Yong SE, Toh MP, Lee VJ. Presymptomatic Transmission of SARS-CoV-2 — Singapore, January 23–March 16, 2020. MMWR Morbidity and mortality weekly report. 2020;ePub: 1 April 2020.
Li R, Pei S, Chen B, et al. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARS-CoV2). Science (New York, NY). 2020.

Page last reviewed: April 3, 2020

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ADH Guidance for Reducing Spread on COVID-19 in Correctional Facilities

The Arkansas Department of Health (ADH) recommends the following actions when a staff member or inmate at an Arkansas Department of Corrections (DOC) facility (Prison or Community Correction Center) tests positive for COVID-19:

• Screen inmates daily upon entry to dining facility, and staff daily upon entry to the unit, for

fevers and symptoms.

• Staff who screen positive for symptoms and/or fever are to return back home and isolate.

Onsite medical personnel will swab the symptomatic employee outside the facility before

they are sent home.

• Inmates who screen positive for symptoms and/or fever, immediately isolate and inform

onsite medical personnel, who will inform ADH for priority testing.

• The barrack involved will be considered high risk if an inmate is considered a suspect or tests

positive. ADH will guide on aggressive screening and testing in this situation.

• No movement of inmates across units (other than intakes following an isolation period or for

an emergent security reason) and once in a unit no movement across various barracks (if

practical).

• Dedicated staff assigned to barracks and no cross movement of staff to various other

barracks (when practical based on staffing availability).

• All population inmates and staff should be masked. Cloth masks are adequate.

• Make Alcohol Based Hand Sanitizers available for staff and inmates (when practical from

security and supply standpoint and under staff control) for as frequent use as possible.

• Wipe down of all areas in a unit with diluted bleach or similar product multiple times a day.

• Provide available N95 masks for all staff transporting inmates to hospitals and clinics, and

cloth masks for inmates during transport. Once on hospital premises, the staff and inmate

are to follow hospital guidelines.

• There will be close cooperation between DOC and ADH teams once any inmate or staff tests

positive in a unit. ADH will guide DOC regarding appropriate next steps based on the current

situation and circumstances.

• Staff that test positive can return to work during their isolation period under the following

circumstances, after approval is received from the Secretary of Corrections and appropriate

Division Director:

▪ There is a critical shortage of workers and critical activities cannot occur without the use

of these workers.

▪ No workers that are symptomatic will be allowed to work, so they must pass the

screening procedures at the facility entrance.

▪ Positive staff are only allowed to work on units with positive inmates.

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19

Case 4:20-cv-00434-KGB Document 36-19 Filed 04/30/20 Page 2 of 2 ▪ Positive staff will wear a mask at all times and monitor symptoms throughout their shift. ▪ Should a positive staff member become symptomatic (cough, fever, shortness of breath)
they will be immediately removed from work duties and sent home. NOTE: Positive staff who continue to work should avoid contact with other staff, isolate at home and avoid contact with others when commuting (e.g. no shared rides, no shopping) Questions: Email us at ADH.HAI@ARKANSAS.GOV
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Case 4:20-cv-00434-KGB Document 36-20 Filed 04/30/20 Page 1 of 2

April 15, 2020
ADH Guidance for Reducing Spread on COVID-19 in Correctional Facilities
The Arkansas Department of Health (ADH) recommends the following actions when a staff member or inmate at an Arkansas Department of Corrections (DOC) facility (Prison or Community Correction Center) tests positive for COVID-19:
 Screen inmates daily upon entry to dining facility, and staff daily upon entry to the unit, for fever (temperature >100.4⁰F) and symptoms.
 Staff who screen positive for symptoms and/or fever are to return back home and isolate. Onsite medical personnel will swab the symptomatic employee outside the facility before they are sent home.
 Inmates who screen positive for symptoms and/or fever: immediately isolate and inform onsite medical personnel, who will inform ADH for priority testing.
 The barrack involved will be considered high risk if an inmate is considered a suspect or tests positive. ADH will guide on aggressive screening and testing in this situation.
 No movement of inmates across units (other than intakes following an isolation period or for an emergent security reason) and once in a unit no movement across various barracks (if practical).
 Dedicated staff assigned to barracks and no cross movement of staff to various other barracks (when practical based on staffing availability).
 All inmates and staff should be masked. Cloth masks are adequate.  Make Alcohol Based Hand Sanitizers available for staff and inmates (when practical from
security and supply standpoint and under staff control) for as frequent use as possible.  Wipe down of all areas in a unit with diluted bleach or similar product multiple times a day.  Provide available N95 masks for all staff transporting inmates to hospitals and clinics, and
cloth masks for inmates during transport. Once on hospital premises, the staff and inmate are to follow hospital guidelines.  There will be close cooperation between DOC and ADH teams once any inmate or staff tests positive in a unit. ADH will guide DOC regarding appropriate next steps based on the current situation and circumstances.  Staff that test positive can return to work during their isolation period under the following circumstances, after approval is received from the Secretary of Corrections and appropriate Division Director:  There is a critical shortage of workers and critical activities cannot occur without the use
of these workers.

4/15/2020

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Case 4:20-cv-00434-KGB Document 36-20 Filed 04/30/20 Page 2 of 2
 No workers that are symptomatic will be allowed to work, so they must daily pass the screening procedures at the facility entrance.
 Positive staff are only allowed to work on units with positive inmates.  Positive staff will wear a mask at all times and monitor symptoms throughout their shift.  Should a positive staff member become symptomatic (cough, fever, shortness of breath)
they will be immediately removed from work duties and sent home. NOTE: Positive staff who continue to work should avoid contact with other staff, isolate at home and avoid contact with others when commuting (e.g. no shared rides, no shopping) Questions: Email us at ADH.HAI@ARKANSAS.GOV
4/15/2020

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Case 4:20-cv-00434-KGB Document 36-23 Filed 04/30/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

PLAINTIFFS

v.

CASE NO. 4:20-CV-00434-KGB-JJV

WENDY KELLEY, et al.

DEFENDANTS

DECLARATION OF DONA GORDON

I, Dona Gordon, am competent to testify and have personal knowledge regarding

the statements contained in this declaration and under the penalty of perjury, do hereby

state and verify the following:

1. I am a registered nurse. I also hold a master’s degree in health

administration. In addition, I am a Certified Correctional Health Professional as certified

by the National Commission on Correctional Health Care.

2. I am employed by Wellpath, LLC (“Wellpath”) as the Regional Vice

President for Arkansas.

3. Wellpath holds the contract to provide medical services with the Arkansas

Division of Correction. In short, Wellpath provides medical services to inmates housed

within Arkansas Division of Correction prisons.

4. I have worked with both the Arkansas Division of Correction, and the

Arkansas Department of Health, to assist the Arkansas Division of Correction in creating

and implementing procedures and strategies in response to the threat posed by COVID-

19.
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Case 4:20-cv-00434-KGB Document 36-23 Filed 04/30/20 Page 2 of 6
5. I have reviewed the complaint in this action and am familiar with the allegations made by the plaintiffs. I have reviewed the medical records for each plaintiff in this action.
Michael Kouri 6. Inmate Michael Kouri (ADC # 156699) visited the Unit Infirmary on March 20, 2020, complaining of a cough, headache, and eye irritation. 7. Kouri was inspected by medical staff who determined Kouri had eye irritation, but he was not diagnosed with “pink eye.” 8. Kouri has not submitted any infirmary requests describing symptoms of COVID-19 since his March 20 visit, and if he made such a request, he would be tested for the virus. 9. Although Kouri claims he suffers from shortness of breath and has difficulty walking more than 20 feet, he recently submitted a health services request asking for his bottom-tier housing assignment to be removed so he can move to a housing unit on a different floor, requiring him to presumably travel up flights of stairs.
Trinidad Serrato 10. According to the records available for inmate Trinidad Serrato (ADC # 135379), has not been diagnosed with asthma. 11. In 2006, Serrato tested positive for contracting tuberculosis in the past, but he has not actively suffered from the disorder at any time during his incarceration. 12. In addition, the likelihood of Serrato’s inactive-carrier status turning into an active case of tuberculosis is very unlikely.
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Case 4:20-cv-00434-KGB Document 36-23 Filed 04/30/20 Page 3 of 6
13. Serrato has not submitted a health services request complaining of COVID19 symptoms.
Nicholas Frazier 14. Inmate Nicholas Frazier (ADC # 653117) is not currently prescribed medication for his asthma, and the condition is well controlled. 15. Frazier has not submitted a health services request complaining of COVID19 symptoms.
Marvin Kent 16. Inmate Marvin Kent (ADC # 119175) has not submitted a health services request complaining of COVID-19 symptoms. 17. Kent has, however, submitted several health services request in March and April 2020. 18. For instance, on March 30, 2020, Kent submitted a request complaining of a skin rash and was given medication. 19. Similarly, on April 17, 2020, Kent complained of a stomach ache but denied any pain when he met with health care professionals. 20. On April 2, 2020, and on April 21, 2020, Kent submitted other health services requests, but he refused to be escorted by correctional staff for his health care visits on those dates. 21. Kent has not submitted a health services request complaining of COVID-19 symptoms.
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Scott Otwell 22. There are no records with the ADC or Wellpath suggesting Scott Otwell (ADC # 173127) has been diagnosed with pre-diabetes, and he has not been prescribed diabetes medication. 23. In addition, Otwell does not participate in physical therapy for any injury. 24. Otwell has not submitted a health services request complaining of COVID19 symptoms.
Alfred Nickson 25. Inmate Alfred Nickson (ADC # 164879) alleges in his complaint that “[f]or the past two weeks, he has experienced COVID-19 symptoms, including shortness of breath, fatigue, coughing, and repeated vomiting.” (Doc. 1, ¶ 26). 26. Nickson, however, he has not submitted a health services request complaining of any of those symptoms.
Victor Williams 27. Wellpath has no records suggesting inmate Victor Williams (ADC # 095684) has a collapsed lung. 28. Williams has not been diagnosed with hypertension, and Wellpath has no records suggesting Williams has bruised tissue around his heart. 29. In addition, Williams is not being treated for lymphoma. 30. Williams has not submitted a health services request complaining of COVID-19 symptoms.
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Alvin Hampton 31. According to Wellpath’s records, inmate Alvin Hampton (ADC # 661100) has not been diagnosed with bipolar disorder, and he has not been prescribed medication for that disorder. 32. Hampton has not submitted a request for health services complaining of COVID-19 symptoms.
Jonathan Neeley 33. In his complaint, inmate Jonathan Neeley (ADC # 161851) implies he has not received necessary treatment for his colorectal cancer. (Doc. 1, ¶ 33). 34. Neeley, however, received surgery for his condition in January 2020, saw an out-of-prison oncologist on March 4, 2020, and visited another doctor on March 24, 2020, who ordered additional treatment. 35. Neeley is currently scheduled to receive radiation treatment at an outside provider later this year, but radiation may compromise Neeley’s immune system. 36. Neeley has not submitted a request for health services complaining of COVID-19 symptoms.
Robert Stiggers 37. Inmate Robert Stiggers (ADC # 133728) has not submitted a request for health services complaining of COVID-19 symptoms.
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Information Current as of 04/23/2020
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ADC Number: 119175

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Name: Kent, Marvin

Race: BLACK

Sex: MALE

Hair Color: BLACK

Eye Color: BROWN

Height: 65 inches

Weight: 157 lbs.

Birth Date: 02/12/1980

Initial Receipt Date: 07/18/2012

Current Facility: Varner Supermax

Facility Address: 320 Hwy. 388, Gould, AR 71643 Map

Mailing Address: P.O. Box 400 Grady, AR 71644-0600

Custody Classification: C4

Good Time Class: II

PE / TE Date*: 08/15/2020

Total time*: 18 yrs.

* may be affected by other laws and regulations

Aliases

Scars, Marks, & Tattoos:

Marcus Kent Jeriel Roberts

Description (SON) BACK OF LOWER LEFT ARM. (CROSS)"TINA" "Gwen" (FACES) (GOD) BACK OF LOWER RIGHT ARM. "MR" (2 FACES) "KAYLAH"

EXHIBIT
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(MONEY SIGN) (TRU)

Offense
Battery-1st Degree - Habitual Offender Endgr Welf.Of Minor 1st Dg - Probation Revocation

Current Prison Sentence History

Sentence Date

County

Case #

Sentence Length

07/12/2012

PULASKI

2012-597

216 mo.

07/12/2012

PULASKI

2007-4371

72 mo.

Prior Prison Sentence History

Note: Data reflected covers periods of incarceration since ---

Offense Theft By Receiving

Sentence Date

County

Case #

Com. Sup. Length

04/29/2003

PULASKI

2002-4368

36 mo.

Detainers

Note: Further information may be obtained by contacting the detaining agency.

Detainer Date

Detainer Agency

Charge

Type

Date Cancelled

Major Guilty Disciplinary Violations

Disciplinary Violation

Date

Possession/Manufacture Of Contraband Sexual Activity Individual Disruptive Behavior Insolence To A Staff Member Individual Disruptive Behavior Sexual Activity Individual Disruptive Behavior Individual Disruptive Behavior Individual Disruptive Behavior Individual Disruptive Behavior Insolence To A Staff Member Sexual Activity Individual Disruptive Behavior Individual Disruptive Behavior Group Disruption Group Disruption Individual Disruptive Behavior Individual Disruptive Behavior Individual Disruptive Behavior Sexual Activity Possession/Manufacture Of Contraband Individual Disruptive Behavior Trafficking And Trading Individual Disruptive Behavior Threat(s) To Inflict Injury Group Disruption

11/07/2012 11/07/2012 11/07/2012 01/01/2013 01/01/2013 04/20/2013 04/20/2013 02/23/2014 02/23/2014 02/23/2014 02/23/2014 10/05/2014 10/05/2014 10/05/2014 10/05/2014 10/07/2014 10/07/2014 10/07/2014 10/07/2014 10/07/2014 10/13/2014 10/13/2014 10/13/2014 12/24/2014 12/24/2014 04/16/2015

https://apps.ark.org/inmate_info/search.php?dcnum=119175&token=38712b9074ca7c294340f272534eaca008940023072e0e49d93a6cb994fbf07d&la… 2/4

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Insolence To A Staff Member

04/16/2015

Individual Disruptive Behavior

04/16/2015

Sexual Activity

04/16/2015

Individual Disruptive Behavior

06/22/2015

Sexual Activity

06/22/2015

Group Disruption

06/22/2015

Failure To Obey Order

12/10/2015

Insolence To A Staff Member

12/10/2015

Threat(s) To Inflict Injury

12/10/2015

Sexual Activity

03/03/2016

Insolence To A Staff Member

01/27/2017

Failure To Obey Order

01/27/2017

Failure To Obey Order

04/07/2017

Insolence To A Staff Member

04/07/2017

Unnecessary Noise Or Play

04/07/2017

Threat(s) To Inflict Injury

04/07/2017

Battery

05/27/2017

Insolence To A Staff Member

05/27/2017

Out Of Place Assignment

06/28/2017

Failure To Obey Order

06/28/2017

Under The Influence

10/10/2017

Sexual Activity

10/23/2017

Sexual Activity

12/03/2017

Failure To Obey Order

12/03/2017

Refusal To Submit To Substance Abuse Testing

12/19/2017

Failure To Obey Order

12/19/2017

Out Of Place Assignment

03/19/2018

Insolence To A Staff Member

03/19/2018

Sexual Activity

03/19/2018

Sexual Activity

03/19/2018

Failure To Obey Order

03/19/2018

Refusing A Direct Verbal Order

05/29/2018

Group Disruption

06/19/2018

Battery

06/19/2018

Out Of Place Assignment

02/01/2019

Insolence To A Staff Member

02/01/2019

Sexual Activity

02/01/2019

Failure To Obey Order

02/01/2019

Refusing A Direct Verbal Order

03/26/2019

Battery

05/10/2019

Aggravated Battery

05/10/2019

Insolence To A Staff Member

12/31/2019

Threat(s) To Inflict Injury

12/31/2019

Unnecessary Noise Or Play

12/31/2019

Agency Prepared By Varner Super Max

Risk Score/Level
Date Completed 03/30/2020

Risk Score/Level Maximum

Court Orders (Order of Protection, No Contact Order)
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Program Achievements

Program Achievement

Date of Completion

Anger Management Parenting Thinking Errors Group Anger Management Stress Management Stress Management Communication Skills Domestic Violence Substance Abuse Educ Prog

10/12/2012 09/15/2015 10/01/2015 10/07/2015 10/08/2015 10/27/2015 11/16/2015 03/15/2016 01/02/2020

Probation/SIS

Offense

Sentence Date County

Case #

Community Sup Length SIS Probation

Endgr Welf.Of Minor 1st Dg Probation Revocation

12/19/2007 02/24/2011

PULASKI 2007-4371 PULASKI 2007=4371

3 yrs. 4 yrs.

Prior Probation/SIS History

Offense

Sentence Date

County

Case #

Community Sup Length

Unknown 09/20/1999

PULASKI 1998-4192

SIS Probation 5 yrs.

Online Technical Support
Note: The offense descriptions are truncated and do not necessarily reflect the crime of conviction. Please refer to court documents or the Arkansas Statutes for further information or definition.

Home Accessibility | Privacy | Security | Acceptable Use

Arkansas Department of Correction P.O. Box 8707 Pine Bluff, AR 71611-8707
Contact Us | Google Map
Copyright © 2016 State of Arkansas. All Rights Reserved.

https://apps.ark.org/inmate_info/search.php?dcnum=119175&token=38712b9074ca7c294340f272534eaca008940023072e0e49d93a6cb994fbf07d&la… 4/4

 
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Document 36-34

Filed 04/30/20

PageE1LEoCfT1R9ONICALLY FILED
Pulaski County Circuit Court Larry Crane, Circuit/County Clerk
2017-Dec-05 13:02:34 60CR-17-1066
C06D01 : 4 Pages

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Arkansas Judiciary

Case Title: Case Number: Type:

STATE V TRINIDAD JAMES SERRATO 60CR-17-1066 SENTENCING ORDER

So Ordered

Judge Johnson
Electronically signed by AJHANSBERRY on 2017-12-05 13:02:38 page 4 of 4

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6814 Princeton Pike Pine Bluff, AR 71611 Phone: 870-267-6999  Fax: 870-267-6244 www.adc.arkansas.go v
ADMINISTRATIVE DIRECTIVE

SUBJECT: Inmate Grievance Procedure

NUMBER: 19-34

SUPERSEDES: 19-20

APPLICABILITY: All employees and inmates

PAGE 1 of 31

REFERENCE: AR 835 - Grievance Procedure for Offenders

APPROVED: Original signed by Dexter Payne

EFFECTIVE DATE: 12/2/2019

I. POLICY:
It is the policy of the Arkansas Division of Correction to provide inmates in its custody an administrative process for the resolution of complaints, problems and other issues.
II. EXPLANATION:
The grievance procedure is an administrative process for the submission and resolution of inmate problems and complaints. The process is designed to solve the problem at the lowest level, as promptly as feasible, and in a manner that is fair, reasonable, and consistent with the Division of Correction’s mission.
The administrative process for the resolution of complaints and identification of problem areas is intended to supplement but not replace daily and routine communication between staff and inmates.
III. DEFINITIONS:
A. Informal Resolution – the first step consisting of a written complaint (Unit Level Grievance Form, Attachment I) by an inmate that is intended to allow staff the

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opportunity to resolve an issue on an informal basis, and to serve as a prerequisite to the second step, a formal grievance.
B. Grievance – the second (formal) step where a written complaint using the same form used for the Informal Resolution (Unit Level Grievance Form, Attachment I) is submitted by an inmate on the inmate’s own behalf (an inmate cannot grieve on behalf of another inmate) regarding:
1. A policy applicable within his or her unit/center of assignment that personally affects the inmate;
2. A condition in the facility that personally affects the inmate;
3. An action of another inmate, or inmates, that personally affects the inmate;
4. An action of an employee(s), contractor(s), or volunteer(s) that personally affects the inmate; or
5. An incident occurring within his or her facility that personally affects the inmate.
C. Warden – the Warden or Center Supervisor of the facility or designee.
D. Appeal – a written request directed to a Chief Deputy/Deputy/Assistant Director for further action to resolve the issue or complaint in the grievance based upon the inmate’s assertion that the issue has not been resolved at the Unit level. (The appeal cannot raise new or additional issues or complaints.)
E. Working Days – Monday through Friday, excluding state observed holidays.
F. Emergency – a problem that, if not immediately addressed, subjects the inmate to a substantial risk of personal injury or other serious and irreparable harm such as, physical abuse. If a grievance, submitted as an emergency grievance by the inmate, is deemed an emergency by the problem solver, the grievance is immediately submitted to the Warden/highest ranking supervisor at the unit without the completion of Step One, the informal process; however, if the grievance is not an Emergency, it will be processed under Step One.
G. PREA Grievance – Grievance where inmate is alleging staff-on-inmate or inmateon-inmate sexual abuse or sexual harassment as those terms are defined in the PREA Administrative Directive. A Problem Solver should immediately submit a suspected PREA grievance to the highest ranking supervisor at the unit, who will then contact the duty warden, without the completion of Step One, the informal process; however, if the duty warden finds that the grievance is not a PREA grievance, it will be returned to the Problem Solver and processed under Step One.

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H. Non-Grievable Issues – the following matters are not grievable:
1. Parole; 2. Release; 3. Transfer; 4. Job Assignments unless in conflict with medical restrictions; 5. Disciplinaries; 6. Anticipated events (i.e., events or activities which may or may not occur
in the future); 7. Matters beyond the control of the Division of Correction, including issues
controlled by State or Federal law or regulation; 8. Rejection of a Publication 9. A grievance submitted by an inmate on behalf of another inmate.
Note: Claims of Retaliation, even if related to an issue referenced above, are Grievable.
I. Available Remedies –if the facts asserted by the inmate would, if true, fall within the definition of Grievance, the matter shall be investigated, unless previously investigated. If the grievance is found to be with merit, the Division official designated to respond to the grievance shall have the authority, within the exercise of his or her discretion and consistent with the Division policies and the safety, security and good order of the facility, to offer actions by the Division designed to resolve the inmate’s grievance. However, such available remedies do not include disciplinary action against an employee, contractor, or volunteer, nor monetary damages.
J. Problem Solver – staff designated at each facility to serve as a contact for resolution of a problem or complaint, and specifically, to resolve Step One issues raised in this process. A list of these individuals will be posted in each housing unit. If the Problem Solver(s) is not available, any staff member of the rank of sergeant or above can collect Step One grievances (also referred to as “informal”) and shall then act as the Problem Solver for that Step One grievance.
K. Medical Department – Health Services Administrator (HSA) or designee.
L. Mental Health Supervisor – the Division of Correction employee supervising the mental health staff and programs at the unit level.
IV. PROCEDURES:
The inmate grievance procedure is an internal administrative process for the resolution of complaints and the identification of potentially problematic management areas; however, it does not replace daily and routine communication between inmates and staff. Prior to filing a formal grievance (Step Two), an

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inmate must first seek a resolution of the complaint informally by taking Step One under this policy.
One form (Attachment I) will be used for both Step One (informal resolution) and Step Two (formal grievance). This same form will be used to submit all inmate grievance issues, including emergencies.
A. Proposed Changes to the Procedure
When the Division proposes to adopt changes to any policy which affects the inmate grievance process, the proposed changes shall be posted in prominent locations (to include employee and inmate bulletin boards and including electronic distribution) throughout the institution at least 30 days prior to the adoption of the changes. All comments shall be considered prior to adoption of the change and shall be kept as part of the appropriate policy file documentation. Inmates in Restrictive Housing will be provided a copy of the proposed change by the Grievance Officer at least 30 days prior to the adoption of the change.
B. Communication of Procedure
1. Written notification of the Inmate Grievance Procedure, and any changes there to, will be distributed to both inmates and employees. In addition, arriving inmates and new employees will have an opportunity to ask questions about the procedure and have them answered verbally.
2. If an inmate has a disability affecting communication or is not fluent in the English language, interpretive or explanatory services will be made available.
3. All employees at the facility level shall receive training by designated staff in the skills necessary to assist or participate in the inmate grievance procedure.
4. A summary of the Inmate Grievance Procedure will be included in the Inmate Handbook. However, the Inmate Grievance procedure is governed by this Administrative Directive and not any summary in the Inmate Handbook. All inmates shall be provided access to this Administrative Directive.
C. Accessibility
Each inmate shall be entitled to utilize the Inmate Grievance Procedure regardless of his or her security status, custody level, job classification, disciplinary status, or any administrative/ judicial decisions affecting the inmate.

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1. Copies of this policy shall be available for examination in each Unit’s Law Library.

2. The Attachment I grievance form shall be readily available to any inmate in any housing area at any time; however, no more than five (5) forms per week, except in the case of an emergency as defined in this policy, may be requested by an individual inmate. Additionally, an inmate may not have more than ten (10) blank Attachment I grievance forms in his or her possession at any one time, and no more than twenty (20) unsubmitted (not signed by a Problem Solver) Attachment I grievance forms in his or her possession at any one time.

3. An inmate may request one copy of his or her grievance from the facility grievance staff upon presenting a completed Section 1983 lawsuit or Claims Commission claim. The inmate must provide the grievance number for the particular grievance he/she is requesting.

4

A Grievance must specifically name each individual involved in order that

a proper investigation and response may be completed. An inmate must

fully exhaust the grievance procedure as a prerequisite to pursuing any

legal action related to the subject matter of the grievance. All inmates are

hereby advised that the Division reserves the right to raise any and all

defenses, including the failure to exhaust the grievance procedure, as to

any claim which may have been subject to the grievance procedure and as

to any person or entity.

An inmate who fails to name all parties during the grievance process may have his or her lawsuit or claim dismissed by the court or commission for failure to exhaust against all parties.

D. Completion of Forms

1. Inmates who have difficulty understanding how to complete the grievance forms or difficulty actually completing the forms should request and will be provided with assistance from staff. However, there is no prohibition against an inmate seeking assistance from another inmate if the grievant has language barriers or cannot read or write.

2. Only one Unit Level Grievance Form (Attachment I) can be submitted per grievance and only one problem/issue should be stated in the grievance, not multiple problems/issues. An inmate must use a separate form for each issue. Only one issue will be addressed in the response to a grievance. Additional problems/issues contained in the grievance will not be addressed and will not be considered as exhausted. Inmates are reminded that exhaustion of an issue is a perquisite to filing a lawsuit related to that issue in accordance with the Prison Litigation Reform Act of 1995.

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3. If the inmate is legally using a name other than the name under which he or she was committed to the Arkansas Division of Correction, both the legal and commitment names shall be used when completing the forms.
4. All forms, except those submitted electronically where and when electronic submission is available, must be legible and in ink, if available. Tape and other adhesive substances should not be used on any grievance forms.
5. If any Grievance Form is received in an unsanitary condition, that form(s) may be photographed and logged and held for evidence for appropriate disciplinary action against the inmate. Unsanitary grievance forms will not be accepted. The Problem Solver will return the grievance form to the inmate and then complete an Incident Report (Form 005).
E. Step One: Informal Resolution Procedure
Inmates are required to seek an informal resolution of a problem/complaint prior to filing a grievance.
1. The Unit Level Grievance Form (Attachment I) shall be completed and submitted within 15 days after the occurrence of the incident, with the date indicated beside “Step 1: Informal Resolution”. PREA grievances are not subject to the 15 day time limit.
2. On the Unit Level Grievance Form (Attachment I), and only in the space provided, the inmate should write a brief statement that is specific as to the substance of the issue or complaint to include the date, place, personnel involved or witnesses, and how the policy or incident affected the inmate submitting the form. Illegible or unintelligible grievances will not be accepted, but rather will be returned to the inmate by the Problem Solver with an explanation stating why the grievance will not be accepted. The Problem Solver will then complete an Incident report (Form 005).
Additional sheets, including additional pages of the grievance written on Unit Level Grievance Forms (Attachment I) should not be attached and will be returned to the inmate upon submission or as soon as practical. ONLY THE STATEMENT IN THE SPACE PROVIDED ON THE ATTACHMENT I FORM WILL BE MAINTAINED AND CONSIDERED THE GRIEVANCE SUBMISSION. However, additional sheets attached to PREA grievances will be maintained with the grievance.
3. The Unit Level Grievance Form (Attachment I) should be presented to one of the individuals whose name is posted in the housing unit as a designated Problem Solver. If a Problem Solver is not available, any staff

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member holding the rank of sergeant or above can collect a Step One grievance and shall then act as the Problem- Solver for that Step One grievance. If it is a PREA grievance, any staff member may act as the problem solver. At this time, the Problem Solver or staff member must sign and date the form, giving the inmate back the yellow and pink copies as receipts.
4. After receipt of the Unit Level Grievance Form (Attachment I), the Problem Solver will: a. meet with the inmate within three working days to resolve the issue; or b. meet with the inmate immediately to resolve the issue if it is an emergency; or c. refer medical issues to the HSA (examples include, but are not limited to, missed medications, inability to access medical services, failure to be seen at Sick Call or clinic appointments, or failure to receive lab or test results) as soon as practical, but in any event within one working day; or d. refer mental health issues to the Mental Health Supervisor as soon as practical, but in any event within one working day; or e. If the grievance is a PREA grievance, immediately notify the highest ranking officer at the unit or Duty Warden who will immediately cause the initiation of an investigation.
5. If the inmate believes the matter to be an Emergency, as defined in this Administrative Directive, he/she will fill in the date beside “Emergency Grievance” on the Unit Level Grievance Form to designate the grievance as an Emergency, and present the form to any staff member, but preferably a designated Problem Solver. If that staff recipient determines that an Emergency does exist, corrective action shall be taken as soon as possible and within no more than twenty-four (24) hours. If the staff recipient determines that no Emergency exists, the informal resolution form shall be processed within the normal time limits stated within this policy.
6. Upon receipt of a Unit Level Grievance Form submitted under Step One, the HSA, or medical department representative appointed by the HSA, or the Mental Health Supervisor will take whatever action is deemed clinically appropriate to fully resolve the problem, document the action taken, or state why no action is necessary or appropriate. The HSA or Mental Health Supervisor or designee will sign the form in the space provided for the staff signature which is found on the same line as the inmate signature following the description of the action taken to resolve the complaint. Please note the staff signature should NOT be in the space provided for the signature of the designated Problem Solver.

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7. As soon as practical, the HSA, Mental Health Supervisor, or designee will return the Unit Level Grievance Form to the inmate and provide a copy to the Grievance Officer. NOTE: In no event should this period exceed three (3) working days from submission of the Unit Level Grievance Form for Step One by the inmate to the Problem Solver. The HSA, Mental Health Supervisor, or designee should not respond to a grievance that is alleging misconduct by that individual against the inmate; however, where the inmate still has another step in the grievance process to challenge the conduct or the inmate is alleging indirect misconduct (failure to act) as opposed to direct misconduct, such as physical abuse or retaliation, by the HSA or the Mental Health Supervisor, then the Regional Manager or Mental Health Administrator will respond after the medical or mental health department has appropriately logged the resolution.
8. The HSA or Mental Health Supervisor will retain a copy for his or her records and for quality improvement purposes.
9. If the problem (those not referred to medical or mental health departments) can be resolved at the informal level, the Problem Solver should document the action taken on the Unit Level Grievance Form (Attachment I) and then both the inmate and the Problem Solver must sign and date the form.
10. If the problem cannot be resolved at Step One, the informal level, the Problem Solver must still document the resolution attempt on Attachment I, and then the inmate and the Problem Solver must sign and date the form. At this time, if the inmate chooses, he/she may now proceed to Step Two (the formal grievance) using this same form (Attachment I). See procedures for Step Two below.
11. If the designated Problem Solver (or substituted person to resolve the issue such as a medical or mental health staff member) has failed to contact the inmate and attempt resolution of the complaint or failed to return Step One (the grievance) within the designated three working days, the inmate may proceed to Step Two, the formal grievance, without the completion of Step One. In that instance, Step Two, the formal grievance, must be filed no later than six (6) working days from the original submission of the Unit Level Grievance Form pursuant to Step One: this allows three (3) working days to wait for a response to Step One, and three (3) working days to initiate Step Two. (These are not three (3) additional days, i.e., if the Problem Solver returns Step One on the day it was submitted, the inmate has only three (3) working days from receipt of that response to file Step Two.) The inmate will submit a copy of his/her Unit Level Grievance Form using the pink or yellow copy, whichever is most legible, that he/she retained following the instructions for Step Two.

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12. Whether or not the problem is resolved, the inmate should retain either the pink or yellow copy, whichever he did not submit for Step Two. A copy may be retained by the designated Problem Solver, and a copy is forwarded to the Grievance Officer for entry into the offender tracking system if necessary.
13. If an inmate has been transferred from the Unit where the incident or issue arose within the fifteen (15) days allowed to file Step One and the inmate submits Step One at a different Unit, and if the Problem Solver, HSA, or Mental Health Supervisor cannot address the issue because of the transfer, then the response to Step One should be “proceed to Step Two.” Upon submission of Step Two, the Grievance Officer will complete the portion of the Unit Level Grievance Form indicating the date received and to whom it was sent and immediately forward the grievance to the Grievance Officer at the unit where the incident or issue arose to process with a grievance number from that Unit. The deadlines will remain the same under this procedure to submit the grievance steps, and to respond with the date of submission to the first Grievance Officer beginning the response time.
F. Step Two: the Formal Grievance Procedure
After attempting to resolve the issue through Step One, informal resolution, an inmate can proceed to Step Two by filing a formal grievance on the same Unit Level Grievance Form (Attachment I) that was used for Step One.
1. The inmate should complete the date beside “Step Two: Formal Grievance” and the section regarding resubmission (of this form) including an explanation why the inmate considers the informal resolution unsuccessful, and deposit it into the designated grievance box, or submit it to a Staff Member if the inmate’s assignment prevents access to the grievance box. The Grievance Officer shall collect grievance forms daily, excluding weekends and holidays.
2. Additional sheets cannot be attached to the Unit Level Grievance Form (unless it is a PREA grievance) and only information in the space provided will be considered part of the grievance submission. Any new issues added to the form will not be considered.
3. Upon receipt, the Grievance Officer shall complete the box “for office use only” on the Unit Level Grievance form by assigning a number to the grievance (using unit and subject codes as described in the Grievance Procedure Codes-Attachment VII), and logging the date the grievance was received, inmate’s name, ADC number, type of grievance, and the text of the inmate’s complaint contained within the appropriate space on Attachment I in eOMIS.

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a. All medical issues will be coded 600 by the Unit Grievance Officer. All mental health issues will be coded 630.
b. The Medical and Mental Health Departments will assign more specific type codes as indicated on Attachment VII into eOMIS when completing the response to the grievance.
4. The Grievance Officer shall then transmit an Acknowledgement or Rejection of the Unit Level Grievance Form (see Attachment II) to the inmate within five (5) working days after receipt. No acknowledgment is required if a written response to the grievance, signed by the Warden, Health Services Administrator, or Mental Health Supervisor or designees, can be provided within five (5) working days.
5. The Grievance Officer will note whether the grievance is medical or mental health related. Such Step Two medical or mental health grievances will be forwarded as soon as possible, and in no event later than five (5) days, to the appropriate medical or mental health department for investigation and response to the inmate.
a. If the grievance is medical in nature, it is forwarded to the Health Services Administrator (HSA) at the Unit Medical Department for a response. The HSA, or designee, should not respond to a grievance that is alleging misconduct by that individual unless the inmate still has another step in the grievance process to challenge the conduct, or the inmate is alleging indirect misconduct (failure to act). Where the inmate is alleging direct misconduct (such as physical abuse or retaliation) by the HSA, then the appropriate Regional Manager will respond after the medical department has appropriately logged the resolution.
b. If the grievance relates to mental health services, the supervisor of mental health services for the facility, or designee, will answer the grievance. The Mental Health Supervisor, or designee, should not respond to a grievance that is alleging misconduct by that individual unless the inmate still has another step in the grievance process to challenge the conduct, or the inmate is alleging indirect misconduct (failure to act). Where the inmate is alleging direct misconduct (physical abuse or retaliation) by the Mental Health Supervisor, then the Mental Health Administrator at Central Office will respond after the mental health department has appropriately logged the resolution.
6. The Inmate Grievance Worksheet (see Attachment VIII) may be used by staff when investigating grievances.

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7. Every inmate grievant shall receive a written or electronic response to his or her grievance within 20 working days of receipt (or more promptly in the case of an Emergency grievance). The response will be on the form entitled Warden/Center Supervisor Decision (Attachment III) and signed by the Warden or the Warden’s designee. In the case of a medical or mental health grievance, the response will be on the form entitled Health Services Response to Unit Level Grievance (see Attachment IV) from the medical or mental health department.
The Unit Level Grievance Response/Decision shall include:
a. the reason for the decision, in clear, well reasoned terms; and
b. a statement that the Grievance: has merit and requires further action for resolution; or has merit, but is being resolved; or had merit but has been resolved; or has no merit.
8. The Grievance Officer will meet with the Warden for the appropriate response to the grievance. If the Warden refers a PREA investigation to IAD, the grievance response is sent after the Warden receives the Director’s disposition of suspected PREA allegation.
9. If an inmate has not received a response to his/her Unit Level Grievance within the allotted time frame as stated on the Acknowledgement Form or the Extension Form, if applicable, the inmate may move to the next level of the process, an appeal to the Chief Deputy/Deputy/Assistant Director Level. In this instance, the appeal must be filed no later than five (5) working days.
The Grievance Extension Form will be used in cases where a longer period is required for a response to or resolution of the problem. The inmate shall be notified by the responding authority, in writing, of the reason for the delay and its expected length on the Grievance Extension Form (see Attachment X). Time limits for responding will be extended automatically upon the completion of the Grievance Extension Form (Attachment X), unless the inmate disagrees in writing to the extension. If the inmate does not agree to the extension, the inmate understands and agrees that, with that decision, no further action will be taken on the issue, and the grievance will be returned to the inmate without a decision on its merit. By disagreeing with the extension, the inmate waives his or her right to have the grievance issue considered. If a second or additional extension is needed, the extension will be granted only upon approval of the Warden or Deputy Warden at the Step Two level.

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G. Steps to Appeal the Unit Level Grievance Decision:
After receiving a response from the Warden, the Health Services Administrator (HSA), the Mental Health Supervisor, or applicable designee, if the inmate is not satisfied, he or she may appeal to the appropriate Chief Deputy/Deputy/Assistant Director who will attempt to resolve the matter or assign an appropriate staff member to do so. In this instance, the appeal must be filed within the five (5) working days from the date of the response.
1. The appeal must be written in the space provided above the signature line on the original Warden/Center Supervisor’s Decision Form (Attachment III), the Health Services Response to Unit Level Grievance Form (Attachment IV) for medical or mental health grievances entitled Inmate’s Appeal (see Attachment III and IV), or the Acknowledgement or Rejection of Unit Level Grievance (Attachment II). Only what is written in the space provided above the signature line for appeal will be considered part of the grievance appeal. Except for a PREA grievance, additional sheets should not be attached and will be returned to the inmate upon receipt of the appeal or as soon as practical. ONLY THE STATEMENT IN THE SPACE PROVIDED ABOVE THE SIGNATURE LINE WILL BE MAINTAINED AND CONSIDERED PART OF THE APPEAL SUBMISSION.
2. To appeal the inmate must include the original (no photocopies) Unit Level Grievance Form (Attachment I), which describes the matter originally grieved, and either the Warden/Center Supervisor Decision Form (Attachment III), the Health Services Response to Unit Level Grievance (Attachment IV), or the Acknowledgement or Rejection of Unit Level Grievance (Attachment II) if the inmate is asserting the grievance was improperly rejected or if the inmate did not receive a response or extension within the applicable timeframe. The inmate should deposit the appeal into the designated grievance box; or submit it to a Staff Member if the inmate’s assignment prevents access to the grievance box. If these two (2) pages are not submitted with the inmate’s appeal portion completed, the appeal may be returned to the inmate as rejected.
To complete the appeal, the inmate must state a reason for the appeal, and must date, sign, and write the inmate’s ADC number on the attachment being appealed.
Do not list additional issues, requests, or names which were not a part of the original grievance, as those will not be addressed.
3. The Chief Deputy/Deputy/Assistant Director may process a grievance appeal not meeting the criteria set forth above when necessary for the

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safety and security of the Department
4. Appeals relating to medical, mental health or treatment program issues are submitted to the Deputy Director for Health and Correctional Programs.
All other grievances will be forwarded to the appropriate Chief Deputy/Deputy/Assistant Director for Institutions.
All Appeals will be answered by the Chief Deputy/Deputy/Assistant Director regardless of whether those individuals are named in the grievance.
5. Receipt of the appeal shall be acknowledged or rejected within five (5) working days unless a response can be provided within five (5) working days to the grievance signed by the Chief Deputy/Deputy/Assistant Director. The response shall be in written or electronic format.
6. The Chief Deputy/Deputy/Assistant Director will respond to the inmate concerning the decision within thirty (30) working days unless there is an extension or the appeal is rejected and the inmate is notified of the reason for rejection on the Acknowledgment of Grievance Appeal/Rejection of Appeal form (see Attachment V). A decision or rejection of an appeal at this level is the end of the grievance process. The response shall be in written format.
7. If a grievance appealed is a duplicate of one previously appealed by the inmate with regard to the staff member named, the date of the incident, and the subject of the grievance, the inmate will be sent an Acknowledgment of Grievance Appeal/Rejection on Attachment V, and it will be noted as “Duplicate of _______” and the earlier grievance number will be filled in the blank; the duplicate will be returned to the inmate with the Attachment V.
8. The Grievance Extension Form will be used in cases where a longer period is required for a response or resolution of the problem. The inmate shall be notified by the responding authority, in writing, of the reason for the delay and its expected length on the Grievance Extension Form (see Attachment X). Time limits for responding will be extended automatically upon completion of the Grievance Extension Form (Attachment X), unless the inmate disagrees in writing to the extension. If the inmate does not agree to the extension, the inmate understands and agrees that, with that decision, no further action will be taken on the issue, and the grievance appeal will be returned to the inmate without a decision on its merit. By disagreeing with the extension, the inmate waives his or her right to have the grievance issue considered or exhausted. A second or subsequent

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extension can be granted only with the approval of the Chief Deputy/ Deputy/Assistant Director.
9. The entire grievance procedure should be completed within seventy-six (76) working days unless a valid extension has been executed, or it can be documented that unforeseen circumstances have occurred.
10. Release of the inmate from custody will normally terminate his or her grievance, unless the parties are under court order to exhaust remedies or the grievance highlights a problem that needs to be addressed at the discretion of the Chief Deputy/Deputy/Assistant Director, or designee.
H. Remedies
A grievance with merit will be afforded a reasonable range of meaningful remedies.
1. The responsible authority will review the conditions, policies or practices grieved and take appropriate action.
2. When a higher authority than the responding authority must authorize appropriate action, the lower authority shall note its agreement or disagreement with the inmate and transmit the completed grievance form to the higher authority with notice to the inmate.
3. The Division is to encourage the resolution of grievances found to have merit involving property losses, confiscations or forfeitures through the return of the property or replacement.
4. Errors in record keeping may be corrected and action by the staff or Classification Committees may be modified as appropriate.
5. No grievance should be discussed between or among employees and inmates except as necessary to obtain statements or to resolve the issues.
6. No employee should respond to a grievance that is alleging misconduct by that employee against the inmate unless (a) the inmate still has another step in the grievance process to challenge the conduct, or (b) the inmate’s allegation was of indirect misconduct (conduct by omission). Where the inmate is alleging direct misconduct (such as physical abuse) by the employee, the employee shall not respond to the grievance. No employee may respond to a grievance that is alleging sexual harassment or sexual abuse by that employee against the inmate.

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I. Allegations of Abuse
Any credible allegation of excessive force, sexual harassment or abuse, assault, or similar physical abuse of an inmate will be forwarded to the Internal Affairs Division for an investigation consistent with Arkansas Division of Correction policies.
J. Abuse of the Grievance Procedure
Abuse of the grievance procedure by inmates will be dealt with in the following manner:
1. Excessive Use of the Procedure
a. Step One, Informal Resolutions, are limited to five (5) per sevenday period because excessive submissions may cause a delay in processing inmate grievances. The Warden or designee must maintain a record of five (5) submissions each seven-day period before rejecting one from that inmate. Only the first five (5) informal grievances, Step One, will require a response. The sevenday period will begin each Saturday and end on Friday. The submissions that exceed the limit will be marked as “No action necessary-exceeds weekly limit,” followed by the staff person’s name, signature and date verifying that person verified (1) that five (5) submissions under Step One had already been received from the inmate that seven-day period, and (2) it was not an emergency. A submission rejected under this section shall be returned to the inmate.
b. Inmates are only allowed to submit three formal grievances, Step Two, each seven-day period which begins each Saturday and ends on Friday. Only the first three formal grievances, Step Two, submitted each seven-day period by an inmate require an investigation and response. This limit includes both institutional and medical or mental health grievances. All other formal grievances will be logged and reviewed to determine if an emergency exists. If it is determined to be an emergency, action will be taken promptly to resolve the issue; however, a written response to the inmate is not required. If no emergency exists, the grievance will be logged out on the same day received, and it shall be written on the Unit Level Grievance Form “No action necessary-exceeds weekly limit,” dated and signed. The original grievance will then be placed in the grievance file and no written response will be given to the inmate.

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c. If the formal grievance is regarding a health issue, but exceeds the inmate’s limit for weekly submission, the grievance officer will note at the top of the grievance form “EXCEEDS WEEKLY LIMIT.” The formal grievance will then be forwarded to the medical or mental health department to determine if an emergency exists. If the medical or mental health departments determine the grievance to be an emergency, the Health Services Administrator or Mental Health Supervisor will ensure that prompt action is taken to resolve the issue; however, a written response to the inmate is not required. If neither the medical nor mental health departments determine the grievance to be an emergency, it will be noted at the top of the grievance form, “not an emergency” beside the “EXCEEDS WEEKLY LIMIT” statement, dated and signed by the Health Services Administrator or Mental Health Supervisor and returned to the Grievance Officer for filing.
d. If a formal grievance is a duplicate of one previously submitted by the inmate with regard to the staff member named, the date of the incident, and the subject of the grievance, the duplicate grievance will be logged into eOMIS, the inmate will be sent a Rejection of Grievance on Attachment II, and note at the top of the grievance form as “Duplicate of ______” and the earlier grievance number will be filled in the blank; the duplicate will be returned to the inmate with the Attachment II and counted as one of the inmate’s weekly submissions.
e. If the duplicate grievance is regarding a health issue, the grievance officer will forward the logged grievance and Rejection of Grievance Attachment II to medical or mental health to determine if a response is necessary or an emergency exists. If necessary, the Health Services Administrator or Mental Health Supervisor will ensure that prompt action is taken to resolve the issue, and if not, the medial or mental health staff will note at the top, “no response necessary on duplicate,” date and sign it, and return both the grievance and Rejection of Grievance Attachment II to the inmate.
2. Frivolous and Vexatious (Provoking or Harassing) Use of the Procedure
a. A frivolous or vexatious submission at any step will be logged and returned to the inmate with a Rejection form (Attachment II or Attachment V) and counted as one of the inmate’s weekly submissions.
b. A submission is frivolous when it is clearly insufficient on its face to allege an issue or concern and is readily recognizable as devoid of merit and insufficient for resolution or appeal.

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c. A submission is vexatious when it merely agitates, provokes, harasses or irritates by petty provocation and is not designed to lead to any practical result, resolution, or appeal.
3. Use of Threats
An inmate who use the grievance procedure to direct threats at another will have the grievance rejected and copies will be referred to Internal Affairs to consider for referral for prosecution.
4. Malicious Use of the Procedure
Any inmate who knowingly makes false statements in a submission for the purpose of harming another person will have the grievance rejected.
K. Reprisals or Retaliation
1. No inmate shall suffer any threat or action based on his or her appropriate use of, or participation in, the grievance procedure. If an inmate believes he/she has been retaliated against for the use of the grievance procedure, he/she must contact the Warden/Center Supervisor or in a case of alleged retaliation by the Warden/Center Supervisor, the inmate shall contact the appropriate Chief Deputy/Deputy/Assistant Director. Regardless, the inmate must exhaust their remedies through the grievance process.
2. Any reprisal or retaliation by staff is absolutely prohibited and will be dealt with in accordance with the appropriate policy regarding employee conduct and discipline. All personnel shall receive written and oral notice that formal and/or informal reprisals will not be tolerated.
The Training Academy has implemented a training program regarding inmate problem resolutions and complaints. The training is mandatory for all staff involved in the inmate grievance process.
3. Once an inmate initiates the grievance process, the process shall be followed through all stages without interference by administrators or employees of the division. Anytime an inmate voluntarily decides to withdraw a grievance, he or she must submit a Grievance Waiver Form (see Attachment IX). The appropriate staff will verify receipt of the waiver in writing.
4. If reprisal or retaliation is suspected or determined after the unit/center investigation, the grievance shall be forwarded to Internal Affairs for further review with all relevant documentation.

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L. Records
1. Each designated administrator at each level of response shall collect and systematically maintain records regarding the filing and disposition of grievances. These records will be maintained pursuant to the Division’s record retention policy in either hard copy or in a retrievable form, as well as in the inmate’s electronic record, and shall be available for inspection as required by law.
2. At a minimum, such records shall include aggregate information regarding the numbers, types and disposition of grievances, as well as individual records of the dates and reasons for each disposition at the formal grievance (Step Two) and appeal stages of the procedure and shall be logged in the electronic offender records system. Such records shall be preserved in accordance with the policy regarding records retention.
3. Records regarding the participation of an individual in grievance proceedings shall not be available for review by any inmate other than the grievant.
4. Grievance records, including statements and testimony provided during the process, are confidential and are not available to inmates. Division personnel other than those directly involved in the grievance process may not have access to the information, unless the person’s job requires access to such records.
5. Except as otherwise provided by Arkansas law, grievance records will not be available to non-departmental personnel other than those representing the Division of Correction or providing services such as imaging or destruction of records under an agreement with the Division of Correction.
6. No entries concerning grievances, or an inmate’s participation in a grievance proceeding through testimony or submission of evidence, shall be recorded in the inmate’s paper institutional file.
7. Only those positions authorized by the appropriate Chief Deputy/Deputy/Assistant Director will have access to the Grievance Tracking Program.
M. Evaluation
1. Monthly, quarterly and annual reports may be generated from the tracking system.
2. Records of staff efforts at problem solving may be considered by supervisors evaluating the performance of staff.

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N. Prison Litigation Reform Act Notice
Inmates are hereby advised that they must exhaust their administrative remedies as to all defendants at all levels of the grievance procedure before filing a Section 1983 lawsuit or Claims Commission claim. If this is not done, the lawsuit or claim may be summarily dismissed.
Inmates must attach a copy of the Chief Deputy/Deputy/Assistant Director’s response to any petition or complaint; otherwise, the court or commission may dismiss the case.
Inmates are also advised that they shall be subject to paying filing fees in Federal Court pursuant to the Prison Litigation Reform Act.
V. REFERENCES:
Prison Litigation Reform Act Prison Rape Elimination Act
VI. ATTACHMENTS: Attachment I – Unit Level Grievance (Informal Resolution/Formal Grievance/Emergency Grievance) Attachment II – Acknowledgment of Unit Level Grievance Attachment III – Warden/Center Supervisor’s Decision/Inmate Appeal Attachment IV – Health Services Response to Unit Level Grievance Attachment V – Acknowledgment of Grievance Appeal/Rejection of Appeal Attachment VI – Chief Deputy/Deputy/Assistant Director’s Decision Attachment VII – Grievance Codes Attachment VIII – Inmate Grievance Investigation Worksheet Attachment IX – Grievance Waiver Attachment X – Grievance Extension

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UNIT LEVEL GRIEVANCE FORM

Attachment I

Unit/Center ___________________________ Name _________________________________________________________ ADC# _______________ Brks # ________ Job Assignment _____________

FOR OFFICE USE ONLY
GRV. #___________ __________

________ (Date) STEP ONE: Informal Resolution

Date Received:

________ (Date) STEP TWO: Formal Grievance (All complaints/concerns should first be h__a__n__d_l_e_d__i_n_f_ormally.)

If the issue was not resolved during Step One, state why:_______________________________________________________________________________G___R__V____. _C___o_d__e__#__:_______________

________ (Date) EMERGENCY GRIEVANCE (An emergency situation is one in whi_c_h_ you may be subject

to a substantial risk of physical harm; emergency grievances are not for ordinary problems that are not of a

serious nature). If you marked yes, give this completed form to the designated problem-solving staff, who will

sign the attached emergency receipt. If an Emergency, state why:

__________________________________________________________________________________________________________ __________________________________________________________________________________________________________

Is this Grievance concerning Medical or Mental Health Services? _____ If yes, circle one: medical or mental

BRIEFLY state your one complaint/concern and be specific as to the complaint, date, and place, name of

personnel involved and how you were affected. (Please Print):

___________________________________________________________________________________________________________

___________________________________________________________________________________________________________

___________________________________________________________________________________________________________

___________________________________________________________________________________________________________ ___________________________________________________________________________________________________________

___________________________________________________________________________________________________________

______________________________________________________

____________________________________________

___________________________________

Inmate Signature

Date

If you are harmed/threatened because of your use of the grievance process, report it immediately to the Warden or

designee.

THIS SECTION TO BE FILLED OUT BY STAFF ONLY

This form was received on __________ (date), and determined to be Step One and/or an Emergency

Grievance ___ (Yes or No). This form was forwarded to medical or mental health? (Yes or No). If yes, name

of the person in that department receiving this form: ______________________________ Date ___________

____________________________ __________ _______________________ _____________

PRINT STAFF NAME (PROBLEM SOLVER)

ID Number Staff Signature

Date Received

Describe action taken to resolve complaint, including dates:

_________________________________________________________________________________________________

_________________________________________________________________________________________________

_________________________________________________________________________________________________

Print and Sign Staff Name & Date Returned

Inmate Signature & Date Received___________

This form was received on ______ (date), pursuant to Step Two. Is it an Emergency? __ (Yes or No).

Staff Who Received Step Two Grievance: _______________________________ Date: _____________

Action Taken: _______________ (Forwarded to Grievance Officer/Warden/Other) Date: _____________

If forwarded, provide name of person receiving this form: ___________________ Date: _______________

--------------------------------------------------------------------------------------------------------------------------------------

DISTRIBUTION: YELLOW & PINK – Inmate Receipts; BLUE-Grievance Officer; ORIGINAL-Given

back to Inmate after Completion of Step One and Step Two.

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Attachment II

ACKNOWLEDGE OR REJECTION OF UNIT LEVEL GRIEVANCE

Date:________________

To: Inmate

ADC#

From: ________

Title:

Grievance #

Please be advised I have received your Grievance dated

on

You should receive communication regarding the Grievance by

* OR

Your grievance was rejected as non-grievable, untimely, duplicative, frivolous, or vexatious.

_____ _____
.

CHECK ONE OF THE FOLLOWING

________ This Grievance will be addressed by the Warden/Center Supervisor or designee.

________

This Grievance is of a medical nature and has been forwarded to the Health Services Administrator who will respond.

________

This Grievance involves a mental health issue and has been forwarded to the Mental Health Supervisor who will respond.

________ This Grievance has been determined to be an emergency, as you so indicated.

Action Taken: _________________________________________________________

________

This Grievance has been determined to not be an emergency because you would not be subject to a substantial risk of personal injury or other serious irreparable harm. Your Grievance will be processed as a non-emergency.

________

This Grievance was REJECTED because it was either non-grievable (____________), untimely, a duplicate of __________, or was frivolous or vexatious.

B. INMATE’S APPEAL
If you disagree with a rejection, you may appeal this decision within five working days by filling in the information requested below and mailing it to the appropriate Chief Deputy/Deputy/Assistant Director. If you do not receive communication regarding your grievance by the date listed above, you may move to the next level of the process. To do so, indicate in the Inmate’s Appeal Section below that you did not receive a response and mail it to the appropriate Chief Deputy/Deputy/Assistant Director within five working days *. Keep in mind that you are appealing the decision to reject the original complaint. Address only the rejection; do not list additional issues, which were not a part of your original grievance as they will not be addressed. Your appeal statement is limited to what you write in the space provided below.

Inmate Signature

ADC#

Date

If appealing a rejection, please include both the Unit Level Grievance Form (Attachment I) and the Rejection (Attachment II)

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 28 of 37
Attachment III INMATE NAME ___________________________ ADC# ___________ GRIEVANCE # ____________
WARDEN/CENTER SUPERVISOR’S DECISION

Signature of Warden/Supervisor or Designee

Title

Date

INMATE’S APPEAL
If you are not satisfied with this response, you may appeal this decision within five working days as per policy by filling in the information requested below and mailing it to the appropriate Chief Deputy/Deputy/Assistant Director. Keep in mind that you are appealing the decision to the original complaint. Do not list additional issues, which are not a part of your original grievance, as they will not be addressed. Your appeal statement is limited to what you write in the space provided below above.
WHY DO YOU DISAGREE WITH THE ABOVE RESPONSE?

Inmate Signature

ADC#

Date

If appealing, please submit both the Unit Level Grievance Form (Attachment I) and the Warden’s Decision (Attachment III)

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 29 of 37
Attachment IV Inmate Name: _______________________ ADC#_____________ Grievance #___________
HEALTH SERVICES RESPONSE TO UNIT LEVEL GRIEVANCE

______________________________________________________________________________________________ Signature of Health Services Administrator/Mental Health Supervisor or Designee & Title

_____________ Date

If follow up by Health Services Staff is required, are the details included in the response above? Yes _______ or, No follow up is necessary _______

INMATE’S APPEAL
If you are not satisfied with this response, you may appeal this decision within five working days as per policy by filling in the information requested below and mailing it to the Deputy Director for Health & Correctional Programs. Keep in mind that you are appealing the decision to the original grievance. Do not list additional issues, which were not a part of your original grievance, as new issues will not be addressed. Your appeal statement is limited to what you write in the space provided above the signature line.

WHY DO YOU DISAGREE WITH THE RESPONSE GIVEN ABOVE?

________________________________________________________

Inmate Signature

ADC#

___________
Date

If appealing, please submit both the Unit Level Grievance Form (Attachment I) and the Health Services Response (Attachment IV)

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 30 of 37

Attachment V

Acknowledgment of Grievance Appeal, or Rejection of Appeal

TO: Inmate

ADC #

FROM:

TITLE:

RE: Receipt of Grievance Appeal #

DATE:

Please be advised your Appeal dated

was received in my office on

The Chief Deputy/Deputy/Assistant Director will answer this appeal by

,

OR,

Your grievance appeal is being returned pursuant to the Administrative Directive on Inmate Grievances

due to one of the following:

______ The time allowed for appeal has expired.

______ The matter is non-grievable and does not involve retaliation.

________Request disciplinary action against employee, contractor, or volunteer

________Claim for monetary damage

________Parole and/or Release matter

________Transfer

________Job Assignment (Unrelated to Medical Restriction)

________Disciplinary matter

________Matter beyond the Division’s control and/or matter of State/Federal law

________Involves an anticipated event

Publication

________ You did not send all the proper Attachments:

________ Unit Level Grievance Form (Attachment I)

________ Warden’s/Center Supervisor’s Decision (Attachment III); or Health Services Response (Attachment IV for Health Issues Only)

________ Acknowledgement and/or Rejection form (Attachment II)

_________Step Two was appropriately rejected

_________ Did not give reason for appeal in space provided for appeal

_________ Did not complete Attachment III or IV by signing your name, ADC #, and/or the date

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 31 of 37
_________ Unsanitary form (s) or documents received _________ This Appeal was REJECTED because it was a duplicate of __________, or was
frivolous or vexatious.

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 32 of 37
Attachment VI INMATE NAME ___________________________ ADC# ___________ GRIEVANCE # ___________
CHIEF DEPUTY/DEPUTY/ASSISTANT DIRECTOR’S DECISION

_________________________________________________________ SIGNATURE

______________________ DATE

Please be advised that if you appeal this decision to the U.S. District Court, a copy of this Chief Deputy/Deputy/Assistant Director’s Decision must be attached to any petition or complaint or the Court may dismiss your case without notice. You may also be subject to paying filing fees pursuant to the Prison Litigation Act of 1995.

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 33 of 37

GRIEVANCE PROCEDURE CODES

Attachment VII (Page 1)

Each Unit/Center is assigned a unit code as follows:

BC Boot Camp BOW Bowie County BU Benton Unit CU Cummins Unit CMU Cummins Modular Unit DR Delta Regional Unit EA East Arkansas – population EAM East Arkansas – Max Sec ESU Ester Unit GR Grimes Unit RLW Randall L. Williams Facility HA Hawkins Unit

MC Mississippi County Work Release MCP McPherson Unit MCS McPherson Special Needs Unit MX Maximum Security Unit NC North Central Unit OR Ouachita River Corr. Unit SAT Wrightsville Satellite Unit SNU ORCU Special Needs Unit SNN ORCU New Commitment SNH ORCU Hospital NW Northwest AR Work Release

PB Pine Bluff Unit PBR Pine Bluff Reentry Center PBW Pine Bluff Unit Work Release TU Tucker Unit TX Texarkana Regional Correctional Center VU Varner Unit – population VSM Varner Super Max WR Wrightsville Unit WHM Wrightsville Hawkins Males

Which is succeeded by the last two digits of the calendar year, followed by a five digit sequential number beginning with 00001 (i.e., CU-03-00001).

GRIEVANCE TYPE CODES

100 Transfer 101 Unit Transfer 102 Interstate Compact
200 Institutional Assignment 201 Cell Barracks 202 Job 203 Classification 204 Enemy Alert List 205 Protective Custody 206 Punitive 207 Administrative Segregation 208 School/Vocation Training 209 Rehabilitation Programs 210 Counselors 211 Investigative Status – DCR 212 48 Hour Relief Privileges
300 Communication 301 Visits (non-legal) 302 Telephone 303 Radio/Television/Movie 304 Interview Request 305 Unit Policy/ADC Policy 306 Publication 307 Mail 308 Marriage
400 Disciplinary Matters

500 Institution Operations 501 Food/Food Services 502 Commissary 503 Inmate Funds 504 Sanitation – Showers, etc. 505 Inmate Property Claims 506 Clothing – Bedding/Footwear 507 Activity Rotation 508 Living Conditions 509 Working Conditions 510 Grooming 511 Recreation 512 Searches 513 Contraband/Confiscation Forms 514 Alternative Meals 515 Hunger Strike 516 Diet
600 Medical 601 Denial of Treatment 602 Harassment or Abuse 603 Records 604 Footwear/Orthotics 605 Sick Call – not otherwise specified 606 Vision 607 Food/Special Diet 608 Medication/Pill Call – not otherwise
Specified

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 34 of 37
GRIEVANCE TYPE CODES Attachment VII (Page 2)

609 Medical Classification 610 Hearing 611 Housing conditions (medical reasons) 612 Chronic Care 613 Chronic Care not seen 614 Chronic Care rx’s not prescribed 615 delete 615 Orthopedic 616 Sick Call no security escort 617 Sick Call not seen timely 618 Sick Call referred not seen 619 Other 620 Dental 621 Dental Prosthetics 622 Medical Appointments (outside not
otherwise specified) 623 Surgery
630 Mental Health 631 Mental Health Appointments 632 Mental Health – Medication side
effects 633 Mental Health – Housing 640 Medication not given 641 Medication prescribed 642 OPM medications 643 Medication not ordered 644 Medication error 645 Medication pharmacy error 650 Co-pay 651 Lab 652 X-ray 653 Treatment call 654 Informal resolution not answered 655 Consults
700 Legal 701 Access to courts 702 Indigent Inmate Supplies 703 Law Books/Pages 704 Law Library 705 Legal Visits with Inmate 706 Other Legal Visits

707 Retaliation/Harassment – Use of the Grievance Process
708 Retaliation/Harassment – Access to Courts Rights
709 Notary Services 710 Access to Grievance Forms 711 Storage of Legal Materials 712 Legal Mail 713 No Response to Grievance 714 Other Legal Matters 715 No Further Action is Necessary(NFAN) 716 Freedom of Information Act (FOIA) 717 Multiple Issues Grieved 718 Welfare 719 Copies Made 720 Retaliation – other 721 Loss of Property
800 Complaints Against Staff 801 Physical Abuse 802 Verbal Abuse 803 Other Complaints Against Staff
900 Other 901 Good Time 902 Furlough 903 Other Complaints Against
Inmates/Cellmate 904 Time Computation 905 Hobby Craft 906 Religion 907 Parole Matters 908 Discrimination (Race, Religion, Sex,
etc). 909 Name Change 910 Urine Testing 911 Work Release 912 Maintenance 913 Grieving for Another Inmate 914 Detainer Removed 915 PREA

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 35 of 37

Attachment VIII

The below listed inmate has filed a grievance/appeal with this office. Please give a detailed statement in regards to the issue(s) stated by the inmate in this grievance. The statement, “I have no knowledge,” is not acceptable. Also, please submit any supporting documentation with your response, (i.e., disciplinary, 005’s, logs, medical information, other officer and/or inmate statements, etc.).

EMPLOYEE:

UNIT:

RE: INMATE:

ADC#

FROM:

DUE DATE:

GRIEVANCE #:

DATE & TIME OF INCIDENT

Inmate’s Complaint: ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________

EMPLOYEE STATEMENT BELOW

STATEMENT: ______________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________

___________________________________________________ Responding Staff Signature

___________________ Date

You are not to retaliate against this inmate in any shape, form or fashion for submitting this grievance. If you are found to have retaliated against any inmate for using the grievance procedure, you will be subject to disciplinary action, which may be a verbal warning, a written warning, and/or termination.

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 36 of 37

810-5
TO: FROM:

GRIEVANCE WAIVER

Attachment IX

DATE: SUBJECT:

I, _______________________________________________, ADC# ____________________, do hereby agree that grievance number ________________________, dated ___________________, has been resolved/and/or, I no longer want to pursue this matter. This decision is voluntary and made without threats or coercion of any type.
___________________________________________ Inmate Signature
___________________________________________ Date
___________________________________________ Witness Signature
___________________________________________ Date

Case 4:20-cv-00434-KGB Document 36-37 Filed 04/30/20 Page 37 of 37

810-6

GRIEVANCE EXTENSION

Attachment X

TO: Inmate

ADC#

FROM:

TITLE:

DATE:

GRIEVANCE #

ADDITIONAL TIME IS NECESSARY IN ORDER TO: ___________________________________________________________________________________________
_____________________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________

The Chief Deputy/Deputy/Assistant Director will answer this appeal by

:

______________________________

This extension is automatic unless you specifically disagree; if you agree to the extension then no action is required on your part. If you DO NOT agree to an extension, check DISAGREE, complete the signature line and return the original to this office. If you do not agree, you understand that, with your decision, NO FURTHER ACTION will be taken on this issue, you WILL NOT have exhausted your administrative remedies, and your grievance will be returned to you without a decision regarding its merit.

____________ DISAGREE

By disagreeing with this extension, I waive my right to have this grievance issue considered.

___________________________________________ ADC# ______________ DATE: _____________ Inmate Signature

________________________________________________________________ DATE: _____________ Warden/Center Supervisor Signature

________________________________________________________________ DATE: _____________ Chief Deputy/Deputy/Assistant Director/Director Signature

Case 4:20-cv-00434-KGB Document 36-38 Filed 04/30/20 Page 1 of 4
EXHIBIT
38

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Case 4:20-cv-00434-KGB Document 36-39 Filed 04/30/20 Page 1 of 2
EXHIBIT
39

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Case 4:20-cv-00434-KGB Document 36-40 Filed 04/30/20 Page 1 of 4
EXHIBIT
40

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Case 4:20-cv-00434-KGB Document 36-40 Filed 04/30/20 Page 3 of 4

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Case 4:20-cv-00434-KGB Document 36-41 Filed 04/30/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

PLAINTIFFS

v.

CASE NO. 4:20-CV-00434-KGB-JJV

WENDY KELLEY, et al.

DEFENDANTS

DECLARATION OF APRIL GIBSON

I, April Gibson, am competent to testify and have personal knowledge regarding

the statements contained in this declaration and under the penalty of perjury, do hereby

state and verify the following:

1. I am employed by the Arkansas Division of Correction (the "ADC") as the

Inmate Grievance Supervisor for the Cummins Unit.

2. My responsibilities in this position include responding to non-medical

inmate grievances for the Wardens of the Cummins Unit.

3. My office maintains the ADC's records relating to formal and informal

grievances submitted at this unit. These records are maintained in the normal course of

ADC business and I am a custodian of the records.

4. I am very familiar with the ADC's inmate grievance procedure, and I use

the procedure daily in my work as the Inmate Grievance Supervisor.

5. I have reviewed the ADC's grievance records pertaining to inmates Alfred

Nickson (ADC # 164879) and Robert Stiggers (ADC # 133728). Both Nickson and Stiggers

are incarcerated at the Cummins Unit. Page 1 of 2

EXHIBIT
41

Case 4:20-cv-00434-KGB Document 36-41 Filed 04/30/20 Page 2 of 2 6. My office has no record of Nickson submitting a grievance on April 17, 2020.
My office also has no record of Nickson filing any grievance related to COVID-19.
8. Similarly, my office has no record of Stiggers submitting a grievance on April 17, 2020.
9. My office also has no record of Stiggers filing any grievance related to COVID-19.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Apri Gibso
Li-gc("0-00
Date
Page 2 of 2

Case 4:20-cv-00434-KGB Document 36-42 Filed 04/30/20 Page 1 of 3
Date: 4/24/2020
Your COVID-19 test results are NEGATIVE. You will still be evaluated periodically but you should
report any symptoms such as tightness in the chest, difficulty breathing and/or fever. Please make every effort to keep your hands clean-washing them after being in common areas and wear your mask. Most people who get the virus have no symptoms or very mild symptoms. Some do report feeling sick much like it is with the flu. A few, especially those with underlying health issues, such as lung complications, often need medical support. This illness is very serious, and we are taking steps to prevent the spread to other areas of the prison as well as other facilities. The Arkansas Department of Corrections has been coordinating its COVID-19 containment efforts using subject matter experts both internal and external, including the Arkansas Department of Health and our medical provider Wellpath, in conjunction with the Centers for Disease Control & Prevention guidance. The Department of Corrections has implemented the following measures to protect the offender population: Reminders:
 If you develop a fever, cough, or shortness of breath please submit a sick call  If you are experiencing a medical emergency please notify security immediately  Continue all recommended precautions
o Frequent hand washing o Social distancing of 6 feet or more when able o Wear your mask o Refrain from touching your face, especially your eyes, nose, or mouth o If you need to cough or sneeze do so into the bend of your arm o You should only touch the ear pieces of the mask when placing it on, and
when removing it for washing.
EXHIBIT
42

Case 4:20-cv-00434-KGB Document 36-42 Filed 04/30/20 Page 2 of 3

Date: 4/24/2019

POSITIVE. Your COVID-19 test results are

You will still be evaluated periodically but you should

report any symptoms such as tightness in the chest, difficulty breathing and/or fever. Please make every

effort to keep your hands clean- washing them after being in common areas and wear your mask.

Most people who get the virus have no symptoms or very mild symptoms. Some do report feeling sick much like it is with the flu. A few, especially those with underlying health issues, such as lung complications, often need medical support. This illness is very serious, and we are taking steps to prevent the spread to other areas of the prison as well as other facilities.

The Arkansas Department of Corrections has been coordinating its COVID-19 containment efforts using subject matter experts both internal and external, including the Arkansas Department of Health and our medical provider Wellpath, in conjunction with the Centers for Disease Control & Prevention guidance. The Department of Corrections has implemented the following measures to protect the offender population:

Reminder:

 If you are experiencing a medical emergency please notify security immediately

 Continue all recommended precautions o Frequent hand washing o Social distancing of 6 feet or more when able o Wear your mask o Refrain from touching your face, especially your eyes, nose, or mouth o If you need to cough or sneeze do so into the bend of your arm o You should only touch the ear pieces of the mask when placing it on, and when removing it for washing.

Case 4:20-cv-00434-KGB Document 36-42 Filed 04/30/20 Page 3 of 3
Attached you will find the results to your COVID 19 test. Whether you are positive or negative you will still be evaluated periodically but you should report any symptoms such as tightness in the chest, difficulty breathing and/or fever. Please make every effort to keep your hands clean-washing them after being in common areas and wear your mask. Most people who get the virus have no symptoms or very mild symptoms. Some do report feeling sick much like it is with the flu. A few, especially those with underlying health issues, such as lung complications, often need medical support. This illness is very serious, and we are taking steps to prevent the spread to other areas of the prison as well as other facilities.
The Arkansas Department of Corrections has been coordinating its COVID-19 containment efforts using subject matter experts both internal and external, including the Arkansas Department of Health and our medical provider Wellpath, in conjunction with the Centers for Disease Control & Prevention guidance. The Department of Corrections has implemented the following measures to protect the offender population:
Reminders If NEGATIVE:
 If you develop a fever, cough, or shortness of breath please submit a sick call  If you are experiencing a medical emergency please notify security immediately  Continue all recommended precautions
o Frequent hand washing o Social distancing of 6 feet or more when able o Wear your mask o Refrain from touching your face, especially your eyes, nose, or mouth o If you need to cough or sneeze do so into the bend of your arm o You should only touch the ear pieces of the mask when placing it on, and
when removing it for washing.
Reminders if POSITIVE:
 If you are experiencing a medical emergency please notify security immediately  Continue all recommended precautions
o Frequent hand washing o Social distancing of 6 feet or more when able o Wear your mask o Refrain from touching your face, especially your eyes, nose, or mouth o If you need to cough or sneeze do so into the bend of your arm o You should only touch the ear pieces of the mask when placing it on, and
when removing it for washing.

 
 Case 4:20-cv-00434-KGB Document 42 Filed 05/04/20 Page 1 of 22

THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER

PLAINTIFF

v.

Case No. 4:20-cv-00434-KGB

WENDY KELLEY, et al.

DEFENDANTS

TEMPORARY RESTRAINING ORDER

Before the Court is a supplemental motion for a temporary restraining order filed by

plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred

Nickson, Harold “Scott” Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and John

Doe, individually and on behalf of all others similarly situated (collectively, “plaintiffs”) (Dkt. No.

22). Plaintiffs bring this action against defendants Wendy Kelley, Secretary of the Arkansas

Department of Correction (“ADC”); Dexter Payne, Division of Correction Director, ADC; Jerry

Bradshaw, Division of Community Correction Director, ADC; Asa Hutchinson, Governor of

Arkansas; Benny Magness, Chairman of Arkansas Board of Corrections (“ABC”); Bobby Glover,

Vice Chairman of ABC; John Felts, Member of ABC; William “Dubs” Byers, Member of ABC;

and Whitney Gass, Member of ABC, all in their official capacities (collectively, “defendants”)

(Dkt. No. 1).1 For the following reasons, the Court denies plaintiffs’ supplemental motion for a

temporary restraining order (Dkt. No. 22).

1 Initially, plaintiffs also named as a defendant Buddy Chadick, Secretary of the Arkansas Board of Corrections (Dkt. No. 1). However, plaintiffs have filed a notice of voluntarily dismissal of separate defendant Buddy Chadick pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) (Dkt. No. 8). Accordingly, the Court directs the Clerk of the Court to terminate Mr. Chadick as a defendant in this action.

Case 4:20-cv-00434-KGB Document 42 Filed 05/04/20 Page 2 of 22
I. Background A. COVID-19
COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 2019. The COVID-19 pandemic has created a public health emergency (Dkt. No. 3, at 14). More than two million individuals worldwide have tested positive for COVID-19, and more than 146,000 have died from the disease (Id.). There is no cure for COVID-19, and once contracted it can have life-threatening consequences, particularly for people who have underlying medical conditions, have a disability, or are over the age of 50 (Dkt. No. 23, at 3).
The World Health Organization (“WHO”) declared COVID-19 a pandemic on March 11, 2020 (Dkt. No. 3, at 14). That same day, Governor Hutchinson signed Executive Order 20-03 (“EO 20-03”) declaring a state of emergency and confirmed the first presumptive case of COVID19 in Arkansas (Id.). Also on March 11, Ms. Kelley issued a memorandum outlining the ADC’s protocols to reduce the risk and combat the spread of COVID-19 within ADC facilities (Id., at 25). This memorandum encouraged regular handwashing, covering coughs and sneezes, avoiding handshakes, continuing cleaning, and telling staff members to stay at home if ill (Id., at 25-26). See Wendy Kelley, Sec. of Corrections, Memorandum (Mar. 11, 2020), https://adc.arkansas.gov/coronavirus-covid-19-updates. On March 13, 2020, President Trump declared the COVID-19 outbreak a national emergency (Id., at 15).
On March 23, 2020, the CDC published its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Id., at 26). See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf. The CDC published these guidelines, in
2

Case 4:20-cv-00434-KGB Document 42 Filed 05/04/20 Page 3 of 22
part, to help correctional facilities ensure the protection, health, and safety of incarcerated people (Dkt. No. 3, at 26).
At the time of the complaint’s filing, Arkansas had 1,971 COVID-19 infections and 42 deaths statewide; incarcerated people make up at least one in three confirmed COVID-19 infections statewide (Dkt. No. 1, ¶ 2). COVID-19 has proven highly contagious in congregate environments such as nursing home facilities, cruise ships, naval aircraft carriers, and prisons (Id., ¶ 3). Because ADC prisoners are housed in close quarters, unable to maintain a six-foot distance from others, and share or touch objects used by others, the risks of contracting COVID-19 are greatly increased in ADC facilities (Dkt. No. 3, at 20). As of April 27, 2020, 856 people incarcerated at the Cummins Unit (“Cummins”) alone have been confirmed to have contracted COVID-19 (Id.).
B. Complaint And Parties On April 21, 2020, plaintiffs filed a class action complaint and petition for writ of habeas corpus (Dkt. No. 1). Plaintiffs are individuals incarcerated in facilities operated by the ADC, and plaintiffs seek immediate relief against the substantial risk of COVID-19 infection, illness, and death while incarcerated in facilities operated by the ADC (Id., at 1-2). Based on the allegations in their complaint, each named plaintiff faces a heightened risk of death or serious injury if exposed to COVID-19 due to a chronic medical condition, a disability, or both (Id., ¶¶ 15-35). Mr. Kouri alleges that he has been diagnosed with aortic heart valve degeneration; has an artificial heart valve and is on blood thinners; suffers from hypertension and extreme obesity; has been experiencing more severe shortness of breath, headaches, chills, coughing; was recently diagnosed with conjunctivitis; and has not been tested for COVID-19 (Id., ¶¶ 15-16). Mr. Serrano alleges that he is a carrier of tuberculosis and suffers from asthma (Id., ¶ 17). Mr. Frazier alleges
3

Case 4:20-cv-00434-KGB Document 42 Filed 05/04/20 Page 4 of 22
that he suffers from seizures and asthma (Id., ¶ 19). Mr. Kent alleges that he has been diagnosed with heart failure and has a pacemaker; suffers from chest pain daily; has hypertension and high cholesterol; is currently experiencing headaches, body aches, coughing, and nausea; and has not been tested for COVID-19 (Id., ¶ 20). Mr. Otwell alleges that he is obese, pre-diabetic, has osteoarthritis, receives physical therapy for his right hip, and has limited mobility (Id., ¶ 22). Mr. Stiggers alleges that he suffers from asthma (Id., ¶ 24). Mr. Nickson alleges that he suffers from diabetes, rheumatoid arthritis, and osteoarthritis; has experienced shortness of breath, fatigue, coughing, and repeated vomiting; and has not been tested for COVID-19 (Id., ¶ 26). Mr. Williams alleges that his lymphoma is in remission and claims that he suffers from a collapsed lung, hypertension, and bruised tissue surrounding his heart (Id., ¶ 28). Mr. Hampton alleges that he suffers from seizures, Bell’s palsy, and bipolar disorder; has reported difficulty breathing in the morning, constant coughing, and congestion; and has not been tested for COVID-19 (Id., ¶ 31). Mr. Neeley alleges that he was diagnosed with rectal cancer in January 2020; has not received treatment or chemotherapy; and has traveled to three local hospitals recently related to his cancer diagnosis (Id., ¶ 33). Plaintiff John Doe recently tested positive for COVID-19 and suffers from severe asthma which requires use of an inhaler throughout the day, according to plaintiffs’ complaint (Id., ¶ 35).
Mr. Kouri, Mr. Serrato, Mr. Otwell, Mr. Williams, Mr. Hampton, and Mr. Neeley are incarcerated in the Ouachita River Correctional Unit (“Ouachita”) (Id., ¶¶ 15, 17, 22, 28, 31, 33). Mr. Frazier and Mr. Kent are incarcerated in the Varner Supermax (“Varner”) (Id., ¶¶ 19-20). Mr. Stiggers, Mr. Nickson, and John Doe are incarcerated in Cummins (Id., ¶¶ 24, 26, 35). Mr. Kouri, Mr. Serrato, Mr. Frazier, Mr. Otwell, Mr. Stiggers, Mr. Nickson, Mr. Williams, Mr. Hampton, and
4

Case 4:20-cv-00434-KGB Document 42 Filed 05/04/20 Page 5 of 22
Mr. Neeley filed grievances regarding their vulnerability to COVID-19 (Id., ¶¶ 16, 18, 19, 23, 25,
27, 30, 32, 34).
Plaintiffs seek relief on behalf of themselves and a class consisting of people who are
currently incarcerated, or will be in the future, in an ADC detention facility during the duration of
the COVID-19 pandemic (Id., ¶ 41). Plaintiffs also propose two subclasses: (a) high risk subclass,
defined as:
[P]eople in the custody of an ADC facility aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of a stroke; and people with any condition specifically identified by the Center for Disease Control (“CDC”), currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19.
and (b) disability subclass, defined as:
[P]eople in custody who suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability.
(Id.).
In their complaint, plaintiffs allege that conditions in ADC facilities create a serious risk
of COVID-19-related infection, disease, and death (Id., ¶¶ 72-89). Plaintiffs claim that the spread
of COVID-19 in ADC facilities jeopardizes the public health of surrounding communities,
especially black communities (Id., ¶¶ 90-97). Plaintiffs assert that defendants have intentionally
failed to adopt and implement adequate policies and procedures to prevent and mitigate the spread
of COVID-19 (Id., ¶¶ 98-126). Plaintiffs assert three causes of action: (1) violation of the Eighth
5

Case 4:20-cv-00434-KGB Document 42 Filed 05/04/20 Page 6 of 22
Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all plaintiffs; (2) violation of the Eighth Amendment brought via a petition for writ of habeas corpus under 28 U.S.C. § 2241 on behalf of the proposed high risk subclass; and (3) violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., on behalf of the proposed disability subclass (Id., ¶¶ 12748).
C. Pending Requests For Immediate Relief Plaintiffs filed an emergency motion for temporary restraining order and preliminary injunction on April 21, 2020 (Dkt. No. 2). In that motion, plaintiffs request that this Court grant immediate relief to protect them against the substantial risk of COVID-19 infection, illness, and death while incarcerated in the ADC (Id., at 1-2). The Court set a briefing schedule for consideration of that motion and a hearing on it for May 7, 2020 (Dkt. No. 20). The emergency motion for temporary restraining order and preliminary injunction remains pending before the Court and will be ruled on in a separate Order (Dkt. No. 2).2 On Monday, April 27, 2020, plaintiffs filed the instant motion (Dkt. No. 22). Plaintiffs’ supplemental motion for temporary restraining order requests that the Court enter immediately a temporary restraining order requiring defendants to undertake certain basic social distancing and sanitation measures (Id., at 1). Plaintiffs have provided a draft proposed order outlining in detail the relief they seek (Dkt. No. 22-1). Specifically, plaintiffs request that the ADC take the following measures: (1) ensure that each incarcerated individual receives a free and adequate personal supply of: hand soap sufficient to permit frequent hand washing, paper towels, facial tissues, cleaning
2 Defendants have also submitted a response to plaintiffs’ emergency motion for temporary restraining order and preliminary injunction including further argument and evidence (Dkt. No. 36). The Court will address that argument and evidence in a later Order addressing plaintiffs’ emergency motion for temporary restraining order and preliminary injunction (Dkt. No. 2).
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implements such as sponges or brushes, and EPA-registered disinfectants that are effective against COVID-19 infection, without costs; (2) ensure that all individuals have access to hand sanitizer containing at least 60% alcohol or, to the extent such hand sanitizer is not permitted, the best alternative, consistent with CDC Guidelines; (3) provide daily access to showers and clean laundry, including clean towels after each shower; (4) disinfect frequently touched surfaces, including but not limited to doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones, at least three times a day with EPAregistered disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface; (5) thoroughly clean and disinfect all areas where people who have tested positive for COVID-19, or have been suspected of having COVID-19, spent time (e.g., cells, bathrooms, and common areas) with EPA-registered disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface; (6) require that all ADC staff wear personal protective equipment (“PPE”) consistent with the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, including masks and gloves, when interacting with visitors and incarcerated individuals or when touching surfaces in common areas; (7) train all ADC staff and people incarcerated in ADC facilities on how properly to don, doff, and dispose of PPE; (8) post signage through ADC facilities communicating the following: (a) For all: the symptoms of COVID-19 and hand hygiene instructions; (b) For incarcerated/detained persons: how to report symptoms to staff; (c) For staff: to stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including selfisolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor; and (d) ensure that signage
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is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision; (9) provide an anonymous mechanism for incarcerated individuals to report staff who violate these guidelines so that appropriate corrective action may be taken; (10) take each incarcerated person’s temperature daily (with a properly disinfected and accurate thermometer) to identify potential COVID-19 infections; (11) assess each incarcerated individual daily through questioning to identify potential COVID-19 infections; (12) conduct immediate testing for anyone displaying known symptoms of COVID19; (13) immediately provide clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in a non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary; (14) ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, commissary, phone and video visitation with loved ones, communication with counsel, and personal property; (15) assure incarcerated people are told that they will not be retaliated against for reporting COVID-19 symptoms; (16) respond to all emergency (as defined by the medical community) requests for medical attention within an hour; (17) produce and implement a comprehensive written plan to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished (this plan shall include an account of current and projected numbers of incarcerated people in shared spaces at any given time); (18) provide frequent communications to all incarcerated individuals regarding COVID-19, measures taken to reduce the risk of infection, best practices for incarcerated people to avoid infection, and any changes in policies and practices; and (19) prohibit
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ADC staff from entering correctional facilities if they test positive for COVID-19 or exhibit symptoms of having contracted COVID-19 (Id., at 5-8).
In support of their supplemental motion for temporary restraining order, plaintiffs contend that hundreds of additional incarcerated people and staff in ADC facilities will likely contract COVID-19 if these preventative measures are not taken immediately (Dkt. No. 23, at 1). Plaintiffs maintain that the ADC has not implemented the CDC’s recommendations, and plaintiffs request this Court’s intervention to make sure the ADC implements these recommended measures (Id., at 4).
In electronic communication to the Court on April 27, 2020, within hours of this motion being filed and without Court prompting, defendants communicated their opposition to this motion. See Court’s Ex. A. Defendants maintain that plaintiffs’ supplemental motion for temporary restraining order requests almost all of the same relief as plaintiffs’ emergency motion for temporary restraining order and preliminary injunction. Defendants assert that the only apparent difference between the two motions is that plaintiffs’ supplemental motion for temporary restraining order omits at this time their emergency request for release of certain putative class members.
In this motion, plaintiffs requested an opportunity to present expedited oral argument to the Court on the urgent need for the requested relief (Dkt. No. 22, at 1-2). The Court conducted a hearing with all parties on this motion on Tuesday, April 28, 2020 (Dkt. Nos. 24; 26). At that hearing, plaintiffs alleged three particular areas of failure by defendants: (1) failure to intensify cleaning and disinfecting in accordance with CDC guidelines; (2) failure to implement social distancing to the extent possible amid the pandemic; and (3) failure to address adequately suspected or confirmed cases of COVID-19. Defendants argued that they have already taken
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adequate steps in response to the COVID-19 threat in ADC facilities, including some of the relief specifically requested in plaintiffs’ supplemental motion for temporary restraining order.
II. Legal Standard In the Eighth Circuit, the same standards are applied to a request for a preliminary injunction as to a request for a temporary restraining order. See S.B. McLaughlin & Co. v. Tudor Oaks Condo. Project, 877 F.2d 707, 708 (8th Cir. 1989). In determining whether to issue a temporary restraining order, a district court should consider: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)). Under Dataphase, no one factor is determinative. See Dataphase, 640 F.2d at 113. A temporary restraining order “is an extraordinary remedy, and the burden of establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (citations omitted). III. Analysis Of Supplemental Motion For Temporary Restraining Order
A. Habeas Corpus As an initial matter, the Court reiterates that in their complaint plaintiffs bring, in part, a petition for writ of habeas corpus for violation of the Eighth Amendment on behalf of the proposed high risk subclass pursuant to 28 U.S.C. § 2241 (Dkt. No. 1, ¶¶ 136-38). For relief on this claim, plaintiffs seek in part release from custody for members of the proposed high risk subclass (Id., ¶ 138). Plaintiffs in their complaint request a temporary restraining order, preliminary injunction, permanent injunction, and/or writs of habeas corpus requiring defendants to release immediately members of the high risk subclass and disability subclass or transfer them to home confinement
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(Id., at 46). The Court also reiterates that plaintiffs’ emergency motion for temporary restraining order and preliminary injunction seeks emergency medical release or temporary medical furlough for the proposed high risk subclass and disability subclass (Dkt. No. 3, at 45, 49, 56).
Plaintiffs’ supplemental motion for temporary restraining order and attendant filings currently before the Court and addressed in this Order do not include these same requests for relief (Dkt. Nos. 22; 22-1; 23). Because these requests for relief are not in plaintiffs’ supplemental motion for temporary restraining order, the Court will not consider or discuss them in this Order. The Court will take up those issues in a later Order ruling on plaintiffs’ emergency motion for temporary restraining order and preliminary injunction (Dkt. No. 2).
B. Dataphase Analysis In ruling on plaintiffs’ motion, the Court must consider (1) plaintiffs’ likelihood of success on the merits; (2) the threat of irreparable harm; (3) the balance of the equities; and (4) the public interest. See Dataphase, 640 F.2d at 113. Assuming without deciding for purposes of resolving the pending motion only that plaintiffs have Article III standing to bring their claims; that plaintiffs have exhausted fully their claims in accordance with the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), et seq., to the extent it applies; and that plaintiffs’ proposed general class and subclasses merit certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2), the Court concludes that the Dataphase factors weigh in favor of denying plaintiffs’ supplemental motion for a temporary restraining order.
1. Likelihood Of Success Because plaintiffs bring both Eighth Amendment claims on behalf of all plaintiffs and proposed class members and ADA claims on behalf of all plaintiffs and the proposed disability
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subclass, the Court will analyze plaintiffs’ likelihood of success on the merits under each cause of action separately.
a. Eighth Amendment Claim Plaintiffs allege that defendants’ failure to provide adequate protection and, if necessary, medical care in response to the rapid spread of a deadly virus constitutes deliberate indifference to the serious medical needs of incarcerated individuals in violation of the Eighth Amendment (Dkt. No. 1, ¶ 129).
i. Deliberate Indifference Standard “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 36 (1993). State officials have a responsibility under the Eighth Amendment to “provide humane conditions of confinement,” “ensure that inmates receive adequate food, clothing, shelter, and medical care,” and “‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-57 (1984)). The Eighth Amendment standard for conditions of confinement asks whether defendants acted with “deliberate indifference.” Davis v. Oregon Cty., 607 F.3d 543, 548 (8th Cir. 2010). Deliberate indifference has both an objective and subjective component. See id. The objective component considers “whether a substantial risk to the inmate’s safety existed,” and the subjective component considers “whether the officer had knowledge of the substantial risk to the inmate’s safety but nevertheless disregarded it.” Id. The Eighth Amendment forbids deliberate indifference to conditions that “pose an unreasonable risk of serious damage to . . . future health.” Helling, 509 U.S. at 35; see also DeGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990) (continuing failure by prison officials to institute a system to prevent the spread of tuberculosis violated the
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Eighth Amendment); Brown v. Moore, 93 F. Supp. 3d 1032, 1041 (W.D. Ark. 2015) (“Plaintiff need not have contracted the disease for an actionable [Eighth Amendment] claim to be stated.”). “In order to demonstrate that a defendant actually knew of, but deliberately disregarded, a serious medical need, the plaintiff must establish a ‘mental state akin to criminal recklessness: disregarding a known risk to the inmate’s health.’” Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009) (quoting Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)). Under controlling precedent, the deliberate indifference standard may be satisfied when officials respond to an infectious disease “outbreak with a series of negligent and reckless actions.” DeGidio, 920 F.2d at 533.
ii. Objective Prong As to the objective prong, it cannot be disputed that COVID-19 poses an objectively serious health risk to named plaintiffs and the putative classes given the nature of the disease and the congregate living environment of the ADC’s facilities. These risks can be exacerbated by a lack of access to PPE for prisoners and many staff members, a lack of cleaning of shared items like toilets, sinks, and showers, and an inability to social distance properly. This objectively serious health risk appears heightened for named plaintiffs and members of the putative subclasses given plaintiffs’ allegations regarding their susceptibility to contracting COVID-19 and experiencing worsened symptoms. Thus, plaintiffs are likely to satisfy the objective prong of the deliberate indifference test for their Eighth Amendment claims.
iii. Subjective Prong As to the subjective prong, plaintiffs assert that defendants have failed to address the COVID-19 risk despite being aware of it (Dkt. No. 3, at 41-45). Plaintiffs identify several ADC actions that allegedly satisfy the subjective prong of the deliberate indifference test. The ADC posted a flyer stating, “COVID-19 is known to cause a greater risk for severe illness in older adults
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and persons with underlying health conditions or compromised immune conditions. Younger people can be infected and spread the disease to others, too.” (Id., at 42). The ADC website provides that face masks help prevent the spread of COVID-19 and the steps that must be taken to keep those coverings sanitary (Id., at 43). The ADC website contains a Frequently Asked Questions (“FAQ”) document that outlines “steps” that can be “take[n] to reduce our risk of getting COVID-19” (Id.). The FAQ provides that individuals should regularly clean surfaces that are frequently used and that if someone contracts the virus they should “get immediate medical attention” (Id.). As early as March 15, 2020, the ADC posted a separate informational document outlining the steps being taken to prevent the spread of COVID-19 among the general public (Id.).
Plaintiffs also argue that defendants can address this matter by ensuring that proper cleaning supplies are available, suitable distance between prisoners is possible, regular care is provided to those infected, and releasing on at least a temporary basis while maintaining ADC monitoring extremely vulnerable individuals who cannot be safely confined in a congregate setting (Id., at 43-44). Plaintiffs assert that defendants must institute immediate testing, immediate screening, appropriate use of quarantine, and significant improvements in hygiene, among other things (Id., at 45). Plaintiffs also note that defendants have demonstrated clear knowledge of the COVID-19 risk, as evidenced by the ADC tracking the number of prisoners and staff who have contracted COVID-19 and publishing those numbers twice per week (Id., at 41).
On this record, and at this stage of the litigation, considering plaintiffs’ allegations and affidavits and weighing arguments advanced by counsel at the hearing on the emergency motion for temporary restraining order, the Court concludes that plaintiffs have not demonstrated a likelihood of success in demonstrating that defendants have exhibited the subjective deliberate indifference necessary to substantiate plaintiffs’ Eighth Amendment claims. The parties do not
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dispute that defendants have taken some response to COVID-19, as even plaintiffs’ affidavits refer to dissemination of information to some regarding COVID-19 and its avoidance, masks for some inmates and staff, requirements as to when to wear those masks, temperature checks for staff, inmates’ access to soap and water, and the frequency and type of cleaning for certain areas within facilities. On this record, at least at this stage, the Court concludes that plaintiffs have not demonstrated a likelihood of success in showing that actions defendants have taken betray a “mental state akin to criminal recklessness” or that defendants are “disregarding a known risk to the inmate’s health.” Gordon, 454 F.3d at 862.
In reaching this conclusion, the Court acknowledges that plaintiffs argue these steps are insufficient, not uniform or implemented across all ADC facilities, and not in compliance with recognized guidance, among other things. Further, the Court is concerned about events that occurred and are occurring in the Cummins Unit and actions taken, or not taken, prior to and since that outbreak. Given what is known about COVID-19, and on this record at this stage of the litigation, however, the Court cannot conclude that such an outbreak necessarily arises from deficiencies that likely demonstrate Eighth Amendment violations.
The Court reserves final judgment on this issue until all parties have completed briefing in accordance with the Court’s briefing schedule and until the Court has conducted the May 7, 2020, hearing on plaintiffs’ emergency motion for temporary restraining order and preliminary injunction (Dkt. No. 20).
b. ADA Claim Plaintiffs claim that defendants have intentionally discriminated against named plaintiffs and members of the proposed disability subclass by denying them reasonable accommodations that have been recommended by the CDC and are necessary to protect them from COVID-19 (Dkt.
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No. 1, ¶ 140). In their complaint, plaintiffs assert that reasonable accommodations necessary to protect incarcerated individuals with disabilities include, but are not limited to: access to alcoholbased sanitizer; provision of cleaning supplies, including products containing bleach, adequate to clean individuals’ housing areas; provision of PPE; access to antibacterial hand soap and towels to enable individuals to wash their hands as necessary; implementation of social distancing measures in all locations where incarcerated people are required to congregate; and release or transfer to home confinement if social distancing is not practicable (Id., ¶ 141). Plaintiffs claim that defendants’ failure to provide these accommodations constitutes illegal discrimination under the ADA and entitles them to injunctive and declaratory relief (Id., ¶ 142). In their current pending motion, plaintiffs request relief common to all, not different or specific relief for the proposed disability subclass (Dkt. No. 22-1, at 5-8). Also in the current pending motion, plaintiffs make no request for release or transfer to home confinement if social distancing is not practicable (Id.).
The ADA prohibits public entities, including state prisons, from discriminating on the basis of disability. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To assert a claim under Title II of the ADA, plaintiffs must show that: (1) each plaintiff is a “qualified individual with a disability”; (2) defendants denied plaintiffs “the benefits of the services, programs, or activities of a public entity”; and (3) plaintiffs were discriminated against “by reason of” their disabilities. See 42 U.S.C. § 12132; see also Folkerts v. City of Waverly, 707 F.3d 975, 983 (8th Cir. 2013). A “qualified individual with a disability” means an individual “with a disability who, with or without reasonable modifications. . . , meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” See 42 U.S.C. § 12131(2). The Eighth Circuit construes broadly the “services, programs, or activities” language in the ADA to encompass “anything a public entity does.” Bahl v. Cty. of Ramsey, 695
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F.3d 778, 787 (8th Cir. 2012) (citations omitted). State actors may rely on the “reasonable assessments” of their own professionals in determining whether an individual is qualified for services and programs and whether “reasonable modifications” are available to prevent discrimination. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (citing 28 C.F.R. §§ 35.130(b)(7), (d)). Plaintiffs need not plead exclusion from participation in or denial of benefits offered to state a claim under Title II of the ADA. See, e.g., Loye v. Cty. of Dakota, 625 F.3d 494, 496 (8th Cir. 2010) (“[W]e construe Title II of the ADA as requiring that qualified persons with disabilities receive ‘meaningful access’ to a public entity’s services, not merely ‘limited participation.’”).
The regulations implementing Title II of the ADA require that a public entity “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). This is considered an affirmative defense to an ADA Title II claim; the ADA regulations explicitly provide that the entity must demonstrate that making the modification would fundamentally alter the subject program. 28 C.F.R. § 35.130(b)(7). For this affirmative defense, the entity may demonstrate that the requested action “would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.” 28 C.F.R. § 35.150(a)(3). The Eighth Circuit has noted that whether a requested accommodation is reasonable or imposes an undue burden on defendants should be considered in the light of “the heightened security concerns of a prison.” Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (examining Title II ADA claim against prison). Generally, ADA plaintiffs are entitled to reasonable accommodations, which may not always be plaintiffs’ preferred
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or ideal accommodations. See Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (8th Cir. 2011); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007).
Plaintiffs may prove unlawful discrimination under Title II by offering evidence of disparate treatment based on disability or by showing that a facially-neutral policy has the “effect of discriminating against the disabled or the severely disabled.” DeBord v. Bd. of Educ., 126 F.3d 1102, 1105 (8th Cir. 1997). In regard to an ADA failure-to-accommodate claim, ““the ‘discrimination’ is framed in terms of the failure to fulfill an affirmative duty—the failure to reasonably accommodate the disabled individual’s limitations. . . . The known disability triggers the duty to reasonably accommodate and, if the [defendant] fails to fulfill that duty, [the Court] do[es] not care if he was motivated by the disability.” Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004) (internal citation omitted); see also Sak v. City of Aurelia, 832 F. Supp. 2d 1026, 1040 (N.D. Ia. 2011) (failure to accommodate is an independent basis for liability under the ADA, but accommodation is only required when necessary to avoid discrimination on the basis of disability, and accommodation must be reasonable) (citing 28 C.F.R. § 35.130(b)(7)). Though a plaintiff seeking compensatory money damages under Title II must show intentional discrimination on the basis of disability, a plaintiff seeking prospective injunctive relief is not required to make this showing. See Meagley v. City of Little Rock, 639 F.3d 384, 388-89 (8th Cir. 2011).
On this record, and at this stage of the litigation, considering plaintiffs’ allegations and affidavits and weighing arguments advanced by counsel at the hearing on the emergency motion for temporary restraining order, the Court concludes that plaintiffs are unlikely to succeed on their claims under Title II of the ADA. Assuming arguendo that named plaintiffs and proposed members of the disability subclass are qualified individuals with a disability, the Court concludes that plaintiffs are not likely to succeed on their claim that defendants’ action or inaction in
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combatting the COVID-19 risk in ADC facilities has had the effect of denying plaintiffs in the disability subclass “the benefits of the services, programs, or activities” within the ADC “by reason of” those plaintiffs’ disabilities. See 42 U.S.C. § 12132. However, the Court reserves final judgment on this issue until all parties have completed briefing in accordance with the Court’s briefing schedule and until the Court has conducted the May 7, 2020, hearing on plaintiffs’ emergency motion for temporary restraining order and preliminary injunction (Dkt. No. 20).
2. Threat Of Irreparable Harm “Irreparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages.” Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009). “To succeed in demonstrating a threat of irreparable harm, ‘a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.’” Roudachevski v. All-American Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011) (quoting Ia. Utils. Bd. v. Fed. Commc’ns Comm’n, 109 F.3d 418, 425 (8th Cir. 1996)). A plaintiff must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original) (citations omitted). The Eighth Circuit has held that it is “no question . . . that irreparable injury exist[s]” when the harm contemplated is “a life threatening illness.” Harris v. Blue Cross Blue Shield of Mo., 995 F.2d 877, 879 (8th Cir. 1993); see also Kai v. Ross, 336 F.3d 650, 656 (8th Cir. 2003) (“[T]he danger to plaintiffs’ health, and perhaps even their lives, gives them a strong argument of irreparable injury.”). Plaintiffs’ alleged harm is both imminent and irreparable, as plaintiffs face a risk of severe illness or possible death in the light of COVID-19. Based on allegations in plaintiffs’ complaint, one of the named plaintiffs has already tested positive for COVID-19, along with hundreds more
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individuals in ADC facilities. Plaintiffs face the progression of the COVID-19 pandemic in a congregate environment. The irreparability of this harm is magnified by the fact that no known vaccine or cure for COVID-19 exists at this time (Dkt. Nos. 3, at 53; 3-1, ¶ 10; 3-2, ¶ 5).
At the hearing, defendants argued that no impending imminent risk exists for prisoners in Cummins who have tested negative; for prisoners who have been quarantined; or for prisoners in ADC facilities that have had no positive tests. The Court is unconvinced by these arguments. Prisoners who have tested negative or have been quarantined could still contract COVID-19. Additionally, the lack of positive tests to date in other ADC facilities does not foreclose that COVID-19 is already in these facilities undetected or that COVID-19 could reach these facilities and spread as rapidly as it has in Cummins.
Because the alleged harm is a high likelihood of serious illness or death, the Court finds that plaintiffs have properly alleged irreparable harm.
3. Balance Of The Equities “The third Dataphase factor requires a district court to consider the balance between the harm to the movant and the injury that granting the injunction will inflict on other interested parties.” Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 489 (8th Cir. 1993) (citing Dataphase, 640 F.2d at 114). “At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113 (footnote omitted). “No single [Dataphase] factor in itself is dispositive; rather, each factor must be considered to determine whether the balance of equities weighs toward granting the injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (citations omitted).
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The balance of the equities at this stage is a neutral factor in this analysis. Plaintiffs face irreparable harm to their constitutional rights and their health, including severe illness, long-term health effects, and possible death. Plaintiffs argue that there is not much potential harm to defendants in granting plaintiffs’ requested relief in the instant motion because plaintiffs’ supplemental motion for temporary restraining order mostly requests basic protective measures recommended by the CDC that defendants have been aware of since March 23, 2020. Defendants maintain that requiring defendants to implement steps they already have taken as demonstrated by record evidence is unnecessary and that requiring them to implement the steps requested that go beyond those already implemented would impose undue costs, harms, burdens, and disruptions in running the ADC facilities. There are strong considerations that favor both sides in this dispute.
4. Public Interest “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). The public is certainly served by the preservation of constitutional rights. See D.M. by Bao Xiong v. Minn. State High Sch. League, 917 F.3d 994, 1004 (8th Cir. 2019) (internal quotations and citations omitted). However, in assessing the public interest, the Supreme Court has also cautioned that federal courts must tread lightly when it comes to questions of managing prisons, particularly state prisons. States have a strong interest in the administration of their prisons, which is “bound up with state laws, regulations, and procedures.” Woodford v. Ngo, 548 U.S. 81, 94 (2006). The Supreme Court has stated that “[i]t 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.” Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973); see also Turner
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v. Safley, 482 U.S. 78, 85 (1987) (“[W]here a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.”); Meachum v. Fano, 427 U.S. 215, 229 (1976) (“Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.”). Courts accordingly should give deference to prison authorities. See Turner, 482 U.S. at 84-85.
The public interest in this case cuts both ways. In plaintiffs’ favor, the public interest is served by protecting plaintiffs and the putative class members from COVID-19 and its possible consequences via the relief requested in plaintiffs’ supplemental motion for temporary restraining order. Further, minimizing the spread of COVID-19 both within ADC facilities and among communities surrounding and interacting with those facilities serves the public interest. Efforts to stop the spread of COVID-19 and promote public health appear to be in the public interest. In defendants’ favor, the public interest also commands respect for federalism and comity. These factors dictate that the Court should approach intrusion into the core activities of the state’s prison system with caution.
IV. Conclusion For the foregoing reasons, given the Dataphase analysis and that plaintiffs do not demonstrate a likelihood of success on the merits of their claims at issue in the pending motion, the Court provisionally denies plaintiffs’ supplemental motion for temporary restraining order (Dkt. No. 22). The Court still has under advisement plaintiffs’ emergency motion for temporary restraining order and preliminary injunction (Dkt. No. 2). It is so ordered this Monday, May 4, 2020, at 8:05 a.m. CT.
Kristine G. Baker United States District Judge
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Exhibit A

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From: To: Cc: Subject: Date: Attachments:

Jennifer Merritt "Omavi Shukur"; Jared Lax Asher Steinberg; Jerry Garner; Jin Hee Lee RE: Frazier v. Kelley, 420cv434 - Proposed Order Monday, April 27, 2020 1:52:38 PM image005.png image006.png image007.png image008.png image009.png image010.png

Mr. Lax:

Plaintiffs’ Supplemental Motion for a Temporary Restraining Order and supporting documents (Docs. 22-23) request almost all of the same relief Plaintiffs sought in their April 21, 2020, emergency motion for a temporary restraining order (Doc. 2). The only apparent difference is that Plaintiffs have dropped their emergency request for release of certain putative class members. Defendants continue to oppose Plaintiffs’ request for emergency, ex parte relief and plan to respond to Plaintiffs’ request for a TRO/PI by 5:00 pm on Thursday, April 30, 2020, per the Court’s recent scheduling order (Doc. 20).

Respectfully yours,

Jennifer L. Merritt
Senior Assistant Attorney General Office of Arkansas Attorney General Leslie Rutledge

323 Center Street, Suite 200 Little Rock, Arkansas 72201 Office: 501.682.1319 ൟ Fax: 501.682.2591 jennifer.merritt@arkansasag.gov ൟArkansasAG.gov

CONFIDENTIALITY NOTICE: The information contained in this e-mail message and any attachment is the property of the State of Arkansas and may be protected by state and federal laws governing disclosure of private information. It may contain information that is privileged, confidential, or otherwise protected from disclosure. It is intended solely for the use of the addressee. If you are not the intended recipient, you are hereby notified that reading, copying or distributing this e-mail or the information herein by anyone other than the intended recipient is STRICTLY PROHIBITED. The sender has not waived any applicable privilege by sending the accompanying transmission. If you have received this transmission in error, please notify the sender by reply e-mail immediately, and delete this message and attachments from your computer.
From: Omavi Shukur <oshukur@naacpldf.org> Sent: Monday, April 27, 2020 1:06 PM To: 'Jared_Lax@ared.uscourts.gov' <Jared_Lax@ared.uscourts.gov> Cc: Jennifer Merritt <jennifer.merritt@arkansasag.gov>; Asher Steinberg <asher.steinberg@arkansasag.gov>; Jerry Garner <jerry.garner@arkansasag.gov>; Jin Hee Lee <jlee@naacpldf.org> Subject: Frazier v. Kelley, 420cv434 - Proposed Order
Mr. Lax,
Hope all is well. Plaintiffs in the above-captioned matter just filed their Supplemental Motion for a Temporary Restraining Order (Doc. 22), along with a supporting brief (Doc. 23) and Proposed Order (Doc. 22-1). For the Court’s convenience, I have attached a Word copy of Plaintiffs’ Proposed Order. Thank you.

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Best,
Omavi Shukur Assistant Counsel NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor, New York, NY 10006
t (212) 965-2256 oshukur@naacpldf.org www.naacpldf.org
PRIVILEGE AND CONFIDENTIALITY NOTICE: This email and any attachments may contain privileged or confidential information and is/are for the sole use of the intended recipient(s). Any unauthorized use or disclosure of this communication is prohibited. If you believe that you have received this email in error, please notify the sender immediately and delete it from your system. Admitted to practice only in Arkansas and Louisiana. Not admitted in New York; supervised by members of the New York bar.

 
 Case 4:20-cv-00434-KGB Document 44 Filed 05/04/20 Page 1 of 99

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al. v. WENDY KELLEY, et al.

Case No. 4:20-cv-00434 KGB

PLAINTIFFS DEFENDANTS

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 6
I. The Viral Outbreak in Cummins Unit Demonstrates the Inadequacies of Defendants’ Preparation for, and Containment of, COVID-19 that Serve as a Warning for Other ADC Facilities. ........................................................................................................................ 6
II. Defendants’ Recitation of Preexisting Cleaning Protocols Are Hardly “Enhanced” and Are Contradicted by Prisoners’ Experiences in Multiple Facilities. ............................ 13
III. The Provision of PPE to Corrections Staff and Prisoners, as Well as Their Use, Are Insufficient and Inconsistent. ....................................................................................... 15
IV. The Impossibility of Social Distancing, and Staffing Shortages, Pose Serious Risks to Both Prisoners and Corrections Staff. .......................................................................... 19
V. Defendants Have Not Conducted Adequate Testing and Have Not Provided Timely and Appropriate Medical Care to Sick Prisoners Infected with COVID-19....................... 22
VI. Plaintiffs Are Especially Vulnerable to Serious Illness or Death from COVID-19 due to Their Serious Medical Conditions................................................................................ 25
VII. Defendants’ Grievance Procedures, Which Can Take up to Two Months to Exhaust, Were Unavailable to Plaintiffs During the Crisis of the COVID-19 Pandemic........... 26
ARGUMENT ................................................................................................................................ 29
I. Plaintiffs Have Standing to Seek to Maintain the Status Quo of Living in a Carceral Setting Without a Viral Outbreak.................................................................................................. 29
II. Plaintiffs Have Demonstrated a Likelihood of Succeeding on the Merits........................ 32
A. Defendants Have Been Deliberately Indifferent to Plaintiffs’ Eighth Amendment Rights Through Their Deficient COVID-19 Preparation and Response. ................................ 32
1. Plaintiffs Are Subject to Substantial Risk of Serious Harm from a Highly Contagious and Potentially Lethal Virus in a Congregate Environment. ....... 34
2. Defendants Disregarded the Known Substantial Risk to Plaintiffs in Their Deficient COVID-19 Preparation and Response. ........................................... 40
B. Defendants Failed to Provide Reasonable Accommodations Requested by Named Plaintiffs. ...................................................................................................................... 46
C. The PLRA Does Not Require Plaintiffs to Exhaust Administrative Remedies that Are Unavailable in the Midst of an Unprecedented Pandemic. .......................................... 48
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D. Prisoners in the High Risk and Disability Subclasses Are Entitled to Habeas Relief Because Their Confinement Is Illegal and Unconstitutional........................................ 56 1. Petitioners’ Claims Are Properly Cognizable in Habeas. ............................... 58 2. Petitioners Did Not Need to Exhaust Their Habeas Claims In Arkansas State Courts Because No Such Relief Was Available.............................................. 64 3. Even if Arkansas Did Provide State Remedies, This Court Should Waive the Exhaustion Requirement Because of the Grave Threat Posed by COVID-19.68 4. The PLRA Does Not Apply to Plaintiffs’ Requests for Habeas Release........ 70
III. Plaintiffs Will be Irreparably Harmed by the Substantial Risk of Serious and Possibly Lethal COVID-19 Infection and Related Illnesses....................................................... 73
IV. The Balance of Equities Weighs Heavily in Favor of Granting a Preliminary Injunction. ...................................................................................................................................... 77
V. This Court Should Grant Class-Wide Preliminary Injunctive Relief. .............................. 80 A. Class-Wide and/or Statewide Preliminary Injunctive Relief Does Not Require Class Certification or Consideration of the Merits of Class Allegations. .............................. 80 B. Class Certification Will Likely Be Granted in This Case. ........................................... 81 1. The Named Plaintiffs Are Likely to Meet the Rule 23(a) Requirements........ 82 2. The Named Plaintiffs Are Likely to Meet the Rule 23(b)(2) Requirements... 84
VI. Plaintiffs’ Proposed Preliminary Injunction ................................................................. 87 CERTIFICATE OF SERVICE ..................................................................................................... 96
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Plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold (“Scott”) Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and John Doe submit this reply memorandum in support of their emergency motion for a temporary restraining order and a preliminary injunction.
INTRODUCTION Immediately prior to the filing of this reply, four men from Cummins Unit lost their lives to COVID-19.1 Two died on Friday, May 1, 2020, while hospitalized and two more men died early Sunday May 3.2 The loss of significantly more lives is an imminent danger as the COVID-19 outbreak within ADC facilities worsens in the face of Defendants’ deficiencies in their preparation and response to this pandemic. When Plaintiffs filed their Complaint, on April 21, 2020, Arkansas had 1,971 COVID-19 infections and 41 deaths. In the interim two weeks, the number of COVID-19 infections and deaths in Arkansas soared by over 50% to 3,431 infections and 76 deaths. More than one-quarter of the infections statewide are in a single prison—Cummins Unit, the largest prison in Arkansas. Almost half of the people incarcerated in Cummins (approximately 860 of 1800) have tested positive for the virus, and thirteen have been hospitalized. Cummins Unit has one of the largest viral outbreaks in prisons nationwide—from 44 of 46 prisoners in a single barrack to over 800 prisoners testing positive in a matter of days. Far from the success story that Defendants suggest, Cummins is a wakeup call for what happens when state officials, charged with ensuring the safety of prisoners in their custody, disregard an unprecedented health crisis in violation of federal law.
1 4 Cummins Unit inmates die due to COVID-19, May 3, 2020, at https://www.4029tv.com/article/2-cummins-unit-inmates-die-due-to-covid-19/32353084.
2 Ginny Monk, 2 more inmate deaths connected to virus; Arkansas death toll up to 76, Arkansas Times, May 3, 2020, at https://www.arkansasonline.com/news/2020/may/03/threemore-arkansas-inmates-die-two-covid-19/.
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This is an extraordinary time in our country’s history. American commerce has been largely shuttered, and schools have closed nationwide. The United States Supreme Court has closed its doors and will hear oral argument remotely for the first time. There is broad agreement that a new set of rules are necessary, for the time being, to protect our very lives. Yet, neither the urgency nor the unprecedented nature of this pandemic is evident in Defendants’ preparation for, and management of, COVID-19 in Arkansas Department of Corrections (“ADC”) facilities or in Defendants’ Response in Opposition to Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction (“Defendants’ Response” or “Def. Resp.”) (ECF No. 36).
Rather than prepare for the greatest public health crisis in 100 years, Defendants adopted a set of incomplete and haphazard measures that, when faced with their first challenge, could not have failed more miserably to protect both Plaintiffs and corrections staff. Directly impacted witnesses paint a harrowing portrait of filthy and crowded conditions, insufficient staffing, confusing and inadequate protocols, and sick people left unattended. These descriptions from multiple prisons across Arkansas cannot be characterized as the negligent actions or inactions of non-compliant corrections staff. Instead, Defendants knew a deadly pandemic was at high risk of spreading—and, indeed, was spreading—in ADC facilities, and they knew that their policies were not adequate to limit the risk of transmission. That is quintessential deliberate indifference.
Defendants’ Response reflects their continued failure to acknowledge the urgency created by the COVID-19 pandemic. They compare the substantial risk of contracting a novel and potentially lethal virus, which has already infected 860 Arkansas state prisoners and led to four deaths in less than three weeks, with exposure to second-hand smoke. And they suggest prisoners must wait for the conclusion of a lengthy administrative grievance procedure, which has already
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shown itself incapable of providing emergency relief responsive to this pandemic, to address the immediate risk of COVID-19 infection and illness.
Whatever Plaintiffs or the putative class members did in the past—either before or during their incarceration—does not diminish their humanity and their entitlement to legal protections under the Eighth Amendment and the Americans With Disabilities Act (“ADA”). Indeed, it is during times of crises like this pandemic when adherence to constitutional and statutory obligations should be most vigilant, and when it is most necessary for the courts to step in and hold state officials accountable. Yet, Defendants’ Response makes clear that they view Plaintiffs as nothing more than criminals, who are not deserving of the protections provided by federal law. This sentiment is evidenced by Defendants’ decision to allow or require corrections staff who test positive for COVID-19, even if asymptomatic, to work inside the prison during their selfquarantined, isolation period—going against every public health directive, except, of course, the guidance from Arkansas state officials. It is impossible to imagine any employer permitting or requiring COVID-19 infected employees to work while they are infectious and can spread the virus to others. But, as demonstrated in this case, the substantial risk of infection did not deter Defendants since that risk would be borne primarily by prisoners.
Indeed, while Defendants now raise security concerns from Plaintiffs’ requested relief, the viral outbreak in Cummins Unit and Defendants’ deficient response resulted in security risks of their own making. This spread of COVID-19 in Cummins Unit led to infections of corrections staff, as well as prisoners, creating staffing shortages that resulted in Defendants taking the extraordinary step of having infected corrections officers report to work in the most congested and congregate setting imaginable, thereby facilitating even further spread of the virus. Adopting
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adequate measures to reduce and ultimately stop the spread of infection will make ADC facilities safer and more secure.
As explained below and in our prior submissions to this Court, Plaintiffs have a likelihood of successfully proving their Eighth Amendment and ADA claims. In particular, Plaintiffs have discovered new evidence since the TRO hearing that Defendants have disregarded and continue to “‘disregard[] a known risk to the inmate’s health.’” ECF 42 at 15 (quoting Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)). This evidence includes, among other things, proof that: 1) ADC permits infected correctional staff to continue to work at Cummins Unit after they receive positive test results for COVID-19; 2) ADC relies solely on a disinfectant that has not been approved by the EPA as effective against COVID-19; 3) ADC has failed to conduct widespread COVID-19 testing of incarcerated people in all ADC facilities despite their notice of the severe outbreak at Cummins Unit, where the virus spread to hundreds of incarcerated people in only a few days; and 4) ADC has failed to implement basic sanitation and social distancing factors even after the virus began to spread at Cummins Unit and Plaintiffs filed the instant lawsuit, as demonstrated by the numerous declarations attached to this document describing the conditions as they actually exist in ADC facilities.
Further, as the Court recognized in its May 4 Order, Plaintiffs will likely suffer irreparable harm if this Court does not grant a preliminary injunction: (a) requiring the prison to adopt basic measures to improve sanitation and social distancing within ADC facilities; and (b) releasing from confinement prisoners who are advanced in age, are medically vulnerable, or have disabilities susceptible to COVID-19 disease. The balance of equities weighs heavily in Plaintiffs’ favor given the tremendous public interest in reducing the spread of COVID-19 both within ADC facilities and in the surrounding communities.
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The Prison Litigation Reform Act (“PLRA”) is not an obstacle to the preliminary injunction. The PLRA’s exhaustion requirement does not apply to Plaintiffs’ emergency request for sanitation and social distancing measures within ADC facilities, because there are no available administrative remedies for Plaintiffs to exhaust. The Supreme Court has instructed courts to consider the facts on the ground in determining whether prison remedies are capable of providing relief, and the facts in this case show that Arkansas’s “emergency” grievance procedures are not available to address the emergency faced by Plaintiffs here.
Writs of habeas corpus provide an appropriate legal vehicle for Plaintiffs and the subclasses to pursue release. For these individuals, no other remedy is sufficient to protect their legal rights or their health, and the release from confinement that they request represents the core function of the writ. Courts across the country have overwhelmingly affirmed the propriety of habeas corpus relief for individuals seeking redress because of the COVID-19 pandemic, and this request is fully consistent with extant Eighth Circuit case law. Furthermore, the PLRA is inapplicable to Plaintiffs’ request for release for prisoners who are medically vulnerable or have disabilities that place them at high risk of severe illness or possible death from COVID-19. The statute’s plain text is unambiguous that it does not apply when, as here, Plaintiffs seek habeas corpus relief challenging the fact or duration of their confinement in prison. Nor are there any state court remedies available for Plaintiffs to exhaust before they seek habeas relief; indeed, Defendants do not even assert that release is a potential remedy in proceedings brought under the Arkansas Civil Rights Act, which is the only state court mechanism they identify.
Finally, this Court is authorized to, and should, order statewide injunctive relief precertification because class certification is not a prerequisite for issuing such relief, and Plaintiffs
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will likely be granted class certification in this lawsuit. Accordingly, Plaintiffs respectfully request entry of a preliminary injunction order as outlined by Plaintiffs in this reply memorandum.
FACTUAL BACKGROUND As detailed more fully in Plaintiffs’ Memorandum in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction, dated Apr. 21, 2020 (ECF No. 3), Defendants have failed to adopt and implement adequate policies and procedures to prevent and mitigate the spread of COVID-19. Specifically, Defendants have not implemented the heightened hygienic, cleaning, and disinfecting practices called for by the Center for Disease Control Interim Guidance on Management of COVID-19 in Correctional Facilities (“CDC Guidance”).3 They have also failed to adequately implement measures to reduce crowding, minimize interpersonal contact, and encourage social distancing. Moreover, Defendants have still not adequately addressed the presence of incarcerated people and staff members who exhibit symptoms of COVID-19 or have tested positive for COVID-19. All of these deficiencies have led to violations of Plaintiffs’ federal rights—violations that have been most recently exemplified by the massive viral outbreak of several hundred people incarcerated in Cummins Unit. I. The Viral Outbreak in Cummins Unit Demonstrates the Inadequacies of Defendants’ Preparation for, and Containment of, COVID-19 that Serve as a Warning for Other ADC Facilities. In the face of claims by Defendants that “ADC’s response to the COVID-19 pandemic has been immediate, proactive, [and] comprehensive,” this Court must consider the stark reality of the public health crisis unfolding at Cummins Unit, which ranks in the top ten COVID-19 outbreaks in the nation.
3https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf.
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Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (“Times journalists have for weeks tracked clusters of cases and deaths across the country. The largest such outbreaks
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include prisons in Ohio and Arkansas. . . .”); https://www.arkansasonline.com/news/2020/apr/ 21/arkansas-cases-top-2-000-officials-say-/ (“The outbreak at the prison has made rural Lincoln County—population 13,024—one of the densest hot spots in the nation, according to an analysis by The New York Times.”).
As Plaintiffs have made clear from the outset of this litigation, the outbreak of a highly infectious, deadly virus in a closed detention setting threatens not only the health of those confined, those who work there, and those medical professionals who will treat the infected. It also threatens the lives of Arkansans far beyond prison walls, as the virus inevitably will boomerang back into surrounding communities, straining limited medical capacity, before continuing to spread across the State. See Declaration of Marc Stern, filed Apr. 21, 2020 (“Stern Decl.”) ¶ 11 (ECF No. 3-2). And boomerang it has. At least thirteen people who were incarcerated at Cummins have been hospitalized, including three at University of Arkansas for Medical Sciences (“UAMS”) and seven at Jefferson Regional Medical Center. Daniel Breen, Arkansas COVID-19 Gym Restrictions Rolled Back; Small Business Grants Delayed, UA LITTLE ROCK PUBLIC RADIO, available at https://www.ualrpublicradio.org/post/arkansas-covid-19-gym-restrictions-rolled-back-smallbusiness-grants-delayed. The latest reports indicate that at least four of those hospitalized patients have died. See supra at 1.
Defendants have presented this Court with a view that does not fairly capture, and indeed radically distorts, the reality of what is happening, and what continues to happen, inside their correctional facilities. Rather than confronting the reality on the ground, Defendants cite the declaration of Defendant Dexter Payne, Director of the Arkansas Division of Correction, over 150 times. But Defendant Payne’s declaration either fails to address, or is flatly inconsistent with, the facts at the heart of this litigation.
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Unattended prisoners in Cummins Unit have been so gripped by illness that they defecate on themselves. Declaration of Janice Nicholson, dated May 3, 2020 (“Nicholson Decl.”) ¶ 12, attached hereto as Exhibit 25. Some sick prisoners lay in bed for days soaked in their own sweat, coughing, gasping, and sometimes convulsing; once they are finally carried away, those beds, soaked in the fluids of the unattended ill, are neither cleaned nor disinfected. Declaration of Kenna Lewis, dated May 3, 2020 (“Lewis Decl.”) ¶¶ 7-9, attached hereto as Exhibit 24. For instance, Kenna Lewis’ son, who is incarcerated in Cummins, reported that a man was “so sick he couldn’t even get up to go to chow. After they let him lay in the bed for four days, he tested positive. No guard had even been in their barracks to check on that man. My son said the man was shaking, sweating, convulsing, and no longer coherent.” Lewis Decl. ¶ 7. Carrie Coleman’s son, also at Cummins, had a fever reaching 104 degrees and became so ill before receiving any medical treatment that he had to be carried to the infirmary. Declaration of Carrie Coleman, dated May 2, 2020 (“Coleman Decl.”) ¶ 7, attached hereto as Exhibit 15. Ms. Coleman also reported that there was an older person who was very ill, and “they were not doing anything for him,” and that, in fact, “a lot of people were getting really sick and no one was taking them to the infirmary or doing anything for them.” Coleman Decl. ¶ 16.
Those in the infirmary have been similarly neglected. Janice Nicholson, herself an employee of the Arkansas Department of Corrections, has described her son’s treatment in the Cummins infirmary in detail:
On April 21st, Quintionus called me. He sounded very weak. He said he defecated on himself and had to be wheeled to the infirmary because he was too sick to walk. I told him to ask for some noodle soup and he said there was no hot food. He said he only had cough drops. I told him to put the cough drops in some hot water and drink it. He said at the barrack nurses were not coming to check on him and the other inmates. He said one of the inmates in the barrack was also having trouble breathing and he let him take a couple of pumps of his inhaler.
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On April 22nd, I called Shelley Byers three times. Each time I was informed that she was busy and could not speak with me. I explained that I wanted an update on my son. A staff member said she was looking at Quintionus’ chart and he was refusing treatment. I said there was no way my son would refuse treatment. Quintionus called me on the evening of April 22nd. He still sounded weak and sick. I told him that I spoke to medical staff in Pine Bluff and she said he was refusing treatment. Quintionus said he absolutely never refused treatment. He said the nurses were barely coming to the barrack to see about the inmates. When the nurses did come they would stand at the gate and yell for the inmates to come to the gate to be seen. He remembered at about 2am a nurse yelled his name to come to the gate, but he was too weak to get up. Nicholson Decl. ¶¶ 12-14. The treatment of Ms. Nicholson’s son—even though she is an ADC employee who appealed to both the Warden and her son’s attorney—stands in stark contrast to Defendant Payne’s promise that “any inmate who believes he or she is experiencing symptoms of COVID-19 may seek immediate treatment from Wellpath, for free.” Def. Resp. at 5. Defendants likewise rely on Defendant Payne for the proposition that masks have been “made by Arkansas Correctional Industries (‘ACI’) in the garment factory outside an adjacent ADC unit.” Def. Resp. at 9. Notably absent from this narrative is that ACI, staffed by incarcerated people,4 had infected prisoners from Cummins Unit working to make these masks. For example, Carrie Coleman’s son Brandon got sick around April 8, 2020, but from Wednesday to Friday of that week, even though he was feeling very ill, officers forced him to keep going to work at ACI, “where he was making masks.” Coleman Decl. ¶ 4. Infected prisoners at Cummins Unit also have been compelled to continue to work in the kitchen. Declaration of Valencia White, dated May 1, 2020 (“White Decl.”) ¶¶ 6-8, attached hereto as Exhibit 29.
4 “The mission of ACI is to train and educate inmates in life skills and marketable job skills through various programs, enabling them to produce quality goods, products and services at competitive prices; in combination will aid in the reduction of recidivism.” About ACI, https://www.acicatalog.com/store/about (last visited May 3, 2020).
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This, coupled with Defendants compelling infectious COVID-19 positive corrections officers to work at Cummins Unit, has exacerbated the risk of infection to not only prisoners, but also other ADC employees. Indeed, Defendant’s own exhibits to their Response indicate that Defendants had a policy of allowing corrections officers infected with COVID-19 to disavow clear public health guidance to remain quarantined, and instead report to work if they were asymptomatic—even though asymptomatic carriers are able to transmit the virus. See, e.g., What We Know About the Silent Spreaders of COVID-19, NATIONAL PUBLIC RADIO, April 13, 2020, available at https://www.npr.org/sections/goatsandsoda/2020/04/13/831883560/can-acoronavirus-patient-who-isnt-showing-symptoms-infect-others; see also Second Declaration of Dr. Marc Stern, dated May 3, 2020 (“Stern Decl. 2”) ¶ 5 (“[S]taff who have or are suspected of having COVID-19, even if asymptomatic, should not be allowed in any ADC facility until they are no longer contagious.”), attached hereto as Exhibit 12; Stern Decl. ¶ 13c (“The prison must establish clinically effective non-punitive quarantine of all individuals believed to have been exposed to COVID-19, but not yet symptomatic, . . .”).
Moreover, even when corrections officers use personal protective equipment (which by no means would allow a corrections officer known to be infected with COVID-19 to safely report for work), they wear gloves and wear masks irregularly and often incorrectly. Kouri Decl. ¶ 12; see also Arkansas Department of Corrections, Twitter, Apr 8, 2020, 11:22 AM, at https://twitter.com/ADCPIO/status/1247907645765357568 (bottom center, mask below nose); Arkansas Department of Corrections, Twitter, Apr 27, 2020, 5:35 PM, at https://twitter.com/ADCPIO/status/1254886542075744259/photo/1 (masks below noses).
Plaintiffs respectfully suggest that these accounts, and not the idealized picture painted by Defendants, would permit a reasonable person to make sense of the remarkable spike of infections
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at Cummins Unit and the remarkable amount of pain and suffering those numbers reflect. That suffering extends beyond Cummins Unit, reverberating out into the broader community, as family members desperate with worry try to call the infirmary again and again to ask about their sons and grandsons and brothers, only to get a busy signal. Coleman Decl. ¶ 19.
The worst is yet to come. Despite Defendants’ representations about their actions to date and moving forward, the way that the situation at Cummins Unit was actually handled has left incarcerated individuals and the prison at large at grave risk: with infected corrections officers told to report to work; with infected prisoners ordered to cook and make masks for the uninfected; with the sick and not-yet-sick incomprehensibly moved around and mixed together; and where the ill and the well have been essentially abandoned. Lewis Decl. ¶ 10 (“They also have not been feeding them properly. One day they had ‘lunch’ at 9:30 p.m. This worried me too, especially since so many of these men are sick—very sick. Sick people need to eat and drink. But when I called to ask about them not getting enough to eat, I was told that they were understaffed which is why they weren’t able to feed them correctly.”); Ninette Sosa, Cummins Unit Inmates Angry Over Lack of COVID Care and Food Shortages, KNWA FOX NEWS 24, May 2, 2020, available at https://www.google.com/amp/s/www.nwahomepage.com/lifestyle/health/coronavirus/cumminsunit-inmates-angry-over-lack-of-covid-care-food-shortages/amp/.
Given the trajectory of the illness as we now understand it, and the number of hospitalizations we are already seeing, there is no question that there will be more hospitalizations and likely more deaths to come among the several hundred prisoners in Cummins Unit known to be infected. Failing this Court’s intervention, more and more correctional facilities will go the way of Cummins Unit, jeopardizing not only those who live and work there, but also the surrounding communities more broadly, as we have seen happen elsewhere. See, e.g., Sarah Volpenhein,
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Marion Star, Apr. 25, 2020, at https://www.marionstar.com/story/news/local/2020/04/25/marionprison-ohio-coronavirus-outbreak-seeping-into-larger-community/3026133001/. Cummins Unit is the canary in the coal mine. II. Defendants’ Recitation of Preexisting Cleaning Protocols Are Hardly “Enhanced”
and Are Contradicted by Prisoners’ Experiences in Multiple Facilities. Defendants assert that ADC has “ordered” enhanced disinfection of its units; however, Defendants have failed to provide details of enhanced measures or any documentation of these orders being carried out. Although Defendants allege that open barracks in general population are cleaned continuously throughout the day by inmate porters, Plaintiffs in such barracks at the Varner and Ouachita River Units all report that porters are only given chemicals to clean once to twice a day, if that. Second Declaration of Alvin Hampton, dated Apr. 29, 2020 (“Hampton Decl. 2”) ¶ 6, attached hereto as Exhibit 2; Second Declaration of Marvin Kent, dated Apr. 29, 2019 (“Kent Decl. 2”) ¶ 13, attached hereto as Exhibit 3; Second Declaration of Jonathan Neeley, dated Apr. 29, 2020 (“Neeley Decl. 2”) ¶ 6, attached hereto as Exhibit 5; Second Declaration of Harold Otwell, dated Apr. 29, 2929 (“Otwell Decl. 2”) ¶ 14, attached hereto as Exhibit 7; Second Declaration of Trinidad Serrato, dated Apr. 29, 2020 (“Serrato Decl. 2”) ¶ 13, attached hereto as Exhibit 8; Second Declaration of Victor Williams, dated Apr. 29, 2020 (“Williams Decl. 2”) ¶ 12, attached hereto as Exhibit 10. Individuals housed at multiple units, including the Cummins Unit, have reported they lack access to disinfectants. Nicholson Decl. ¶ 15; Declaration of Tonya Williams, dated May 3, 2020 (“Williams Decl.”) ¶ 3, attached hereto as Exhibit 30; Declaration of Rocxena Smith, dated May 1, 2020 (“Smith Decl.”) ¶ 3, attached hereto as Exhibit 28; Declaration of Susie Anita Daniels, dated May 3, 2020 (“Daniels Decl.”) ¶ 8, attached hereto as Exhibit 17; Declaration of Nicole Cleveland, dated May 3, 2020 (“Cleveland Decl.”) ¶ 12, attached hereto as Exhibit 16. At other units,
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chemicals and cleaning supplies are provided to porters for a small window of time—once in the morning and once in the evening, at most. Serrato Decl. 2 ¶ 13, Neeley Decl. 2 ¶ 6, Kent Decl. 2 ¶ 13. Continuous cleaning cannot be achieved without continuous access to disinfectant and cleaning supplies.
Plaintiffs at the Ouachita River Unit have actually noticed a decrease in cleaning efforts. Serrato Decl. 2 ¶ 13, Williams Decl. 2 ¶ 11. Porters responsible for cleaning barracks at the Ouachita River Unit have been reported to their staff supervisors for failing to adequately clean, including spending as little as fifteen minutes cleaning an entire barracks. Williams Decl. 2 ¶ 11. Despite these complaints, ADC has failed to remedy the problem. Williams Decl. 2 ¶ 11. The frequently used surfaces on the metal bench area in the Charlie barrack are only cleaned about every other day, and porters must be prompted by inmates in the barrack to clean the area. Declaration of Carlton Hayes, dated May 2, 2020 (“Hayes Decl.”) ¶ 6, attached hereto as Exhibit 22. Without direct access to cleaning chemicals, inmates are completely dependent upon the access to supplies afforded to assigned porters and the efforts of those porters and staff.
In their response, Defendants state that people in restrictive housing are provided cleaning supplies only twice per week to clean their cells, yet ADC staff come into contact with their cells through the trap on their doors at least six times per day to deliver meals and pick up plastic meal trays. Second Declaration of Nicholas Frazier, dated Apr. 29, 2020 (“Frazier Decl. 2”) ¶ 4, attached hereto as Exhibit 1. Additionally, staff come to these cells for medication pass, mental health checks, and to escort individuals in restrictive housing to showers, yard calls, sick calls, and to make phone calls. Second Declaration of Robert Stiggers (“Stiggers Decl. 2”) ¶ 4, attached hereto as Exhibit 9; Frazier Decl. 2 ¶¶ 4, 10. As of April 29, 2020, toilets in approximately 30 restrictive housing cells in Cummins Unit had been turned off since April 24, 2020. Second Declaration of
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Alfred Nickson, dated Apr. 29, 2020 (“Nickson Decl. 2”) ¶ 6, attached hereto as Exhibit 6. This leaves approximately sixty inmates without a working toilet, as these are two-man cells. Nickson Decl. 2 ¶ 6. These inmates must now be taken out of their cells and into another unit to use the bathroom, exponentially increasing their exposure to staff and communal spaces. Id.
Showers in restrictive housing continue to be cleaned only after all 90 men in the barracks have had a chance to shower. Stiggers Decl. 2 ¶ 4. These are the same procedures used prior to the alleged “enhanced disinfection.” Stiggers Decl. ¶ 4. Despite having COVID-19 positive cases in restrictive housing at Cummins Unit, Defendants have failed to increase access to cleaning supplies or cleaning procedures for showers and other communally used spaces. Nickson Decl. 2 ¶ 10. Although Defendants may have ordered enhanced disinfection, they clearly have not taken necessary steps to ensure this order is carried out within ADC facilities.
Moreover, Defendants have stated that they use Razor Chemical’s Citrus Breeze III to disinfect frequently touched surfaces, but they have not claimed that this cleaner is effective against the virus that causes COVID-19. Def. Resp. at. 6. Importantly, CDC Guidance requires the use of EPA-registered disinfectants effective against the virus that causes COVID-19 to clean and disinfect frequently touched surfaces several times a day. But searches for “Razor Chemical” and “Citrus Breeze” in the database of EPA-registered disinfectants effective against the COVID-19 virus have returned no results. See Search Results for Citrus Breeze on EPA List of Disinfectants for Use Against SARS-CoV-2, attached hereto as Exhibit 40. III. The Provision of PPE to Corrections Staff and Prisoners, as Well as Their Use, Are
Insufficient and Inconsistent. Defendants have failed to distribute personal protective equipment (“PPE”)—including masks and gloves—to all individuals under ADC custody. Prisoners in restrictive housing are not provided with any protective equipment, even when interacting with correctional staff. Frazier
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Decl. 2 ¶ 5 and 10; Kent Decl. 2 ¶ 7; Stiggers Decl. 2 ¶ 6. Defendants falsely claim that individuals in restrictive housing do not need masks because ADC staff wear masks and gloves as precautionary measures during all interactions. See Declaration of Dexter Payne, filed Apr. 30, 2020 (“Payne Decl.”) ¶¶ 48-49 (ECF No. 36-1). On April 25, 2020, Mr. Frazier was transported by two corrections officers to the infirmary. Frazier Decl. 2 ¶ 10. Neither of the officers nor Mr. Frazier were wearing masks. Id. Eventually, Mr. Frazier made his own mask out of a shirt after requesting a mask and being denied. Frazier Decl. 2 ¶ 5. Similarly, while in restrictive custody, Mr. Kent was not provided a mask, even after making several requests. Kent Decl. 2 ¶¶ 57. Mr. Kent has a serious heart condition and pacemaker and interacted with correctional staff and nurses without masks. Id.
Other Plaintiffs and class members have received cloth masks, made from corrections shirts. Hampton Decl. 2 ¶ 8; Kent Decl. 2 ¶ 8; Neeley Decl. 2 ¶ 9; Nickson Decl. 2 ¶ 7; Daniels Decl. ¶ 12. Individuals in ADC custody are required to wash their mask by hand. Hampton Decl. 2 ¶ 8; Declaration of Audrey Brown, dated May 3, 2020 (“Brown Decl.”) ¶ 20, attached hereto as Exhibit 14. Many individuals in ADC custody have received only one mask—which does not provide uninterrupted protection while their only mask is cleaned and drying. Daniels Decl. ¶ 12; Brown Decl. ¶ 20; Declaration of Cici Sangers Ponder, dated May 3, 2020 (“Ponder Decl.”) ¶ 12, attached hereto as Exhibit 26; Smith Decl. ¶ 3; Declaration of Juanita Singleton, dated May 3, 2020 (“Singleton Decl.”) ¶ 2, attached hereto as Exhibit 27. Only some Plaintiffs have received multiple masks—Mr. Hampton, Mr. Neeley, Mr. Otwell, Mr. Serrato, and Mr. Williams received one mask in early April and a second mask the week of April 20th. Hampton Decl. 2 ¶ 8; Neeley Decl. 2 ¶ 9; Otwell Decl. 2 ¶ 12; Serrato Decl. 2 ¶ 6; Williams Decl. 2 ¶ 9.
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As discussed above, masks are made by prisoners at Cummins Unit, despite the facility’s unprecedented COVID-19 outbreak. White Decl. ¶ 12; Serrato Decl. 2 ¶ 15; Cleveland Decl. ¶ 13. Moreover, those incarcerated at Cummins Unit, like Brandon Coleman, have been forced to continue working to produce masks despite feeling ill and exhibiting COVID-19 symptoms. Coleman Decl. ¶ 4. To afford adequate protection, the masks “should meet or exceed the requirements set forth by the Arkansas Department of Health; these are clothes non-medical masks. (COVID-19 Fabric Mask Pattern with Three Layers, March 27, 2020).” Stern Decl. 2 ¶ 2.
No prisoners have received gloves. Even prisoners working in laundry and food service are not provided with adequate PPE like gloves. Mr. Serrato works in the kitchen at Ouachita River Unit. Serrato Decl. 2 ¶ 14. Neither Mr. Serrato nor other prisoners that work in the kitchen are provided with gloves. Id. Food is unloaded from delivery trucks and transported to the kitchen without masks or gloves. Id. Mr. Hampton also observed prisoners not wearing masks while serving food. Hampton Decl. 2 ¶ 9. Another prisoner, working in the kitchen at Grimes Unit, states that no one in the kitchen is allowed to wear gloves while handling food. Cleveland Decl. ¶ 6.
Defendants claim that gloves and masks have been provided to all correctional staff members, yet corrections officers do not consistently wear PPE or fail to wear PPE correctly. And many corrections officers are observed without masks at all. Frazier Decl. 2 ¶ 10; Neeley Decl. 2 ¶ 11; Stiggers Decl. 2 ¶ 6; Williams Decl. 2 ¶ 7; Cleveland Decl. ¶ 8. On April 20, 2020, when Mr. Serrato went to the infirmary, three nurses in the infirmary did not have on masks. Serrato Decl. 2 ¶ 8; see also Arkansas Department of Corrections, Twitter, Apr 16, 2020, 8:55 PM, at https://twitter.com/ADCPIO/status/1250950916754345984/photo/1 (picture from ADC infirmary with plastic sheets installed, but nurse and patient both without masks). On Friday, April 17, 2020,
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two officers in Mr. Serrato’s barracks did not wear their masks until the Warden entered the barracks. Serrato Decl. 2 ¶ 7.
In early April 2020, after Central Arkansas Community Correctional Counselor Richard Richardson passed away, another officer was reprimanded for wearing PPE. Daniels Decl. ¶ 13. ADC’s aversion to PPE was also captured at the ADC Training Academy graduation ceremony on March 27, 2020. In a video of the ceremony, a large group of correctional officers are congregating without masks or other personal protective equipment.
The ceremony was held at least a day after Governor Hutchinson prohibited gatherings of 10 or more people in indoor spaces.
Furthermore, even if ADC staff members are wearing PPE, often the equipment is not utilized correctly. Defendants have not claimed that they have followed the CDC Guidance’s recommendation to train incarcerated people and correctional staff on how to don and doff PPE. As a result, both Plaintiffs and Class Members have observed officers wearing masks below the nose or mouth or on the chin. Kent Decl. 2 ¶ 10; Neeley Decl. 2 ¶ 10; Otwell Decl. 2 ¶ 10; Williams Decl. 2 ¶ 11; Ponder Decl. 2 ¶ 13. Frequently, correctional staff deliberately pull down their masks to speak to prisoners and give orders in the barracks. Neeley Decl. 2 ¶ 11; Otwell Decl. 2 ¶ 10. On
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April 28, 2020, Corporal Little, in the Ouachita River Unit, was not properly wearing his mask during his entire shift. Neeley Decl. 2 ¶ 11. On April 29, 2020, during an interview with Plaintiffs’ counsel, Lieutenant Seley, in Ouachita River Unit, entered Mr. Otwell’s barracks with his mask pulled down under his chin. Otwell Decl. 2 ¶ 10. On another occurrence, a family member—on a videocall with a loved one incarcerated at Cummins Unit—witnessed a female correctional officer working with prisoners that tested positive for COVID-19 but not wearing gloves. Ponder Decl. 2 ¶ 13; see also Stern Decl. 2 ¶ 6 (“Correctional officers must receive adequate training in relevant preventive public health measures as they apply personal protection . . . .”) This pattern of sanctioned non-compliance with COVID-19 guidance is all the more serious in light of the fact that ADC has infectious COVID-19 staff working in these facilities. IV. The Impossibility of Social Distancing, and Staffing Shortages, Pose Serious Risks to
Both Prisoners and Corrections Staff. Defendants concede that the most essential measure for minimizing the spread of COVID19 is not possible at the current population levels of ADC facilities. As Defendant Payne acknowledges, “ADC housing units are not large enough so that every inmate’s bed can be moved six-feet away from another.” Def. Resp. at 12. Nor have Defendants implemented the measures that they could implement to improve social distancing within ADC facilities. Upon reviewing materials regarding Defendants’ response to the pandemic, corrections expert Eldon Vail’s “biggest concerns is ADC’s resistance to exploring avenues to increase social distancing.” As he puts it:
Accepting ADH guidance that, “not all strategies will be feasible in all facilities”, there is no evidence that the ADC has made a systemic effort to come up with a list of “social distancing strategies” or any such implementation in their prisons. The failure to do so in the face of the pandemic puts prisoners at increased risk of harm. . . .
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One of my biggest concerns is ADC’s resistance to exploring avenues to increase social distancing. Mr. Dexter says: In light of the physical characteristics of ADC units, as well as security and staffing needs, a court order requiring additional social distancing measures would both risk the safety and security of the facilities and constitute an undue burden on the operations of the ADC’s prison system. . . . Mr. Dexter’s statement is typical of the orientation of too many corrections officials. We get stuck in the ways we have always done business and when faced with a crisis such as COVID-19 fail to be willing to examine the assumptions of how we regularly operate. This pandemic is different. We must examine all of the opportunities to move in the direction of increased social distancing such as expanding where prisoners are housed within the secure perimeter of corrections facilities. Lives are at stake. Declaration of Eldon Vail, dated May 3, 2020 (“Vail Decl.”) ¶ 57 (emphasis added), attached hereto as Exhibit 11. The lack of adequate social distancing has already led to a crisis at Cummins, which
includes a facility where staff shortages and fear of contracting the virus appear to be resulting in dramatic deficiencies in even the most basic essentials, such as food. Lewis Decl. ¶ 10 (“They also have not been feeding them properly. One day they had ‘lunch’ at 9:30 p.m. This worried me too, especially since so many of these men are sick—very sick. Sick people need to eat and drink. But when I called to ask about them not getting enough to eat, I was told that they were understaffed which is why they weren’t able to feed them correctly.”); Ninette Sosa, Cummins Unit Inmates Angry Over Lack of COVID Care and Food Shortages, KNWA FOX NEWS 24, May 2, 2020, at https://www.google.com/amp/s/www.nwahomepage.com/lifestyle/health/coronavirus/cumminsunit-inmates-angry-over-lack-of-covid-care-food-shortages/amp/. The fear, hunger, and illness of those locked down in Cummins has created a powder keg environment. Peyton Knott, Inmates
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cause disturbance in Cummins Unit, KNWA Fox 24, May 2, 2020, at

https://www.nwahomepage.com/news/inmates-cause-disturbance-in-cummins-unit/.

The staffing shortages at ADC’s facilities are widespread and contribute to these dangerous

conditions. There were 651 vacancies in the correction division and 117 in community correction

division, even before staff began taking leave due to COVID-19. Arkansas Department of

Corrections

Secretary’s

Report,

March

2020,

at

page

3.

https://adc.arkansas.gov/images/uploads/DOC_Secretarys_Board_Report_March2020-

FINAL.pdf at page 3. The Arkansas state government jobs page has by far more open positions

for the Department than for any other state agency or department, with more than double the

number of job listings for than the next highest state agency, the Department of Human Services,

and roughly triple the number of vacancies listed for the Department of Workforce Services.

https://www.ark.org/arstatejobs/index.php Even at that, “only” 121 of the Department’s 651

vacancies are posted.

The state’s webpage clearly shows that community correction and corrections divisions are

in serious need of Correctional Officers across the state to perform the following duties, among

others, specified in its job descriptions: supervise the security and conduct of inmates/residents in

cells, during group meetings, meals, bathing, at recreation, during visitations, while working and

other assignments; maintain security at front gate by logging in visitors to unit; performing security

checks of buildings and grounds; maintain a log for work release, status, and movement of

inmates/residents; write incident reports and take disciplinary action; escort inmates/residents;

attend shift briefing to discuss incidents, problems, and security issues; operate communications

equipment by receiving/transmitting messages, logging incoming/outgoing calls, and contacting

requested parties. The state needs corrections officers and sergeants in Chicot, Crittenden, Hot

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Spring, Izard, Jackson, Jefferson, Lee, Lincoln, Miller, Mississippi, Pulaski, and Saline counties, with multiple vacancy listings for almost every county.
The Department also lacks sufficient Food Preparation Managers and Supervisors to supervise food service personnel; direct food service activities; monitor security and safety practices; coordinate production and serving of food; order supplies; prepare and cook food; check the quality of raw and cooked food products to ensure standards are met; checks quality of received food products; inspect supplies, equipment and storage areas for temperature and sanitation requirements, and inspect work areas to ensure conformance to established standards. The state needs Food Preparation Managers and Supervisors in Crittenden, Hot Spring, Jackson, Lee, Lincoln, Miller, Saline, and Washington counties, again with multiple listings within the same counties. V. Defendants Have Not Conducted Adequate Testing and Have Not Provided Timely
and Appropriate Medical Care to Sick Prisoners Infected with COVID-19. Defendants assert that “[i]mportantly, as of April 30, 2020, COVID-19 has only been detected in inmates in one unit within ADC: the Cummins Unit.” Def. Resp. at 13. (emphasis added). Indeed, according to Defendants, “Plaintiffs’ whole case is about mitigating the risk that a disease that has not yet arrived will spread.” Id. at 55. Citing the “limited presence of the virus in ADC prisons,” id., Defendants claim that their record “rivals not only that of other prison systems but the general population’s,” id. at 56. Leaving aside the stark fact that, under Defendants’ watch, Cummins Unit became one of the ten largest documented COVID-19 outbreaks in the country, the fact that COVID-19 has not been detected at other facilities does not mean it is not there, much less that it is not at substantial risk of spreading. The fact that “it is ADC policy to test, at no expense, any inmate who has a fever,” Def. Resp. at 56, provides cold comfort when there is substantial evidence that Defendants
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have not reliably taken the temperatures or tested individuals concerned that they are ill, and have no provided timely and appropriate medical care to sick prisoners infected with COVID-19. See, e.g., Kent Decl. 2 ¶¶ 4-6 (“I have had headaches, body aches, coughing, and nausea for at least 5 weeks and I have not been tested for COVID-19. I submitted a written request for a COVID test, mask, and gloves approximately 4-5 weeks ago and I have not received a response. . . . I submitted an emergency grievance on April 21, 2020 explaining that I have a serious heart condition and pacemaker, asking to be tested, and asking for a mask because I am in contact with staff and nurses.”); Neeley Decl. 2 ¶¶ 10, 14 (“The only time my temperature has been taken is when I leave the facility for an off-site visit. The last time that happened was two weeks ago. I filed a grievance on April 19, 2020 regarding my vulnerability to COVID-19 and the prison’s non-compliance with procedures to decrease or prevent the spread of the virus.); Nickson Decl. 2 ¶ 9 (“My temperature has not been taken. I do not know of anyone’s temperature being taken.”).
None of the signage attached to Defendants’ Response instructs incarcerated people on how to report symptoms of COVID-19 to correctional staff, despite the CDC Guidance calling for such signage. See Def. Resp., Exhibits 6, 7, 12, 13, 14 (ECF Nos. 36-6, 36-7, 36-12, 36-13, 3614). As of April 18, 2020, no incarcerated people at Varner Unit or East Arkansas Regional Unit had been tested for COVID-19, even though these prisons had received more than 350 and 650 medical grievance this year respectively. ADC COVID Response, attached hereto as Exhibit 42; ADC Total of Medical Grievances – Jan 1 - April 1, 2020, attached hereto as Exhibit 41. Tellingly, in their brief, Defendants do not state how many people from these other facilities have been tested for COVID-19.
Furthermore, waiting to test people who have been exposed to COVID-19 until they exhibit symptoms is irresponsible and contrary to Arkansas state procedures in other congregate settings,
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such as nursing homes. Arkansas Department of Health (“ADH”) e-mails indicate that all staff at the Central Arkansas Community Corrections Center (“CACCC”) were tested, with 27 testing positive, before any of the people residing there were tested. Email from Dr. Naveen Patil, Arkansas Dep’t of Health to Nate Smith, Arkansas Dep’t of Health, dated Apr. 12, 2020, attached hereto as Exhibit 49. In fact, the email indicates the facility only began “random testing” 15 of 150 inmates after the death of CACCC counselor Richard Richardson. Id. Another ADH email indicates that all staff at a West Memphis correctional facility were tested, with two testing positive, but there is no indication that any of the people incarcerated there were tested. Email from Dr. Naveen Patil, Arkansas Dep’t of Health, West Memphis to Austin Porter, Arkansas Dep’t of Health, dated Apr. 13, 2020. At least 59 people incarcerated at CACCC later tested positive. Alexis Wainright, Little Rock inmate tests positive for COVID-19, family worried, KARK 4 News, Apr. 16, 2020, at https://www.kark.com/news/local-news/little-rock-inmate-tests-positive-for-covid19-family-worried/. Meanwhile ADH policy appears to have been to test all staff and residents at nursing homes when anyone living or working there has been exposed. 5News, Two nursing home residents test positive for COVID-19 in Huntsville and Rogers, April 11, 2020, at https://www.5newsonline.com/article/news/nursing-home-resident-tests-positive-for-covid-19in-huntsville/527-4987adc3-5b6d-46c6-a9d7-2d9e339c5545 (noting that ADH is “prioritizing testing for those in long term care facilities when there is a staff member or resident affected . . . even those who are asymptomatic”).
As discussed above, there is substantial evidence that Defendants have not provided timely and appropriate medical care to prisoners infected with COVID-19. See also Otwell Decl. 2 ¶ 9 (“There was a guy throwing up in the barracks for more than 24 hours and they just left him there.”).
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VI. Plaintiffs Are Especially Vulnerable to Serious Illness or Death from COVID-19 due to Their Serious Medical Conditions. Named Plaintiffs have credibly pleaded they have a variety of preexisting conditions that
make them particularly vulnerable to serious illness or death if they become infected with covid19. See Class Action Complaint, filed Apr. 21, 2020, ¶¶ 15-35 (ECF No. 1). Each Named Plaintiff has filed now two sets of declarations in which they confirm they are so afflicted.
Defendants counter, on the basis of a single declaration provided by Dona Gordon, a Certified Correctional Health Professional employed by Wellpath (the private, for-profit, medical provider to the Arkansas Department of Corrections), that her review of Wellpath’s medical records for Plaintiffs does not bear out many of these conditions. See Declaration of Dona Gordon, filed Apr. 30, 2020 (ECF No. 36-23). Yet, Ms. Gordon does not provide any of the records that she claims to have examined to corroborate her declaration. Nor does she claim to have met or examined any of the Named Plaintiffs to gain first-hand information. Nor did she even attempt to discuss their medical history, as little of it that is likely known, with medical staff on the ground who have had contact with Named Plaintiffs.
This is hardly an adequate rebuttal to Named Plaintiffs’ declarations. Nor should it come as any surprise. Wellpath is not a general medical services provider that would provide, or be knowledgeable about, the comprehensive health of people who are incarcerated. Rather, it is a large, for-profit contractor of medical services for correctional institutions that has been accused and sued for grossly inadequate medical care, which has led to serious injury and death for multiple people in jails and prisons across the country. See, e.g., Blake Ellis and Melanie Hicken, 19 years old, in jail and begging to go to the hospital, CNN.com, June 2019, at https://www.cnn.com/interactive/2019/06/us/jail-health-care-ccs-invs-cnnphotos/index.html; John Moritz, Sister sues over Arkansas inmate’s ’14 death, says prison, medical staff ignored
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pneumonia’s grip, Arkansas Democrat Gazette, Nov. 15, 2017, www.arkansasonline.com/ news/2017/nov/15/sister-sues-over-inmate-s-14-death-2017/. VII. Defendants’ Grievance Procedures, Which Can Take up to Two Months to Exhaust,
Were Unavailable to Plaintiffs During the Crisis of the COVID-19 Pandemic. By Defendants’ own representations, the normal administrative grievance process includes multiple steps and can take up to two months to exhaust for both medical and non-medical grievances. See Def. Resp. 26, 28. To put this in context, the Cummins Unit went from one confirmed infection to 850 in just ten days. Plaintiff Frazier noted in his declaration that several grievances he filed in the past were never responded to. Or, consistent with Defendants’ representations, it took multiple months to complete the process for another grievance he filed. Frazier Decl. 2 ¶ 13. Plaintiff Jonathan Neeley also filed multiple grievances to no avail, and his grievance experience demonstrates the futility of the grievance process especially in light of a fast-moving pandemic. He began the grievance process for Defendants’ failure to treat his cancer on March 2, 2020, and was told he will not have a response to his appeal as part of Step 3 until May 28, 2020. Neeley Decl. 2 ¶ 16. In other words, it will take Mr. Neeley three months to exhaust his grievance regarding his serious health condition that makes him more susceptible to serious illness and death in light of the pandemic. Mr. Neeley also filed two other grievances, noting his vulnerability to COVID-19 because of his recent diagnosis of rectal cancer, and requesting ADA accommodations. Neeley Decl. 2 ¶¶ 14-15. He also noted the prison’s non-compliance with procedures to decrease or prevent the spread of the virus. Neeley Decl. 2 ¶ 14. In response to Mr. Neeley’s grievances, ADC did not indicate the steps it would take to prevent the spread of the virus, or what accommodations it would make for Mr. Neeley. The only response ADC provided was that “no matter the situation, release is a non-grievable issue.” Neeley Decl. 2 ¶ 14. Separately, ADC had responded to Mr. Neeley’s ADA grievance, as it had to
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other inmates, that ADC was doing everything it could and asked for Mr. Neeley to be patient. Neeley Decl. 2 ¶ 15; see, e.g., Otwell Decl. 2 ¶ 21; Williams Decl. 2 ¶ 16.
Plaintiff Alvin Hampton also filed two grievances, noting his vulnerability to COVID-19 and that ADC officials were not adhering to procedures necessary to slow the spread of the virus, similar to the allegations in this lawsuit. Hampton Decl. 2 ¶ 14. He was simply told that his complaint was non-grievable because he had requested release. Hampton Decl. 2 ¶ 14. In Mr. Hampton’s second grievance, he asked for ADA accommodations in light of COVID-19. Hampton Decl. 2 ¶ 15. The deputy warden did not address Mr. Hampton’s request for accommodations, and only responded that ADC was doing everything they could do and for him to be patient. Hampton Decl. 2 ¶ 15.
Plaintiff Marvin Kent filed multiple grievances beginning in December 2019 about his underlying health issues and requesting to see medical staff. Kent Decl. 2 ¶ 3. Mr. Kent received no response to his grievances. Then, because he was having headaches, body aches, coughing, and nausea, and had not yet been tested for COVID-19, Mr. Kent filed yet another grievance. Kent Decl. 2 ¶¶ 4-5. In his new grievance, Mr. Kent asked for a COVID-19 test, mask and gloves. Id. ¶ 5. He did not receive a response to this grievance.
Furthermore, an “emergency” grievance that requires ADC to address the issue within 24 hours has not provided Plaintiffs with a pathway for timely exhaustion. Defendants’ indifference to the seriousness of COVID-19 has led them to deem such complaints as not an emergency grievance. Plaintiff Frazier, for example, filed a grievance explaining that his health condition put him at high risk and asking for additional cleaning supplies. Frazier Decl. 2 ¶ 12. Though the grievance was submitted in the midst of the COVID-19 pandemic, Sgt. Garcia said the grievance was not an emergency. Frazier Decl. 2 ¶ 12; see also Nickson Decl. 2 ¶ 11 (stating ADC’s failure to respond to Mr. Nickson’s emergency grievance).
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Along with the grievance process not being generally available to Plaintiffs, it is also unusable, and administrators have thwarted inmates from taking advantage of the process. For example, after Mr. Kent filed the grievances discussed above, he filed yet another grievance, explaining that he has a serious heart condition and pacemaker, and asking to be tested and to be given a mask. Kent Decl. 2 ¶ 6. Mr. Kent received a response a week later stating that he did not need a mask or other PPE because he was in supermax. However, by the time ADC had finally responded, Mr. Kent was no longer in supermax. Id. ¶ 7. Further, he received the response to the grievance by mail, rather than it being delivered by a staff member, resulting in more than 72 hours passing before he received notice of the response to his grievance. Id. Because of how ADC handled Mr. Kent’s grievance, it was too late for him to move to the second step of the process. Id.
Plaintiff Alfred Nickson filed an emergency grievance on April 17, 2020, concerning his vulnerability to COVID-19 and the prison’s non-compliance with procedures to decrease or prevent the spread of the virus but, as of the time of his second declaration, had not yet received a response from the grievance officer. Nickson Decl. 2 ¶ 11. Further, Mr. Nickson explains that a number of sergeants have stopped picking up and signing grievances in order for inmates to file. Id. ¶ 12. In fact, Sergeant Knight refused to pick up a grievance from Mr. Nickson on three different days in April. Id.; see also Williams Decl. ¶ 9 (“My son, [Jarvis Flowers], informed me that he filed a grievance about the conditions in Cummins, but the warden refused to sign the grievance.”).
Plaintiff Robert Stiggers encountered similar roadblocks as Mr. Nickson. It took him nearly 10 days to submit his completed grievance related to COVID-19 and the prison’s inadequate response because he could not get the appropriate staff to sign and take the grievance. Stiggers Decl. 2 ¶ 8. ADC was unwilling to provide Mr. Stiggers any relief, responding to his grievance by stating that inmates in restrictive housing cannot get the masks that would assist in reducing the spread of the virus. Id.
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ARGUMENT I. Plaintiffs Have Standing to Seek to Maintain the Status Quo of Living in a Carceral
Setting Without a Viral Outbreak. Defendants’ argument that Plaintiffs lack standing is meritless. Defendants first argue a
lack of standing, because, according to Defendants¸ Plaintiffs have already obtained much of the relief they are seeking. Def. Resp. at 34-35. That assertion simply ignores the overwhelming factual record submitted by Plaintiffs. As discussed above, among other things, Plaintiffs still have not been tested or temperature-checked, and those who are experiencing COVID-19 symptoms are still being denied adequate treatment; still lack basic personal cleaning products and PPE; continue to be housed within 6 feet from other prisoners; are still interacting with corrections officers that do not wear PPE or wear them improperly; and are being exposed to COVID-19 by asymptomatic corrections staff that are required to work per ADH guidelines adopted by the ADC.5 See supra at 7-25.
To support their contention that they have provided the relief sought, Defendants rely on the statement of Defendant Dexter Payne, the ADC Division Director. But Defendant Payne does not assert that he has personal knowledge of the implementation of any of the measures ADC purportedly adopted for the prison facilities. See generally Declaration of Dexter Payne, filed on Apr. 30, 2020 (“Payne Decl.”) (ECF No. 36-10). In fact, with the exception of three personal statements in his 20-page declaration,6 all of Mr. Payne’s statements were made on behalf of ADC
5 Defendants have produced, cited, and relied on two Arkansas Department of Health Guidance documents that state that asymptomatic correctional staff could be required to work during their isolation period. See Def. Resp. at 15, Ex. 19, ADH Apr. 13, 2020, Guidance (ECF No. 36-19); id., Ex. 20, ADH Apr. 15, 2020, Guidance (ECF No. 36-20). With regard to those documents and other ADH guidance, Defendants state “ADC continues to comply with these recommendations as best as possible.” Def. Resp. at 15; Payne Decl. ¶ 102.
6 See Payne Decl. ¶ 1 (identifying himself as Director of the Arkansas Division of Corrections); ¶ 110 (stating that he is unaware of any Plaintiff requesting a reasonable accommodation from him or any of the named Defendants, as if that is something that would
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and are more akin to an official ADC position statement. Mr. Payne provides no supporting documentation (with the exception of a few posters) for what he states the ADC has done at the ADC facilities and provides the Court with no basis for understanding whether and how he would know that the measures he describes were actually implemented.
Defendants also rely on the statement of Kelly Garner from the ADH, who admitted to working on the ADH guidance to ADC, which would include the guidance that allowed COVID19 positive corrections officers to work while infectious. See Declaration of Kelly Garner (“Garner Decl.”), ¶ 4. Ms. Garner states that she visited Cummins Unit once with other ADH colleagues during a pre-planned site tour for a few hours on April 17, 2020, and observed inmate porters with cleaning supplies; posters with information about COVID-19; sinks in inmates’ barracks; and all staff, but not all inmates, wearing cloths masks. Id. ¶¶ 10-14. This is a far cry from the comprehensive relief sought by Plaintiffs. Moreover, Ms. Garner’s limited, first-hand account must be contrasted with Plaintiffs’ evidence: over 20 of declarations from prisoners and others, many of whom have no association with each other, and all of whom present similar accounts of the lack of cleaning supplies, PPE, ineffectual social distancing, and inadequate medical care. See Pl. Exs. Plaintiffs’ assertions are supported by the increasingly deadly toll that the pandemic is taking within ADC facilities. See supra at 1.
Defendants alternatively argue that, to the extent Defendants have not adopted the relief requested, Plaintiffs still lack standing because any additional relief beyond what Defendants have already provided would “fundamentally alter” the “status quo.” See Def. Resp. at 35. It is correct that “[t]he primary function of a preliminary injunction is to preserve the status quo until, upon
happen in the ordinary course); ¶ 109 (referring to an allegation in the Complaint that Defendants granted emergency release in early March as inaccurate, because the ADC frequently enacts the emergency release provision).
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final hearing, a court may grant full, effective relief.” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984) (issuing an injunction to restore business activity). However, the “status quo” for Plaintiffs is not an environment where they are exposed to infection from a lethal virus. Sanitizing and other measures to eliminate and prevent the spread of a deadly infection would not fundamentally alter the status quo; it would maintain it. Even emergency release would not fundamentally alter the status quo, as Director Payne has indicated that this is a mechanism used approximately every 90 days by the ADC, Payne Decl. ¶ 109, and the Board of Corrections has voted to expand the Emergency Powers Act to allow release of additional inmates during the pandemic, id. ¶¶ 104-105.
Moreover, “where the status quo is a condition not of rest, but of action, and the condition of rest . . . will cause irreparable harm, a mandatory preliminary injunction [one that requires action] is proper.”7 Ferry-Morse Seed Co., 729 F.2d at 593; see also N. States Power Co. v. Fed. Transit Admin., 270 F.3d 586, 487 (8th Cir. 2001) (finding no clear error in imposing a preliminary injunction ordering that work owed to defendants be performed); Mental Health Ass’n v. Heckler, 720 F.2d 965, 973 (8th Cir. 1983) (ruling that the trial court’s “order of reinstatement of benefits pending a proper adjudication is a restoration of the status quo”); United States v. Vertac Chem. Corp., 489 F. Supp. 870, 888-889 (E.D. Ark. 1980) (ordering, on a P.I. motion, extensive remedial action as a result of improper waste disposal practices by defendants). The status quo imposes an affirmative obligation on Defendants to make reasonable accommodations under the ADA and a
7 “While some courts appear to apply more stringent requirements when a mandatory preliminary injunction is sought rather than a prohibitory preliminary injunction, the Eighth Circuit has not done so.” Scott v. Sanders, No. 06-6007, 2006 U.S. Dist. LEXIS 99338, *4-6 (W.D. Ark.) (August 15, 2006) (citing Ferry-Morse Seed Co., 729 F.2d at 593) (ultimately ruling that plaintiff could not show success on the merits of his deliberate indifference claims as he could only prove a “mere disagreement with a course of medical treatment”); adopted by Scott v. Sanders, 2006 U.S. Dist. LEXIS 62446 (W.D. Ark., Aug. 30, 2006).
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constitutional obligation not to be deliberately indifferent to a substantial risk of harm faced by prisoners. Therefore, the status quo that must be maintained is a “condition not of rest, but of action,” that warrants the entry of injunctive relief for Defendants to take action. See, e.g., Hoffer v. Jones, 290 F. Supp. 3d 1292, 1305-1306 (N.D. Fl. 2017) (granting class-wide P.I. relief because “[p]reventable deaths from [Hepatitis C] are occurring within the prison system” and ordering defendants to adopt a new treatment policy and implement a new treatment plan consistent with the recommendations of experts in the case); Austin v. Penn. Dep’t of Corrections, No. 90-7497, 1992 U.S. Dist. LEXIS 14971, *22, *24-25 (E.D. Pa. Sept. 29, 1992) (granting class-wide preliminary injunctive relief because inmates have demonstrated a likelihood of success as to their claim that they are “threatened with [tuberculosis] infection and disease are provided a constitutionally deficient level of medical care” and ordering that defendants implement their recently adopted TB guidelines); Phelps v. Godinez, No. 15-cv-0073-SMY-PMF, 2015 U.S. Dist. LEXIS 72397, *4-5, 2015 WL 3534257 (S.D. Ill June 4, 2015) (granting preliminary injunctive relief on ADA claim and requiring that prison officials ensure wheelchair-bound plaintiff has daily shower access pursuant to his medical permit). II. Plaintiffs Have Demonstrated a Likelihood of Succeeding on the Merits.
As detailed below, and in Plaintiffs’ prior submissions, there is a likelihood of success on the merits of both Plaintiffs’ Eighth Amendment and ADA claims.
A. Defendants Have Been Deliberately Indifferent to Plaintiffs’ Eighth Amendment Rights Through Their Deficient COVID-19 Preparation and Response.
As discussed below, given the outbreak at Cummins Unit, the declarations from the prisoners at multiple ADC facilities, and the obvious inadequacy of Defendants’ actions in preparation and response to the viral outbreak in Cummins Unit to ensure that similar outbreaks do not occur at other ADC facilities, Plaintiffs incarcerated in ADC facilities face a substantial risk
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of serious harm, which Defendants have been deliberately indifferent to, in violation of the Eighth Amendment.
As the Supreme Court explained in Farmer v. Brennan, “[t]he Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and quotation marks omitted). The Eighth Amendment imposes duties on prison officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care, and [to] take reasonable measures to guarantee the safety of the inmates[.]” Id. (internal citations and quotation marks omitted).
To prevail on an Eighth Amendment claim, an incarcerated person must satisfy a two-part test, which includes both an objective and subjective component. First, the plaintiff must demonstrate that he has been exposed to a substantial risk of serious harm. Id. at 834. Second, the plaintiff “must show that the defendant has been deliberately indifferent to this risk. Id. “[A]n Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842.
Defendants’ argument that the protective measures they have undertaken sufficiently reduce the risk of harm to Plaintiffs such that it no longer amounted to a constitutional violation is inconsistent with the facts presented by Plaintiffs describing the reality in ADC facilities, including the evidence Plaintiffs have discovered since the TRO hearing. Although Defendants correctly note that Plaintiffs do not seek monetary damages for harm that has already occurred, Def. Resp. at 53, this case is distinct from other cases seeking injunctive relief in which the court must make a reasonable determination as to the harm that would come to Plaintiffs were the requested actions not taken. In this case, that harm has occurred and is continuing unabated, causing severe illness
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and at least four deaths among members of the putative Plaintiff Class at Cummins Unit. Tens of thousands of other prisoners at other ADC facilities are at high risk of suffering the same fate.
1. Plaintiffs Are Subject to Substantial Risk of Serious Harm from a Highly Contagious and Potentially Lethal Virus in a Congregate Environment.
The risks posed by the COVID-19 pandemic satisfies the objective component of the Eighth Amendment test, i.e., a sufficiently serious risk of harm. Indeed, although Plaintiffs here are subject to an immediate risk, such an immediate risk is not even required under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 33 (1993). The Supreme Court has rejected the argument that a defendant may ignore a situation “that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Id. And the Court has specifically recognized that the Eighth Amendment requires a remedy for exposure of inmates to “infectious maladies” such as hepatitis and venereal disease “even though the possible infection might not affect all of those exposed.” Id.
Defendants cannot dispute the gravity of the risks posted by COVID-19. Instead, they emphasize the minimal measures they have taken in response to that pandemic and suggest those are enough to reduce Plaintiffs’ risk of contracting the disease. Def. Resp. at 56. Defendants, however, vastly overstate the measures they have taken, as Plaintiffs are still at substantial risk of contracting COVID-19 and suffering greatly from any related illness.
Defendants—by their own admission—have failed to provide prisoners alcohol-based hand sanitizer, Payne Dec., ¶ 56, implement meaningful social distancing, Payne Dec., ¶ 76, and have even allowed prisoners and corrections officers to work in ADC facilities after testing positive, ADH Guidance for Reducing Spread on COVID-19 in Correctional Facilities, April 15, 2020, at 1 (ECF No. 36-20); Letter from Arkansas Dep’t of Health to Arkansas Dep’t of Corrections Employee, dated Apr. 24, 2020, regarding positive test results and work restrictions,
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attached hereto as Exhibit 32. These failures, which are undisputed, place Plaintiffs at great risk. The risk is exacerbated by Defendants’ failure to undertake the additional measures which
they claim to have taken. Defendants’ claims regarding cleaning are largely vague generalized and unsupported statements, from which it is difficult to determine whether ADC is actually taking any additional measures to address the COVID-19 pandemic. For example, Defendants claim that ADC ordered “enhanced cleaning and disinfection of its units.” Payne Decl. ¶ 52. In support, they claim first that porters “continuously” clean barracks style housing, and that they also have been instructed to clean common areas. Id. The former is so vague that it is unclear when and if additional cleaning is occurring, and the latter is a basic measure that ADC should employ even in the absence of a pandemic.
Regardless, in spite of these vague assertions, all evidence indicates that such cleaning is not actually occurring, Kent Decl. 2 ¶ 13 (“I have not seen them wiping down commonly touched items like doorknobs or the remote controls.”), is being poorly done, Otwell Decl. 2 ¶ 15 (“[T]hey supposedly wash the tables in the dining hall, but they just use the same bucket of water again and again and the water turns brown.”); Stiggers Decl. 2 ¶ 4 (“The showers are not cleaned until after everyone in the barracks showers which is approximately 90 inmates.”), or is no different than it was before the outbreak. Payne Decl, ¶ 15 (“ADC reminded and encouraged inmates and staff to . . . continue regular surface cleaning.”); Neeley Decl. 2 ¶ 6 (“Cleaning and disinfecting has not increased since the pandemic began.”); Otwell Decl. 2 ¶ 14 (same); Williams Decl. 2 ¶ 12 (same).
Many of Defendants’ other claimed efforts—regarding the provision of masks to prisoners, the use of protective equipment by correctional staff, and the testing of prisoners who suspect they may have contracted COVID-19—are not actually occurring. Several plaintiffs continue to be denied face masks or any other protective equipment, Frazier Decl. 2 ¶ 5, while others received
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them only after this lawsuit was filed. Nickson Decl. 2 ¶ 7 (reporting that although he finally received a mask on April 29, 2020, no one else in his unit has). Likewise, while some ADC staff wear masks, “a lot of them do not wear them properly and they rarely have gloves on.” Frazier Decl. 2 ¶ 9; see Kent Decl. 2 ¶¶ 10-11 (same); Otwell Decl. 2 ¶¶ 10-11 (same); Neeley Decl. 2 ¶¶ 11-12 (same); see also Hampton Decl. 2 ¶ 10 (“A lot of staff do not wear their masks properly. Some staff wear gloves when they do pat downs. I have not seen staff wearing gloves at any other time.”); Serrato Decl. 2 ¶¶ 7-8 (noting that he sees officers almost daily not wearing masks); Stiggers Decl. 2 ¶ 6 (“I see guards daily that are either not wearing a mask or not wearing it properly.”); Williams Decl. 2 ¶ 7 (same).
Contrary to Defendants’ claims, prisoners’ temperatures, until recently, were not tested, see Frazier Decl. 2 ¶ 7 (“My temperature has not been taken at any time.”), and still are often done improperly. Hampton Decl. 2 ¶ 12 (“They started taking our temperature this weekend when we go to chow. Sometimes they touch our forehead with the thermometer and sometimes they hold it a few inches from our forehead.”). Additionally, prisoners continue to be denied access to COVID19 testing when they request it. Neeley Decl. 2 ¶ 5 (“To my knowledge, no one here has been tested even though multiple inmates have requested testing.”); Otwell Decl. 2 ¶ 8 (“I have not been tested for COVID-19 and to my knowledge no one at this facility has been tested.”); Williams Decl. 2 ¶ 8 (same). Testing of staff, contrary to Defendants’ claims, is similarly inconsistent. Serrato Decl. 2 ¶ 9 (“When this situation started up a month ago, they would check staff temperatures, but staff have told us that they are not checking temperatures anymore because they are desperate for anyone to work.”).
Plaintiffs continue to live in congregative settings with large numbers of other prisoners, undercutting Defendants’ claims regarding even the minimal social distancing efforts they allege
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they are undertaking. Kent Decl. 2 ¶ 9 (“On an average day, I come into contact with approximately 100 other inmates and officers through chow hall, yard call, sick class, and commissary.”); Otwell Decl. 2 ¶ 6 (“I come into contact with between 150-200 inmates and 30 guards per day.”); Williams, Decl. 2 ¶ 6 (noting that on an average day he interacts with 100 prisoners). Likewise, prisoners continue to be regularly moved in and out of ADC facilities, contrary to Defendants’ claims. Otwell Decl. 2 ¶ 5 (“People are still being transferred between barracks and we are still receiving new commitments on the intake side.”); Serrato Decl. 2 ¶ 5 (“Until last week, busloads of people [we]re still being brought from Pulaski to Ouachita every day. At least 60 inmates a day were being shipped out of Ouachita to other units.”).
The crisis in Cummins Unit provides direct evidence of the risk facing all ADC facilities as a result of Defendants’ gross inadequacies. The same policies which Defendants present to the Court as purportedly sufficient were in place at the Cummins Unit, which is suffering one of the worst outbreaks at a correctional facility in the country. See Coronavirus in the U.S.: Latest Map and Case Count, New York Times, https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html (reporting that the outbreak at the Cummins Unit is the seventh largest outbreak at a correctional facility in the United States). Defendants do not make any claims that they have improved their cleaning, social distancing, or protective practices statewide as a result of the outbreak at the Cummins Unit, or that there was anything unique about the facility that made the COVID-19 outbreak more likely to occur. Def. Resp. at 13-15 (noting that in response the only changes they made were at Cummins). Accordingly, the same policies and practices that ultimately led to 860 cases of COVID-19 at the facility, Coronavirus in the U.S.: Latest Map and Case Count, New York Times, supra, and the deaths of at least four if not more individuals, Ginny Monk, 2 more inmate deaths connected to virus; Arkansas death toll up to 76, Arkansas Times, May 3,
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2020, at https://www.arkansasonline.com/news/2020/may/03/three-more-arkansas-inmates-dietwo-covid-19/, pose a substantial risk of serious harm to prisoners at all other ADC facilities throughout the State.
The two unpublished opinions cited by Defendants are inapposite here. Neither of the cases Defendants cite actually concerned the legal issue in this case—whether Defendants’ failure to adequately address the conditions in ADC facilities exposes Plaintiffs to a substantial risk of harm, in violation of the Eighth Amendment—but rather concerned whether individual plaintiffs in jails in Arkansas were entitled to release under 18 U.S.C. § 3142(i) of the Bail Reform Act. United States v. Lunnie, No. 4:19-CR-00180, 2020 WL 1644495, at *1 (E.D. Ark. Apr. 2, 2020); United States v. Villagran, No. 4:19CR00609-14 DPM, 2020 WL 1862188, at *3 (E.D. Ark. Apr. 13, 2020).
Moreover, the risk of harm to the plaintiffs in the cases Defendants cite was lower than the case here. None of the plaintiffs in the cases Defendants cite, in contrast with Plaintiffs here, alleged that they were suffering from an illness that would have increased their risk of exposure to and harm from COVID-19. Lunnie, 2020 WL 1644495, at *3 (“Mr. Lunnie does not advance that he is currently suffering from a ‘bout’ of bronchitis, making him more susceptible to illness or death if he contracts the COVID-19 virus.”); Villagran, 2020 WL 1862188, at *3 (“Villagran does not claim to suffer from any of the medical conditions designated by the Centers for Disease Control (“CDC”) as most at risk for contracting COVID-19, nor is he 65 or older.”). In contrast, Plaintiffs here only seek release for those individuals who are actually suffering from illnesses that increase their vulnerability to the virus and the degree of harm they will suffer if they contract it. See Mem. in Support of Temporary Restraining Order and Preliminary Injunction, at 22 (requesting “the appointment of an expert to determine the members of the High Risk and
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Disability Subclasses, who, due to age, medical condition or disability, merit temporary medical furlough from confinement”).
Plaintiffs in the cases Defendants cite, also in contrast with Plaintiffs here, did not allege that the conditions within the facilities in which they were housed were particularly dangerous due to the defendants’ failure to take precautions, but rather alleged, as a general matter, that any detention in any correctional facility posed a substantial risk of serious harm to them. Villagran, 2020 WL 1862188, at *5 (“Under the circumstances presented, the fact of incarceration alone and the greater risks it presents do not tip the scale in favor of release in light of the risks to the community and of nonappearance Villagran presents.” (emphasis added)); see also Lunnie, 2020 WL 1644495, at *3 (“[H]is arguments about being incarcerated are general and speculative. Mr. Lunnie suggests that he is at a greater risk of contracting COVID-19 given his presence in the Greene County jail, and that release would afford him the opportunity for social distancing[.]”).
And, as discussed above, the situation within ADC facilities has dramatically changed even in the short period since both of the unpublished decisions cited by Defendants were issued. As of April 13, 2020, the date on which the latter case was decided, COVID-19 had barely been detected within ADC facilities. The day before, ADC had detected its first prisoner case of COVID-19. Payne Dec., ¶ 86. At that time, the most recent information on ADC’s website reported no cases of infection among prisoners, CORONAVIRUS (COVID-19) UPDATES, ADC, https://adc.arkansas.gov/coronavirus-covid-19-updates, and the courts in both of those cases noted this was also true for the jails in which the individual plaintiffs were detained. Villagran, No. 4:19CR00609-14 DPM, 2020 WL 1862188, at *5 (“Villagran’s position is based on unconfirmed allegations and speculation at this time. There is no evidence before the Court of when the infected inmate was admitted, whether the infected inmate was housed with and/or in contact with
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Villagran.”); Lunnie, 2020 WL 1644495, at *3 (“[T]here are no known cases of COVID-19 at the facility.”).
Since those cases were decided, however, COVID-19 has exploded in ADC facilities. As of April 28, 2020, ADC reported 921 prisoners statewide who had been infected. CORONAVIRUS (COVID-19) UPDATES, ADC, https://adc.arkansas.gov/coronavirus-covid19-updates. Although Defendants have not confirmed infections in all ADC facilities, the extent of COVID-19 spread is currently unknown due to lack of widespread testing and the prevalence of asymptomatic carriers. And importantly, the same conditions that led to the outbreak in Cummins Unit—namely, Defendants’ failure to ensure adequate cleaning and disinfecting of ADC facilities, to provide PPE to corrections staff and prisoners, to test prisoners, to ensure appropriate social distancing, to deny appropriate medical attention to prisoners exhibiting symptoms or testing positive, and otherwise to prevent the spread of the virus—pose a substantial risk that the same events will unfold in other facilities statewide.
2. Defendants Disregarded the Known Substantial Risk to Plaintiffs in Their Deficient COVID-19 Preparation and Response.
As discussed above, Plaintiffs have discovered new evidence since the TRO hearing that Defendants have disregarded and continue to “‘disregard[] a known risk to the inmate’s health.’” ECF 42 at 15 (quoting Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)). This evidence includes, among other things, proof that: 1) ADC permits infected correctional staff to continue to work at Cummins Unit after they receive positive test results for COVID-19; 2) ADC relies solely on a disinfectant that has not been approved by the EPA as effective against COVID-19; and 3) ADC has not taken any enhanced sanitation and social distancing measures since COVID-19 infected an entire Cummins barrack on April 13 and later spread to over 850 prisoners in a matter of days.
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Defendants’ argument regarding their deliberate indifference to the substantial risk of serious harm is based on a misstatement of law, as well as a repetition of their arguments that no substantial risk of serious harm actually exists—when clearly it does. In fact, given Defendants’ public statements acknowledging the threat that COVID-19 poses to prisoners, Plaintiffs’ Mem. in Support of Temporary Restraining Order and Preliminary Injunction, dated April 21, 2020 (“Plaintiffs’ TRO Brief” or “Pff. TRO Br.”), at 30-31 (ECF No. 3), and the outbreak at Cummins Unit, there is simply no reasonable argument that Defendants are not aware of the substantial risk that the combination of COVID-19 and Defendants’ inadequate policies and practices pose to prisoners in ADC facilities.
Despite this awareness, Defendants have failed to adjust their statewide policies to account for this risk. As further explained in Plaintiffs’ TRO Brief, Defendants’ policies fall well short of CDC guidance with respect to social distancing and sanitation to reduce the risk of COVID-19 transmission. Pff. TRO Br. at 14-20. In fact, it is now clear that Defendants adopted a policy that even infected corrections officers should continue working so long as they are asymptomatic, even though it is well-known that asymptomatic carriers transmit the virus. Angela N. Baldwin and Sony Salzman, What We Know and Don't About Asymptomatic Transmission and Coronavirus, ABCNEWS, Apr. 1, 2020, https://abcnews.go.com/Health/asymptomatic-transmissioncoronavirus/story?id=69901758. This dramatic departure from CDC guidance is yet another example of Defendants’ knowing disregard of the substantial risk of harm facing Plaintiffs, which is classic deliberate indifference. Pff. TRO Br. at 31; see also Farmer, 511 U.S. at 842 (“[I]f an Eighth Amendment plaintiff presents evidence showing that a substantial risk . . . was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information
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concerning the risk and thus must have known about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.” (internal citations and quotation marks omitted)).
Defendants begin by advancing the novel argument that a correctional system’s creation of policies is alone sufficient to defeat a claim that a correctional facility has been deliberately indifferent. See Def. Resp. at 59 (“But Plaintiffs who sue prisons that do have policies to combat the spread of a communicable disease will lose.”). Defendants’ cited authority does not support this claim. In Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006), upon which Defendants exclusively rely in support of this argument, the court made no such conclusion. First, the court did not conclude that the defendant in that case was not deliberately indifferent merely because the defendant had policies addressing the subject matter of the plaintiffs’ claim. Instead, and unlike the circumstances here, the court examined the relevant correctional policies and found them adequate. See id. at 345 (“[T]the policies specifically acknowledged the risk and promulgated detailed procedures for the diagnosis, segregation, and treatment of . . . inmates infected with active cases of TB.”). Second, the plaintiff in Butler presented “virtually no supporting evidence” that the correctional policies were not implemented. Id. Butler stands in stark contrast to this case, where Plaintiffs have presented dozens of declarations from Plaintiffs, as well as an expert declaration, detailing Defendants’ failure to implement their policies as they claim.
As other courts have recognized, a defendant may be deliberately indifferent even when they have formal policies that address the substance of the claim. See Parsons v. Ryan, 754 F.3d 657, 662 (9th Cir. 2014) (certifying a plaintiff class alleging Eighth Amendment violations for, among other things, failure to provide medical care despite the fact that the department of corrections had “promulgated extensive statewide policies governing health care and conditions
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of confinement that apply to all of the inmates in its custody, all of its staff, and all of its facilities”); Dockery v. Fischer, 253 F. Supp. 3d 832, 854 (N.D. Miss. 2015) (certifying a class in a deliberate indifference case in which Plaintiffs alleged, among other things that Defendants failed to comply with their own written policies).
Here, Defendants’ policies would be inadequate even if they had been properly implemented. Indeed, the few guidance documents, memoranda, and representations made by Defendant Payne that were cited in Defendants’ Response8 hardly constitute a comprehensive written policy to prepare for, and manage, the COVID-19 pandemic in ADC facilities. As detailed in Plaintiffs’ prior submissions to the Court, Complaint, ¶¶ 98-125, Plaintiffs’ Supplemental Motion for a Temporary Restraining Order, dated Apr. 27. 2020, at 6-7 (ECF No. 20), these efforts fell far short of what was recommended by the Centers for Disease Control and Prevention and, unsurprisingly, were unable to prevent or manage the extensive viral outbreak in Cummins Unit.
Defendants’ characterization of Plaintiffs’ argument regarding Defendants’ deliberate indifference is also inaccurate. Contrary to Defendants’ assertions, Plaintiffs’ claims are not limited to Defendants’ failure to ensure that prisoners have six-feet of social distancing “throughout the day.” Def. Resp. at 61. Rather, there are a host of failures by Defendants that demonstrate their deliberate indifference, in addition to Defendants’ admitted failure to institute even basic social distancing measures, such as: their failure to ensure that areas are properly cleaned and disinfected; their failure to provide sufficient PPE to all prisoners; their failure to train
8 Defendants also cite to ADC’s Emergency Preparedness Manual, asserting that it describes “many of the ways ADC responded to the threat posed by COVID-19, but security concerns prohibit identification and explanation of every approach.” Def. Resp. at 2n.1. Defendants have not disclosed the contents of this Emergency Preparedness Manual, which Plaintiffs have requested in expedited discovery, but nothing in their Response indicates that this manual provided sufficient guidance or direction on preparing and responding to the COVID-19 pandemic.
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their staff on the proper use of PPE and enforce compliance; and their failure to promptly test

prisoners who fear they may have contracted the virus.

For the same reasons, this case is not like Valentine v. Collier, 2020 WL 1934431 (5th Cir.

Apr. 22, 2020), in which the court ordered Defendants to undertake measures which it was already

taking. See Def. Resp. at 63 (citing Valentine for the proposition that Plaintiffs may not ask the

“Court to order Defendants to take the measures they already are taking”). To the contrary,

Defendants here have not been taking measures requested by Plaintiffs, which is why a preliminary

injunction is needed in this case.

Not only have Defendants failed to take measures necessary to prevent and contain the

spread of COVID-19, they have policies that actually promote and facilitate a viral outbreak.

Defendants have an official policy that corrections staff who test positive for COVID-19 may

report to work within the crowded, congregate conditions of an ADC facility as long as they are

asymptomatic and wear face masks, even though fully aware that asymptomatic carriers can spread

the virus and face masks are not sufficient to prevent transmission of the virus without social

distancing. Indeed, Defendants have ordered some infected staff to continue to work in ADC

facilities, while also failing to ensure appropriate sanitation and social distancing at the single point

of entry to the ADC facility, thereby creating an immediate danger to prisoners, other staff, and

other individuals outside the facility. See Vail Decl. ¶ 58 (“At a minimum all staff must travel to

their workplace from outside the institution, putting all who they encounter at risk.”).

Additionally, Defendants have failed to provide prisoners with alcohol-based hand

sanitizer, Payne Decl. ¶ 56, despite the CDC’s recommendations to the contrary. Center for

Disease Control and Prevention, Show Me the Science—When & How to Use Hand Sanitizer in

Community

Settings,

https://www.cdc.gov/handwashing/show-me-the-science-hand-

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sanitizer.html. As Plaintiffs’ expert notes, “it is not realistic to expect all prisoners at all times will have access to hot water and soap[,]” thus necessitating the availability of sanitizer in certain situations. Vail Decl. ¶ 31. Defendants’ claims that the provision of hand sanitizer would jeopardize the safety of ADC institutions is undermined by the fact that correctional facilities in at least three other states have begun providing hand sanitizer, see id. ¶ 34, concluding that the overwhelming danger posed by COVID-19 necessitates the relaxing of regular rules, id. Moreover, corrections officers can keep hand sanitizer on their person to provide to an incarcerated person as needed.
Finally, while social distancing is difficult to achieve in the correctional setting—thus necessitating the appointment of a special master to consider the release of certain members of the subclasses—Defendants must undertake reasonable measures to do so rather than simply proclaiming that nothing can be done with social distancing in the correctional setting. Payne Decl. ¶ 76. Among other things, Defendants could ensure that bunks are arranged in such a manner that prisoners in the same cell do not have their heads facing the same direction when sleeping, Vail Decl. ¶ 48, or repurpose available space in the facility, such as classrooms and extended family rooms, so that individuals could sleep in them, id. ¶¶ 54-56. Rather than attempting such measures, Defendants have brushed off suggestions that they even consider them because of the “undue burden” they would allegedly impose. As Plaintiffs’ expert describes:
This pandemic is different. We must examine all of the opportunities to move in the direction of increased social distancing such as expanding where prisoners are housed within the secure perimeter of corrections facilities. Lives are at stake. Id. ¶ 57. As noted above, the best evidence of the risk posed by the conditions in ADC facilities, and Defendants failure to address them, is the outbreak at Cummins Unit. In addition to the
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declarations from Plaintiffs’ experts, the lived reality of prisoners and corrections staff in ADC facilities—and Defendants’ failure to take sufficient actions to prevent another viral outbreak like what is happening in Cummins Unit—is the ultimate proof that Plaintiffs’ claim is not based on a “mere disagreement,” Def. Resp. at 62, but rather Defendants’ deliberate indifference.
B. Defendants Failed to Provide Reasonable Accommodations Requested by Named Plaintiffs.
Defendants have violated the ADA by failing to provide Plaintiffs in the Disability Subclass with reasonable accommodations that would allow them to safely access their facilities and failing to release incarcerated people with disabilities or transfer to home detention, where they could quarantine safely during the pandemic. Pff. TRO Br. at 30-31.
In their brief, Defendants erroneously claim that Named Plaintiffs never made requests for reasonable accommodations because of their disabilities. Def. Resp. at 65. In fact, several Named Plaintiffs have informed Defendants of their disabilities and requested reasonable accommodations amid the pandemic. For example, Plaintiff Michael Kouri informed Defendants that he has degenerative heart disease when he complained of not being able to social distance from others amid the pandemic, and the inadequate disinfection of his living area and frequently touched surfaces. Michael Kouri Grievances, Apr. 2020, at 3, attached hereto as Exhibit 32. In his grievance, Mr. Kouri specifically referenced the ADA and asked for “reasonable accommodations,” such as cleaning supplies, PPE, and a single cell. Id. Similarly, Plaintiff Harold Otwell filed a grievance, in which he informed Defendants of his disability for which he requested accommodations, referencing his inability to social distance and lack of training on how to don and doff PPE. Harold Otwell Grievances, Apr. 2020 (“Otwell Grievances”), at 3, attached hereto as Exhibit 37. Other Named Plaintiffs have made similar requests which Defendants have refused to grant. Trinidad Serrato Grievances, Apr. 2020, at 2, attached hereto as Exhibit 38; Nicholas
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Fraizer Affidavits and Grievances, Apr. 2020, at 3, attached hereto as Exhibit 33; Jonathan Neeley Grievances, Apr. 2020 (“Neeley Grievances”), at 2, attached hereto as Exhibit 36.
Further, the requested accommodations Plaintiffs’ seek here are not unduly burdensome. Defendants’ argument that they are already providing much of the relief Plaintiffs request (which Plaintiffs dispute) demonstrates the reasonableness of Plaintiffs’ requested accommodations. Def. Resp. at 33. If Plaintiffs’ requests were unreasonable, Defendants would not admit that they should be doing what much of what Plaintiffs’ requests call for (e.g., providing access to disinfectants, hand sanitizer, and PPE). Therefore, the accommodations Plaintiffs seek are not unduly burdensome.
Defendants repeatedly reference the dangers of giving incarcerated people bleach in their Response (Def. Br. at 7, 64, 66 (twice), at 67); however, Plaintiffs have not requested bleach, or any other similarly dangerous disinfectant. Instead, Plaintiffs have requested exactly what the CDC Guidance calls for “disinfectant products, that are effective against COVID-19.” Class Action Complaint, Prayer for Relief ¶ f(ii). Plaintiffs also request hand sanitizer containing at least 60% alcohol. Class Action Complaint, Prayer for Relief ¶ f(iii).) The court in Cameron issued a preliminary injunction providing for precisely this type relief. 2020 WL 1929876, at *2 (requiring defendants to give incarcerated people disinfectant products effective against the COVID-19 virus and hand sanitizer containing at least 60% alcohol to all incarcerated people where permissible based on security restriction); see also Vail Decl. ¶ 34 (noting correctional facilities in at least three other states have begun providing hand sanitizer and recognizing benefits of combatting dangerous virus with hand sanitizer far outweighed any security concerns).
Finally, Defendants’ argument that the requested accommodations with respect to release would fundamentally alter the nature of Defendants’ system is undercut by the fact that Arkansas
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law already provides for early release of incarcerated people, as recognized by Defendant Dir. Payne. See Payne Decl. ¶¶ 104-105, 109. For example, a permanently incapacitated incarcerated person may be released early if they are eligible for medical parole. Ark. Code Ann. § 12-29-404 (permitting certain terminally ill and permanently incapacitated incarcerated people to be transferred to parole supervision before their parole eligibility date). Also, certain classes of incarcerated people may be released early during a prison overcrowding state of emergency. Ark. Code Ann. § 12-28-604 (providing for the early release of certain incarcerated people during a prison overcrowding emergency). Notably, three days after Plaintiffs filed their complaint in this matter, the Board of Corrections, whose members are Defendants in this matter, recommended over 1,200 incarcerated people be released due to the prison overcrowding state of emergency.9 See Payne Decl. ¶ 104. It follows that the relief that the Disability Subclass seeks, in the form of release from their current, hazardous confines, is not out of step with the nature of Defendants’ system, which allows for such broad and/or early releases.
C. The PLRA Does Not Require Plaintiffs to Exhaust Administrative Remedies that Are Unavailable in the Midst of an Unprecedented Pandemic.
As the Eighth Circuit has emphasized, the PLRA “requires exhaustion of only ‘such administrative remedies as are available,’” and the “availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is ‘on the books.’” Townsend v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018) (quoting 42 U.S.C. § 1997e(a), and Ross v. Blake, 136 S. Ct. 1850, 1859 (2016)). In Ross, the Supreme Court explained, “the ordinary meaning of the word ‘available’ is ‘capable of use for the accomplishment of a purpose,’ and that which ‘is accessible or may be obtained.’” 136 S. Ct. at 1859 (citations omitted). “Accordingly,
9 Max Brantley, Board of Corrections Approves Early Release of More Than 1,200 Inmates, Arkansas Times, Apr. 24, 2020, https://arktimes.com/arkansas-blog/2020/04/24/boardof-corrections-approves-early-release-of-more-than-1200-inmates.
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an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)); see also Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (explaining that “available” meant “capable of use for the accomplishment of a purpose: immediately utilizable . . . accessible”).
The Supreme Court has identified certain circumstances when a prison remedy is not available. Specifically, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. In other words, “when the facts on the ground demonstrate that no . . . potential exists” for some relief, “the inmate has no obligation to exhaust the remedy.” Id. A remedy is also unavailable when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.
The facts here establish that there is no “available” remedy for Plaintiffs to obtain any relief for the emergency conditions caused by COVID-19. Although the ADC may have an emergency “administrative procedure . . . ‘on the books,’” Townsend, 898 F.3d at 783, the “facts on the ground demonstrate” that this procedure is not available to provide emergency relief, Ross, 136 S. Ct. at 1860. As such, PLRA exhaustion is not required for Plaintiffs’ requests, on behalf of the entire putative class, for injunctive relief for sanitation and social distancing measures within the prison. (As discussed in the next section, the PLRA does not apply at all to Plaintiffs’ requests for habeas relief on behalf of the High Risk and Disability Subclasses.).
As early as April 12, 2020, nine days before this suit was filed, multiple prisoners filed emergency grievances describing the serious risks of physical injury they were facing as a result
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of COVID-19, and the State’s failure to implement basic social distancing and sanitation practices within the prison to protect them from that harm. See, e.g., Kouri Decl. 2 ¶ 16; Serrato Decl. 2 ¶ 13; Hampton Decl. 2 ¶ 8; Neeley Decl. 2 ¶ 7; Williams Decl. ¶ 7; Otwell Grievances. Defendants assert that ADC officials have the authority to take “any number of medical and risk-mitigating actions in response to COVID-19-related grievances.” Def. Resp. at 45. Yet, in response to these grievances, prison officials simply stated that Plaintiffs’ request for release was not grievable. See, e.g., Serrato Decl. 2 ¶ 13; Hampton Decl. 2 ¶ 14.; Alvin Hampton Grievances, Apr. 2020, attached hereto as Exhibit 34; Neeley Decl. 2 ¶ 14; Neeley Grievances; Otwell Grievances; Williams Decl. 2 ¶ 15. Defendants did not address the need to take other “medical and risk-mitigating actions” in response to these grievances. During the nine days between the time these emergency grievances were first filed and the date this case was filed, the number of COVID-19 cases increased from 1 to approximately 850 in the Cummins Unit.10
And, even when prisoners filed grievances that did not focus on release as a remedy, prison officials denied them without even treating them as “emergency” grievances. Mr. Frazier expressly requested that his grievance requesting improvements to sanitation and additional cleaning supplies be treated as an “emergency grievance,” but the prison responded by stating that his grievance did not raise an emergency. See Frazier Decl. 2 ¶ 14; Nicholas Fraizer Affidavits and Grievances, Apr. 2020, attached hereto as Exhibit 33.
Mr. Kouri likewise requested “emergency” treatment of his request; in response, the prison appeared to acknowledge that his grievance did present an emergency, but then failed to follow its own procedures for an emergency grievance—rather than presenting it directly to the warden
10 Emma Tucker, 850 of 1,200 Inmates at Arkansas Prison Reportedly Have Coronavirus, Daily Beast, Apr. 21, 2020, https://www.thedailybeast.com/850-of-1200-inmates-in-arkansasprison-reportedly-have-coronavirus (last visited May 1, 2020).
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consistent with the prison’s emergency grievance process, the prison first went through the “step one” process and denied his request. See Kouri Decl. 2 ¶ 16; Declaration of Jason Gray, filed on April 30, 2020 ¶ 10 (ECF No. 36-40). Mr. Nickson also filed an emergency grievance on April 17. See Nickson Decl. 2 ¶ 11. As of April 29, 2020, he had not even heard back from the grievance officer. See id.
In sum, “the facts on the ground” show that there is no administrative grievance process available to address the emergency conditions caused by COVID-19. Ross, 136 S. Ct. at 1859. The grievances filed by Plaintiffs plainly count as emergency grievances under ADC’s definition of that term, “a problem that, if not immediately addressed, subjects the inmate to a substantial risk of personal injury or other serious and irreparable harm.” See Declaration of Terry Grigsby, filed on April 30, 2020, (ECF No. 36-37) (attaching AD 19-34, definition of “emergency” available at § III(F)). This reflects ADC’s own recognition that some problems must be dealt with “immediately,” because, if they are not, a prisoner faces a substantial risk of harm. Yet, by failing to follow its own procedures and treat grievances concerning a rapidly spreading deadly pandemic as an emergency, ADC’s grievance procedure “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. Contrary to Defendants’ assertion, see Def. Resp. at 45, the issue here is not that Defendants are failing to provide a specific remedy. It is that they are disregarding their own emergency grievance procedures and thereby are “unable or unwilling to provide any relief to aggrieved inmates” to address the emergency conditions created by COVID-19. Ross, 136 S. Ct. at 1859.
Defendants’ responses to other grievances confirms that the process “operates as a simple dead end” for grievances requesting emergency relief to mitigate the risks posed by the COVID19 pandemic. Id. Mr. Hampton, Mr. Neeley, Mr. Otwell, and Mr. Williams all filed grievances
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seeking reasonable accommodations under the ADA. See Hampton Decl. 2 ¶ 15; Hampton Grievance; Neeley Decl. 2 ¶ 15; Neeley Grievance; Otwell Decl. 2 ¶ 21; Otwell Grievance; Williams Decl. 2 ¶ 16. Each received a typed form letter in response, telling them that they needed to be patient and that the Division of Correction was already doing all that they could. See id. Put otherwise, they were told that the grievance process could provide no emergency relief for them. When Mr. Kouri filed a grievance seeking reasonable accommodations under the ADA and cleaning supplies, he was informed (incorrectly) that the Division of Correction was already doing everything the CDC had recommended and that upper management has directed. Kouri Decl. 2 ¶16.
In other circumstances, prison officials have made it impossible for prisoners to file emergency grievances through “machination [or] misrepresentation.” Ross 136 S. Ct. at 1860. Mr. Stiggers completed a grievance on April 18, 2020, but he could not get an appropriate staff member to sign and take the grievance until April 27—nine days later. See id. Mr. Stiggers’ experience is not unique. Mr. Nickson reports that “[a] lot of sergeants have stopped picking up and signing grievances.” Nickson Decl. 2 ¶ 12. When Mr. Nickson attempted to file a grievance, a sergeant refused to sign it on April 25th, April 26th, and again on April 27th. See id. In another case, Mr. Kent filed an emergency grievance on April 21, 2020, explaining that he had a serious heart condition and pacemaker, and asking for a mask to avoid contracting COVID-19. See Kent 2nd Decl. ¶ 6. Because the facility mailed him the response to his grievance, more than 72 hours had passed before he received it, and he could not make the deadline to advance to the second step of the grievance process. Id. ¶ 7. Furthermore, Defendants are unable to even locate the record of Mr. Frazier’s COVID-19 grievance (Def. Resp. 29), though an ADC officer acknowledged receiving the grievance on April 18, 2020. See Frazier Grievance.
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Defendants do not address the key question posed by the Supreme Court in Ross, i.e., whether the “facts on the ground” demonstrate the potential for ADC’s grievance procedure to provide emergency relief that will protect Plaintiffs’ safety and remedy the violation of their rights under the Eighth Amendment and the ADA before it is too late to do so. Ross, 136 S. Ct. at 1860. Instead, Defendants insist that Plaintiffs must wait to file a federal lawsuit in these emergency circumstances until an appeal to the appropriate Chief Deputy/Deputy/Assistant Director is filed and resolved, which they admit can take more than two months. See Declaration of Terry Grigsby, filed on April 30, 2020, ¶¶ 15-20 (ECF No. 36-37); AD 19-34 § IV(G)(6). But a grievance process for an emergency requiring immediate action is plainly not available if it would take two months to address.
This is precisely the point Judge Posner made in Fletcher v. Menard Corr. Ctr., 623 F.3d 1171 (7th Cir. 2010). “If a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can’t be thought available.” Id. at 1173. For instance, “[a]n administrative remedy could not be thought available to a prisoner whose grievance was that he had been told that members of the Aryan Brotherhood were planning to kill him within the next 24 hours and the guards were refusing to take the threat seriously.” Id. Similarly, when a prisoner files an emergency grievance because he has serious health conditions, and the novel coronavirus is sweeping through the facility where he is detained, the failure of prison officials to follow their own “emergency” grievance procedures and address the risks immediately shows that the administrative remedy is unavailable because the procedures “offer no possible relief in time to prevent the imminent danger from becoming an actual harm.” Id. By the
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time the appeal process is finished, which can take more than two months, it will be too late to address the emergency.
Defendants contend that Fletcher is inapplicable here, but their arguments are based on a misreading of the decision. First, Defendants assert that Fletcher recognizes an “imminent danger” exception to the PLRA’s exhaustion requirement and thus, cannot apply in the Eighth Circuit where binding case law has ruled otherwise. Def. Resp. 46-47. But Fletcher says just the opposite. It states that imminent danger does not excuse a plaintiff’s duty to exhaust administrative remedies.11 See Fletcher, 623 F.3d at 1173. Fletcher simply recognizes that availability must be assessed based on whether the prison grievance system is, in reality, providing an emergency remedy in emergency circumstances. See id. Fletcher thereby anticipated the Supreme Court’s direction in Ross that courts must consider “the facts on the ground” in determining the availability of a prison grievance process. Ross, 136 S. Ct. at 1859.
Second, Defendants attempt to distinguish Fletcher by suggesting that Judge Posner’s reasoning would apply only if the prison’s administrative procedure forbade officials from acting for two weeks. Def. Resp. at 47. Of course, as Defendants note, prisons do not operate that way. But Defendants are wrong. Judge Posner’s point was that “if it takes two weeks to exhaust a complaint that the complainant is in danger of being killed tomorrow, there is no ‘possibility of
11 Defendants also rely on this Court’s decision in Brazell v. Ruh, stating that no “exception to the PLRA’s exhaustion requirements exists where an inmate feels that he is in imminent danger of harm.” Brazell v. Ruh, No. 5:14-CV-00238-KGB, 2015 WL 2452410, at *3 (E.D. Ark. May 21, 2015). Plaintiffs do not dispute that an inmate’s subjective feelings of danger create no exception to the PLRA’s exhaustion requirement. Indeed, Plaintiffs are not arguing for an exception at all; they are simply applying the Supreme Court’s directive that courts must consider whether a prison remedy is available by looking to the “facts on the ground.” Here, those facts show that ADC’s grievance process is not available to provide emergency relief in response to the COVID-19 pandemic.
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some relief’ and so nothing for the prisoner to exhaust.”12 Fletcher, 623 F.3d at 1174; see also id. at 1173 (“Suppose the prison requires that its officials be allowed two weeks to respond to any prisoner grievance and that before the two weeks are up there can be no action taken to resolve it.”) (emphasis added).
Defendants appear to believe that so long as their grievance process “does not prohibit them from acting sooner,” the length of the exhaustion period is immaterial because it is possible that they might respond more quickly than the time prescribed. Def. Resp. at 47. If this were true, Defendants could permit ADC officials six months to respond to a grievance, and declare that an inmate seeking to grieve a lack of medical care after his appendix burst would still have an “available” remedy simply because Defendants retained the possibility that they might act in minutes and not months. That is not, and cannot be, the law.
Judge Higginson’s opinion concurring in the Fifth Circuit’s stay order in Valentine v. Collier is also instructive. Judge Higginson agreed with the majority that prison officials were likely to succeed on their PLRA exhaustion argument when plaintiffs, unlike here, “did not submit any grievance request to prison authorities before filing this lawsuit.” See Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *8 (5th Cir. Apr. 22, 2020) (concurring opinion). After all, if a prisoner has not filed any grievance in an emergency situation, a court will rarely be able to determine whether the process is unable to emergency relief. But, even in those circumstances, Judge Higginson recognized that the merits panel “may nevertheless conclude that a remedy using
12 The panel majority that granted a stay in Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *7 (5th Cir. Apr. 22, 2020), makes the same mistake in its reading of Fletcher. Valentine otherwise offers little guidance for the resolution of this case because the plaintiffs there sought relief in district court before filing any grievance, which meant there was no basis to determine whether the prison grievance in that case was in fact available to address the emergency caused by COVID-19.
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the Texas Department of Criminal Justice’s (TDCJ) grievance system is not ‘available’ because of the immediacy of the COVID-19 medical emergency coupled with statements credited by the district court that prisoners’ grievances may not be addressed promptly.” Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *8 (5th Cir. Apr. 22, 2020). If evidence suggested that plaintiffs did not have an opportunity to “expedite systemic medical grievances,” the court may conclude that the grievance system “operate[d] as a simple dead end” and was therefore unavailable. Id. (citing Ross, 136 S. Ct. at 1859).
Judge Higginson’s analysis effectively mirrors Judge Posner’s. Both opinions make the obvious point that when a grievance requires an immediate response, a grievance system that does not provide responses fast enough to address the issue is not “available.” The fact that a system may be available to a different person raising a different grievance at a different time does not speak to a remedy’s availability in emergency circumstances such as those here.
Plaintiffs have no administrative remedies available to them under the “ordinary meaning” of the word. Ross, 136 S. Ct. at 1858. Whatever they are supposed to be on paper, for purposes of the emergency created by the COVID-19 pandemic, the ADC’s administrative grievance procedure is nonexistent in practice. “When the facts on the ground demonstrate that no potential [for relief] exists, [an] inmate has no obligation to exhaust the remedy.” Id. Here, the facts on the ground have made clear that no potential for relief exists. This Court should reject Defendants’ exhaustion arguments.
D. Prisoners in the High Risk and Disability Subclasses Are Entitled to Habeas Relief Because Their Confinement Is Illegal and Unconstitutional.
From the very beginning of American history, the Great Writ of habeas corpus “has time and again played a central role in national crises.” Fay v. Noia, 372 U.S. 391, 401 (1963) (reversed in part on other grounds); see also Holland v. Florida, 560 U.S. 631, 649 (2010) (emphasizing
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“[t]he importance of the Great Writ, the only writ explicitly protected by the Constitution”). “Its function has been to provide a prompt and efficacious remedy for whatever society deems intolerable restraints.” Fay, 372 U.S. at 401. Its “root principle” is that the government must always be accountable to the judiciary for a person’s imprisonment, and “immediate release” is required where an individual’s confinement cannot be shown to comport with the dictates of the law. Id. As a once-in-a-century pandemic has swept across the country, incarcerated people have turned to the Great Writ, seeking its protection from terms of confinement that suddenly pose a grave risk of serious illness, life-long injury, or death. In response, courts have recognized both the serious risks posed by COVID-19 and the propriety of habeas corpus as a vehicle for seeking relief from detention that has been rendered unconstitutional by the pandemic.13
On April 22, Plaintiffs/Petitioners and the High Risk Subclass they seek to represent petitioned this court for “immediate[] release … or transfer … to home confinement” pursuant to a writ of habeas corpus. Compl. at 43-44, 46. Several Petitioners are held in the Cummins Unit, where the actions and inactions of Defendants have led to one of the largest COVID-19 outbreaks in the country. At least 850 people held at Cummins have contracted COVID-19.14
The State asserts that this Court cannot even consider Petitioners’ habeas claim because it is a noncognizable conditions-of-confinement claim, and because Petitioners failed to exhaust all available state remedies. See, e.g., Def. Resp. at 35-43. Respondents’ arguments misconstrue both Petitioners’ claim and the relevant Eighth Circuit case law, disregard the overwhelming weight of
13 See infra at 63 n.17 (collecting cases that have recognized the cognizability of constitutional challenges seeking release because of COVID-19).
14 Emma Tucker, 850 of 1,200 Inmates at Arkansas PrisonReportedly Have Coronavirus, Daily Beast, Apr. 21, 2020, https://www.thedailybeast.com/850-of-1200-inmates-in-arkansasprison-reportedly-have-coronavirus (last visited May 1, 2020).
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national authority regarding habeas and COVID-19, and ignore the exigent circumstances created by the ongoing-19 pandemic. This Court should reject their meritless contentions.
1. Petitioners’ Claims Are Properly Cognizable in Habeas. The Supreme Court has made clear that a state prisoner may, in habeas, “challeng[e] the fact or duration of his physical confinement” and “seek immediate release or a speedier release from that confinement.” Preiser v. Rodriguez, 411 U.S. 475, 498 (1973). This sort of claim represents the heart—but not the outer limits—of habeas corpus. See id. at 498-500. Because Petitioners and the high-risk subclass are explicitly seeking “immediate[] release” from their current confinement because of its unconstitutional character, Preiser should represent the first and last word regarding the cognizability of Petitioners’ claim. See id.; see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . . .”). Despite this clear Supreme Court precedent, Respondents contend that Petitioners’ claim must be classified as a “conditions-of-confinement” claim, and such claims are not cognizable in habeas in the Eighth Circuit. Def. Resp. at 35-40. Respondents’ assertion turns on a distinction that courts sometimes draw to determine whether an incarcerated petitioner’s claim should properly be classified as a petition for habeas corpus or a complaint seeking relief pursuant to § 1983. See, e.g., Spencer v. Haynes, 774 F.3d 467, 470-72 (8th Cir. 2014). To date, the Supreme Court has expressly declined to answer the question whether conditions-of-confinement claims sound in habeas. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017) (“[W]e have left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus.”). The Court’s silence has caused a split in the Circuits with some permitting conditions claims in habeas and others refusing to countenance them. See Spencer, 774 F.3d at 470 & n.6; Aamer v. Obama, 742 F.3d 1023, 1036-38 (D.C. Cir. 2014) (cataloguing the
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split and concluding that most circuits that do not permit conditions-of-confinement claims in habeas reached this conclusion based on “a fundamental misunderstanding of Preiser”).
As Respondents observe, the Eighth Circuit has held that conditions claims are not cognizable in habeas. See Spencer, 774 F.3d at 470 (citing Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam)). But the Eighth Circuit has also held that conditions claims are cognizable in habeas. See Willis v. Ciccone, 506 F.2d 1011, 1014 (8th Cir. 1974) (“[I]t it is generally acknowledged that habeas corpus is a proper vehicle for any prisoner, state or federal, to challenge unconstitutional actions of prison officials.”); see also Aamer, 742 F.3d at 1037-38 (observing that Eighth Circuit “completely overlook[ed] their own post-Preiser precedent recognizing that conditions of confinement sound in habeas”). Given the inconsistency between Spencer and Kruger on the one hand and Willis on the other, Willis should control because it preceded Kruger, and Kruger was not an en banc decision. See Mader v. United States, 654 F.3d 794, 800 (8th 2011) (holding that “when faced with conflicting panel opinions, the earliest opinion must be followed ‘as it should have controlled the subsequent panels that created the conflict’”) (citation omitted). Thus, conditions-of-confinement claims are cognizable in habeas in the Eighth Circuit.
Nonetheless, this Court need not reach that issue because Petitioners’ habeas claim is a challenge to the execution of their sentences, not to their conditions of confinement. Petitioners’ contention is that, in light of the COVID-19 pandemic and the ways in which Respondents have already failed to prevent its spread, there are no conditions under which they may be lawfully confined in prison. That is a challenge to the fact or duration of their confinement and to the execution of their sentence, not to the conditions of their confinement.
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The Eighth Circuit recognizes that habeas petitioners may challenge the execution of their sentences, as do circuits that bar petitioners from raising conditions-of-confinement claims. See, e.g., United States v. Knight, 638 F.2d 46, 47 (8th Cir. 1981) (observing that “[w]e have frequently held that an attack on the manner in which a sentence is executed . . . may be cognizable in a habeas corpus petition”); compare Luedtke v. Berkebile, 704 F.3d 465, 465-66 (6th Cir. 2013) (holding that habeas is not “the proper vehicle for a prisoner to challenge conditions of confinement”), with United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (allowing challenge to execution of sentence).
Respondents’ assertion that Petitioners have “obvious[ly]” raised a conditions-ofconfinement claim does not make it so. First, Respondents flatly ignore Preiser’s holding that the “heart of habeas corpus” involves petitioners challenging the fact or duration of their physical confinement and seeking immediate or speedier release from that confinement. Preiser, 411 U.S. at 499. Petitioners here are all challenging the fact of their “physical confinement” and seeking release from that confinement because of it is irremediably unlawful during the pendency of the COVID-19 pandemic.
Second, the conditions-of-confinement cases cited by Respondents illustrate why this is not a conditions-of-confinement case. Put simply, Petitioners here are seeking release, and the petitioners in conditions-of-confinement cases are not. In Kruger, for instance, prison officials took a sample of Mr. Kruger’s blood for placement in a DNA databank. 77 F.3d at 1073. Mr. Kruger brought an action pursuant to § 1983 seeking money damages and injunctive relief. Id. When his claim was denied, he filed a habeas petition raising the same claim, and seeking the return or destruction of his blood sample. Id. The Eighth Circuit held that Mr. Kruger should have brought his petition as a § 1983 lawsuit, and noted that there are “fundamental differences”
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between a civil rights action under § 1983, “where a prisoner might seek money damages,” and a habeas petition. Id. Mr. Kruger did not seek release and did not allege that the fact of his confinement was itself unconstitutional. He instead brought a claim that was susceptible to resolution through money damages. By contrast, Petitioners do seek release, do contend that the fact of their confinement is unconstitutional, and raise a claim that is not susceptible to resolution through money damages.
Respondents’ reliance on Spencer fares no better. In Spencer, the petitioner brought a habeas action raising a Fifth Amendment challenge because a staff member placed him in “fourpoint restraints” without providing him a hearing. 774 F.3d at 469. The Court ruled that Mr. Spencer should not have filed his claim as a habeas petition because it challenged his conditions of confinement instead of “‘the fact or length of the confinement.’” Id. at 470-71 (quoting Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979)). As in Kruger, the petitioner did not challenge the fact of his confinement, did not seek immediate or speedier release, and did raise a claim amenable to resolution through a damages award.
Rather than address the holdings of Spencer and Kruger, Respondents rely on selective quotations divorced from their factual context. But see generally Armour & Co. v. Wantock, 323 U.S. 126, 132–33 (1944) (“It is timely again to remind counsel that the words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.”). In short, the Eighth Circuit case law cited by Respondents is consistent with Petitioners’ argument and provides no support for theirs.
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The weight of recent authority involving COVID-19 habeas claims like this one similarly favors Petitioner’s interpretation. Consider, for instance, the recent decision in Wilson v. Williams, where the court ordered the prison to develop a plan for releasing high-risk prisoners at the Elkton Federal Correctional Institution following a COVID-19 outbreak in which 59 prisoners tested positive.15 No. 4:20-cv-00794, ––– F.Supp.3d ––––, ––––, 2020 WL 1940882, at *2 (N.D. Ohio Apr. 22, 2020). Petitioners had requested release for a high-risk subclass and “an alteration to the confinement conditions” for the remaining class members. Id. at *6. The Court stated that the “seemingly bright line rules” between challenges to the fact of confinement and challenges to the conditions of confinement “are difficult to apply in practice” and even more challenging in the context of COVID-19. Id. at *5. The court explained that although the high-risk subclass “challenge the dangerous conditions within the prison,” because “the only truly effective remedy” requires “the release of a portion of the population,” the action also challenged the fact or duration of confinement.16 Id. Ultimately, the court held that the request for release to home confinement
15 Fourteen times more inmates at Cummins Unit have tested positive than had tested positive at Elkton at the time the court in Wilson ordered a plan to release petitioners and their putative class. The district court in Wilson relied on its “inherent authority to grant an enlargement to a defendant pending a ruling on the merits of that defendant’s habeas petition” to accomplish its release plan. 2020 WL 1940882, at *4. This Court should follow its lead.
16 Respondents complain that the cases that Petitioners have cited where courts have granted habeas relief “come out of Circuits that . . . allow conditions-of-confinement claims in habeas.” Def. Resp. at 39. To the contrary, district courts have frequently recognized the cognizability of habeas claims in Circuits that do not recognize conditions-of-confinement habeas claims. For instance, as expressly discussed in Williams, the Sixth Circuit is one of the circuits that has held that conditions of confinement claims cannot be raised in habeas. Williams, 2020 WL 1940882. at *5 n.46; see also Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *7 (E.D. Mich. Apr. 5, 2020) (same); Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020) (same).
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or halfway houses for the high risk subclass “is closer to a challenge to the manner in which the
sentence is served and is therefore cognizable” in habeas.17 Id. at *6.
The court’s decision in Wilson is similar to the decision in Malam v. Adducci, 2020 WL
1672662, where the district court faced the same question regarding the proper classification of a
COVID-19 habeas case. As in Wilson, the court decided that petitioner had alleged a challenge to
the fact of confinement and not to the conditions of confinement. Id. at *3. Because the petitioner
had—as here—alleged that no set of conditions could render her current confinement
constitutional, and because she sought immediate release, habeas provided an appropriate vehicle
for the challenge. Thus, the Court granted her petition and ordered her release. Id. at *14.
17 Respondents assert that the release sought by Petitioners—whether it is release to parole, home confinement, a halfway house, or some other reduction in the level of confinement—does not constitute release for the purpose of habeas. This contention is incorrect. To start, it has been effectively rejected by Wilson—where petitioners sought the same type of release—and by each of the dozens of other courts that have ruled that habeas is an appropriate vehicle to pursue relief based on the threat from COVID-19 in carceral facilities. See infra at n.17. Moreover, Petitioners have undoubtedly sought release from “confinement” both because they are literally seeking release from their confinement in prison and because any of the requested release options would constitute “a quantum change in the level of custody.” See Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991); see also Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J. concurring). Where petitioners seek to “reduce[] the level of custody” in which they are held, see id., such as seeking release to the general prison population from solitary confinement, or seeking parole, they have stated a claim for release from confinement. See Broglin, 922 F.2d at 381. District courts in this circuit have held that release from a carceral facility to a halfway house constitutes a release from confinement from these purposes. See, e.g., Bania v. Roal, No. 11-cv-925 (SRN/TNL), 2011 WL 7945547, at *3 (D. Minn. Oct. 24, 2011), R.& R. adopted by 2012 WL 1886485 (D. Minn. May 23, 2012) (citation omitted); Silva v. Paul, No. 18-CV-02177 (ECT/ECW), 2019 WL 542945, at *5 (D. Minn. Jan. 7, 2019), report and recommendation adopted, No. 18-CV-2177 (ECT/ECW), 2019 WL 536668 (D. Minn. Feb. 11, 2019), appeal dismissed, No. 19-1424, 2019 WL 4145562 (8th Cir. May 20, 2019). As the court observed in Silva, “[c]learly, the difference between a prison and a halfway house represents a ‘quantum change in the level of custody’ under Graham because the two forms of custody are qualitatively different.” Id. Given that release to a halfway house, “clearly” represents a “quantum change in the level of custody,” release to home confinement necessarily represents such a change.
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Wilson and Adducci are consistent with recent cases across the country recognizing that
petitioners may properly challenge the constitutionality of their confinement based on the threat
from COVID-19 through habeas.18 This Court should similarly rule that Plaintiffs’ claims are
cognizable in habeas here, and the State has advanced no meritorious arguments to the contrary.
2. Petitioners Did Not Need to Exhaust Their Habeas Claims In Arkansas State Courts Because No Such Relief Was Available.
Respondents contend that Petitioners’ habeas claim faces “an insurmountable roadblock”
because 28 U.S.C. § 2254(b)(1)(A) requires Petitioners to exhaust the remedies available to them
in state court before a federal court may grant relief in habeas. Def. Resp. at 41. This assertion is
incorrect. Even if Respondents are correct that Petitioners’ habeas claim brought under 28 U.S.C.
§ 2241 should be construed as a petition under 28 U.S.C. § 2254,19 and even if the exhaustion
18 E.g., Fofana v. Albence, No. 20-10869, 2020 WL 1873307, at *11 (E.D. Mich. Apr. 15, 2020); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *7 (E.D. Mich. Apr. 5, 2020); Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020); Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020); Doe v. Barr, No. 20-CV-02141-LB, 2020 WL 1820667, at *8 (N.D. Cal. Apr. 12, 2020); Coronel v. Decker, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *8 (S.D.N.Y. Mar. 27, 2020); Thakkar v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020); Leandro R. P. v. Decker, No. CV 20-3853 (KM), 2020 WL 1899791, at *9 (D.N.J. Apr. 17, 2020); Barbecho v. Decker, 2020 WL 1876328, at *1 (S.D.N.Y. Apr. 15, 2020); Jeferson V.G. v. Decker, No. 20-cv3644, 2020 WL 1873018, at *5 (D.N.J. Apr. 15, 2020); Valenzuela Arias v. Decker, No. 20-cv2802, 2020 WL 1847986, at *2-10 (S.D.N.Y. Apr. 10, 2020); Savino v. Souza, No. CV 20-10617WGY, 2020 WL 1703844, at *9 (D. Mass. Apr. 8, 2020); Ortuño v. Jennings, Case. No. 20-cv2064-MMC, Docket No. 38 (N.D. Cal. Apr. 8, 2020); Castillo v. Barr, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Zhang v. Barr, 2020 WL 1502607, at *9 (C.D. Cal. Mar. 27, 2020); Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *1 (S.D. Tex. Apr. 17, 2020); AmayaCruz v. Adducci, No. 1:20-cv-789, 2020 WL 1903123, at *2-3 (N.D. Ohio Apr. 18, 2020); Awshana v. Adducci, No. 20-10699, 2020 WL 1808906, at *2 (E.D. Mich. Apr. 9, 2020); AlbinoMartinez v. Adducci, No. 2:20-CV-10893, 2020 WL 1872362, at *2 (E.D. Mich. Apr. 14, 2020); Habibi v. Barr, 2020 WL 1864642, at *2 (S.D. Cal. Apr. 14, 2020); Ousman v. Decker, 2020 WL 1847704, at *9 (D.N.J. Apr. 13, 2020); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020); Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *14 (W.D.N.Y. Apr. 2, 2020); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020).
19 Respondents correctly observe that the Eighth Circuit has held that habeas claims brought by state petitioners challenging the execution of their sentences should be considered
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requirement is binding on Petitioners in the context of a life-threatening pandemic,20 Petitioners
need not bring an action in state court because Arkansas does not provide an available procedure
by which Petitioners may obtain release for their federal claim. See 28 U.S.C. § 2254(b)(1)(B)(i)
(writ of habeas corpus shall not be granted unless it appears that “there is an absence of available
state corrective process”).
The petition in this case claimed that Petitioners and the High Risk Subclass are entitled to
immediate habeas release because Respondents were violating their Eighth Amendment rights,
and no remedy short of release could satisfy the Eighth Amendment. Compl. ¶¶ 137-38.
Respondents contend that Petitioners could have raised this claim in Arkansas state courts under
the Arkansas Civil Rights Act, Ark. Code Ann. 16-123-105. Def. Resp. at 42.
The flaw with this argument is apparent on the face of Respondents’ brief. Respondents
explain that the Arkansas Civil Rights Act “provid[es] identical protections to section 1983.” See
id. But as the Supreme Court has made clear, filing a civil action pursuant to § 1983 is not the proper procedure for seeking release; filing a petition for a writ of habeas corpus is. “[H]abeas
corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release, even though such a claim may come within
pursuant to 28 U.S.C. § 2254. See, e.g., Singleton v. Norris, 319 F.3d 1018, 1022 (8th Cir. 2003) (citing Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001)). Respondents do not dispute that Petitioner’s claim falls within the plain language of 28 U.S.C. § 2241 or that myriad other courts have decided claims like Petitioners under § 2241. And the Eighth Circuit has never considered the proper vehicle for bringing a claim under the factual circumstances presented by COVID-19. But this Court need not address this issue because the exhaustion requirement of 28 U.S.C. § 2254 is not an obstacle to the relief sought by Petitioners, and Respondents raise no other reason why § 2254 prohibits consideration of the merits. For example, the general rules limiting second or successive habeas petition under § 2254 do not apply when, as here, the basis for Petitioners’ claim did not arise until well after the imposition of their state court sentence. See Singleton, 319 F.3d at 1023. Similarly, the limitations imposed by 28 U.S.C. § 2254(d) are not applicable here because Petitioners’ claim was not “adjudicated on the merits in State court proceedings.”
20 See infra at 64-66.
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the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser, 411 U.S. at 488-90). Thus, a state statute that affords “identical protections to section 1983” does not provide Petitioners with an available procedure by which they may seek release.
This understanding is confirmed by an examination of Arkansas law. Just as federal law has codified the division of labor described above between habeas corpus and § 1983, Arkansas has codified the same division of labor between state post-conviction relief and the Arkansas Civil Rights Act. For incarcerated individuals seeking to challenge the execution of their sentence, Arkansas law provides just one avenue: filing a state post-conviction petition pursuant to Arkansas Rule of Criminal Procedure 37. “All grounds for postconviction relief from a sentence imposed by a circuit court . . . must be raised in a petition under this rule.” Ark. R. Crim. P. 37.2(c) (emphasis added). If Petitioners had a state court remedy, it would lie under Rule 37.
But Respondents do not invoke Rule 37, because it is plainly unavailable to Petitioners for two reasons. First, Rule 37 imposes time limits by which Petitioners must file their claims which depend upon the resolution of the underlying criminal case. See Ark. R. Crim. P. 37.2(c) (imposing 60- and 90-day filing limits depending on the resolution of the underlying criminal matter). The time limitations imposed by Rule 37.2 are jurisdictional, and “where they are not met, a trial court lacks jurisdiction to grant postconviction relief.” Carter v. State, 2010 Ark. 231, 2, 364 S.W.3d 46, 49 (2010). Here, Petitioners are time-barred by Rule 37.2(c) from raising the claims that they have brought in federal habeas. Second, Rule 37 is narrower than habeas corpus, and Petitioners’ claims are not cognizable under Rule 37. See, e.g., Whitmore v. State, 771 S.W.2d 266, 272 (Ark. 1989) (holding that “Rule 37 does not apply to the execution of a sentence”). Consequently, Arkansas law does not provide Petitioners with an “available state corrective process,” and their federal claim is not barred by 28 U.S.C. § 2254.
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None of the three COVID-19 cases cited by Respondents, see Def. Resp. at 42-43, are to the contrary because they all involve circumstances where the petitioners undisputedly could have raised their claims in state court. For instance, in Money v. Pritzker, the petitioners did not dispute that state law provided causes of action that could grant them the relief they sought. Instead, they contended that state remedies were unavailable because the state courts in a single county were closed because of the pandemic. See Money v. Pritzker, __ F.3d __, 2020 WL 1820660, at *21 (N.D. Ill. Apr. 10, 2020). The court rejected that argument because the allegedly unavailable court system cited by the petitioners was still available for emergency matters, and because the petitioners could have filed the same action in the courts of various other counties, which were undisputedly available. See id.
Similarly, in Mays v. Dart, the petitioners did not contend that state law provided no mechanism by which the petitioners could seek release. Mays, No. 20 C 2134, 2020 WL 1812381, at *5. Petitioners were all pretrial detainees who could file motions to review or reduce bail, and more than 400 detainees had been released in the prior week through expedited bond hearings. Id. at *6. Because there was no dispute that the petitioners had an available means by which to obtain release and an available court in which to pursue release, the court found that they had failed to exhaust their state court remedies. Id. Finally, Respondents’ attempted reliance on PetryBlanchard v. Louis fails for the same reason. Petry-Blanchard v. Louis, No. 4:20-CV-P49-JHM, 2020 WL 1609493, at *4 (W.D. Ky. Apr. 1, 2020) (finding that petitioners had not exhausted their state court claims where there was no dispute that petitioners had valid claims to release under state law and where courts remained open and available for emergency matters).
Because the only state court remedy suggested by Respondents is plainly unavailable, there is nothing for Petitioners to exhaust, and this court may reach the merits of their habeas claims.
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3. Even if Arkansas Did Provide State Remedies, This Court Should Waive the Exhaustion Requirement Because of the Grave Threat Posed by COVID-19.
Even if Petitioners did have available state court remedies (and they do not), the failure to exhaust would not require the dismissal of Petitioners’ federal habeas claims. “A [plaintiff’s] failure to exhaust his remedies in state court . . . does not divest a federal court of jurisdiction over the petition.” Puertas v. Overton, 272 F. Supp. 2d 621, 626 (E.D. Mich. 2003). Rather, a court should assess whether “unusual or exceptional circumstances” exist such that “‘the interests of comity and federalism will be better served by addressing the merits.’” Id. (quoting Granberry v. Greer, 481 U.S. 129, 134 (1987)). Indeed, 28 U.S.C. § 2254(b)(1)(B)(ii) provides that exhaustion of state court remedies is not required where circumstances exist that render such process “ineffective to protect the rights of the applicant.”
In Chitwood v. Dowd, the Eighth Circuit recognized that “[c]ourts may grant habeas relief in ‘special circumstances,’ even though petitioner did not exhaust state remedies.” 889 F.2d 781, 784 (8th Cir. 1989). Determining whether such special circumstances exist is a factual question for the district court. See id. In Chitwood, petitioner sought habeas relief after the negligent action of state officials impaired the proper execution of his sentence, leading to an undue extension of his incarceration. Although Mr. Chitwood had not exhausted his stated court remedies, he sought relief in federal court through a writ of habeas corpus, arguing that he did not have time to exhaust his state-court claims before his sentence expired, leading to a loss of justiciability. Id. at 785. The district court ruled, and the Eighth Circuit affirmed, that the combination of the state officials’ action and the threatened mootness of his claims constituted special circumstances that permitted him to proceed in federal court without exhausting his state court remedies. Id.
Petitioners in this case are similarly situated to the petitioner in Chitwood. As in Chitwood, the execution of Petitioners’ sentence is threatened by the actions of state officials—here, the
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deliberate indifference of Respondents, who have violated Petitioners’ Eighth Amendment rights. And as in Chitwood, the delay inherent to the exhaustion of state court remedies would render their claims moot. Petitioners require relief immediately to ensure that they do not become infected with COVID-19; any delay—much less the delay required for (futile) state court exhaustion—would likely mark the difference between sickness and health.
Other district courts in the Eighth Circuit have also permitted petitioners to pursue habeas relief without exhausting their state claims when circumstances dictated that state corrective processes would be “ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). Thus, in Reeves v. McSwain, Case No. 4:12CV2185 AC, 2016 WL 812572 (E.D. Mo. Mar. 2, 2016), the court found the plaintiff was procedurally unable to exhaust their remedies because of the location of their incarceration and therefore excused them. Id. And in 2007, a district court found special circumstances warranted relief in a similar situation: “[o]n the information before the court, it appears that petitioner’s incarceration in another state will result in an inordinate delay in the processing of petitioner’s claims in Missouri state court, thereby rendering such state processes ineffective in securing the rights of petitioner in this cause.” Metzger v. Nixon, No. 4:06CV999 HEA, 2007 WL 2746726 *3-4 (E.D. Mo. Sept. 18, 2007).
Similarly, a district court in Michigan applied this exception when pursuit of state court procedure could amount to a death sentence. In Puertas, the court waived the exhaustion requirement for a 76-year-old prisoner with coronary disease and bladder cancer who had recently gone into remission, releasing him on bond pending a decision on his petition for a writ of habeas corpus. Id. at 628. In doing so, the court found that the petitioner’s “age, ill health, and dire need for continued medical treatment” warranted special consideration. Id. Considering the situation, “‘the interests of comity and federalism’” were better served by addressing the merits of the
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petition rather than allowing the petitioner to risk death in prison while awaiting adjudication in state court. Id. at 629 (quoting Granberry, 481 U.S. at 131).
The same conclusion is warranted here. Requiring Petitioners in the High Risk Subclass to file a new action in state court could easily be the difference between life and death. As many as four individuals from the Cummins Unit have died in recent days. Conditions at Cummins—and at other ADC facilities—are going to get far worse before they get better. Pursuing state court remedies at this juncture will serve no benefit to comity or federalism; it will merely expose Petitioners to grave and unnecessary additional risk. This Court has the power to consider Petitioners’ petition on the merits and should do so.
4. The PLRA Does Not Apply to Plaintiffs’ Requests for Habeas Release. Respondents next contend that Plaintiffs cannot obtain release because the preconditions for a release order under the PLRA have not yet been satisfied. But the PLRA provisions cited by Respondents do not apply when, as here, Plaintiffs seek release under habeas. The PLRA is unambiguous on this point. Its requirements for release orders only to “any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a)(3). And it expressly states that “the term ‘civil action with respect to prison conditions’ . . . does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2). Here, Petitioners contend that individuals in the High Risk and Disability Subclasses cannot be lawfully confined in prison during the pandemic as a result of their high vulnerability to serious illness or death if they contract COVID 19 in prison. They therefore sought habeas relief under 28 U.S.C. § 2241. And, whether or not the claim is properly litigated in § 2241 or recharacterized as a claim under 28 U.S.C. § 2254, plaintiffs have brought a “habeas corpus proceeding[] challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). Therefore, under the plain language of the statute, the PLRA’s limitations on release orders do not
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apply here. And “[w]hen the words of a statute are unambiguous, then . . . judicial inquiry is complete.” United States v. Krause, 914 F.3d 1122, 1127 (8th Cir. 2019) (citation and internal quotation makes omitted).
Respondents attempt to circumvent the PLRA’s plain language by asserting that this is actually a challenge to conditions of confinement in which “Plaintiffs . . . do not challenge the fact or duration of confinement in prison.” Def. Resp. at 49 n.8. But that is simply incorrect. As explained at length above, Petitioners challenge the fact and duration of their confinement in prison; specifically, they contend that the High Risk and Disability Subclasses cannot be lawfully confined in prison during the pandemic, which means that release from prison is the only remedy that would satisfy the Eighth Amendment and the ADA. Indeed, on the very same page of their brief in which Respondents falsely assert that Petitioners “do not challenge the fact or duration of confinement in prison,” Respondents acknowledge that Petitioners are seeking “release from prison.” See Def. Resp. at 49 & n.8; see also id. at 50 (referring to “[t]he order Plaintiffs seek here—insofar as it would provide for release from prison, as Plaintiffs request for a putative subclass”). And, while Respondents elsewhere make much of the point that Petitioners would still be in state custody if released from prison, that is irrelevant to their PLRA argument. The PLRA specifically exempts “habeas corpus proceedings challenging the fact or duration of confinement in prison,” from its limitations on release orders. 18 U.S.C. § 3626(g)(2) (emphasis added).
Case law is consistent with the plain text of the PLRA. Courts have recognized that the PLRA, including its preconditions for release orders, do not apply to claims for habeas relief challenging the fact or duration of confinement. Thus, in Wilson v. Williams, __ F.3d. __, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020), the court granted preliminary injunctive relief requiring
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a prison to formulate a plan for releasing some members of a medically vulnerable subclass from prison. In so doing, the court specifically rejected the same argument made by Respondents’ here:
Respondents argue that the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, bars this Court from granting the inmates’ release. This is not so. The PLRA does not extend to “habeas corpus proceedings challenging the fact or duration of confinement in prison.” Because the Court has determined that the subclass’s claims are properly before the Court as a habeas action, this prohibition does not apply. Id. at * 10 (footnotes omitted). Similarly, although Respondents rely on Money v. Pritzker, the court there emphasized that “case law clearly holds that the PLRA applies in Section 1983 suits, but not to habeas petitions.” Money v. Pritzker, __ F.3d __, 2020 WL 1820660, at *10 (N.D. Ill. Apr. 10, 2020); see id. at 10.21 Two of the other cases cited by Respondents are irrelevant here, because the plaintiffs had not sought release under habeas, so there was no need for the court to address the distinction between “civil action[s] with respect to prison conditions,” to which the PLRA applies, and “habeas corpus proceedings challenging the fact or duration of confinement in prison,” to which it does not. 18 U.S.C. § 3626(g)(2). See Coleman v. Newsom, __ F. Supp. 3d __, 2020 WL 1675775, at *4 (E.D. Cal. Apr. 4, 2020) (three-judge court); Plata v. Newsom, __ F. Supp. 3d __, 2020 WL 1908776, at *10-11 (N.D. Cal. Apr. 17, 2020). The sole case cited by Respondents that supports their position is Mays v. Dart, __ F. Supp. 3d __, 2020 WL 1987007, at *20 (N.D. Ill. Apr. 27, 2020), which did hold that the PLRA applied to habeas corpus claims. But Mays failed to apply the plain language of the PLRA. Instead, Mays
21 Although recognizing the PLRA was inapplicable, the court in Money denied requests for emergency release under habeas because it concluded that the petitioners had not exhausted available state remedies. See id. at *20-*22. For the reasons explained above, there are no available state remedies for petitioners to exhaust in this case.
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reasoned that the PLRA should apply because the plaintiffs’ habeas claims “bear on the conditions of their confinement,” even though the court acknowledged that the claims also “‘do bear on the duration of their confinement.’” Id. (citation omitted). But the text of the PLRA is clear: it exempts “habeas corpus proceedings challenging the fact or duration of confinement in prison,” from the definition of “civil action[s] with respect to prison conditions.” 18 U.S.C. § 3626(g)(2). Thus, when a plaintiff brings a habeas corpus proceeding challenging the fact or duration of confinement, the relief the plaintiff is requesting through habeas means the PLRA does not apply. It does not matter whether the underlying claim in some way “bear[s] on the conditions of confinement,” Mays, 2020 WL 1987007, at *20, because that is not the relevant inquiry under the statute. Indeed, as the Second Circuit explained in one of the two cases Mays misinterpreted as supporting its decision, the “type of relief sought” is the critical inquiry. Jones v. Smith, 720 F.3d 142, 145 n.3 (2d Cir. 2013); see Mays, 2020 WL 1987007, at *20 (citing Jones).22
Plaintiffs respectfully urge this Court to apply the plain text of the PLRA, and the decisions in Williams and Money, rather than Mays. Because they seek habeas relief challenging the fact or duration of their confinement, the PLRA does not apply. III. Plaintiffs Will be Irreparably Harmed by the Substantial Risk of Serious and Possibly
Lethal COVID-19 Infection and Related Illnesses. In order to demonstrate irreparable harm in the Eighth Circuit, “a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895 (8th Cir. 2013). Defendants read this standard to require Plaintiffs to prove that, if the Court does not issue preliminary injunctive
22 The other case cited by Mays simply assumed that the PLRA would apply in habeas cases challenging conditions of confinement, but did not suggest the PLRA would apply when, as here, a plaintiff challenges the fact or duration of confinement simply because the underlying legal claims may bear on the conditions of confinement. See Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998).
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relief, Plaintiffs and the class members are 100% likely to contract COVID-19. Taken to its logical conclusion, Defendants’ reading of irreparable harm would prevent incarcerated people deprived of any protections from an outbreak of a lethal virus from seeking preliminary injunctive relief until the instant before they make contact with the contagion; by then, of course, it would have been too late for the courts to provide the needed, lifesaving protection. This cannot be. Plaintiff John Doe did not know he was 100% likely to contract COVID-19 until after he had already been infected with the virus, but he was entitled to protection from this potentially deadly harm even before he made contact with the contagion. Defendants’ position is a clear misapplication of the Eighth Circuit’s standard, and is contrary to other court decisions, which have applied an irreparable harm standard similar to the Eighth Circuit in awarding preliminary injunctive relief to similarly situated plaintiffs in COVID-19-prison cases.
For example, in Banks, the District Court for the District of Columbia found that “Plaintiffs’ risk of contracting COVID-19 and the resulting complications, including the possibility of death, is the prototypical irreparable harm.” Banks, 2020 WL 1914896, at *11 (citing Harris v. Board of Supervisors, Los Angeles County, 366 F.3d 754, 766 (9th Cir. 2004) (finding irreparable harm from pain, infection, and possible death due to delayed treatment from the reduction of hospital beds)). The court also found irreparable harm, in part, because the plaintiffs’ incarceration placed them at a significantly higher risk of infection. Id. Importantly, in the United States Court of Appeals for the District of Columbia, a plaintiff seeking a preliminary injunction must show that, unless granted preliminary injunctive relief, the plaintiff will suffer an irreparable injury that is “both certain and great, actual and not theoretical, beyond mediation, and of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Mexichem Specialty Resins, Inc. v. E.P.A., 787 F.3d 544, 555 (D.C. Cir. 2015). This standard, like
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that of the Eighth Circuit, is high. Still, the court found that the plaintiffs demonstrated irreparable harm in Banks.
The Sixth Circuit Court of Appeals also has a high irreparable harm standard, which requires plaintiffs to show that, unless preliminary injunctive relief is granted, “actual and imminent harm rather than harm that is speculative or unsubstantiated” would result. See Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). With this standard in mind, a district court within the Sixth Circuit found that “Plaintiffs also are likely to suffer irreparable harm absent an injunction, as they face a heightened risk of contracting this life-threatening virus simply as incarcerated individuals and even more so without the imposition of these cautionary measures.” Cameron v. Bouchard, No. CV 20-10949, 2020 WL 1929876, at *2 (E.D. Mich. Apr. 17, 2020), modified on reconsideration, No. CV 20-10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020) (removing a provision requiring defendants to produce a list of highly vulnerable incarcerated people). It follows, therefore, that the standard for demonstrating irreparable harm is not so high as to bar preliminary injunctive relief protecting incarcerated people from a lethal pandemic like COVID-19.
The authorities cited by Defendants are either distinguishable from this matter or, in some cases, actually support Plaintiffs’ argument that they have demonstrated irreparable harm. As Defendants note, the court in Thakker v. Doll, No. 1:20-CV-480, 2020 WL 2025384 (M.D. Pa. Apr. 27, 2020), allowed its temporary restraining order, permitting the release of various COVID19-vulnerable incarcerated people from multiple correctional facilities, to convert into a preliminary injunction covering a correctional facility incarcerating forty people who had tested positive for COVID-19. 2020 WL 2025384, at *8; (Dkt. 36, 71). In other words, instead of categorically denying plaintiffs injunctive relief, the Thakker court granted partial preliminary
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injunctive relief. Thakker thus supports Plaintiffs’ argument that irreparable harm may be demonstrated by incarcerated people challenging their facilities’ deliberate indifference to the risk of COVID-19, especially in regards to incarcerated people who, like Named Plaintiffs, have “comorbidities [that] would likely cause sever COVID-19 complications.” Thakker, 2020 WL 2025384, at *8.
Thakker is also factually distinguishable from this matter because the court found that, after the court issued its temporary restraining order covering multiple facilities, the defendants quickly and effectively implemented the CDC Guidance. Id., at *8. As explained supra, Defendants in this matter have not fully implemented the CDC Guidance. This noncompliance demonstrates the irreparable harm Plaintiffs and the class members currently face.
The other cases cited by Defendants are also distinguishable in telling ways. In Verma v. Doll, No. 4:20-CV-14, 2020 WL 1814149, at *1 (M.D. Pa. 2020), the court found that there was no irreparable harm, in part, because the detention facility at issue was under capacity. 2020 WL 1814149, at *1. This is consistent with Dr. Stern’s conclusion that “the lower the number of incarcerated persons in a facility, the lower the risk [of contracting COVID-19].” Stern Decl. ¶ 14. Here, in contrast, the Arkansas Board of Corrections has declared a prison overcrowding state of emergency and one member recently reported “as usual, all of the major units are above capacity”23 Ark. Parole Bd. Minutes, Mar. 26, 2020, at https://www.paroleboard.arkansas.gov/Websites/ parole/images/03%2026%20Mins.pdf.
23 Defendant Payne claims this is false, stating that ADC regularly releases people when the county jails are backlogged with people awaiting transfer to ADC. Payne Decl. ¶ 109. What Defendant Payne omits from this denial, however, is that this is done pursuant to the Prison Overcrowding Emergency Powers Act, which entails the BOC “declar[ing] a prison overcrowding state of emergency.” Ark. Code Ann. § 12-26-603(a)(1).
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In Verna, the court found that detainees were given disinfectant and gloves as requested, and “all medical staff [are required to] be fitted for and wear an N95 mask [and] [d]etainees on isolation status are required to wear a N-95 mask when they leave a cohorted housing unit.” Verma, 2020 WL 1814149, at *2. Defendants have not engaged any comparable efforts to mitigate the spread of COVID-19. If the correctional facility being under capacity, along with the provision of gloves to incarcerated people and N95 masks to select incarcerated people and staff, contributed to the finding of no irreparable harm in Verma, the absence of these safeguards supports a finding of irreparable harm in this matter. The other case cited by Defendants, Engelund v. Doll, also supports Plaintiffs because, unlike that case, there have been no remedial interventions in this matter that would be relevant to an irreparable harm determination. See Engelund v. Doll, No. 4:20-CV-00604, 2020 WL 1974389, at *6, 12 (M.D. Pa. Apr. 24, 2020) (no finding of COVID19-related irreparable harm where the detention facility was under capacity and incarcerated people were issued surgical masks).
Accordingly, as explained in Plaintiffs’ prior submissions, irreparable harm has been established, and Defendants’ arguments to not support a contrary conclusion, as is evidenced by the recent decisions finding irreparable harm under similar circumstances and the key differences between this matter and other cases in which preliminary injunctive relief was denied for lack of irreparable harm. IV. The Balance of Equities Weighs Heavily in Favor of Granting a Preliminary
Injunction. As Plaintiffs have argued previously, the balance of equities in this matter outweigh any harm to Defendants. Pff. TRO Br. At 43-46. Notably, Defendants have not disputed this argument. Additionally, preliminary injunctive relief is in the public interest because it would decrease the risk that Plaintiffs will contract COVID-19. See Banks, 2020 WL 1914896, at *12 (finding that
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preliminary injunctive relief that protected incarcerated people from COVID-19 is in the public interest).
In determining whether a preliminary injunction should be issued, “the Court must balance the harm to Plaintiffs if no relief is granted with the potential harm to Defendants if an injunction is issued.” Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929, 950 (E.D. Mo. 2004). The Court must also determine the effect of a preliminary injunction on the public interest. Turtle Island Foods SPC v. Soman, 424 F. Supp. 3d 552, 578 (E.D. Ark. 2019).
If granted, preliminary injunctive relief for remedial interventions within ADC’s correctional facilities will pose no harm to Defendants, other than potentially increased costs and energy, which are insufficient to justify a denial of Plaintiffs’ motion. See Cameron, No. 2020 WL 1929876, at *2 (finding the balance of equities weighed in favor of preliminarily injunctive relief requiring certain remedial interventions to protect incarcerated people from COVID-19 where the only cost to defendants would be financial and in the form of extra energy expended to protect the people in defendants’ care).
Further, as explained supra, Plaintiffs have established a likelihood that they will prevail on the merits of their Eighth Amendment claims, and “it is always in the public interest to protect constitutional rights.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City of Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc); see also Soman, 424 F. Supp. 3d at 578 (“The public is served by the preservation of constitutional rights.”)
The balance of inequities also favors removing the vulnerable subclasses from ADC correctional facilities amid the pandemic, and such a removal is in the public interest. In Wilson, the court found that releasing a class of highly vulnerable incarcerated people from their detention
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facility was in the public interest. Wilson, 2020 WL 1940882, at *9–10. In so doing, the court noted that the “grave danger” defendants argued such a release posed was mitigated by: 1) the fact that many of the class members had release dates anyway, which meant the question was not if they would ever be released, but when; 2) the elderly age and/or vulnerable medical conditions of the class members made them less of a threat to the public; and 3) the fact that the court was not “dump[ing] inmates out into the streets,” but, instead, was ordering that they be removed from a dangerous correctional facility under various supervision options. Id.
Similarly, all of the Named Plaintiffs, like most of the members of the subclasses, will one day be released from prison, unless they die while incarcerated. Kent Decl. 2 ¶ 2; Serrato Decl. 2 ¶ 2; Otwell Decl. 2 ¶ 2; Stiggers Decl. 2 ¶ 2; Frazier Decl. 2 ¶ 2; Nickson Decl. 2 ¶ 2; Alvin Decl. 2 ¶ 2; Neeley Decl. 2 ¶ 2; Williams Decl. 2 ¶ 2. For example, Alvin Hamptom will be eligible for parole in June 2020, while Harold Otwell has already been approved to be transferred out of prison into an Arkansas Community Corrections facility. Hampton Decl.2 ¶ 2; Otwell Decl. 2 ¶ 2. If their release in as little as four months does not pose an imminent risk of harm to the public, then release now, amid the pandemic, will similarly not pose a harm sufficient to outweigh the potential harm of them contracting COVID-19 while incarcerated. Also, the High Risk and Disability Subclasses are, by definition, elderly, infirm, and disabled, which makes them less likely to harm the public if released. Wilson, 2020 WL 1940882, at *9–10.
In their brief, Defendants frame the relief Plaintiffs seek as an attempt to “micromanage” the Defendants in executing their duties. Resp. at 33. However, the relief sought will actually improve the execution of Defendants’ duties, which already includes protecting Plaintiffs and the class members from COVID-19. And, more importantly, “[c]ourts may not allow constitutional
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violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011).
The irreparable harm to Plaintiffs in the absence of preliminary injunctive relief, as detailed supra, far outweighs any harm to Defendants if preliminary injunctive relief is granted, and therefore the balance of equities and public interest weighs in favor of granting injunctive relief at this time. V. This Court Should Grant Class-Wide Preliminary Injunctive Relief.
Class-wide preliminary injunctive relief is appropriate here because the violations established by Named Plaintiffs apply uniformly across ADC correctional facilities statewide. Notably, in order to issue class-wide preliminary injunctive relief, the Court does not have to conditionally approve the Named Plaintiffs’ class or subclasses, nor does it have to assess the class certification factors. But even if the Court did have to assess the class certification factors, the facts here demonstrate that class certification would likely be granted.
A. Class-Wide and/or Statewide Preliminary Injunctive Relief Does Not Require Class Certification or Consideration of the Merits of Class Allegations.
Named Plaintiffs have made class allegations and are properly seeking class-wide preliminary injunctive relief. Compl. ¶¶ 41-49. The Eighth Circuit notably does not have a rule requiring provisional class certification before the issuance of class-wide preliminary injunctive relief. In fact, multiple courts in the Eighth Circuit have granted plaintiffs’ motions for preliminary injunctive class-wide relief without assessing plaintiffs’ class allegations. See, e.g. Barrett v. Claycomb, 936 F. Supp. 2d 1099 (W.D. Mo. 2013) (class-wide preliminary injunctive relief granted without assessing plaintiffs’ class allegations); Portz v. St. Cloud State Univ., 196 F. Supp. 3d 963 (D. Minn. 2016) (same). Defendants’ erroneous argument that Named Plaintiffs have to
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prove that they are likely to succeed on their request for class certification before seeking classwide preliminary injunctive relief is, therefore, without merit.
Even if Named Plaintiffs had brought their claims solely as individual plaintiffs, as opposed to putative class representatives, this Court could still issue statewide preliminary injunctive relief. See Rodgers v. Bryant, 942 F.3d 451, 457–58 (8th Cir. 2019). In Rodgers, two individual plaintiffs were granted a preliminary injunction enjoining the enforcement of Arkansas’s anti-loitering law, which criminalized begging in certain circumstances in contravention of the First Amendment. Id. at 451. The defendants appealed, arguing, in part, that statewide preliminary injunctive relief was improper and, instead, any such relief should have applied solely to the individual plaintiffs. Id. at 457-458. In upholding the preliminary injunction, the Eighth Circuit Court of Appeals found that “injunctive relief should extend statewide because the violation established—the plain unconstitutionality of Arkansas’s anti-loitering law—impacts the entire state of Arkansas.” Id. at 458. Similarly, the violations Named Plaintiffs have established—the plain unlawfulness of Defendants’ deliberate indifference to the risk of incarcerated people contracting COVID-19 and failure to accommodate the needs of the state’s incarcerated population with disabilities rendering them vulnerable COVID-19 illness—impacts the entire state of Arkansas, which has correctional facilities spread throughout. Accordingly, even if Named Plaintiffs had not made any class allegations in their Complaint, they would still be entitled to the class-wide preliminary injunctive relief sought here.
B. Class Certification Will Likely Be Granted in This Case. Setting aside the fact that the Court does not have to assess the Named Plaintiffs’ class allegations to issue statewide preliminary injunctive relief, class certification will likely be granted
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in this case.24 Courts in similar cases have found that similarly situated plaintiffs have satisfied the Rule 23(a) and Rule 23(b)(2) requirements to obtain class certification.
1. The Named Plaintiffs Are Likely to Meet the Rule 23(a) Requirements. Defendants raise only a cursory argument in support of their assertion that Named Plaintiffs are unlikely to meet Rule 23(a). With good reason. The precedent is clear that Named Plaintiffs are likely to make the requisite showing of commonality and typicality. There is longstanding precedent within the Eighth Circuit for finding commonality in cases involving a class, or subclasses, of incarcerated people suffering unconstitutional confinement, including as a result of overcrowding. See Rentschler v. Carnahan, 160 F.R.D. 114, 115-16 (E.D. Mo. 1995) (finding common legal and factual questions in a “prison overcrowding case”). Regarding typicality, the Eighth Circuit has previously held that “[t]he fact that individuals may also seek relief on the basis of facts peculiar to their individual cases does not deflect the thrust of [the] lawsuit away from the constitutional questions which will ultimately determine if there is any reason to hear individual claims.” Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980). Recently, in Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844 (D. Mass. 2020), a court certified a class and subclasses of immigrant detainees who brought due process and Rehabilitation Act claims arising out of, inter alia, a detention centers’ lack of hygiene and social distancing amid the COVID-19 pandemic. The court found that “[t]he case law supports a finding of commonality for class claims against dangerous detention conditions, even when some detainees are more at risk than others” Id. at *8. Importantly, the court also determined that “the
24 Plaintiffs are seeking to certify a general class, namely “people who are currently incarcerated, or will be in the future, in an ADC detention facility during the duration of the COVID-19 pandemic,” and two subclasses: a high risk subclass consisting of sick, elderly, and otherwise medically vulnerable incarcerated people, and a disability subclass consisting of disabled incarcerated people. Complaint ¶ 41.
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admittedly significant variation among the Detainees does not defeat commonality or typicality . . . . To be sure, the harm of a COVID-19 infection will generally be more serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely dangerous to all of us.” Id. Therefore, the fact that there may be some differences in the circumstances in which the individual class members find themselves does not vitiate their common challenge to Defendants’ deliberate indifference to the risk of COVID-19 spreading throughout ADC correctional facilities and related discrimination on the basis of prisoners’ disabilities.
Similar to Savino, the common questions of law and fact in this case, at bottom, are whether Defendants must modify the conditions of confinement for all Plaintiffs, and whether they must release vulnerable incarcerated people who comprise the two subclasses for whom modified conditions would not provide adequate protection from the substantial risk of serious harm that COVID-19 poses. See id. at 7; see also Fraihat v. U.S. Immigration & Customs Enf’t, No. EDCV191546JGBSHKX, 2020 WL 1932570, at *18 (C.D. Cal. Apr. 20, 2020) (“Plaintiffs present the Court with shared factual and legal issues more than adequate to support a finding of commonality. Stated in general terms, the common question driving this case is whether Defendants' system-wide response—or the lack of one—to COVID-19 violates Plaintiffs’ rights.”).25 Further, this case involves High Risk and Disability Subclasses for which the shared factual and legal issues are even more closely aligned than those of the general class certified in
25 The questions of law and fact that are common to all class members and to the subclass members, also include (a) have Defendants failed to adequately protect the Class from the immediate threat of COVID-19; (b) whether Defendants’ actions and/or inactions constitute deliberate indifference to the rights of putative class members; (c) whether members of the High Risk Subclass are entitled to habeas corpus relief; and (d) whether the rights of the Disability Subclass under the Americans with Disabilities Act (“ADA”) are being violated by ADC’s policies and practices.
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Savino. It follows that Named Plaintiffs are likely to be successful in meeting the Rule 23(a) requirements to class certification, including commonality and typicality.
2. The Named Plaintiffs Are Likely to Meet the Rule 23(b)(2) Requirements. Rule 23(b)(2) permits class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Notably missing from Defendants’ argument that Named Plaintiffs will not meet the requirement of Rule 23(b)(2) is the axiom that “‘[b]ecause one purpose of Rule 23(b)(2) was to enable plaintiffs to bring lawsuits vindicating civil rights, the rule must be read liberally in the context of civil rights suits.’” Planned Parenthood Arkansas & E. Oklahoma v. Selig, 313 F.R.D. 81, 90 (E.D. Ark. 2016) (citing Coley, 635 F.2d 1364 at 1366) (emphasis added). Named Plaintiffs are likely to satisfy the liberally construed requirements of Rule 23(b)(2) because: 1) Defendants have acted on grounds generally applicable to the class and subclasses by failing to adequately protect people incarcerated in ADC facilities from COVID-19; and 2) the injunctive and declaratory relief Named Plaintiffs seek may be uniformly applied the class and subclasses. See Postawko v. Missouri Dep’t of Corr., 910 F.3d 1030, 1039 (8th Cir. 2018) (“Plaintiffs [seeking the certification of a Rule 23(b)(2) class] must demonstrate that ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.’”) (citing Rule 23(b)(2)); Selig, 313 F.R.D at 90-91 (“If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2).”). Defendants’ failures, as detailed above, uniformly increase the risk of all class and subclass members contracting the lethal COVID-19 virus. For example, contrary to CDC Guidance, none
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of the putative class and subclass members’ housing or shared areas are cleaned by an EPAregistered disinfectant that is effective against the virus that causes COVID-19.26 Shortcomings such as this, as well as those detailed above, pose a threat to all people incarcerated in ADC uniformly, which supports a finding that Named Plaintiffs have met the requirements of Rule 23(b)(2). See Coley, 635 F.2d at 1378 (finding a class action could be maintained under Rule 23(b)(2) where there is a common question related to the incarcerated class members’ conditions of confinement); Rentschler, 160 F.R.D. at 117 (finding the requirements of Rule 23(b)(2) met where “Plaintiffs allege that defendants have created unconstitutional policies and conditions at PCC which affect all inmates, and so defendants have acted or refused to act on grounds generally applicable to the class.”) (internal quotation marks omitted); Brown v. Precythe, No. 2:17-CV04082-NKL, 2018 WL 3118185, at *8 (W.D. Mo. 2018) (finding the requirements of Rule 23(b)(2) met where “Plaintiffs allege that Defendants, applying policies and procedures uniformly across the class, acted or refused to act on grounds that apply generally to the class.”) (internal quotation marks omitted).
In Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882 (N.D. Ohio 2020), another prison COVID-19 case, a court recently found that the plaintiffs had satisfied the requirements of Rule 23(b)(2), in part, because “Respondents’ failure to protect the inmates from the spreading virus applies to the entirety of the subclass generally.” 2020 WL 1940882, at *8. This is precisely what Named Plaintiffs are arguing here. Hence Plaintiffs are likely to succeed in demonstrating that their claims turn on a single question that uniformly applies to each class.
26 Instead, these facilities are cleaned, sparsely, with Razor Chemical Company’s Citrus Breeze III (Dkt. 36, 7), which is not an EPA-registered disinfectant that is effective against the virus that causes COVID-19. Search Results for Citrus Breeze on EPA List of Disinfectants for Use Against SARS-CoV-2, Ex. 40.
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Furthermore, Named Plaintiffs seek relief that may be uniformly applied to the Class and Subclasses. That is clearly true with respect to Plaintiffs’ request for a declaratory judgment that their conditions of confinement amid the COVID-19 pandemic are unconstitutional. Coley, 635 F.2d at 1378 (“relief sought . . . includes a declaration that certain . . . conditions of confinement are unconstitutional. Therefore, a class action may be maintained under Fed.R.Civ.P. 23(b)(2), which is an especially appropriate vehicle for civil rights actions seeking such declaratory relief for prison . . . reform.”).
In addition, Named Plaintiffs are likely to be successful in meeting these requirements because the injunctive relief Named Plaintiffs’ seek would provide relief to the class as a whole (e.g., increased access to effective disinfectants, social distancing to the extent possible, and vigilant screening for—and treatment of—COVID-19). See Brown, 2018 WL 3118185, at *8 (“[Incarcerated] Plaintiffs seek final injunctive relief or corresponding declaratory relief . . . respecting the class as a whole. Because a single injunction or declaratory judgment would provide relief to each member of the class, Rule 23(b)(2) is satisfied.”) (internal citation and quotation marks omitted); Rentschler, 160 F.R.D. at 117 (“The putative class seeks declaratory and injunctive relief based on the asserted inadequacies of Defendants' COVID-19 protocols and response . . . . Injunctive relief addressing overcrowding issues is appropriate with respect to the class as a whole.”); Savino, 2020 WL at *8 (“The Court concludes that a uniform remedy would be possible in this case, whether in the form of declaratory relief or (depending on the proper reading of 8 U.S.C. § 1252(f)…) an injunction ordering the government to reduce crowding of Detainees.”). It follows that the general class is likely to satisfy the requirements of Rule 23(b)(2).
Plaintiffs’ putative subclasses are also likely to satisfy the requirements of Rule 23(b)(2), because here too, Defendants have acted on grounds generally applicable to the subclass (denying
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them release despite their high vulnerability to COVID-19), and Plaintiffs seek a release mechanism that may be uniformly applied across the subclasses. In their brief, Defendants erroneously argue that it would be “virtually impossible” for the subclasses to satisfy the Rule 23(b)(2) requirements because they seek the release of people with varying health conditions and security risks. However, in Wilson, the court did just this, finding a subclass of medically vulnerable incarcerated people seeking release were likely to meet the requirements of Rule 23(b)(2) where the petitioners argued that the respondents acted on ground generally applicable to the class members and the respondents failure to protect incarcerated people “from the spreading [COVID-19] virus applies to the entirety of the subclass generally . . . .” Wilson, 2020 WL 1940882, at *8. The Wilson court order the defendants to compile a list of putative subclass members, review their eligibility to be released, and transfer the putative subclass members who were ineligible for release to a facility where appropriate measures to protect them from COVID19 could be accomplished. Id. at *11. Similar relief may be granted here. For these reasons, the subclasses in this matter are likely to meet the requirements of Rule 23(b)(2). VI. Plaintiffs’ Proposed Preliminary Injunction
As detailed above and in Plaintiffs’ prior submissions, Cummins Unit is already in crisis, and other ADC correctional facilities are likely to follow soon if there is no immediate intervention. Given the rapid spread of COVID-19, a single infection within a crowded, congregate facility can lead to a massive viral outbreak in a few days. And the overwhelming evidence presented by Plaintiffs leaves no assurance that Defendants, left to their own devices, will take appropriate action to prevent such crises from developing. To the contrary, it is only a matter of time when we should expect viral outbreaks in other ADC correctional facilities to overwhelm Defendants and Arkansas’ limited health care resources.
Plaintiffs, therefore, respectfully request that the Court appoint the following:
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1. A special master or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding the number of incarcerated people that each Arkansas Department of Corrections facility can house while following the Centers for Disease and Control and Prevention’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities on best practices to prevent the spread of COVID-19;
2. A special master or an expert under Federal Rules of Evidence 706 to make recommendations to the Court regarding a comprehensive plan to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished (this plan shall include an account of current and projected numbers of incarcerated people in shared spaces at any given time);
3. A special master or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding the people in the custody of the Arkansas Department of Corrections (a) who are older than 50 years old; (b) who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19; and/or (c) who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability, and who should be released from their facility or transferred to home confinement due to their age, serious underlying medical condition(s), and/or disability; and
4. A special master or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding a safe and secure method of releasing or
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transferring to home confinement people in the custody of the Arkansas Department of Corrections in a manner that properly considers the safety, security, and public health of the people incarcerated in the Arkansas Department of Corrections facility and the people residing in the neighboring communities. Plaintiffs further request that the Court order Defendants to comply with the following preliminary injunctive relief to maintain the status quo of Plaintiffs not being unnecessarily exposed to, and suffering from, the potentially lethal virus, COVID-19: 1. Ensure that each incarcerated individual receives a free and adequate personal supply of: hand soap sufficient to permit frequent hand washing, paper towels, facial tissues, cleaning implements such as sponges or brushes, and EPA-registered disinfectants that are effective against COVID-19 infection, without costs; 2. Ensure that all individuals have access to hand sanitizer containing at least 60% alcohol or, to the extent such hand sanitizer is not permitted, the best alternative, consistent with the Centers for Disease and Control and Prevention’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities; 3. Provide daily access to showers and clean laundry, including clean towels after each shower; 4. Disinfect frequently touched surfaces, including but not limited to doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones, at least three times a day with EPA-registered disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface;
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5. Thoroughly clean and disinfect all areas where people who have tested positive for COVID-19, or have been suspected of having COVID-19, spent time (e.g., cells, bathrooms, and common areas) with EPA-registered disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface;
6. Require that all Arkansas Department of Corrections staff wear personal protective equipment consistent with the Centers for Disease and Control and Prevention’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, including masks and gloves, when interacting with visitors and incarcerated individuals or when touching surfaces in common areas;
7. Train all Arkansas Department of Corrections staff and people incarcerated in Arkansas Department of Corrections facilities on how to properly don, doff, and dispose of personal protective equipment;
8. Post signage through Arkansas Department of Corrections facilities communicating the following: (a) For all: the symptoms of COVID-19 and hand hygiene instructions; (b) For incarcerated/detained persons: how to report symptoms to staff; (c) For staff: to stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDCrecommended steps for persons who are ill with COVID-19 symptoms, including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they
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need to be evaluated and tested, and contacting their supervisor; and (d) Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision; 9. Provide an anonymous mechanism for incarcerated individuals to report staff who violate these guidelines so that appropriate corrective action may be taken; 10. Take each incarcerated person’s temperature daily (with a properly disinfected and accurate thermometer) to identify potential COVID-19 infections; 11. Assess each incarcerated individual daily through questioning to identify potential COVID-19 infections; 12. Conduct immediate testing for anyone displaying known symptoms of COVID19; 13. Immediately provide clean masks for all individuals who display or report potential COVID-19 symptoms until they can be evaluated by a qualified medical professional or placed in a non-punitive quarantine and ensure the masks are properly laundered with replacements as necessary; 14. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, commissary, phone and video visitation with loved ones, communication with counsel, and personal property;
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15. Assure incarcerated people are told that they will not be retaliated against for reporting COVID-19 symptoms;
16. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
17. Provide timely and appropriate medical care for any illness associated with COVID-19;
18. Provide frequent communications to all incarcerated individuals regarding COVID-19, measures taken to reduce the risk of infection, best practices for incarcerated people to avoid infection, and any changes in policies and practices;
19. Prohibit Arkansas Department of Corrections employees from entering Arkansas Department of Corrections facilities if they test positive for COVID-19 and/or exhibit symptoms of having contracted COVID-19;
20. Identify all individuals in the custody of the Arkansas Department of Corrections who are older than 50 years old and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other reason; people with chronic liver or kidney disease, or rectal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of stroke; and people with any condition specifically identified by CDC, currently or in the future, as increasing their risk
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of contracting, having severe illness, and/or dying from COVID-19; 21. Identify all individuals in the custody of the Arkansas Department of Corrections
who suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability; 22. Permit any Court-appointed special master or expert to freely access and inspect any Arkansas Department of Correction facility without notice; 23. Permit any Court-appointed special master or expert to freely contact, call, visit, and/or interview any person in the custody of the Arkansas Department of Correction facility within 24-hour notice; 24. Permit any Court-appointed special master or expert to freely access and inspect the medical records of any person in the custody of the Arkansas Department of Correction facility on the condition that the person authorizes such access and inspection; 25. Implement any plan recommended by any Court-appointed special master or expert, and approved by the court, to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished (this plan shall include an account of current and projected numbers of incarcerated people in shared spaces at any given time); and 26. Release or transfer to home confinement any person currently in the custody of the Arkansas Department of Corrections pursuant to any recommendation by any Court-appointed special master or expert that has been approved by the Court.
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Dated: May 4, 2020

Respectfully submitted,
By: /s/ Omavi Shukur
Samuel Spital Jin Hee Lee Natasha Merle Omavi Shukur (Arkansas Bar No. 2016067) NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Christopher Kemmitt Ajmel Quereshi NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall Jenay Nurse Corrine Irish Squire Patton Boggs (US) LLP 1211 Avenue of the Americas, 26th Floor New York, NY 10036 (212) 872-9800
Laura Fernandez 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 72201 (501) 296-1775
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Case 4:20-cv-00434-KGB Document 44 Filed 05/04/20 Page 98 of 99 Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202 (501) 374-2660 Attorneys for Plaintiffs and the Putative Classes
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I certify that on May 4, 2020, I filed the foregoing Plaintiffs’ Reply Memorandum in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction electronically via the Court’s CM/ECF system, which will send a copy to all counsel of record.
/s/ Omavi Shukur Omavi Shukur NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 Phone: (212) 965-2200 Fax: (212) 226-7592 oshukur@naacpldf.org
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 Case 4:20-cv-00434-KGB Document 46 Filed 05/04/20 Page 1 of 1
EXHIBITS (1-54)
FOR PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION

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Exhibit 1
Second Declaration of Nicholas Frazier, April 29, 2020

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Exhibit 2
Second Declaration of Al in a pton, April 29, 2020

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Exhibit 3
Second Declaration of ar in ent, April 29, 2020

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Exhibit 4
Declaration of Michael ouri, pril 2 , 2020

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Exhibit 5
Second Declaration of onathan Neele , April 29, 2020

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Exhibit 6
Second Declaration of Alfred Nic son, April 29, 2020

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Exhibit 7
Second Declaration of arold t ell, April 29, 2020

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Exhibit 8
Second Declaration of rinidad Serrato, April 29, 2020

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Exhibit 9
Second Declaration of o ert Sti ers, April 29, 2020

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Exhibit 10
Second Declaration of ictor illia s, April 29, 2020

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Exhibit 11
Expert Declaration of Eldon Vail, May 3, 2020

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I. INTRODUCTION 1. I am a former corrections administrator with nearly thirty-five
years of experience working in and administering adult and juvenile institutions. Before becoming a corrections administrator, I held various line and supervisory level positions in a number of prisons and juvenile facilities in Washington State. I have served as the Superintendent (Warden) of 3 adult institutions, including facilities that housed maximum, medium and minimum-security inmates. I am over 18 years of age, and competent to make this declaration.
2. I served for seven years as the Deputy Secretary for the Washington State Department of Corrections (WDOC), responsible for the operation of prisons and community corrections. I briefly retired, but was asked by the former Governor of Washington, Chris Gregoire, to come out of retirement to serve as the Secretary of the Department of Corrections in the fall of 2007. I served as the Secretary for four years, until I retired in 2011.
3. Since my retirement I have served as an expert witness and correctional consultant for cases and disputes over 50 times in multiple jurisdictions—state, local and federal—in twenty-one different states. As an expert witness and correctional consultant, I have been retained to evaluate and offer my opinions on a variety of issues in the correctional environment.
4. Specifically, over the last few years, I have testified in the following cases:
Coleman, et al. v. Brown, et al.; No. 2:90-cv0520-LKK-JMP, United States District Court, Eastern District of California; Testified, October 1, 2, 17 and 18, 2013
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Graves v. Arpaio; No. cv-77-00479-PHX-NVW, United States District Court of Arizona; Testified, March 5, 2014

Corbett v. Branker; No. 5:13 CT-3201-BO, United

States District Court, Eastern District of North

Carolina, Western District; Special Master

appointment

November

18,

2013,

Testified, March 21, 2014

C.B., et al. v. Walnut Grove Correctional Authority, et al.; No. 3:10-cv-663-DPS-FKB, United States District Court for the Southern District of Mississippi, Jackson Division; Testified, April 1, 2 and 27, 2015

Fontano v. Godinez; No. 3:12-cv-3042, United States District Court, Central District of Illinois, Springfield Division; Testified, June 29, 2016

Doe v. Wolf; Case 4:15-cv-00250-DCB, United States District Court for the District of Arizona; Testified, November 14, 2016 and January 13, 14 and 22, 2020

Braggs, et al. v. Dunn, et al.; No. 2:14-cv-00601WKW-TFM, United States District Court, Middle District of Alabama; Testified, December 22, 2016, January 4, 2017, February 21, 2017 and December 5, 2017; February 13, October 23, November 29, 2018; April 3, 2019

Wright v. Annucci, et al.; No. 13-CV-0564-MADATB, United States District Court, Northern District of New York; Testified, February 13, 2017

Padilla v. Beard, et al.; Case 2:14-at-00575 United States District Court, Eastern District of California, Sacramento Division; Testified April 19, 2017

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Cole v. Livingston; Civil Action No. 4:14-cv-1698, United States District Court, Southern District of Texas, Houston Division; Testified, June 20, 2017
Holbron v. Espinda; Civil No. 16-1-0692-04RAN, Circuit Court of the First Circuit, State of Hawai’i; Testified, December 20, 2017
Dockery v. Hall; No. 3:13-cv-326-TSL-JMR, United States District Court for the Southern District of Mississippi, Jackson Division; Testified March 5-7, 2018
Valentine v. Collier; Case 4:20-cv-01115, United States District Court, Southern District of Texas, Houston Division; Testified, April 16, 2020
5. As a Superintendent, Assistant Director of Prisons, Assistant Deputy Secretary, Deputy Secretary and Secretary, I have been responsible for the safe and secure operations of adult prisons in the State of Washington, a jurisdiction that saw and continues to see a significant downward trend in prison violence. As an expert witness and consultant I have been called upon to address security issues and conditions of confinement in adult prisons and jails in 22 other states. I am experienced with sound correctional practice.
6. Attached hereto as Exhibit 1 is a true and correct copy of my resume, which lists my work experience, publications, and service as an expert witness and correctional consultant. My billing rate for work on this case is $175 per hour.
II. ASSIGNMENT
7. I have been asked by Plaintiffs’ counsel to offer my opinion on whether or not the measures the Arkansas Department of Corrections (ADC) are taking to protect prisoners from the novel coronavirus (COVID-19) are
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minimally adequate and if the requests of the Plaintiffs’ are reasonable in the correctional environment. III. MATERIALS REVIEWED
8. For this report I have reviewed two sets of declarations of the named plaintiffs that were written during the third and final week of April 2020. In this report I rely heavily on these declarations as they describe current conditions in Arkansas prisons. I have also reviewed the declarations of the Plaintiffs’ medical experts and the declaration of Dexter Payne. I have also reviewed some court documents related to this case and public information from the Arkansas Deportment of Corrections and the Arkansas Department of Health (ADH). A complete list of the documents reviewed is attached to this report as Exhibit 2. IV. OPINIONS
9. COVID-19 presents a special threat to people incarcerated in prisons and jails. It is well known by corrections administrators that any infectious disease must be taken extremely seriously in prisons and jails. People are housed in prisons and jails in very close quarters, and all infectious diseases appear to spread quickly. Jails and prisons represent a ticking time bomb during this pandemic. In my experience, once a single prisoner developed an infectious disease, a large number of other prisoners would also catch it. COVID-19 is particularly dangerous as those infected can be asymptomatic for several days, or may never show symptoms at all. In fact, we are seeing this occur all over our nation.
10. Jurisdictions are experiencing extreme situations in their prisons and jails. At the Marion Correctional Institution in Ohio, the number of prisoners testing positive for the virus increased dramatically and rapidly. As of April 18, 2020 1,057 prisoners out of a total population of about 2,500
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tested positive for COVID-19.1 The number testing positive in the
surrounding county and at the prison literally doubled in a day. The National
Guard is training 50 people to respond to the prison due to the severe shortage of staff.2 As of April 17, 2020, at least 99 staff members have tested positive for the virus.3 As of April 22, 2020 it has been reported that 1,950 prisoners at Marion have tested positive for the virus4, indicating how fast
this virus can spread in an incarcerated population where it doubled in four
days. And now concern about the impact of the virus in the Marion facility on the surrounding community are being expressed in the local media,5
clearly indicating the impact an infected prison population can have on the
health of the general public.
11. Rikers Island, in New York City, has been especially hard hit, and has an infection rate 87 times higher than the rest of the country.6 The
Federal Bureau of Prisons reports 1,046 prisoners and 330 staff test positive for the virus and 28 prisoners deaths.7 In the state of Michigan 1,325 prisoners have tested positive as of April 26, 20208 and 28 prisoners have
1 DRC COVID-19 information 04-18-2020 2 https://www.marionstar.com/story/news/local/2020/04/18/ohio-prison-marioncorrectional-coronavirus-cases-covid-19-national-guard-called/5159921002/ 3 https://www.marionstar.com/story/news/local/2020/04/17/covid-19-marion-prisonhome-one-ohios-largest-outbreaks/5151815002/ 4 https://businessjournaldaily.com/judge-orders-elkton-prison-to-remove-vulnerableinmates/ 5 https://www.marionstar.com/story/news/local/2020/04/25/marion-prison-ohiocoronavirus-outbreak-seeping-into-larger-community/3026133001/ 6 Jessica Schulberg & Angelina Chapin, Prisoners at Rikers Say It’s Like a ‘Death Sentence’ as Coronavirus Spreads, Huffington Post (Mar. 28, 2020), https://www.huffpost.com/entry/rikers-prisonerscoronavirus_n_5e7e705ec5b6256a7a2a995d. 7 https://www.bop.gov/coronavirus/ 8 https://wwmt.com/news/state/gov-whitmer-extends-order-protecting-jail-juveniledetention-center-populations
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died.9 The situation is also advanced in Illinois state prisons and has been ongoing for nearly a month when it was reported one man died after testing positive for the virus10, seventeen were taken to a local hospital on March 30, 2020 and nine were on ventilators, stressing the resource for the surrounding, non-incarcerated community. At the Illinois prison in Stateville 121 prisoners and 70 staff have tested positive.11 As of the writing of this report, 12 prisoners have died in Illinois prisons as a result of the virus.12 By the time this declaration is submitted, there are likely to be more reports of COVID-19 in our nation’s prisons. Tragically, this is just the beginning but prisons can reduce the risk to prisoners, staff and the public if prompt actions are taken.
12. Prisons are not closed systems. Large numbers of staff enter prisons every day, and have the potential to bring the virus with them. As of May 1, 2020, one inmate has died, and 921 prisoners and 64 staff have tested positive for the COVID-19 virus in Arkansas prisons. That is an increase from April 17, 2020 when the prisoner count of positive tests was 163, several times greater in a two-week period. 13 Given this level of infection it is highly likely that more people in the ADC will become infected. Given this reality it is my opinion that ADC needs to become much more aggressive to slow the spread of the virus than the records show today, including increasing the number of prisoners tested for COVID-19 in their prisons.
9 https://docs.google.com/spreadsheets/u/0/d/1bTMdmt2IG2UrRDcDhKK2ws_ZSsXqDsPMVC_2SDb3Lw/htmlview# 10 https://www.nbcchicago.com/news/coronavirus/stateville-inmate-dies-several-otherson-ventilators-after-testing-positive-for-coronavirus/2247361/ 11 https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx 12 https://docs.google.com/spreadsheets/u/0/d/1bTMdmt2IG2UrRDcDhKK2ws_ZSsXqDsPMVC_2SDb3Lw/htmlview# 13 https://adc.arkansas.gov/coronavirus-covid-19-updates
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13. The Center for Disease Control (CDC) says:
Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.14
14. The level of COVID-19 infection in the Cummins Unit is extraordinary nationally and serves as an example of what happens when a corrections agency is slow to respond to the pandemic. The virus represents a unique challenge for corrections systems that should cause agencies to question fundamental assumptions about how they typically operate. The failure to do so is literally a life and death decision. Lack of Systemic Education and Information of the Incarcerated Population
15. On March 23, 2020, the Center for Disease Control (CDC) published Interim Guidance on Management of Coronavirus Disease 2910 (COVID-19) in Correctional and Detention Facilities. This document is critical in advising correctional facilities about how to reduce the risk of COVID-19 in incarcerated populations. The ADC did little to follow these guidelines upon its publication and has yet to fully embrace and implement CDC’s guidance. The result is an explosion of people infected with this disease in their prison population.
16. The CDC guidance is that prisoners be educated about the risk of the virus and how prisoners can protect themselves. The CDC says:
o Administrators can plan and prepare for COVID19 by ensuring that all persons in the facility know
14 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Center for Disease Control, March 23, 2020, page 2 (Hereafter called “CDC Guidance”)
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the symptoms of COVID-19 and how to respond if they develop symptoms.15
o Post signage throughout the facility communicating the following: ! For all: symptoms of COVID-19 and hand hygiene instructions ! For incarcerated/detained persons: report symptoms to staff
o Ensure that signage is understandable for nonEnglish speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.16
o Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions.
o Consider having healthcare staff perform regular rounds to answer questions about COVID-19.17
The emphasis on clear communication with the prisoner population is strong and clear in the guidance offered by the CDC.
17. The Arkansas Department of Health (DPH) offers similar guidance. In a publication titled COVID-19: Guidance for State Correctional and Local Detention Facilities, they say:
• Communicate with staff, offenders, volunteers, and visitors.
• Educate staff, residents, and family members of offenders about COVID-19
15 CDC Guidance, page 5 16 Ibid, page 6 17 Ibid, page 22
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• Post signage throughout the facility18
18. The declarations of the named plaintiffs reveal inadequate attempts to educate the prisoners in ADC prisons about the risk of the virus. Nor is the status of the virus in the prisons being communicated. Prisoners remain fearful as a result and clearly seek to hear more from prison officials. Some examples in the prisoners’ own words from their declarations of April 20, 2020:
Until last Thursday, the only sign up was a sign saying to wash your hands. On Friday I saw a flyer about how to stop transmission of the virus. But many of the things listed on the flyer on impossible here.
I asked the nurse if it was coronavirus and the nurse said there was no coronavirus in the facility, and that there was no need to worry about it since there was no way I could have been exposed to it.19
They have put a paper on a board that says to cover your mouth and wash your hands, but they don’t really tell us anything, because they think we will wig out. We hear things through the grapevine. I’ve heard people talking about inmates going to the infirmary with fevers and testing positive.20
About 3 days ago they put some generic information on a board about COVID-19.21
Normally to see medical, I have to turn in a request, and I might see a nurse within 72 hours, but it would be about 2-3 weeks before I see a doctor. Everything is so messed
18 Arkansas Department of Health, COVID-19: Guidance for State Correctional and Local Detention Facilities, March 27, 2020, page 1, (Hereafter called ADH Guidance) 19 Declaration of Michael Kouri, 4/20/20. # 9 20 Declaration of Trindiad Serrato, 4/20/20, # 9 21 Declaration of Harold Scott Orwell, 4/20/20, # 10
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up now that I don’t even know if they even have a doctor.22
The comment attributed to the nurse appears to have been made the first week of April. The comment regarding posting signage last Thursday was likely April 16, 2020. The comment saying signage going up about “3 days ago” would have been April 17, 2020. In my opinion, the comment from the prisoner about not knowing if there even was a doctor reflects the simple fear of the prisoner in the absence of adequate and ongoing communication.
19. From the prisoners’ declarations from April 29, 2020. About 10 days ago they put some generic information on a board about COVID-19. Friday, April 24, 2020 they put up an 8 x 10 sheet of paper in the barracks showing how to put a mask on and off. I only noticed the new flier because I saw them taking pictures of it. No other information on how to properly wear, put on, or take off a mask has been provided.23
They put a paper on a board that said to cover your mouth and wash your hands about a month ago, in the last week they put up a new flier on the board about COVID-19 and added a picture of the flier on the board to the Morning show.24
Late last week they put up a flier that says, “How to Protect Yourself from COVID-19” but it only talks about how to wear a cloth mask. The same flier began appearing on the Morning Show late last week also.25
These examples indicated there has been no serious, structured attempt to communicate and educate the prisoners about the risk they face from
22 Declaration of Nicholas Frazier, April 20, 2020, # 9 23 Declaration of Harold Scott Otwell, April 29, 2020, # 17 24 Declaration of Trinidad Serrato, April 29, 2020, #11 25 Declaration of Victor Williams, April 29, 2020, # 13
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COVID-19 in ADC prisons. The CDC Guidance was published March 23, 2020 and the DPH guidance was published on March 27, 2020. Given the fluid and dynamic nature of the COVID-19 pandemic information, these delays in any systemic attempt to communicate and educate the prisoners in Arkansas prisons placed them at increased risk of harm. The ADC must do more to educate the prisoners in their custody. Providing accurate, timely and regular communication to the prisoners is fundamental in the midst of the COVID crisis. Facility Cleaning and Personal Hygiene Needs to Improve
20. The CDC goes into great detail in their guidance regarding cleaning the facilities and providing for the personal hygiene of those incarcerated. Regarding cleaning the facility, the CDC says in part:
• Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
• Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates.
• Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones).
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• Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants.
• Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
• Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.26
21. Although providing less detail, the Arkansas Department of Health guidelines for prison and detention facilities are similar:
• Frequently clean and disinfect surfaces. • Cleaning and disinfecting frequently touched
surfaces with an EPA-registered disinfectant with a label indicating effectiveness against human coronavirus or emerging viral pathogens.27
22. It is very clear from the prisoner declarations that no such protocols are in place in the ADC prisons, putting the population at greater risk of contracting the disease. From the April 20, 2020 declarations of the prisoners:
Even if you want to clean (phones, etc.), there isn’t anything to clean with. One bottle of disinfectant, one bottle of glass cleaner, and one bottle of floor cleaner are given to the barracks twice a day, they are intended to be used to clean the bathrooms and common areas in the
26 CDC Guidance, page 9 27 ADH Guidance, pages 1 & 2
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morning and the cells in the afternoon. Only the porters can handle the chemicals. I personally do not have access to any chemicals to clean my area.
After watching the Governor’s press conference where he responded to a question about access to cleaning supplies in the prisons by stating they are being given everything that they need, I asked (an) officer, who is over Fire and Safety and issues all the chemicals, if we would be getting more chemicals to clean with and she responded that each barracks gets what they get, and that’s it.28
It is very unsanitary here. There is no access to cleaning supplies in barracks, and they spray bleach maybe once every couple of weeks.
I work in the kitchen. Even there, you need staff authorization to access cleaning chemicals. The kitchen is the dirtiest place in the prison. They unload trucks without masks or gloves and don’t wipe anything down before putting it in storage.29
There is an older inmate who cleans and wipes down the shared phone. He hasn’t been given gloves.
Non-bleach cleaners are made available to designated inmates to clean the showers twice per day. Bleach is only used to clean the bathrooms once every one of two weeks. There is no way for individual inmates to clean the bathrooms or showers before or after using them. Cleaning hasn’t changed or ramped up since this all began.30
I live in a cell with another inmate and we share a toilet and sink. I have not been provided with disinfectant to sanitize my cell. In my housing unit 5 inmates shower at
28 Declaration of Michael Kouri, April 20, 2020, #’s 14 & 15 29 Declaration of Trinidad Serrato, April 20, 2020, #’s 10 & 11 30 Declaration of Harold Scott Otwell, April 20, 2020, # 9
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a time. The showers are not cleaned until after everyone in the barracks has showered, which is approximately 90 inmates.31
I live in a cell with another inmate, where we share a toilet and sink. I have not been provided disinfectant to sanitize my cell. I use state issued soap to clean.
Since the COVID-19 pandemic, I have refused communal showers because of the unsanitary conditions. Instead, I bathe in the sink inside my cell.32
In my housing unit multiple inmates shower at a time and showers are not disinfected daily. I do not have access (to) bleach, disinfectant or hand sanitizer.33
In my housing unit multiple inmates shower at a time and showers are not disinfected daily.34
I do not have access to cleaning supplies or disinfectant.35
23. The declarations of the prisoners from April 29, 2020 show that
little has changed.
I do not have direct access to cleaning supplies or disinfectant. Cleaning and disinfecting has not increased since the pandemic began. (Emphasis added)36
I live in a cell with another inmate, where we share a toilet and sink. I have not bee provided with disinfectant to sanitize my cell. I use state issued soap to clean. Yesterday, a sergeant walked around and sprayed bleach on our toilet from the chuckhole (flap that opens in the
31 Declaration of Robert Stiggers, April 20, 2020, # 4 32 Declaration of Alfred Nickson, April 20, 2020, #’s 5 & 7 33 Declaration of Alvin Hampton, April 20, 2020. # 5 34 Declaration of Victor Williams, April 20, 2020, # 4 35 Declaration of Johnathan Neeley, April 20, 2020, # 5 36 Declaration of Johnanthan Neeley, April 20, 2020, # 6
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door) and sprayed bleach on my towel at my request, she did not do this for every cell. This is the only time I have had access to bleach.37
It is very unsanitary here. I do not have access to cleaning supplies in the barracks. Cleaning supplies are supposed to be made available to the barracks porter twice a day but I have only seen them in the morning. They were spraying bleach maybe once every couple of weeks, but it had been as least 3 weeks since they have sprayed bleach.38
The last time they came through and sprayed bleach in the barracks bathroom was approximately 1.5 weeks ago, prior to that they were spraying the bathrooms with bleach every few days. Nothing has changed or increased as far as cleaning since the pandemic began. (Emphasis added) The showers are not being cleaned properly and there is visible soap scum build up. The porters were reported to their supervisor due to only spending 15 minutes a day cleaning but nothing improved.39
These prisoners are precisely correct in identifying the cleaning problems in
ADC prisons and it appears that little has changed. Their concerns are
consistent with CDC and DPH guidelines that call for frequent, continual
cleaning several times a day of all common areas and common touch
surfaces. Failure to do so increases the risk of contracting the virus.
24. The contrast in the lack of a systemic approach to cleaning is
clear when compared to what is going on in the State of California.
All CDCR institutions have been instructed to conduct additional deep-cleaning efforts in high-traffic, highvolume areas, including visiting and health care facilities.
37 Declaration of Alfred Nickson, April 29, 2020, # 5 38 Declaration of Trinidad Serrato, April 29, 2020, # 13 39 Declaration of Victor Williams, April 29, 2020, #’s 11 & 12
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Those in the incarcerated population identified as assisting with cleaning areas of the institution have received direct instruction on proper cleaning and disinfecting procedures in order to eliminate coronavirus.
Communal areas such as dayrooms, showers, restrooms and offices are cleaned at a minimum of once every three hours and more if needed. Disinfecting frequency has been increased, including regular disinfecting of touchpoints (telephones, door knobs, desk areas, etc.). All cleaning practices will allow for physical distancing of staff and porters.40
25. When I was the Deputy Secretary of the Washington Department of Corrections (DOC) during a flu epidemic at one of our 2,000 plus bed facilities, we had nearly 1,000 prisoners infected with the flu and we took several steps to fight the epidemic. One of those steps was to add inmate janitors, give them the appropriate protective gear, and had them continuously cleaning common touch surfaces with disinfectant or bleach such as prisoner telephones, doorknobs, tables, chairs and bathroom facilities. This step was guided by our medical staff and was an important tool to gain control of the flu epidemic we were experiencing. Hand Sanitizer Should Be Provided
26. The other thing we did in the face of the flu epidemic in Washington was to temporarily suspend our prohibition about allowing prisoners to have supervised access to alcohol based hand sanitizer. Use of hand sanitizer appears to be a cornerstone of addressing the virus, and the rule prohibiting access should be suspended. While there is some risk associated with the misuse of alcohol-based hand sanitizer (potential abuse by some prisoners with substance abuse problems), that risk pales in
40 https://www.cdcr.ca.gov/covid19/
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comparison to the benefit for a much larger number of prisoners. This

moment is about balancing risks, and the overriding consideration is

protecting the prisoners from the threat of this lethal virus by providing them

with access to alcohol based hand sanitizer. I authorized the temporary use

of alcohol-based hand sanitizer during our flu epidemic without problem.

27. Alcohol based hand sanitizer is apparently not available in

ADC prisons. • There is no hand sanitizer.41

•

I do not have access (to) bleach, disinfectant or hand sanitizer.42

28. The CDC is cautious in their recommendation about alcohol
based hand sanitizer. They say:
Consider relaxing restrictions on allowing alcoholbased hand sanitizer in the secure setting where security concerns allow.43

The CDC recommendation is deferential to correctional authorities as alcohol based hand sanitizer may be consumed by prisoners and/or used to start fires as it is combustible. I have a different opinion, based on my own experience, and believe it should be allowed. Again, it is about balancing the risk with the potential benefit.
29. The Arkansas DPH says clearly, “Wash hands often with soap and water or use alcohol-based hand sanitizer.”44
30. The Washington State DOC has taken this step again in the face of the COVID-19 pandemic and allows access to alcohol based hand

41 Declaration of Harold Scott Otwell, April 20, 2020, # 9 42 Declaration of Alvin Hampton, April 20, 2020, # 5 43 CDC Guidance, page 8 44 ADH Guidance, page 1
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sanitizer in the face of the COVID crisis, related to their job duties.45 On
April 18, 2020 Washington authorities published a memo explaining the availability of alcohol based hand sanitizer to all of their incarcerated population.46
31. The State of New York has said they are:
Issuing hand sanitizer to all facilities for staff and the incarcerated population to use, as well as community supervision offices.47
32. The State of California announced:
On March 29, CDCR institutions began receiving extra hand sanitizer dispensing stations along with the new production of the type of alcohol-based hand sanitizer recommended by the Centers for Disease Control and Prevention (CDC) to help eliminate coronavirus produced by California Prison Industry Authority (CALPIA). The dispensers have been placed inside institution dining halls, work change areas, housing units, and where sinks/soap are not immediately available.48
33. Mr. Dexter in his declaration says:
Providing inmates with unrestricted access to alcoholbased hand sanitizer and chemicals such as bleach would provide security risks to other inmates and staff.
Because soap and water are available to all inmates at ADC units, hand sanitizer is not necessary. Neither the CDC nor Department of Health guidelines mandate or require the ADC to provide hand sanitizer to inmates.
45 Respondents’ Report on the Department of Corrections’ COVID-19 Response, Colvin v. Inslee, No. 98317-8filed 4/13/20 in the Washington State Supreme Court, page 30 46https://doc.wa.gov/news/2020/docs/2020-0418-incarcerated-individuals-memoappropriate-use-of-hand-sanitizer.pdf 47 https://doccs.ny.gov/doccs-covid-19-report 48 https://www.cdcr.ca.gov/covid19/
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Alcohol-based hand sanitizer, moreover, is really only needed if, unlike in the ADC, soap and water are unavailable.49
There are several things wrong with these statements. First, none of the CDC guidelines are mandates. They are all recommendations. Two, my recommendation is not for “unrestricted access” to alcohol based hand sanitizer but for supervised access. Three, it is not realistic to expect all prisoners at all times will have access to hot water and soap. The reference to the CDCR above acknowledges this reality by allowing alcohol based hand sanitizer in dining halls and work change areas. It is highly likely there are prisoners in the ADC who do not have ready access to hot water and soap. In my opinion, the risks of alcohol based hand sanitizer in prisons are far outweighed by the benefits.
34. The State of New York operates 52 prisons and houses nearly 43,000 prisoners. The State of California operates 22 prisons and houses almost 118,000 prisoners. The State of Washington operates 12 prisons and houses over 16,000 prisoners. These three jurisdictions operate 86 different prisons and houses more than 175,000 prisoners. Each has made the decision to balance the risk of alcohol based hand sanitizer in favor of the safety of their prison populations. The high risk of covid-19 to both staff and prisoners requires ADC do the same. Social Distancing Efforts Must Improve
35. Social distancing guidelines are difficult, if not sometimes impossible, to completely achieve in prisons or jails. Still these guidelines should be given attention and correctional authorities need to work to
49 Declaration of Dexter Payne, April 29, 2020, #’s 56 - 58
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achieve them, or get close to achieving them whenever and wherever they can. The CDC says:
Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.50
36. It is my understanding that effective March 2, 2020, the Arkansas Parole Board declared a prison overcrowding emergency. In corrections parlance, that means they are beyond their rated capacity to hold prisoners. I am very confident in saying that the rated capacity of any jail or prison does not account for the requirements of COVID-19 social distancing or the staffing needs required to effectively maintain a facility on the brink of an infectious disease outbreak. In other words, a facility full of prisoners up to their rated capacity do not, by understanding how prisons are designed and built, allow for maintaining a six foot distance between prisoners as the CDC recommends. In crowded prisons, the challenge is even greater.
37. The best action the State of Arkansas could do to reduce the risk of harm to persons in their prisons would be to release whoever they can. The Vera Institute of Justice offers the following guidance:
Prioritize prevention first and foremost. To reduce contact between people, corrections authorities and other
50 CDC Guidance, page 4
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detention administrators should:
1. Use their authority to release as many people from their custody as possible. States that do not allow for discretionary releases should adopt these policies on a temporary basis as well as implementing medical furloughs.
2. Work with court administrators to identify for immediate release people in detention who are at high risk of being affected by coronavirus, including people who are 55 years and older, those who are pregnant, and those with serious chronic medical conditions.
3. Partner with community providers to connect people leaving custody with medical care, housing, and other essential services.51
38. I note Arkansas has announced plans to make 1,244 inmates for release.52 Other jurisdictions have taken similar action in the face of the COVID-19 pandemic to release prisoners in order to increase the possibility of social distancing in their prisons.
39. In California, As of April 13, CDCR has expedited the release of approximately 3,500 eligible inmates who were due to be released within 60 days or less and were not currently serving time for a violent crime…53
40. The State of New York is releasing 1,100 prisoners.54 41. In Colorado: Facing fears of a widespread COVID-19 outbreak among the incarcerated, state officials have agreed to the early release of almost 150 people so far from state prisons so
51 https://www.vera.org/downloads/publications/coronavirus-guidance-jails-prisonsimmigration-youth.pdf 52 Declaration of Dexter Payne, # 104 53 https://www.cdcr.ca.gov/covid19/ 54 https://www.newsweek.com/new-york-city-jails-coronavirus-1494852
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it is easier to socially distance and space people out inside.55
42. In my home State of Washington plans are in place to release nearly a thousand from prison.56
43. Whether or not the ADC actually follows these best practices from other jurisdictions to reduce their prison population, and even with such releases, prisons will still struggle to comply with the requirements for social distancing caused by this pandemic because of the way they have been constructed. But moving in the direction of social distancing will increase protection of prisoners and such efforts are critically important to reduce the risk of the spread of COVID-19.
44. In the meantime, the inability of the ADC to achieve social distancing with its existing population is made clear in the declarations of the prisoners. In their first declarations, we learn:
There are only about two and a half feet between beds. A person can lay on a bunk and touch the bunks next to them.57
I live in open barracks. Each bed is approximately three feet from the next.58
In the Alpha barracks I am housed with 46 inmates. Many inmates in my barracks are sick with COVID-19 symptoms. I sleep in a bed, which is 2.5 feet away from neighboring beds.59
55 https://www.cpr.org/2020/04/23/colorado-corrections-agrees-to-release-some-inmatesearly-to-reduce-prison-populations/ 56 https://komonews.com/news/local/state-to-release-nearly-1000-inmates-early-to-limitcoronavirus-spread 57 Declaration of Trinidad Serrato, April 20, 2020, # 4 58 Declaration of Harold Scott Otwell, April 20, 2020, # 4 59 Declaration of Alvin Hampton, April 20, 2020, # 5
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In the Alpha barracks I am housed with approximately 46 inmates. I sleep in a cell that is approximately 10 feet by 10 feet with a cell mate that is a front officer porter and comes into contact with everyone who enters or leaves a facility each day, including all officers and staff…Due to my health condition, I frequently visit the medical clinic. While waiting to be seen by a clinician I am put in a small holding cell with approximately 10 other inmates… My current living conditions make social distancing impossible. I filed a grievance on April 12, 2020 regarding my vulnerability to COVID-19 and the prison’s non-compliance with procedures to decrease or prevent the spread of the virus. My grievance was denied.60
On an average day, I closely interact with numerous guards and over 100 inmates in the barracks, during meal service, and recreation, making social distance impossible. I filed a grievance on April 12, 2020 regarding my vulnerability to COVID-19 and the prison’s non-compliance with procedures to decrease or prevent the spread of the virus. My grievance was denied.61
At chow, seating is four to a table, so we are all within a couple of feet of one another.62
45. The CDC says:
Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table).63
46. The ADH says:
Consider limiting exposure during meals, for example restricting movement to and from the dining facilities to provide social distancing or serving meals in housing
60 Declaration of Johnathan Neeley, April 20, 2020, #’s 4, 6 & 7 61 Declaration of Victor Williams, April 20, 2020, #’s 6 & 7 62 Declaration of Michael Kouri, April 20, 2020, # 8 63 CDC Guidance, page 11
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areas.64

47. Meal service is a prime example of where and how social

distancing should be approximated in the correctional environment. Slowing

down meal service so that fewer prisoners are in dining halls at a time and

restricting how many can be seated, as the CDC suggests, are excellent ways

to reduce risk. From the example above describing “chow”, it appears the

ADC has not followed this guidance.

48. The CDC also says: • If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)

•

Arrange bunks so that individuals sleep head to foot to increase the distance between them.65

From the examples in the declarations above, it is also clear the ADC has not
followed this guidance either. At a minimum the “head to foot” step could
easily be made.
49. Regarding the comment about crowding in the holding cell in
the medical area, the CDC says:
Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area)66

Again, this is a step that could be taken with relative ease in the correctional environment by simply controlling the flow of prisoners called to medical for evaluation or treatment.
50. It does not appear the ADC is making much progress with their

64 ADH Guidance, page 3 65 CDC Guidance, page 11 66 Ibid
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social distancing efforts. The prisoner declarations from April 29, 2020 say:
I sleep about 2 feet from the bed next to me and my bed is back to back with the next row leaving only a few inches, if that, between that bed and mine.67
The holding cell I was in while waiting to talk to my attorneys is a cell that has been used for quarantining inmates. The person in the cell next to me is COVID-19 positive. He showed me his paperwork while we were waiting.68
The toilets in my cell and approximately 30 other 2 man cells have not been working since April 24, 2020. We are taken from our cells to the East building to use the bathroom…When we got our results back from the COVID-19 testing, I know of at least one inmate that tested negative and was forced to remain in the cell with an inmate that tested positive. I witnessed and altercation when that inmate attempted to refuse to return to his cell after being taken out to go to the bathroom.69
51. The CDC calls on correctional agencies to:
Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity.70
52. The ADH says:
Implement social distancing strategies to increase the physical space between offenders (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility, in addition to the needs of the offender
67 Declaration of Marvin Kent, April 29, 2020, # 16 68 Declaration of Robert Stiggers, April 29, 1010, # 9 69 Declaration of Alfred Nickson, April 29, 2020, #’s 6 & 10 70 Ibid, page 6
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population and staff. Not all strategies will be feasible in all facilities.71
53. Accepting ADH guidance that, “not all strategies will be feasible in all facilities”, there is no evidence that the ADC has made a systemic effort to come up with a list of “social distancing strategies” or any such implementation in their prisons. The failure to do so in the face of the pandemic puts prisoners at increased risk of harm.
54. Facing the limitations inherent in the correctional environment, after releasing who can be released and doing one’s best within the structure of a particular correctional environment, there are still steps that can be taken by redefining where prisoners are housed. In my home state of Washington, “Department staff repurposed various areas within the facility, including a classroom and extended family visit units, to spread the population out”.72
55. In the California Department of Corrections and Rehabilitation: CDCR has moved more than 500 inmates from dormitory housing into vacant space within state institutions in an effort to increase physical distancing in these living environments.73
56. It is an excellent suggestion to review all available space and repurpose it, in order to reduce the risk of harm to prisoners in the ADC prisons. Even reviewing space within the secure perimeter of a prison should be studied for the potential of bringing in temporary housing units such as tents or trailers. The current state of the pandemic requires it. I have seen no indication that the Arkansas prison authorities have undertaken such an
71 ADH Guidance, page 2 72 Respondents’ Report on the Department of Corrections’ COVID-19 Response, Colvin v. Inslee, No. 98317-8filed 4/13/20 in the Washington State Supreme Court, page 35 73 https://www.cdcr.ca.gov/covid19/
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assessment of what could be done to increase social distancing within their prison system.
57. One of my biggest concerns is ADC’s resistance to exploring avenues to increase social distancing. Mr. Dexter says:
In light of the physical characteristics of ADC units, as well as security and staffing needs, a court order requiring additional social distancing measures would both risk the safety and security of the facilities and constitute an undue burden on the operations of the ADC’s prison system.74
Mr. Dexter’s statement is typical of the orientation of too many corrections officials. We get stuck in the ways we have always done business and when faced with a crisis such as COVID-19 fail to be willing to examine the assumptions of how we regularly operate. This pandemic is different. We must examine all of the opportunities to move in the direction of increased social distancing such as expanding where prisoners are housed within the secure perimeter of corrections facilities. Lives are at stake. ADC May Allow Asymptomatic COVID-19 Staff to Continue to Work
58. The ADH amended their guidelines as follows: Staff that test positive can return to work during their isolation period under the following circumstances, after approval is received from the Secretary of Corrections and appropriate Division Director:
• There is a critical shortage of workers and critical activities cannot occur without the use of these workers.
• No workers that are symptomatic will be allowed to work, so they must daily pass the screening procedures at the facility entrance.
74 Declaration of Dexter Payne, 4/29/20, # 76
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• Positive staff are only allowed to work on units with positive inmates.
• Positive staff will wear a mask at all times and monitor symptoms throughout their shift.
• Should a positive staff member become symptomatic (cough, fever, shortness of breath) they will be immediately removed from work duties and sent home.75
I am aware of COVID-19 litigation in other jurisdictions. I have not seen such guidance in any other jurisdiction. Allowing asymptomatic individuals to work creates a further risk for the spread of the virus. “Asymptomatic” does not mean one cannot transmit the virus. If COVID-19 positive individuals are to work only with COVID-19 positive prisoners, it ignores the reality of work in a correctional facility. At a minimum all staff must travel to their workplace from outside the institution, putting all who they encounter at risk. And correctional staff will often respond to the scene of a disturbance in order to maintain order in a prison. This guidance from the ADH must not be followed. If the ADC is experiencing staff shortages, they should consider following the path of the State of Ohio who have brought in the National Guard to supplement their staffing levels. This same option could be pursued if the ADC could locate other areas inside their secure perimeter to find additional housing for prisoners. Education and Enforcement Must Be Provided About the Use and Access to Masks
59. It is clear that access to and proper use of facemasks is a critical ingredient in slowing the spread of COVID-19. The use of masks in the
75 ADH Guidance for Reducing Spread on COVID-19 in Correctional Facilities, April 15, 2020, page 1
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ADC is problematic. From the April 20, 2020 prisoner declarations
commenting about their masks:
No one wears masks in the barracks or the chow hall. We are only required to wear masks in the hallway. My biggest fear is that we have only been given one mask. There is no way to clean it without being without it for a period of time that is not safe. You can’t wear it while it is drying after you have tried to hand wash it. Sending the mask to laundry is no better, because then you will be without the mask until it comes back. And those who have sent their masks to the laundry have gotten them back damaged. I did wash my mask once. Many people have not washed their masks.76
I was given one mask. We are responsible for washing out own masks. You have to use bar soap or hand soap in the shower to wash it.77
Food service workers wear gloves, but they do not wear masks. Inmates are required to wear masks in the hallways, but there is no enforcement as to how they are worn. So a lot of inmates put their masks under their chins.78
I also spoke to an assistant warden about getting a mask and was told inmates in restricted housing would not be receiving them.79
I have not been provided with a mask or any other personal protective equipment. When I requested a mask, I was informed that inmates in restrictive housing could not have masks.80
76 Declaration of Michael Kouri, April 20, 2020, #’s 10 & 11 77 Declaration of Harold Scott Otwell, April 20, 2020, # 8 78 Ibid, #’s 11 & 12 79 Declaration of Marvin Kent, April 20, 2020, # 5 80 Declaration of Robert Stiggers, April 20, 2020, # 5
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I have not been provided with a mask or any other personal protective equipment. I made a mask out of one of my shirts. We asked for masks but were told we could not have them.81
I also have not been provided with a mask or any other personal protective equipment. I even asked the person who gives me an insulin shot for a mask, but I never heard back.82
I was provided with one mask about two weeks ago and was told to wash it by hand. Inmates are supposed to wear masks whenever we leave the barracks or we could get a disciplinary, but the rule is not really enforced. Even during meal service I have noticed that inmates are not wearing masks or serving food with gloves.83
60. Some prisoners received a second mask since they filed their first
declarations, but not all.
I was moved to general population on Friday, April 24, 2020 from restrictive housing and given on mask that seems to be made out of a t-shirt.84
I received a cloth mask today, April 29, 2020 when I came to the Captain’s office to make phone calls. To my knowledge, no one else in my unit has received a mask.85
I received a second mask last week. We are responsible for washing out own masks. You have to use bar soap or hand soap in the shower area to wash it.86
I received one cloth mask 3 weeks ago. I received a second mask last week. I have not received any
81 Declaration of Nicholas Frazier, April 20, 2020, #’s 5 & 6 82 Declaration of Alfred Nickson, April 20, 2020, # 6 83 Declaration of Alvin Hampton, April 20, 2020, # 6 84 Declaration of Marvin Kent, April 29, 2020, # 8 85 Declaration of Alfred Nickson, April 29, 2020, # 7 86 Declaration of Harold Scott Otwell, April 29, 2020, # 12
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information on how to properly put on or take off a mask.87
Even though I am in a single occupant cell, I share recreational facilities with other inmates and at a minimum I am exposed to staff members 6 times a day, when trays are dropped off or picked up. (This prisoner lives in restrictive housing)88
61. In his declaration Mr. Dexter addresses the issue of no masks for prisoners in restrictive housing. He says:
As a result, inmates in restrictive housing have not received masks. Those inmates are housed in individual or two-man cells, do not come into contact with other inmates, and have very limited exposure to staff. Accordingly, a cloth mask is unnecessary for those inmates.89
I disagree. Mr. Dexter acknowledges that some restrictive housing cells
house two prisoners. He also ignores the fact that even prisoners in
restrictive housing are provided out of cell opportunities such as recreation, medical appointments and other escorts that cause the prisoners to leave
their cells. Prisoners in restricted housing should also be issued masks.
62. The prisoner declarations commenting on the use of masks by ADC staff indicate they are not always being worn properly.
There are only about two officers in the entire facility taking the virus seriously. On two days last week only two officers properly wore masks. Nurses that pass pills weren’t wearing masks the other day. When asked about it, the nurse said stop worrying and asking about it because we were not going to get the virus.90
87 Declaration of Trinidad Serrato, April 29, 2020, # 6 88 Declaration of Nicholas Frazier, April 29, 2020, # 4 89 Declaration of Dexter Payne, 4/29/20, # 48 90 Declaration of Michael Kouri, April 20, 2020, #’s 12 & 13
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Half of the corrections officers don’t wear their masks. On Friday, April 17, 2020, the female officer at the door and the main officer in my barracks did not have masks on until the Warden came in. I was in the infirmary today, April 20, 2020 and there were 3 nurses there that did not have masks on.91
Staff often wear masks below the nose or mouth, and some have forgotten their masks altogether and had to go home.92
Lately, I’ve observed a lot of officers not wearing masks or gloves.93
63. According to the prisoner declarations of April 29, 2020, the problems with staff and masks continue.
Some staff members wear masks but a lot of them do not wear them properly and they rarely have gloves on. I was in the infirmary on Friday and the two officers who escorted me and the doctor were not wearing masks.94
A lot of staff do not wear their masks properly.95
I still see staff that do not wear masks at all and staff do not properly wear mask, including wearing them under their nose and under their chin. A lot of the nurses do not wear masks.96
I come into contact daily with officers who are not wearing their masks. Frequently officers pull down their mask to talk to inmates and give orders in the barracks.
91 Declaration of Trinidad Serrato, April 20, 2020, #’s 6 & 7 92 Declaration of Harold Scott Otwell, April 20, 2020, # 7 93 Declaration of Alfred Nickson, April 20, 2020, # 6 94 Declaration of Nicholas Frazier, April 29, 2020, #’s 9 & 10 95 Declaration of Alvin Hampton, April 29, 2020, # 10 96 Declaration of Marvin Kent, April 29, 2020, #10
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Yesterday, April 28, 2020 (a) Corporal was not wearing his mask the entire shift.97
Staff do not always wear masks or wear them properly while in the unit. They generally have masks and gloves on when they serve meals to the cells.98
Staff often wear masks below the nose or mouth when in the barracks talking to us. While completing this declaration on the phone with my attorneys at approximately 6:00 pm on April 29, 2020 (a) Lt. entered out barracks with the mask pulled down under his chin.99
I see guards daily that are either not wearing a mask or not wearing it properly.100
Some staff wear masks and some do not. Some staff also wear masks below their chins or noses.101
64. Like other critical ingredients of an effort to reduce the transmission of the COVID-19 virus—hygiene and social distancing—the use of masks is fundamental. The ADC must establish and enforce clear guidelines for the use of masks for both prisoners and officers, including establishing a rational system of cleaning the masks for the prisoners
V. CONCLUSION AND RECOMMENDATIONS
65. I have also reviewed the declaration of a Corporal from an ADC facility who has a son in the Cummins Unit who has tested positive for COVID-19.102 Her declaration is heartbreaking to read and illustrates what
97 Declaration of Johnathan Neeley, April 29, 2020, # 11 98 Declaration of Alfred Nickson, April 29, 2020, # 8 99 Declaration of Harold Scott Otwell, April 29, 2020, # 10 100 Declaration of Robert Stiggers, April 29, 2020, # 6 101 Declaration of Victor Williams, April 29, 2020, # 7 102 Declaration of Janice Nicholson
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other family members and friends of those incarcerated must be experiencing,
66. The ADC has been slow to respond to the COVID-19 crisis and the result at the Cummins Unit is an infection rate that is one of the worst in the country. The ADC must be more aggressive with their interventions to prevent other facilities from experiencing the same.
67. Bizarrely, the Defendants begin their response to the Plaintiffs’ motion with:
Plaintiffs are murderers, rapists, armed robbers, arsonists, and repeat violent offenders. Each has a history of assaulting fellow inmates and staff.103
Of course people in prison have done bad things. That does not change the responsibility of corrections officials to do all they can to mitigate the risk of the virus, no matter what crimes individual prisoners have committed. Framing their response in this manner is an insult to the corrections profession and a complete misunderstanding of the responsibilities of corrections’ officials.
68. The named plaintiffs describe a variety of underlying conditions that can place them at greater risk, should they contract the COVID virus.104 All of the prisoners who wrote declarations express their fear of the COVID virus living in the current conditions of the Arkansas prisons. Their fears are credible, realistic and compelling given what they have told us about how the prisons are managing the risk. The prisons must
103 Defendants’ Response in Opposition to Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction, Introduction, page 1 104 Declarations, April 20, 2020 of Michael Kouri, # 3; Trinidad Serrato, # 3; Harold Scott Otwell, # 3; Marvin Kent, # 3; Robert Stiggers, # 3; Nicholas Frazier, # 3; Alfred Nickson, # 3; Alvin Hampton, # 3; Johnanthan Neeley, # 3; Victor Williams, # 3
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do more to reduce the risk to the prisoners in their care, including adhering closely to the guidance provided by the CDC and the ADH.
69. To that end I recommend: • Make efforts to reduce the total prison population
• Explore all opportunities to increase social distancing and employ as many as are feasible to safely space the prisoner population
• Search for opportunities to expand bunk space for prisoners
• Seek to eliminate dangerous crowding for medical appointments
• Provide an orientation to all prisoners and ongoing updates on how to protect oneself from the virus as well as the status of infections within the prisons. Allow for opportunities to ask COVID-19 related questions of medical staff
• Post educational COVID related signage
• Provide no cost access to hand soap and paper towels
• Provide alcohol based hand sanitizer in locations where dispensers can be regularly viewed by staff
• Develop a cleaning schedule that is frequent and on-going by hiring more prisoner janitors and providing them with appropriate chemical and protective equipment. Provide for continual, around the clock cleaning of all commonly shared and common touch areas, especially the toilet areas in dormitory settings.
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• Provide CDC approved cleaning supplies so that prisoners can continuously clean their cells and personal dormitory areas.
• Provide direction on how to use the recently issued masks, how to keep them clean and how to get another when necessary
• Increase the number of COVID-19 tests performed for the prisoner population in all facilities
• Forbid any staff who might be infected with covid19 from working at any facility until they are no longer contagious
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Case 4:20-cv-00434-KGB Document 46-12 Filed 05/04/20 Page 1 of 3
hi it 2
econ pert Declaration of Dr Marc tern, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-12 Filed 05/04/20 Page 2 of 3
DECLARATION OF DR. MARC STERN
I, Marc Stern, MD, suffer from no disability which would disqualify me from swearing an oath, under penalty of perjury, hereby affirm:
1. I offer this supplemental declaration to the one I submitted on April 21, 2020.
2. Except when required social distancing can be achieved, asymptomatic residents should be masked. Masks should meet or exceed the requirements set forth by the Arkansas Department of Health; these are cloth non-medical masks. (COVID-19 Fibric Mask Pattern with Three Layers, March 27, 2020)
3. Symptomatic residents should wear surgical masks whenever they are out of their rooms, or, in the exceptional situation where they share a room with another symptomatic person, during those brief times when social distancing cannot be maintained.
4. Except when required social distancing can be achieved, staff should be masked. When working with residents who have already screened negative for COVID-19 are not in quarantine or isolation, masks should meet or exceed the requirements set forth by the Arkansas Department of Health; these are cloth non-medical masks. (COVID-19 Fibric Mask Pattern with Three Layers, March 27, 2020)
5. When interacting with residents who have not yet screened negative for COVID19, are in quarantine, or are in isolation, staff should wear masks and other personal protective equipment (PPE) (face shield, eye protection, gloves, gown) that meets or exceeds the guidelines set forth by the CDC. (Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Table 1). Moreover, staff who have or are suspected of having COVID-19, even if asymptomatic, should not be allowed in any ADC facility until they are no longer contagious.
6. Correctional officers must receive adequate training in relevant preventive public health measures as they apply to personal protection, physical plant management, and protection of residents.
7. The following three groups of COVID-19-related residents should not be intermingled: quarantine (i.e. asymptomatic with history of exposure); isolation due to symptoms and awaiting test results; and isolation due to confirmed disease.
8. Residents should not be released from these three groups until they meet the current CDC “test-based” criteria for release unless the governing health authority does not provide the prison adequate access to testing, in which case the “non-test-based” criteria should be followed.
9. I recognize that adherence to some resources inherent to these recommendations lies outside the control of the prison authorities. Adherence, however, may be indirectly under the control of state-level authorities via their control of prioritization of allocation

Case 4:20-cv-00434-KGB Document 46-12 Filed 05/04/20 Page 3 of 3 of resources. Further, while the prison and or state-level authorities may not be able to control certain the absolute quantity of required resources, they control the relative quantity of some resources via their control of the prison population. In other words, to the extent that the prison population is smaller, the prison can achieve a higher of adherence to these recommendations with reduced resources. Finally, regardless of the locus of control, failure to adhere to these and other public health recommendations for control of COVID-19 infection in correctional settings significantly increases the risk of serious harm. Executed this 3rd day of May, 2020 in Tumwater, Washington.
Dr Marc tern, MD, M
2

Case 4:20-cv-00434-KGB Document 46-13 Filed 05/04/20 Page 1 of 3
hi it 3
Declaration of atina n erson, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-13 Filed 05/04/20 Page 2 of 3

DECLARATION OF KATINA ANDERSON

, atina n erson, eclare

My na e is atina n erson a 3 years ol an li e in Desha ounty, rkansas a a factory orker an ha e an ssociate s De ree

2 My hus an s na e is ntonio n erson e is incarcerate in u ins nit an is 3 years ol et ntonio in 20 3, an e ha e een arrie for a out a year

3 ntonio an talk e ery ay, usin i eoconferencin an phone calls o e er, for the last eek an a half, stoppe sche ulin i eocalls ecause our i eocalls ere interrupte a couple of ti es

ntonio as teste on pril , 2020 for

D My hus an has not recei e his test

results, ut is e periencin sy pto s inclu in a chronic cou h ntonio has ha these

sy pto s for t o eeks et een 20 people in ntonio s arracks teste positi e for

D

ntonio has not recei e any e ical care

ntonio has his o n roo , ut ust lea e to use share spaces like the athroo an the cho hall n those spaces y hus an interacts ith other people in his arracks

he ay after ein teste for

D , ntonio as o e fro one roo to another

either the roo he left, nor the roo he as o e to as cleane or saniti e efore

the o e ntonio as not tol hy he as o e

ntonio has aske for his test results fi e ti es, ut has not recei e any results ntonio assu es he is positi e ecause any people in his arracks teste positi e

ntonio has no access to han saniti er or lo es ntonio has one ask that the facility pro i e e han ashin the asks an han s it up to ry hile he is sleepin

0 ntonio has not file a rie ance in the facility ecause he is afrai of retaliation ntonio sai prisoners are alrea y picke on y correctional staff, an ore recently correctional officers ha e een ore hostile ecause officers accuse prisoners of infectin correctional staff

a ery orrie a out y hus an e is sick an still has not recei e his test results or e ical attention a also orrie a out all of the people he co es in contact ith

eclare, un er penalty of perjury, that the fore oin is true an correct

1of 2

Case 4:20-cv-00434-KGB Document 46-13 Filed 05/04/20 Page 3 of 3

Date May 3, 2020

atrina n erson

2of 2

Case 4:20-cv-00434-KGB Document 46-14 Filed 05/04/20 Page 1 of 4
Exhibit 14

Case 4:20-cv-00434-KGB Document 46-14 Filed 05/04/20 Page 2 of 4
DECLARATION OF AUDREY BROWN
I, Audrey Brown, declare:
1. My name is Audrey Brown. I am 51 years old and live in Benton, Arkansas.
2. My son, Damion Brown, is currently incarcerated at Cummins Unit. My son has been incarcerated at Cummins for six years.
3. Damion and I are both Black.
4. Damion and I talk by phone about twice a week. Damion maintains a journal to help him remember details about his incarceration.
5. Damion was diagnosed with chronic bronchitis when he was young. Like me, he requires an inhaler to manage his illness. Before his incarceration, a doctor advised that he use his inhaler 2-3 times a day.
6. On Saturday, April 25, 2020 Damion tested positive for COVID-19.
7. Before testing positive, Damion lost his sense of taste and smell. Damion also had shortness of breath, chills and sweats.
8. Currently, Damion has a high fever, chest pain, low oxygen levels, and shortness of breath.
9. Damion is not receiving any medical care. Nor does Damion have access to an inhaler.
10. My son is housed with about 60 other prisoners in his barracks.
11. My son was moved from barracks 7-B to 10-B when he began displaying COVID-19 symptoms. The facility has moved many people around since April, sometimes twenty or more people at a time. There is little explanation as to why people are moved.
12. Damion s new barracks house a lot of older people with disabilities.
13. Man people within Damion s barracks are ill, and some have tested positive for COVID19. People are coughing often and unable to distance themselves from others.
14. Damion told me that on one occasion, a man became extremely ill, and was unable to leave his bed for three to four days. The man did not receive medical attention until he vomited on himself. The man was briefly removed from the barracks, and retuned a few hours later.
15. Damion tells me that the conditions in Cummins Unit are very unsanitary.
1 of 3

Case 4:20-cv-00434-KGB Document 46-14 Filed 05/04/20 Page 3 of 4
16. Shared spaces like showers and bathrooms are not cleaned regularly. The bathroom is dirty, with visible mold.
17. Damion has no personal access to cleaning products.
18. There is limited access to soap and Damion has no access to hand sanitizer.
19. Correctional officers are not wearing gloves.
20. Damion was given a mask. The mask was made from a corrections shirt. He has to clean his mask himself. While Damion is cleaning his mask and while his mask is drying his face is uncovered.
21. Damion was given a COVID-19 test on Saturday, April 18, 2020. Damion was told he would he receive the results within 48 hours. Damion did not receive his results for a week.
22. The da after Damion received his test results a medical provider took Damion s temperature and oxygen levels. Damion had a fever and low oxygen.
23. Damion was given a Tylenol. Damion has not received any medical attention since Sunday, April 26, 2020.
24. After Damion tested positive for COVID-19 the only guidance her received is to stay six feet away from other people.
25. It is impossible for Damion to maintain six feet of space between himself and others.
26. In Damion s barracks, the beds are two feet apart.
27. Damion also shares eating areas, bathrooms, and showers with other prisoners.
28. In addition to his health, Damion is also concerned about his physical safety while in Arkansas Department of Corrections custod because there is insufficient supervision.
29. Correctional officers are not coming to work. At one time, one officer oversaw four barracks. Typically, at least one correctional officer was stationed at each barrack. If there is an emergency, one officer will not be able to manage the response.
30. I am terrified for m son s life. He is sick with COVID-19, without access to treatment for his chronic bronchitis, and unable to distance himself from other people at Cummins Unit. My son is only thirty years old. I understand that he was convicted of a crime, but he was
2 of 3

Case 4:20-cv-00434-KGB Document 46-14 Filed 05/04/20 Page 4 of 4

not sentenced to death. He should not die because he is a young Black man that is incarcerated.
I declare, under penalty of perjury, that the foregoing is true and correct.

Date:

________________________ Audrey Brown

05-03-2020

3 of 3

Case 4:20-cv-00434-KGB Document 46-15 Filed 05/04/20 Page 1 of 3

Case 4:20-cv-00434-KGB Document 46-15 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-15 Filed 05/04/20 Page 3 of 3 05/02/2020

Case 4:20-cv-00434-KGB Document 46-16 Filed 05/04/20 Page 1 of 3
hi it
Declaration of icole le elan , May 3, 2020

Case 4:20-cv-00434-KGB Document 46-16 Filed 05/04/20 Page 2 of 3
Declaration of Nicole Cleveland
I, Nicole Cleveland, declare:
1. I am 39 years old and I have lived in Calico Rock, AR for approximately 20 years.
2. I am the biological sister of Wesley “Grant” Bray ADC# 552858. Wesley is 29 years old and has been incarcerated at Grimes Unit for approximately one year.
3. I talk to Grant at least once per week. He talks to someone in our family daily.
4. Grant is the father of a two-year-old daughter, Blakely, who he visits through video chat at least once per week. Blakely’s mother has told me that she is afraid that Grant will get COVID 19 while incarcerated.
5. Grant lives a barrack with approximately 60 other men. He shares a cell with another man.
6. Grant works in the kitchen as a baker. He goes in at midnight and works until 6 a.m.
7. No one in the kitchen is allowed to wear gloves while handling food. He has never seen any incarcerated person with gloves in the prison.
8. Grant works with approximately eight other incarcerated individuals who come from at least three different barracks.
9. About a week ago, the facility was using Styrofoam trays, presumably to reduce possible contamination. Now, the facility is using reusable plastic trays again. My brother has observed the plastic trays being brought down from quarantine and washed in the kitchen. He is concerned because the quarantine trays are mixed back in with all of the other trays.
10. The guards only wear masks about half of the time, and when they do wear masks, they often wear them half off of their face.
11. When the incarcerated individuals were first given masks, they were required to wear them all the time. Now, incarcerated individuals only wear masks when they come out of the barracks. They are not required to wear their masks inside of the barracks.
12. Grant believes that no one at Grimes has been tested for COVID 19.
13. Seven inmates have been taken to isolation. Grant believe this is due to COVID.
14. He requests cleaning supplies daily but is always denied.
Page 1 of 2

Case 4:20-cv-00434-KGB Document 46-16 Filed 05/04/20 Page 3 of 3

15. Grant is concerned because he knows that his mask came from Cummins where there is massive outbreak of COVID 19.
16. Grant filed a grievance regarding the above-state concerns on May 1, 2020.
I declare, under penalty of perjury, that the foregoing is true and correct.

Date: May 3, 2020

_________________________________ Nicole Cleveland

Page 2 of 2

Case 4:20-cv-00434-KGB Document 46-17 Filed 05/04/20 Page 1 of 3
hi it
Declaration of usie nita Daniels, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-17 Filed 05/04/20 Page 2 of 3

DECLARATION OF SUSIE ANITA DANIELS

, nita Daniels, eclare

My na e is nita Daniels a years ol an li e in larks ille, rkansas a a part o ner of a ta i er y usiness

2 My ran son is incarcerate at entral rkansas o unity orrection in ittle ock, rkansas My ran son s na e is ustin Mitchell ustin is 23 years ol ha e kno n
hi y hole life

3 ustin an talk e ery ay, usin i eoconferencin

ustin has ne er een iscipline urin his incarceration, an has in fact een re ar e for his oo eha ior is release ate is May 22, 2020 e as incarcerate in Dece er of 2020

ustin teste positi e for

D

e has a constant cou h an ifficulty reathin

hen i eoconference ith ustin, can tell he is not oin ell f he talks for too lon ,

he starts cou hin can hear the hee in in his oice hen he talks

ustin has asth a efore he as incarcerate , he nee e an inhaler for his asth a, ut has not ha access to one since he as incarcerate

ustin is una le to aintain social istancin e sleeps in po s of se en to nine people e s are ithin a foot of one another n the cafeteria, correctional staff took a ay a thir of the ta les, so e eryone is force to sit close to ether hile on our i eocalls, see other prisoners an staff e ers alk closely ehin ustin an ne t to one another

here is not sufficient cleanin supplies in the facility ustin says prisoners clean share spaces ith ater ater is use to op an to clean alls risoners o not ha e access to isinfectant or cleanin pro ucts

ustin oes not ha e a personal supply of soap or han saniti er risoners reak apart little ars of soap pro i e in the athroo s to ash their han s ll of the prisoners use the sa e soap he only place any of the prisoners can ash their han s is in the share athroo here is only one place in the entire facility ith han saniti er, hich elie e is the cafeteria

0 ll prisoners also use the sa e phones to contact their lo e ones hones are not saniti e et een uses

1 of 2

Case 4:20-cv-00434-KGB Document 46-17 Filed 05/04/20 Page 3 of 3

calle Jerry ra sha , the rkansas o unity orrections Director, a out the lack of cleanin an isinfectant supplies an plea e for ore resources for in i i uals in
o unity orrection custo y Mr ra sha calle e a liar felt ery offen e hen e ere isconnecte y acci ent i not call hi ack

2 ustin as i en one ask ecause of his reathin pro le s, it is ifficult for ustin to reathe hen he has his ask on hile sleepin ecause of this ustin is not allo e to sleep ith his ask on

3 staff e er, ichar ichar son passe a ay fro

D earlier this onth

ustin as close to ounselor ichar son fter ounselor ichar son passe a ay

another staff e er as repri an e for earin lo es an a ask to ork en after

ounselor ichar son passe a ay the facility i not i ple ent uni ersal testin

hen ustin e an e hi itin

D sy pto s, he as not teste then reache out

to elen unt ith hannel , ho a ocate for all prisoners to recei e testin , not just

the ones ith sy pto s My ran son as threatene y correctional staff e ers after

spoke to the press ne correctional officer tol ustin, f you ere in prison prison,

oul put you in a ark place ustin is fearful for his health an physical safety

My ran son as teste for

D a out t o an a half eeks a o t took se eral

ays for hi to et his positi e results hortly after entral rkansas o unity

orrections e an testin prisoners, they e an puttin in i i uals that teste positi e in

ifferent roo s o e er, the prisoners that teste positi e continue to eat eals

alon si e the prisoners that i not test positi e

fter testin positi e for

D ustin as only i en ylenol ustin as not i en

an inhaler, hich is critical to ana e his asth a

he facility is also un erstaffe n one occasion, a correctional officer teste positi e an ent ho e hen the facility a e her return to ork efore she felt etter he orke for a hile, an then teste positi e a ain, an as sent ack ho e

lo e y ran son an a ery orrie a out his health an safety o not ant hi to ie hile in D custo y e is set for release in less than a onth

eclare, un er penalty of perjury, that the fore oin is true an correct

Date May 3, 2020

2 of 2

nita Daniel

Case 4:20-cv-00434-KGB Document 46-18 Filed 05/04/20 Page 1 of 2
Exhibit 18
Declaration of Joshua Gillispie, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-18 Filed 05/04/20 Page 2 of 2
DECLARATION OF ATTORNEY JOSHUA GILLISPIE
I, Joshua Gillespie, declare:
1. My name is Joshua D. Gillispie.
2. I am an attorney with Green & Gillipsie, located at 1 Riverfront Place, Suite 605, North Little Rock, Arkansas 72114.
3. I was contacted by the family of Cummins inmate Quintionus Parker on April 21, 2020. Mr. Parker's mother, Janice Nicholson, who had been in daily phone contact with her son, stated Mr. Parker's health had rapidly deteriorated since being diagnosed with Covid-19 on or about April 12, 2020. Given Mr. Parker's markedly increased difficulties breathing, which were apparent even over the phone, and given Mr. Parker's underlying health conditions which placed him at greater risk, Ms. Nicholson believed Mr. Parker needed immediate hospitalization.
4. That same day, April 21, 2020, I sent the letter attached to this Affidavit as Exhibit 1 to Warden Culclager and to ADC Medical Services by fax and by regular mail. After receiving no response, I sent another letter on April 22, 2020, attached here as Exhibit 2. I have never received a response to either letter.
5. I also attempted to make phone calls and I was able to briefly speak with a female staff member in Warden Culclager's office. It was unclear whether this staff member had seen either of my letters. When I told her my goal was to get Mr. Parker transferred to a hospital, she stated that the Warden had no control over that. She suggested I call Medical Services and provided me a phone number. I called the phone number provided 3 times. Each time it rang endlessly; nobody answered and there was no voicemail.
6. I never received a reply from ADC or Wellpath to my correspondence. The requests and concerns went unanswered.
7. When I saw news of the Frazier suit filed on April 21, 2020, I notified the legal team for the plaintiffs and shared information regarding Mr. Parker.
I declare, under penalty of perjury, that the foregoing is true and correct.
Date: May 3, 2020
_______________________________________ Joshua Gillispie

Case 4:20-cv-00434-KGB Document 46-19 Filed 05/04/20 Page 1 of 2
Exhibit 19
pril 2 etter fro Joshua Gillispie to ar en an Me ical er ices

Case 4:20-cv-00434-KGB Document 46-19 Filed 05/04/20 Page 2 of 2

Case 4:20-cv-00434-KGB Document 46-20 Filed 05/04/20 Page 1 of 2
Exhibit 20
pril 22 etter fro Joshua Gillispie to ar en an Me ical er ices

Case 4:20-cv-00434-KGB Document 46-20 Filed 05/04/20 Page 2 of 2

Case 4:20-cv-00434-KGB Document 46-21 Filed 05/04/20 Page 1 of 2
hi it 2
Declaration of an i arper, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-21 Filed 05/04/20 Page 2 of 2

Case 4:20-cv-00434-KGB Document 46-22 Filed 05/04/20 Page 1 of 3
hi it 22
Declaration of arlton ayes, May 2, 2020

Case 4:20-cv-00434-KGB Document 46-22 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-22 Filed 05/04/20 Page 3 of 3

Case 4:20-cv-00434-KGB Document 46-23 Filed 05/04/20 Page 1 of 2
hi it 23
Declaration of illia olley, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-23 Filed 05/04/20 Page 2 of 2

DECLARATION OF WILLIAM HOLLEY

, illia olley, eclare

My na e is illia olley a 2 years ol , an resi e in Di on, efore y retire ent as an electrical en ineer ith Geor ia acific

a retire

2 My ran son, Justice ole Johnson, is currently incarcerate at entral rkansas o unity orrection enter in ittle ock, rkansas My ran son is sche ule to e
release in u ust

3 o eeks a o, Justice teste positi e for

D

lot of people in the facility

teste positi e an e hi ite sy pto s ne staff e er ie

efore the

D pan e ic, spoke to Justice t o to three ti es a eek o ,

only hear fro Justice once a eek, ecause the facility has li ite access to the phone

Justice as separate fro the eneral population the ay that he teste positi e Justice

as separate fro the eneral population ith a out other people ho teste positi e

for

D

More than people ha e teste positi e for

D , ut the facility coul only

acco o ate people in the separation space here is not enou h space to isolate all

of the people ho ha e teste positi e for

D

Justice is una le to aintain social istancin is e is in close pro i ity to others, an

they are not allo e out of the space

rior to testin positi e, Justice an others ho are incarcerate re ueste asks he ar en enie their re uest nly after testin positi e i Justice recei e a ask

efore the pan e ic, Justice oul often o outsi e of the facility for jo s in the co unity e as also takin so e colle e courses Justice can no lon er o outsi e an he no lon er has access to those colle e courses

0 o not kno hether Justice has access to isinfectant or hether the staff ha e een re ularly cleanin the facility o not kno if Justice is recei in e ical care after testin positi e o not kno ho lon Justice ill e place in the separate space in the facility

eclare, un er penalty of perjury, that the fore oin is true an correct

Date

1 of 1

illia olley

Case 4:20-cv-00434-KGB Document 46-24 Filed 05/04/20 Page 1 of 3
Exhibit 24
Declaration of enna e is, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-24 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-24 Filed 05/04/20 Page 3 of 3

Case 4:20-cv-00434-KGB Document 46-25 Filed 05/04/20 Page 1 of 4
hi it 2
Declaration of Janice icholson, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-25 Filed 05/04/20 Page 2 of 4

DECLARATION OF JANICE NICHOLSON

, Janice icholson, eclare

My na e is Janice icholson a Depart ent of orrection D
orrection enter ork elease appro i ately 0 years

years ol a an e ployee of the

ork as a orporal in the e arkana

ro ra

ha e een e ploye ith

rkansas e ional D for

2 My son, uintionus arker, is an in ate in the u ins nit uintionus is 3 years ol is D is 2 02

3 n pril 2, 2020, recei e a phone call fro uintionus as orrie ecause ha

not hear fro hi in a couple of ays, hich as unusual since e speak just a out e ery

ay uintionus infor e e that he ha not een feelin ell e co plaine of o y

aches an as cou hin e sai he ha een teste for

D a couple of ays earlier,

ut i not ha e the results out 0 inutes later, he calle ack an sai he just ot his

results an he teste positi e for

D

t that o ent, as stricken ith an iety

an fear for his health ince a chil uintionus has suffere fro ronchitis hear

a out

D s i pact on the lun s an as afrai that uintionus oul ha e

ifficulty reathin

n pril 3th, uintionus calle a ain e entione ein transferre to arracks

e

reporte that of the in ates in his ori inal arrack teste positi e for

D

e sai e ical staff ha not een there to check on the since ein transferre to

e i not soun ell e sai he ha chills an as cou hin a lot e co plaine that

e ery part of his o y hurt an he e en ha ifficulty openin his eyes hen e hun up,

crie as so afrai that he oul ie calle the u ins nit repeate ly on pril

3th an staff oul ans er, put e on hol , an then han up felt helpless an i not

kno hat to o

n pril th, uintionus calle e, ut he coul arely speak ecause he as so short of

reath e co plaine that his chest hurt an it see e like he as stru lin ore an

ore ith e ery or e staye on the phone for only a out a inute ecause he coul

arely speak e sai o a please help e uintinous coul not finish our phone

call hen he hun up i e iately calle u ins an aske to speak to ar en

ulcla er e plaine that uintionus ha

D , he as ery sick an as

stru lin to reathe aske that uintinous e transferre to the hospital i e iately

ar en ulcla er replie that she oul check on hi

n pril th, uintionus calle a ain e still coul arely catch his reath e sai e ical staff still ha not checke on hi e ha not een i en anythin to help ith the pain or his reathin e co plaine that all he ha to eat all ay as a hot o he

Case 4:20-cv-00434-KGB Document 46-25 Filed 05/04/20 Page 3 of 4

foo as ein thro n into the arrack felt like y chil as ein treate like an ani al i e iately calle ar en ulcla er a ain e in that uintionus e sent to the hospital he a ain sai she oul sen so eone to check on hi ar en ulcla er calle e ack a out 30 inutes later an sai they ere i in uintionus so ethin to help his reathin

n pril th, uintionus calle an he soun e horri le e sai he coul not sit up ery lon to hol the phone e co plaine that s eat as pourin off of hi , ut he as free in e sai a nurse ca e y the ate, ut he i n t ha e the ener y to stan up or call out for help e as ha in trou le reathin crie all ay as so orrie that he
oul ie that coul not sleep

n pril th an th uintionus calle riefly sayin he just ante e to kno that he as still ali e, ut he i not ha e the reath to stay on the phone lon

n pril th i not hear fro uintionus as so ner ous that so ethin a happene ate that e enin , another in ate calle an infor e e that uintionus passe out an as in the infir ary My fa ily an praye for uintionus all ni ht coul not sleep just thinkin that y chil as near eath

0 arly ornin on pril 20th, calle helley yers at the e ical unit in ine luff to et an up ate on uintionus con ition e plaine that y son as e tre ely ill ith D an as in the infir ary, ut he nee e to o to the hospital Ms yers infor e e that uintionus as i en t o pints of flui , ylenol, an an asth a inhaler uintionus i not call e on pril 20th

contacte uintionus la yer, Joshua Gillespie e plaine that uintionus as

ia nose ith

D an as so sick that he coul arely reathe infor e hi

that calle any ifferent prison officials tryin to et uintinous transferre to the

hospital aske Mr Gillespie to please help e sent ar en ulcla er t o letters askin

that uintinous recei e i e iate e ical treat ent

2 n pril 2 st, uintionus calle e e soun e ery eak e sai he efecate on hi self an ha to e heele to the infir ary ecause he as too sick to alk tol hi to ask for so e noo le soup an he sai there as no hot foo e sai he only ha cou h rops tol hi to put the cou h rops in so e hot ater an rink it e sai at the arrack nurses ere not co in to check on hi an the other in ates e sai one of the in ates in the arrack as also ha in trou le reathin an he let hi take a couple of pu ps of his inhaler

3 n pril 22n , calle helley yers three ti es ach ti e as infor e that she as usy an coul not speak ith e e plaine that ante an up ate on y son staff e er sai she as lookin at uintionus chart an he as refusin treat ent sai there as no ay y son oul refuse treat ent

Case 4:20-cv-00434-KGB Document 46-25 Filed 05/04/20 Page 4 of 4

uintionus calle e on the e enin of pril 22n e still soun e eak an sick tol hi that spoke to e ical staff in ine luff an she sai he as refusin treat ent
uintionus sai he a solutely ne er refuse treat ent e sai the nurses ere arely co in to the arrack to see a out the in ates hen the nurses i co e they oul stan at the ate an yell for the in ates to co e to the ate to e seen e re e ere at a out 2a a nurse yelle his na e to co e to the ate, ut he as too eak to et up

hen spoke to uintionus last eek he finally e an to soun etter e is slo ly

reco erin fro

D

e is still in the sa e arrack ith a lot of sick in ates ll

of their e s are close to ether an he is on erin if he ill e er ake a full reco ery

ein in close contact ith so any sick in ates e sai the arrack is not saniti e often

an they o not ha e anythin to isinfect their sleepin area e has not een reteste for

D an is unsure hen he ill e returne to his ori inal arrack

a thankful that uintionus is reco erin ecause there ere any ays that felt like he i ht ie My heart reaks for all of the in ates ho are sick an their fa ilies ho are orrie a out the ur chil ren are ein treate like they are less than hu an hey are ein left to ie an it is sa

eclare, un er penalty of perjury, that the fore oin is true an correct

Date

Janice icholson

Case 4:20-cv-00434-KGB Document 46-26 Filed 05/04/20 Page 1 of 4
Exhibit 26

Case 4:20-cv-00434-KGB Document 46-26 Filed 05/04/20 Page 2 of 4
DECLARATION OF CECILIA SAGERS PONDER
I, Cecilia Sanger Ponder, declare:
1. My name is Cecilia Sagers Ponder. I am 47 years old. I work as a building inspector in Shelby County, Tennessee. I have worked there since 2017.
2. My husband, John Ponder, is incarcerated at Cummins Unit. My husband has been incarcerated here for four years.
3. I speak to my husband twice a day. We speak over the telephone and over videocalls.
4. At Cummins my husband is involved in the Think Legacy Pre-Release Program. This program is designed to get prisoners ready for reentry. After successfully completing the program, my husband was asked to be a mentor for other prisoners in the program. My husband is eligible for parole in July 2020.
5. My husband tested positive for COVID-19.
6. My husband has high blood pressure. My husband takes medication to manage his blood pressure. My husband did not receive his blood pressure medication for a week when the viral outbreak occurred in Cummins. My husband believes he had a mild stroke due to not having his blood pressure medication. The right side of his body and face is affected.
7. There are abo 58 prisoners in m h sband s barracks. Correctional officers have converted some shared spaces to barracks. The cafeteria and visitation room are being used as barracks.
8. Correc ional officers are con in all mo ing people in o John s barracks. A lo of people are sick.
9. One man in John s barracks was so sick that they had to take him out in a wheelchair. Correctional officers only removed the man because other prisons got the attention of the officers and asked them to help him.
10. My husband is not able to maintain social distancing in his barracks given the number of prisoners there. Beds are connected to each other like dominoes.
11. All 58 people interact with one another through out the day. For example, my husband interacts with other prisoners in classes and during his job at the vinyl bindery. Additionally, my husband interacts with individuals from other barracks when he receives his meals in the chow hall. Over 100 people come in and out of the chow hall on any given day.
1 of 3

Case 4:20-cv-00434-KGB Document 46-26 Filed 05/04/20 Page 3 of 4
12. My husband was given a mask, but only has access to one mask. My husband must wash he mask himself. His h sband s face is no co ered hen he is cleaning his mask. M husband was not given any gloves.
13. Correctional officers have masks, but they are often not wearing the masks effectively. Sometimes officers wear the mask below their nose or over their chin. Correctional officers do not regularly wear gloves. During one of my video visits, I saw a female correctional officer without gloves despite working with prisoners that tested positive for COVID-19.
14. My is also concerned about the cleanliness of facilities. Shared spaces are not regularly or effectively sanitized. A few days ago, prisoners were provided with bleach for the first time are were required to clean the barracks themselves. Correctional staff also provided some soap to prisoners, but it was not anti-bacterial. My husband purchased his own antibacterial soap from commissary.
15. My husband was tested for COVID-19 on Wednesday, April 15, 2020. My husband did not receive his test results until April 25, 2020. E er one in m h sband s barracks as tested for COVID-19. I am unsure if everyone tested positive, but they are all living in close proximity.
16. Right now, my husband has a fever, body aches, cough, headache, and digestive issues. He is reluctant to put in a sick call because he heard that the prison was not responding because the infirmary was full.
17. No medical personnel have come to check on my husband since he tested positive. Correctional staff are no aking people s empera re and will not come into the barracks. My husband said prisoners cannot get medical treatment unless they pass out or cannot breathe.
18. My husband is also concerned about the functioning of correctional staff members. John overhead correctional officers complain about being short-staffed. Because of staffing issues, John heard officers have to come to work if they are positive.
19. My husband has filed two grievances since the COVID-19 outbreak in Cummins. On April 19, 2020 John filed a grievance asking or his test results and another concerning his medication. He noted that if he did not get his medication it may make any COVID-19 infection worse. On April 21, 2020, John received his blood pressure medication. He was without it for roughly a week.
20. I am orried abo m h sband s heal h and safe . I kno ha indi id als i h high blood pressure are more susceptible to complications from COVID-19. My husband is not getting adequate care or medical support while incarcerated in Cummins.
2 of 3

Case 4:20-cv-00434-KGB Document 46-26 Filed 05/04/20 Page 4 of 4 I declare, under penalty of perjury, that the foregoing is true and correct. Date: May 3, 2020
________________________ Cecilia Sagers Ponder
3 of 3

 
 Case 4:20-cv-00434-KGB Document 46-27 Filed 05/04/20 Page 1 of 2
Exhibit 27
Declaration of Juanita Singleton, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-27 Filed 05/04/20 Page 2 of 2

Case 4:20-cv-00434-KGB Document 46-28 Filed 05/04/20 Page 1 of 2
Exhibit 28
Declaration of Roxcena Smith, May 1, 2020

Case 4:20-cv-00434-KGB Document 46-28 Filed 05/04/20 Page 2 of 2

Case 4:20-cv-00434-KGB Document 46-29 Filed 05/04/20 Page 1 of 3
Exhibit 29
Declaration of Valencia White, May 1, 2020

Case 4:20-cv-00434-KGB Document 46-29 Filed 05/04/20 Page 2 of 3

Declaraticn of Yalencia White

I. Valencia ltr;hite. deelare:

1" My name is valeneia white. tr am 42 years oid. I wclrk *s a Genera

ofa

Hr:lida-v lnn Express in Austin, Texas.

2. h,fy i:rother Bryan is ir$used at the Clumtnins tinit. I'Ie is *j9 years

3. il,Iy brotlier is displaying syinptoms. His eyes hurt so bad &at he can't filove his tirem. He has to rurn his head to see. He has a horribtre cough and thest pains. He went through this u,hole thing 4 weeks ago so he thinks he has it again. A few weeks ago he had this dry cough norhing else - just a dry eough. The following week he was spitting up mucus for the whole l"vesk then he had the headaclte. Then he *,as syrnptorn-ftee for a ll'eek
or s<l and then it started uP again.

4. H* has treen tested but they have not given hirn his results.

5. When I called tr"r find out his results they said they siopped releasing information to
milies.

6. F{e said a}tr the people rvhr: tested positive rvere the ones serving the food. On
We<inesday. April 22,Z*Zl.the kitchen workers refused to rvork. So they catne to my
brother's barracks zrnd got him to work in kitchen.
.7 He said that the kitchen is so tilthy" There are cockroaches and rats falling out of the
ceili6g. It is so hcruible" I've never heard anlthing like it. The day they forced him to work there, the.v trccked hiru in that kitchen for 13 hotlrs-
g. fuly brother refused to go back to the kitchen the next day. He said he is never going
back to thai kitchen: even if the,v punish him.
q. Feerple rvere upsct that sick people were serving {bod, and that healthy people were
being forced to u,ork u,ith sick people in the kitchen- Windows rvere bustetl out and TYs rvere smashed. They wrre noting.

trg. My brother {ilert a grievance about the kitchen situation. It was only after he filed t}rat grievance that cr:rrections officers started serving faor1.

i 1. The person in the bunk next to my brether is symptornatic. FIe is a sever astlunatic ar1d my brothcr says he kerps having tenible asthrna attacks'

Case 4:20-cv-00434-KGB Document 46-29 Filed 05/04/20 Page 3 of 3

12. 1'he3. cut up the unifbrm rnaterial and made masks for everybod,v' T'hat's all the
proteetion theY have'
13. They haven't been ailowed to go cutsiele" ilvery*ne in there is c$ugiring and sneezing and it's in the air. No one gets any fresh air"
14.1 knor,r,that guareis have gotten sick too" One had COVID*19 pneurnonia' They stili Itant them to come to work'
15. I arn scared for my' brother. N<l one desen'es to be treated this lvay"

Date: f/t fn*')

Valencia White

7

Case 4:20-cv-00434-KGB Document 46-30 Filed 05/04/20 Page 1 of 3
Exhibit 30
Declaration of Tonya Williams, May 3, 2020

Case 4:20-cv-00434-KGB Document 46-30 Filed 05/04/20 Page 2 of 3
DECLARATION OF TONYA WILLIAMS
I, Tonya Williams, declare:
1. My son, Jarvis Flowers, is an inmate at Cummins Unit. He is housed in the 10A Barracks and his ADC# is 147875.
2. Since the COVID-19 outbreak at Cummins, I have been extremely worried for my son’s health and safety. My son suffers from severe asthma, which makes him vulnerable to dying from COVID-19 complications.
3. My son is in an open barrack where his bed is in a section with 4 people closely connected. He informed me that he has 1 mask, but no gloves or other protective gear. He did not have any disinfectant to clean the area where he sleeps.
4. I have called the Cummins Unit on numerous occasions to ask about my son’s health and no one gives me information.
5. On April 18, 2020, my son called to inform me that he was tested for COVID-19. On Sunday, he called again to let me know that he was quarantined in another unit. He did not know whether he had tested positive for COVID-19 and was unsure why he had been moved to another unit.
6. On Wednesday, April 22, 2020, I called the medical unit in Pine Bluff to inquire about my son’s COVID-19 test results. I was informed that my son tested positive for COVID-19. On the evening of April 22nd my son called. He did not know the results of his COVID-19 test. I informed him that he tested positive for COVID-19.
7. During our phone call on Sunday, April 26th, my son reported not feeling well. He was coughing, had tightness in his chest, shortness of breath and did not have a sense of smell or taste. He went to the infirmary earlier that day and was given Tylenol and another asthma pump.
8. I informed him that nurses were supposed to perform 2 wellness checks per day on inmates in the quarantine unit. However, he said nurses had not checked on him in days. He mentioned that some of the inmates in the quarantine unit should be hospitalized because they were extremely ill and could not move. Nurses were not checking on these very ill inmates and he was worried for them. My son asked medical staff if he would be retested for COVID-19 before being sent back to his regular barrack and he was informed that he would not be retested.

Case 4:20-cv-00434-KGB Document 46-30 Filed 05/04/20 Page 3 of 3

9. My son informed me that he filed a grievance about the conditions in Cummins, but the warden refused to sign the grievance.
10. He reported that since being quarantined he has not eaten regularly. Food is brought into the quarantine unit in the early morning and the next time he is fed is after 8pm. The food is cold and looks like slop.
11. I last spoke to my son on April 28, 2020.

I declare, under penalty of perjury, that the foregoing is true and correct.

Date:

__________________________________ Tonya Williams

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 1 of 13
Exhibit 31
Department of Correction Secretary’s Board Report March 2020

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 2 of 13

SECRETARY’S BOARD REPORT
March 2020

SECRETARY’S UPDATE:
February started with a report to the Governor and the Transformation Office at TSS on the Department’s coordination with existing boards and commissions.
There were several meetings regarding Riverside Vocational School, the National Center for Construction Education and Research (NCCER), and staffing. The Secretary toured both the Varner and ORCU Riverside campuses to meet staff and attended a meeting with the various Riverside assistant directors and Dr. Charles Allen.
The Secretary attended one of the weekly construction meetings at the former Timex building and met with the Disability Rights Association with General Counsel Christine Cryer. Chief of Staff Soloman Graves visited both the East Central Community Correction Center and the West Memphis Parole Office. While at the Parole Office, Mr. Graves attended a Sentencing Commission training and observed offender office visits.
There was a Governor’s Cabinet meeting and a meeting with other Secretaries to discuss transformation progress and hurdles.
The Data and Transparency Panel meeting included some suggested case uses by our Department (interface with Contexte, AOC’s system; and the ability to obtain
wage information on former inmates to conduct program evaluations).
There was a telephone planning session

with the Correctional Leaders Association. The Department’s Leadership team continues to meet and find new ways to assist our various agencies.
Division of Community Correction Director Jerry Bradshaw and some of his staff, along with the Secretary and Chief of Staff, attended the Sentencing Commission meeting that was held at the Central Arkansas CC Center. The Sentencing Commission voted to support a change to the Sentencing Orders to allow more offenders to serve their sentence in a Community Correction Center. Currently, only those can go to an ACC Center with a box checked on the Sentencing Order.
The Secretary met with Dr. Charisse Childers regarding the limitations on wage data availability and was excited to learn of plans to expand the availability to state agencies during the 2021 Legislative Session.
Deputy Director Elizabeth Taylor and Secretary Kelley attended a meeting on Arkansas Works as DHS begins preparing for the next Medicaid waiver submission for Arkansas.
Christine Cryer is working to assist all areas with their Control Self Assessments (CSAs), noting some areas have not completed these risk assessments in the past. The CSAs are to assist in the state’s bond rating!
Several Legislative meetings were attended as well as meetings with individual Legislators and the Fiscal Session officially starts April 8, 2020.
The Secretary was the guest speaker at the Parole/ Probation Officers’ graduation at the end of February and was excited to see such a dedicated group of new officers entering public service!

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 3 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

2

COMMUNICATIONS: At the end of February, the Facebook page had 23,349 followers and 22,594 “likes” (an increase of 1,079 from the number reported at the end of January). The page contains the happenings from all of the entities under the Department. Our Twitter account had 577 followers at the end of the month. It also includes posts highlighting the entire department.
SHARED SERVICES:
DIVISION OF CORRECTION PROCUREMENT: For February 2020, Purchase Orders and Contracts in excess of $10,000 amounted to $2,539,450.50 (see chart on Page 8 for details). Of this amount, $1,820,647.46 was for Inmate Care and Custody-related items (food, shoes, clothing, etc.). Bulk fuel costs for the month of February were $39,648.61 – average cost for E-10 was $1.83/gallon; average cost for diesel was $1.79/gallon.
CURRENT BIDS – • Powdered Milk (Farm) • Aerial (Tucker Unit Farm) • Hauling (EARU Farm) • Frozen Turkey (Unit Distribution)
NEW CONTRACTS/OSP – • Flour
ABA CONTRACTS – • EARU Recreation Yard Precast
DIVISION OF COMMUNITY CORRECTION PROCUREMENT: For February 2020, Purchase Orders and Contracts in excess of $10,000 amounted to $544.246.51 (see chart on Page 9 for details).
HUMAN RESOURCES UPDATE:
WORKPLACE SAFETY – During the month of February, the modified version of the Health and Safety Plan for the Division of Correction was presented to one Basic Training class with a total of 57 cadets in attendance.
Incidents reported to the Company Nurse for the month are as follows:

DIVISION OF CORRECTION

February 2020

55

Total for CY2020

110

DIVISION OF COMMUNITY CORRECTION

February 2020

10

Total for CY2020

21

BENEFITS – A total of 69 FMLA requests were processed for the Division of Correction. Of those, 56 were approved, seven were denied, and six are pending. A total of 12 catastrophic leave requests were received – seven of which were approved, four were denied, and one is pending.
A total of 22 FMLA requests were processed for the Division of Community Correction. Of those, 16 were approved, four denied, and two are pending. Five catastrophic leave requests were received; two were approved, two are pending, and one was denied.
PHYSICAL ASSESSMENTS – A total of 177 Division of Correction applicants and incumbent personnel were assessed in the month of February. Of those, 74 incumbent personnel passed their physical assessments and one did not. That individual did not reschedule. The number of applicants who successfully passed their physical assessments totaled 100. Two did not pass and have not rescheduled.
EMPLOYMENT – A total of 1,809 applications were received by the Division of Correction during February and the following were processed:
• 71 Non-Security applications
• 114 CO I applications
The number of Correctional Officers hired totaled 42, while the number of Correctional Officer rehires totaled 28.
The Division of Community Correction processed:
• 36 Non-Security applications
• Eight Parole and Probation Officer applications
• 16 CO I applications.
Ten Correctional Officers were hired.

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 4 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

3

HUMAN RESOURCES (continued): VACANCIES, HIRES, AND TERMINATIONS – FEBRUARY 2020
DIVISION OF CORRECTION

Total Vacancies

651

New Hires

78

Terminations

105

Retirements

5

DIVISION OF COMMUNITY CORRECTION

Total Vacancies

117

New Hires

24

Terminations

21

Retirements

5

Human Resources personnel attended the following Recruitment Events during the month:

Date

Unit

Location

2/4/20 Tucker

Goodwill Industries/Pine Bluff

2/5/20 Ouachita Arkansas Workforce Center/Malvern

2/6/20 EARU

Arkansas Workforce Center/Brinkley

2/11/20 Ouachita Goodwill Industries/Benton

2/13/20 Tucker

Watershed of Arkansas Job Fair/Little Rock

2/18/20 Tucker

Unit Tour/Recruitment with students from Jefferson Area Technical Career Center

2/21/20 Cummins Arkansas Workforce Center/Pine Bluff

2/27/20 Varner

WIN Job Center/Greenville, MS

2/28/20 Cummins Arkansas Workforce Center/Dumas

2/29/20 Ouachita Garland County Library Job Fair

Division of Correction Correctional Officer interviews conducted in February at the following:

Date 2/3/20 2/4/20 2/5/20
2/6/20 2/7/20 2/10/20 2/11/20
2/12/20
2/13/20

Unit
EARU MAX
EARU Grimes Cummins MAX Tucker
Varner
MAX Varner EARU
Cummins Grimes Varner
Cummins McPherson Tucker
Construction Varner

Date 2/14/20 2/18/20
2/20/20
2/21/20 2/24/20 2/25/20
2/26/20 2/28/20

Unit
McPherson Varner Cummins Grimes Varner
McPherson Tucker Varner
EARU MAX Tucker
Grimes Tucker Varner
EARU
Tucker Varner

MISCELLANEOUS FUND REPORTS:
DIVISION OF CORRECTION– • GIFTS, GRANTS, AND DONATIONS made in the month of February totaled $300.82 [13.37 tons of Sawdust at $22.50 per ton].
• THe INMATE WELFARE FUND balance on February 29, 2020, was $9,344,315.52.
• THe PAWS IN PRISON FUND balance on February 29, 2020, was $294,040.09: ADC account (NDC0500/Recycling) $108,671.50, and ADC account (QUICKBOOKS) $185,368.58.
DIVISION OF COMMUNITY CORRECTION– • The SPECIAL REVENUE FUND balance was $7,869,622.40 (Budget)/Cash Balance $10,660,296.28 on February 29, 2020.
• The RESIDENTIAL CASH FUND balance was $2,766,453.86 (Budget)/Cash Balance $2,721,661.79 on February 29, 2020.
• The DRUG COURT ACCOUNTABILITY GRANT FUND balance was $538,454 (Budget)/ Cash Balance $564,888.93 on February 29, 2020.

INFORMATION TECHNOLOGY:
INMATE TABLETS – Within the Division of Correction, a total of 2,800 inmate tablets were leased during February.

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 5 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

4

INFORMATION TECHNOLOGY (continued):
INMATE VIDEO VISITS – Inmates completed 4,748 video visits during the month and missed 133 within the Division of Correction.
DIS DATACENTER OPTIMIZATION (DCO) PROJECT – Proposed Service Models include two options. The first would be a completely selfmanaged environment. All DOC hardware hosted at DIS data center. There would be an option for a disaster recovery (DR) data center.
The second will hybrid options, where the DOC will co-manage resources with DIS or DIS will fully manage all hardware, applications, and OS.
Upcoming discussions include Self-Service Process and Governance, Determining SelfService Governance and Regulatory Compliance Requirements, Service Catalog and Cost, Existing Hardware, and Move Group Timeline Input.
DIS is currently in the migration planning phase; procurement and the building of equipment began in March and is scheduled to end 12/3/20. Data Center migrations are scheduled to begin in January 2021 and end by December 2021.
CYLANCE – Staff attended meetings to discuss agency Cylance installs and future progress. Regular Active Directory maintenance was required to remove inactive computers from the domain. Agency computers were moved to Phase 3 Cylance implementation which includes file quarantine and memory alerting. To date, there is a total of 3,389 endpoints with Cylance having been successfully installed on 3,207 of these.
MICROSOFT OFFICE 365 TEAMS – Staff attended a Microsoft Teams training class scheduled by DIS and discussed adoption by departments.
COAP – The COAP application process was discussed. A test tablet is in the configuration stage with the application installed and a lockdown created

through Meraki. A test has been scheduled to ensure that camera and signing capabilities are not being blocked by the lockdown profile. Once completed, testing can be done at one of the DCC offices that has been migrated to the new domain to ensure that it will work with the new installed access points.
IT WORK ORDER SYSTEM – TMS Replacement – A test solution is being configured for review.
JAIL STANDARDS MOVE TO SENTENCING COMMISSION OFFICE – A meeting was held with DFA Deputy Administrator Jeff Moritz to discuss the Criminal Detention migration plan. DOC IT will image new computers. DFA will transfer data via their on-premises SFTP server, and DOC IT will create new AD user accounts. Mail will be migrated to the new accounts. DFA will forward all mail to the new user accounts until June 12.
DCC LANDLINE RECONCILIATION – Efforts to collect DCC landline phone numbers for all residential centers and area offices is underway. The finalized list will be used to complete VOIP implementation. The transfer of all landline phone service to DIS is also in progress.
HANDY LIBRARY – The North Central and East Arkansas Regional Units are the last remaining sites to be transitioned to the Handy Library.
CISCO MERAKI – The IOS 113.3.1 update was pushed out to IOS devices. Community Correction Division mobile devices are being added to Meraki for management. Additionally, mobile device information is being obtained from the School District and Riverside Vo-Tech for addition to MDM.
COMPUTER MIGRATION FROM THE DIVISION OF COMMUNITY CORRECTION TO THE DIVISION OF CORRECTION DOMAIN – Prior to migration, each site is prepped to include either a new imaged computer or a new imaged hard drive installed with a minimum of 8GB ram. Please refer to the chart on Page 12 for computer migration status.

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 6 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

5

RESEARCH AND PLANNING:
TRAINING: DCC Research and Planning staff conducted eOMIS training for new users and assisted the Sentencing Commission in providing Sentencing Order training. Staff also attended the Arkansas Sheriff ’s Association Conference and the Southern States Correctional Association (SSCA) Mid-Winter Conference. ADC eOMIS staff conducted the following training sessions: eOMIS Basic, eOMIS Incident, eOMIS Security, and Kiosk training. MEETINGS: Members of the Research and Planning team participated in the following meetings:
• Custody Classification Scoring
• Workforce Services
• Keefe
• INA
• Marquis Project Status calls
• Wellpath
• COAP
• Pulaski County Reentry
• Publication Review Committee
• ADC R&P Risk Assessment
DATA GATHERING AND DISTRIBUTION: During the month of February, the Research and Planning Team completed and submitted its work on:
• National Prisoner Statistics NPS-1B Form for CY19
• Division of Correction Inmate Handbook

• 2018 PREA Report
• CLA Surveys—Arming Survey, Cell Extraction, Female Gender Responsive Classification Tools, Inmate Petition Policy, Attorney Phone Calls, Release Procedures & Monetary Allotment, Maintenance Staffing Formula, Automation of Time Computation Function, Performance Measures, Recycling Efforts, Inmate Communication Devices, Control Center Staff, and Cable & Satellite Service
In addition, the following datasets were pulled pursuant to requests and report preparation:
• EPA Statistical Data
• Telephone surcharges
• ARORA Tool
• ACA Statistical Data
• Sex Offender Custody Score Increases by Escape History and Detainers
• Recidivism Study
• Active DOC Offenders who claim Military Status
• Act 539 Inmates
• Crises Interventions
eOMIS DEVELOPMENT: A total of 46 Issues were submitted to Marquis for eOMIS development. Of those, 17 were submitted by DOC employees; 10 by Wellpath; and 19 submitted by Marquis. A total of 32 Issues were resolved/closed/ cancelled during the month of February.
INTOUCH SEGREGATION PORTAL – The solution is being expanded to the isolation areas of the East Arkansas Regional and Varner Units.

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 7 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

6

DIVISION OF CORRECTION PERSONNEL REPORT FEBRUARY 2020

UNIT

AUTHORIZED FILLED

BENTON (CR05)

78

75

CENTRAL OFFICE/SHARED SERVICES (CR01,CR02,CR08,CR22,CR3 327

279

509 CHAPL ADMIN

27

27

CONSTRUCTION (CR04)

59

54

CUMMINS (CR09)

452

381

DELTA (CR10)

183

172

EAST ARKANSAS (CR12)

366

276

ESTER (CR11)

157

147

FARM (CR29)

60

48

GRIMES (CR27)

244

227

HAWKINS (CR06)

72

59

INDUSTRY (CR07)

53

42

MAXIMUM SECURITY (CR14)

226

187

MCPHERSON (CR28)

234

202

MENTAL HEALTH

183

149

MISS COUNTY (CR15)

38

30

NORTH CENTRAL (CR16)

197

194

NORTHWEST ARK (CR17)

30

27

OUACHITA RIVER (CR30)

466

389

PINE BLUFF (CR20)

169

156

RANDAL L. WILLIAMS (CR13)

146

132

TEXARKANA (CR21)

30

26

TRANSPORTATION (CR32)

103

98

TUCKER (CR23)

197

155

TUCKER REENTRY (CR33)

31

28

VARNER (CR24)

358

307

WRIGHTSVILLE (CR25)

210

178

TOTAL

4,696

4,045

Term/Hire report run 3/2/20 - PSR created 3/2/20 for 2/29/20

VACANT % VACANT HIRED

3

3.85%

2

48

14.68%

1

0

0.00%

0

5

8.47%

1

71

15.71%

7

11

6.01%

3

90

24.59%

7

10

6.37%

3

12

20.00%

0

17

6.97%

9

13

18.06%

2

11

20.75%

0

39

17.26%

6

32

13.68%

2

34

18.58%

1

8

21.05%

0

3

1.52%

5

3

10.00%

1

77

16.52%

4

13

7.69%

4

14

9.59%

5

4

13.33%

0

5

4.85%

0

42

21.32%

5

3

9.68%

1

51

14.25%

6

32

15.24%

3

651

13.86%

78

VOLUNTARY TERMINATION
0 2 0 0 4 4 10 0 0 4 1 0 2 5 1 0 3 0 14 4 5 0 1 3 0 6 2 71

INVOLUNTARY TERMINATION
0 0 0 0 1 0 4 1 0 2 0 0 6 1 0 0 1 0 5 0 2 1 0 4 2 4 0 34

RETIREMENT
0 2 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 1 0 5

*These numbers reflect both security and non-security employees.

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 8 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

7

DIVISION OF COMMUNITY CORRECTION PERSONNEL REPORT FEBRUARY 2020

LOCATION
CAC ECC NEA NWA SWA Omega Transportation Area 1 Area 2 Area 3 Area 4 Area 5 Area 6 Area 8 Area 9 Area 10 Area 11 Area 12 Area 13 Inst. Parole Field Treatment SOAP SRT Re-entry Central Office TOTAL

AUTHORIZED FILLED

VACANT % VACANT HIRED

VOLUNTARY TERMINATION

INVOLUNTARY TERMINATION

RETIREMENT

Grant Positions

73

61

12

16.44%

1

1

0

2

0

126

105

21

16.67%

3

1

0

0

2M 2G

71

63

8

11.27%

4

1

1

1

0

60

54

6

10.00%

0

0

1

0

0

128

115

13

10.16%

2

4

0

0

1M

92

86

6

6.52%

3

1

0

0

0

10

10

0

0.00%

0

0

0

0

0

76

75

1

1.32%

0

1

0

0

0

39

39

0

0.00%

1

0

0

0

0

63

60

3

4.76%

1

0

0

1

0

52

52

0

0.00%

1

0

0

0

0

55

49

6

10.91%

3

3

0

1

0

50

45

5

10.00%

1

1

1

0

0

90

81

9

10.00%

0

2

0

0

0

37

35

2

5.41%

0

0

0

0

0

50

48

2

4.00%

0

1

1

0

0

45

45

0

0.00%

0

0

0

0

0

47

44

3

6.38%

1

1

0

0

0

35

34

1

2.86%

2

0

0

0

0

38

38

0

0.00%

0

0

0

0

0

116

110

6

5.17%

0

0

0

0

6M

14

14

0

0.00%

0

0

0

0

0

18

18

0

0.00%

0

0

0

0

0

23

19

4

17.39%

0

0

0

0

1M

33

24

9

27.27%

1

0

0

0

3M

1,441

1,324

117

8.12%

24

17

4

5

15

MFG (M)

13

11

2

15.38%

2

0

0

0

13

Term/Hire report run 3/2/20 - PSR created 3/2/20 for 2/29/20

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 9 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

8

DIVISION OF CORRECTION PROCUREMENT REPORT (IN EXCESS OF $10,000) – FEBRUARY 2020

VENDOR

PURCHASE ORDERS OVER $10,000.00

DESCRIPTION

LOCATION

PO#

PURCHASE AMOUNT

FUND

Farmers Association

Garden Seed

Arkansas Correctional Industries

Furniture

WW Grainger Inc

Tools & Supplies

McLehaney Equipment LLC

Food Warmers

Acadian Wood Products

Planed Oak

Acadian Wood Products

Cedar Lumber & Oak Plywood

AC Furniture Company Inc

Chairs

Dreamline MFG Inc

Mattresses

Green and Chapman LLC

Fuel-Unleaded

National Food Group

Textured Vegetable Soy Protein

Sysco Food Services of Arkansas Inc Food Purchases

Bob Barker Company Inc

Deodorant Soap

Arkansas Correctional Industries

Janitorial Supplies

Robbins Sales Company Inc

Food Purchases

William R Hill & Co Doug Waldmann Food Purchases

US Foods Inc

Food Purchases

National Food Group

Food Purchases

Sysco Food Services of Arkansas Inc Food Purchases

Associated Packaging Inc

Core Milk Packaging Film

Razor Chemical Inc

Janitorial Supplies

Seedway LLC

Garden Seed

Oneal Steel Inc

Stainless Steel Sheet Metal

Datamax

Printers

Charm Tex

Laundry Supplies

Air Equipment & Service LLC

Air Compressor

Pittsburg Tank & Tower Co Inc

Water Tower Repair

Booth & Harris Distributing Inc

Digital Hard Drives

Phoenix Trading Inc Amercare Products Tampons

Arkansas Correctional Industries

Toilet Paper

Charm Tex

Clothing

Mid South Sales Inc

Fuel-Unleaded & Diesel

Ponderosa Packaging

Boxes & Lids

Mid States Services

Toilet Paper

Tabb Textiles

Towels

Arkansas Correctional Industries

Clothing

Anchortex Corporation

Clothing

WW Grainger Inc

Radios with Batteries

Green Point AG LLC

Fertilizer

Mid States Services

Toilet Paper

McClelland Consulting Engineers Inc Engineering Service

Mid South Sales Inc

Fuel-Unleaded

Arkansas Correctional Industries

Mattresses & Covers

Printing Papers

Paper

National Food Group

Food

William R Hill & Co Doug Waldmann Food

Arkansas Correctional Industries

Janitorial Supplies

Robbins Sales Company Inc

Food

US Foods Inc

Food

William R Hill & Co Doug Waldmann Food

Galls

Uniforms

Arkansas Correctional Industries

Uniforms

McClelland Consulting Engineers Inc Land Application Permit

Redwood Toxicology Laboratory Inc Drug Test Supplies

Arkansas Correctional Industries

Boots

The Joneszylon Co LLC

Trays

Westrock Coffee LLC

Coffee & Tea

Southern Company of North Little Rock Fuelmaster Fleet Mgmt System

Arkansas Correctional Industries

Uniforms

MFA Incorporated

Herbicides

Arkansas Correctional Industries

Clothing & Linens

Cummins/Farm

4501934132

Health Services/ORU/Hospital Ward 4501933827

North Central/Maintenance

4501933803

ORU

4501933782

ACI Warehouse

4501933708

Wrightsville/Industry/Furniture

4501933686

Tucker/Industry

4501933818

Tucker/Industry

4501933695

Cummins/Commissary

4501931719

Cummins/Farm/Cold Storage Facility 4501933760

Central Warehouse

4501933536

Central Warehouse

4501933292

Central Warehouse

4501934231

Central Warehouse

4501934234

Central Warehouse

4501934253

Central Warehouse

4501934287

Central Warehouse

4501934282

Central Warehouse

4501934279

Cummins/Farm/Creamery

4501934312

Delta/Industry/Janitorial Factory

4501934294

Grimes/Farm

4501934075

Construction/Construction

4501934744

Admin East/Information Services

4501934409

ORU

4501935066

Delta/Industry/Janitorial Factory

4501935156

Cummins/Maintenance

4501928987

Construction/Construction

4501935493

Central Warehouse

4501935253

Central Warehouse

4501935255

McPherson

4501935243

ORU

4501934459

Varner/Farm/Vegetable Processing 4501935686

ACI Warehouse

4501935638

Cummins/Industry

4501935602

Pine Bluff Unit

4501935779

Cummins/Industry/Garment

4501935889

Pine Bluff/Emergency Prep/Radio Sho 4501936531

Cummins/Farm

4501936544

ACI Warehouse

4501936500

Cummins/Maintenance

4501936869

Wrightsville

4501936139

Varner

4501937111

Central Warehouse

4501936953

Central Warehouse

4501936951

Central Warehouse

4501936945

Central Warehouse

4501936931

Central Warehouse

4501936960

Central Warehouse

4501936965

Central Warehouse

4501936978

Training Academy

4501936725

Training Academy

4501936788

EARU/Maintenance

4501937559

Chief Deputy Institutions

4501937437

ORU

4501937558

Cummins/Commissary

4501937520

McPherson/Industry

4501937481

Cummins/Construction

4501938111

Training Academy

4501937835

Tucker/Farm

4501938054

EARU

4501938356

Total for Purchases over $10,000 FIRM CONTRACTS OVER $25,000.00

VENDOR

DESCRIPTION

UNIT

Contract # P.O#

Total for Contracts EMERGENCY PURCHASE ORDERS OVER $25,000.00

$10,307.00 $10,133.20 $11,228.80 $15,066.28 $18,600.00 $12,585.00 $18,049.50 $12,600.00 $14,601.00 $25,716.24 $305,550.00 $20,625.00 $43,335.72 $71,818.88 $210,343.70 $51,113.82 $49,335.00 $13,613.60 $21,092.40 $11,101.20 $14,576.25 $13,002.00 $29,194.00 $20,197.76 $11,949.79 $21,455.88 $10,920.25 $13,576.20 $139,043.52 $10,846.81 $11,226.46 $55,152.72 $25,804.80 $12,375.00 $34,099.89 $14,290.00 $10,239.24 $32,480.00 $25,804.80 $21,157.50 $13,821.15 $13,984.57 $35,500.08 $51,363.00 $159,559.64 $42,517.31 $148,150.24 $153,422.80 $202,639.44
$20,155.20
$14,002.56
$13,500.00
$29,535.00
$21,739.08
$18,289.49
$19,540.00
$38,160.73
$19,624.80
$21,031.00
$28,705.20

Operational Farm Budget Medical Sanctions Operational Budget Work Release
Operational Industry Budget Operational Industry Budget Operational Industry Budget Operational Industry Budget
Operational Budget Operational Farm Budget
Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Farm Budget Operational Industry Budget Operational Farm Budget DOC Existing Facilities Operational Budget Operational Budget Operational Industry Budget Operational Budget Telephone Funds Operational Budget Operational Budget Operational Budget Operational Budget Operational Farm Budget Operational Industry Budget Operational Industry Budget Operational Budget Operational Industry Budget Operational Budget Operational Farm Budget Operational Industry Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget Operational Budget
Operational Budget
Operational Budget
Operational Budget
Operational Budget
Operational Budget
Work Release
Operational Industry Budget
DOC Existing Facilities
Operational Budget
Operational Farm Budget
Operational Budget

$2,539,450.50

PURCHASE AMOUNT
$0.00

FUND

Total EM Purchases
Total Purchases

$0.00 $2,539,450.50

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 10 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

9

DIVISION OF COMMUNITY CORRECTION PROCUREMENT REPORT (IN EXCESS OF $10,000) – FEBRUARY 2020

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 11 of 13

DOC SECRETARY’S BOARD REPORT, March 2020

10

SECURUS VIDEO VISITATION REPORT FEBRUARY 2020

AR-DOCASVRV-DAcOtiCvitSyVTVraAckcetrivity Tracker
Total ADP:T1o5t,5a8l7ADP: 15,587

Total Visits by Month

Mar-19

Apr-19

May-19

Jun-19

Total (IncludTeostSaulpVerisMiatxs)by Mo3n,9t0h5

4,018 Mar3-,17942

Target ObjeTctoivteal (Includes Su15p,5e8r7Max)15,587 3,9105,5587

Apr-193,703 May-19 4,01815,587 3,742

Target Objective

15,587

15,587

Anywhere Visitation Performance:AR-DOC SVV Activity Tracker

15,587

2019
Jul-19 3,828 15,587

Aug-19
3,J6u2n5-19 15,35,87703
15,587

Sep-19 3,927 15,587

Anywhere VisitatiToontaPleArDfoP:rm15a,M5n8co7en: th over Month

6,000

5,000 4,000

6,000

Total Visits by Month Total (Includes SuperMax) Target Objective

Mar-19 MoApnr-1t9h ovMeayr-19Month Jun-19

3,905

4,018

3,742

3,703

15,587

15,587

15,587

15,587

Oct2-01199 Nov-19

Dec-19

4,2J8u8l-19 4,520Aug-195,004 15,538,87 28 15,5873,62515,587

15,587

15,587

2020

Jan-20

Feb-20

Sep4-1,8923 3,9125,7587

O4,c7t4-819 145,,258878

15,587

15,587

2019
Jul-19 3,828 15,587

Aug-19 3,625 15,587

Sep-19 3,927 15,587

Oct-19 4,288 15,587

Nov-19 4,520 15,587

3,000 2,000 1,000

5,000 4,000

Anywhere Visitation Performance:

Month over Month

0

3,000

6,000

3,905

4,018

Mar-219,000 Apr-19

Completed V1is,0it0s0

Site0

3,742 5,0003,703
May-19 Jun-19 4,000

3,828 Jul-19

3,000 Current Mo2n,0t0h0

Previous Month

3,625 Aug-19

3,927 Sep-19

4,288 Oct-19

Missed by Inmate

Site

4,520 Nov-19

5,004 Dec-19

4,823 Jan-20

Current Month

Previous Month

4,748 Feb-20

Benton

3,905 1064,018 65 3,742

3,703Benton 3,828

3,625 7 3,927 22 4,288

Cummins Delta Regional

Mar-19

East Arkansas Regional

3327631A174,0p0r00-19

Ester

Completed Visits 185

2393M01 ay-19

3,920553 244

4,018

Jun-1CD9uemltamRineJgsuilo-1n9al

Aug-19

8 11

Sep-19

16 3

Oct-19

3,7EE4as2tsetrArk3a,n70s3as Reg3io,8n2a8 l

3,M62805issed3,b92y765Inma4,2t8e8

Grimes

511

Ma5r-3169

Apr-19

MaGy-1ri9mes Jun-19

Jul-19

Aug-719

Sep-1192 Oct-19

J Aaron Hawkins Sr. Tucker Max

Site

1C7o6mpleted 124

1V9i3sits 104

Current Month

JPAraerovnioHuaws kins Sr. TuMckoernMthax

19 7

Missed55bSyitInemate

MMNocisrpsthihsesCrispeonpnitrBCCaouelunmnttmoy nWinRsC

277
48 3B2e3nton

238S14ite 339

106 371

MMNCMocius1rporst02hrinh6s6e9ets5nCrh0ispetonpnitrCaPolMrueon6vn5tiyothuWsRC

B7enton 7 C21u4 mBmenintosn10

Site

NW ArkansaDseWltRaC Regional C10ummins 14

367

NW373A13rk1ansas W2R90C

D0eltaCuRmemgi1nosnal

4,520 Nov-19

5,004 Dec-19

4,823 Jan-20

4,520

5,004

4,823

4,748

Nov-19

Dec-19

Jan-20

Feb-20

Current Previous

Month

Month

CMuor7rnet78nht

PMreo2vn2iothus2126

8 11

16 3

Ouachita RiEvaerst Arkansas Reg4Di7oe3lntaaRl egio5n2a9l

234

PRStianantedeBaPlluloLflifcWCeEGoiBlsmlriataiprmemrlaersexckss

2E8a2st Arkans3a1s9

2E4s2ter

231

Regio1n8al5

G11rimes 12

511

Texarkana RJ eAgaiornoanl Hawkins SJ4r2A. aron Haw3k9ins Sr. 176

TVWPuianrcriengkheeBtrrlsuUvfniflliRetTMMeU-uEcincsnpisktthrieysersriMspopanixCount342yTMMN0050uo394WcicsrpsktRhiheseCrsCriMspeonpanitx242rCa5233ol824unty

124 W2R7C7
48

Tucker Re-eNntoryrth Central N0W Arkansa0s WRC 323

Total:

NOuWaAchrkitaanRsiavseWr R4C,OPR7ia4un8naedcBahlliultaLffRWC4i,ovi8leml2ir3apmlesx

10 473

Pine Bluff CompleSxtate Police Barrack2s82

Randall L WilliamsTexarkana Regional242

STteaxtaerkPaonliaceRBeagiroranTVWcauaklrcrisngkheetrrsUvnilliet Unit

11 42

Tucker Unit

Pine Bluff Re-Entry 303

Ou3a62c7h5i3ta River331 PRiann21ed382B45a4ll4ul LffWCoilmliap22m54le34sx Sta5t15e13P6olice Bar5r3a6cks

Tex1a71r69k3ana Regi1o9n3al

TVWuarcri12n4gk27128hee4708trrs44Uvnilliet

104 284 Uni3t1

Pin3e23B31luff Re-En3t3r9y

Tuc1k30e3r 9Re-entry14

Tot4a7l1:34

529

228452229

319 231

13119

12

42231

39

30132

258

42053949

422 234

0258

3

E4ast DAerltkaaRn8esgaiosnaRlegional EG220srtimerEEGeasrtssimetrAersk130ansas Regional J 0AarJoAnarHona1wHakwinkisnsSSrr.. T3uckTeurckMera3Mxax MM1904cispshMMNiseocissrpristshpihsoepsC12rn0iis61peoCnpnitorCuaolnuntytyWWRRCC N0ortNhWCAernk0tarnasal s WRC NO13uW3 aAcOPRhiarunkniaetdacaBahn1lliRul3tsaL6fiafvRWsCeioviWrlemliraRpmlCesx PineSBtaluteffPoCliocemBpalreraxcks RandTaexllaLrkWaniallRiaegmiosnal STteaxtaeTVWruakPrcriaongkhneelitrracsUevRnilBleietagUironriantcakl s TuckPeinreUBnluitff Re-Entry

11 8

8 0

0

77

1919

77

7 1

7

24 1

0 24

40

2 2

4

02

02

30

9 14

0

03

36

6 5

5

12 12

55

55

7 1

7

01

10

81

1 3

8

01

13

30

16 21

1

03

Varner

Tucker Re-entry 409

Wrightsville Unit Total:

254

0422 4,724384

0 4,823

VarnTeurcker Re-entry WrigThottsavl:ille Unit

09 13314

0 16 136 21

Pine Bluff Re-Entry

0

3

Pine Bluff Re-Entry

0

0

Tucker Re-entry

0

0

Tucker Re-entry

0

0

Total:

4,748

4,823

Total:

133

136

4,748 Feb-20

Nov-19 4,520 15,58
Dec-19 5,004 15,587

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 12 of 13

DOC SECRETARY’S BOARD REPORT, March 2020			

11

SECURUS TABLET REPORT FEBRUARY 2020

Facility Name Benton Unit Cummins Unit Delta Regional Unit East Arkansas Regional Unit Ester Unit Grimes Unit J Aaron Hawkins Sr Center For Women McPherson Unit Mississippi County Work Release Center North Central Unit Northwest Arkansas Work Release Center Ouachita River Correctional Unit Pine Bluff Reentry Center Pine Bluff Unit Randall L Williams Facility State Police Barracks Texarkana Regional Correction Center Tucker Maximum Security Unit Tucker Reentry Center Tucker Unit Varner Unit Wrightsville Unit
TOTAL

Subscription 101 336 113 163 119 218 132 229 51 127 49 237 21 83 87 19 29 89 50 173 190 184 2,800

Facility Officer Total 3 8 112 87 15 438 36 16 165 97 15 275 140 20 279 72 15 305 69 15 216 103 15 347 2 9 62 89 10 226 2 8 59 110 14 361 2 0 23 5 8 96 24 15 126 1 3 23 2 10 41 31 12 132 55 6 111 61 10 244 82 20 292 56 6 246
1,129 250 4,179

New Subscriptions 9 47 17 20 19 23 17 36 7 17 7 25 1 18 17 0 0 12 9 17 31 20 369

Case 4:20-cv-00434-KGB Document 46-31 Filed 05/04/20 Page 13 of 13

DOC SECRETARY’S BOARD REPORT, March 2020			

12

COMPUTER NETWORK MIGRATION STATUS FEBRUARY 2020

The “Status” column identifies proposed dates for migration. The date may change depending on the time required for migration for each office or facility. Sites that have been changed from the DCC network to the ADC network are identified as “Completed.” Sites that are identified as pending DOC circuit are not currently on the DCC domain. Data circuits are necessary for connection to the domain and central management.
Hybrid = Router setup in Hybrid mode to allow computer migration to the new domain in groups due to the large number of computers.

OFFICE/FACILITY Fayetteville Area Office NWACC SWACCC Sentencing Commission Searcy Lonoke Pocahontas Heber Springs Batesville Blytheville Paragould Office and DC Jonesboro NEACCC/Osceola EACCC Booneville Clarksville Ozark Mena Fort Smith CACCC NLR PP/DC SRT/Re-Entry/SOAP Forrest City Helena West Memphis Arkadelphia Benton Hot Springs Malvern Omega Monticello Stuttgart Training Office PB Pine Bluff Area Office Ashdown

AREA 01 01 12 12 03 03 03 03 03 04 04 04 04 04 05 05 05 05 05 08 08 08 09 09 09 10 10 10 10 10 11 11 11 11 12

Status In Progress In Progress In Progress
02/03 03/12 03/12 03/17 04/09 03/24 03/31 05/21 04/23 Hybrid Hybrid 04/02 04/07 04/09 04/21 04/14-15 04/28-30 05/05-07 05/12-14 05/19 03/26 05/27-28 06/09 03/05 03/31 06/19 06/02-04 07/02 07/07 07/09 06/23-24 07/14

OFFICE/FACILITY Hope Lewisville Nashville Huntsville Bentonville DC Salem Des Arc Wynne Hope Court DeQueen Prescott Truman Harrisburg Star City Fayetteville DC El Dorado Harrison Conway Russellville Danville Morrilton Berryville Camden Melbourne Mountain View Rogers Hardy Walnut Ridge Mountain Home Magnolia Fordyce Sheridan Crossett Newport Parole Board

AREA 12 12 12 01 01 02 03 09 10 12 12 04 04 11 01 13 02 06 06 06 02 02 13 02 02 01 03 03 02 13 13 10 11 03 08

Status 07/16 07/20 07/21 Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Pending DOC Circuit Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed Completed

Case 4:20-cv-00434-KGB Document 46-32 Filed 05/04/20 Page 1 of 3
Exhibit 32
4/24/2020 ADH Letter to ADC Employee regarding positive test results and work restrictions

Case 4:20-cv-00434-KGB Document 46-32 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-32 Filed 05/04/20 Page 3 of 3

Case 4:20-cv-00434-KGB Document 46-33 Filed 05/04/20 Page 1 of 4
Exhibit 33
Nicholas Frazier Affidavits and Grievances, April 2020

Case 4:20-cv-00434-KGB Document 46-33 Filed 05/04/20 Page 2 of 4

Case 4:20-cv-00434-KGB Document 46-33 Filed 05/04/20 Page 3 of 4

Case 4:20-cv-00434-KGB Document 46-33 Filed 05/04/20 Page 4 of 4

Case 4:20-cv-00434-KGB Document 46-34 Filed 05/04/20 Page 1 of 3
Exhibit 34
Alvin Hampton Grievances, April 2020

Case 4:20-cv-00434-KGB Document 46-34 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-34 Filed 05/04/20 Page 3 of 3

Case 4:20-cv-00434-KGB Document 46-35 Filed 05/04/20 Page 1 of 4
Exhibit 35
Michael Kouri Grievances, April 2020

Case 4:20-cv-00434-KGB Document 46-35 Filed 05/04/20 Page 2 of 4

Case 4:20-cv-00434-KGB Document 46-35 Filed 05/04/20 Page 3 of 4

Case 4:20-cv-00434-KGB Document 46-35 Filed 05/04/20 Page 4 of 4

Case 4:20-cv-00434-KGB Document 46-36 Filed 05/04/20 Page 1 of 3
Exhibit 36
Jonathan Neeley Grievances, April 2020

Case 4:20-cv-00434-KGB Document 46-36 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-36 Filed 05/04/20 Page 3 of 3

Case 4:20-cv-00434-KGB Document 46-37 Filed 05/04/20 Page 1 of 4
Exhibit 37
Harold Otwell Grievances, April 2020

Case 4:20-cv-00434-KGB Document 46-37 Filed 05/04/20 Page 2 of 4

Case 4:20-cv-00434-KGB Document 46-37 Filed 05/04/20 Page 3 of 4

Case 4:20-cv-00434-KGB Document 46-37 Filed 05/04/20 Page 4 of 4

 
 Case 4:20-cv-00434-KGB Document 46-38 Filed 05/04/20 Page 1 of 3
Exhibit 38
Trinidad Serrato Grievances, April 2020

Case 4:20-cv-00434-KGB Document 46-38 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-38 Filed 05/04/20 Page 3 of 3

Case 4:20-cv-00434-KGB Document 46-39 Filed 05/04/20 Page 1 of 3
Exhibit 39
Victor Williams Grievances, April 2020

Case 4:20-cv-00434-KGB Document 46-39 Filed 05/04/20 Page 2 of 3

Case 4:20-cv-00434-KGB Document 46-39 Filed 05/04/20 Page 3 of 3

Case 4:20-cv-00434-KGB Document 46-40 Filed 05/04/20 Page 1 of 7
Exhibit 40
Search Results for Citrus Breeze on EPA List of Disinfectants for Use Against SARS-CoV-2

List N: Disinfectants for Use Against SARS-CoV-2 | Pesticide Registratio... https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-agains...
Case 4:20-cv-00434-KGB Document 46-40 Filed 05/04/20 Page 2 of 7
An official website of the United States government.
We've made some changes to EPA.gov. If the information you are looking for is not here, you may be able to find it on the EPA Web Archive or the January 19, 2017 Web Snapshot.

EPA's Coronavirus Site CDC's Coronavirus Disease 2019 Site CDC's Cleaning and Disinfection Recommendations for COVID-19 NPIC 's COVID-19 Virus Factsheet

All products on this list meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.
Finding a Product
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If you can’t find a product on this list to use against SARS-CoV-2, look at a different product's label to confirm it has an EPA registration number and that human coronavirus is listed as a target pathogen.
Follow the Label
When using an EPA-registered disinfectant, follow the label directions for safe, effective use. Make sure to follow the contact time, which is the amount of time the surface should be visibly wet, listed in the table below. Read our infographic on how to use these products.

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List N: Disinfectants for Use Against SARS-CoV-2 | Pesticide Registratio... https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-agains...
Case 4:20-cv-00434-KGB Document 46-40 Filed 05/04/20 Page 3 of 7 These products are for use on surfaces, NOT humans.
Additional Resources
Still have questions? See our FAQs about this list. My company has a product it would like included on this list.

Note: Inclusion on this list does not constitute an endorsement by EPA. Additional disinfectants may meet the criteria for use against SARS-CoV-2. EPA will update this list with additional products as needed.

List N was last updated on April 30, 2020.

EPA Registration Number Active Ingredient(s)
Product Name Company

Citrus Breeze

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Contact Time (in minutes)

Formulation Type

Surface Type

Use Site

Emerging Viral Pathogen Claim? Date Added to List N

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List N: Products with Emerging Viral Pathogens AND Human Coronavirus claims for use against SARS-CoV-2

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List N: Disinfectants for Use Against SARS-CoV-2 | Pesticide Registratio... https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-agains...
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List N: Disinfectants for Use Against SARS-CoV-2 | Pesticide Registratio... https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-agains...
Case 4:20-cv-00434-KGB Document 46-40 Filed 05/04/20 Page 5 of 7
An official website of the United States government.
We've made some changes to EPA.gov. If the information you are looking for is not here, you may be able to find it on the EPA Web Archive or the January 19, 2017 Web Snapshot.

EPA's Coronavirus Site CDC's Coronavirus Disease 2019 Site CDC's Cleaning and Disinfection Recommendations for COVID-19 NPIC 's COVID-19 Virus Factsheet

All products on this list meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.
Finding a Product
To find a product, enter the first two sets of its EPA registration number into the search bar below. You can find this number by looking for the EPA Reg. No. on the product label.
For example, if EPA Reg. No. 12345-12 is on List N, you can buy EPA Reg. No. 12345-12-2567 and know you’re getting an equivalent product.
Search by EPA registration number
Using Other Products
If you can’t find a product on this list to use against SARS-CoV-2, look at a different product's label to confirm it has an EPA registration number and that human coronavirus is listed as a target pathogen.
Follow the Label
When using an EPA-registered disinfectant, follow the label directions for safe, effective use. Make sure to follow the contact time, which is the amount of time the surface should be visibly wet, listed in the table below. Read our infographic on how to use these products.

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List N: Disinfectants for Use Against SARS-CoV-2 | Pesticide Registratio... https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-agains...
Case 4:20-cv-00434-KGB Document 46-40 Filed 05/04/20 Page 6 of 7 These products are for use on surfaces, NOT humans.
Additional Resources
Still have questions? See our FAQs about this list. My company has a product it would like included on this list.

Note: Inclusion on this list does not constitute an endorsement by EPA. Additional disinfectants may meet the criteria for use against SARS-CoV-2. EPA will update this list with additional products as needed.

List N was last updated on April 30, 2020.

EPA Registration Number Active Ingredient(s)

Product Name Company

Razor Chemical

Follow the disinfection directions and preparation for the following virus Contact Time (in minutes) Formulation Type Surface Type Use Site Emerging Viral Pathogen Claim? Date Added to List N

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No matching records found

Showing 0 to 0 of 0 entries (filtered from 402 total entries)

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Case 4:20-cv-00434-KGB Document 46-41 Filed 05/04/20 Page 1 of 2
Exhibit 41
ADC Total of Medical Grievances – Jan 1 - April 1, 2020

Case 4:20-cv-00434-KGB Document 46-41 Filed 05/04/20 Page 2 of 2

As of April 1, 2020, the Unit Medical Departments have reported receiving a total of 2899 medical grievances since January 1, 2020.

Unit
CU Varner East Arkansas TU MSU Wrightsville DRU RLW Ester PBU NCU Benton TRCC MCWR ORCU NWAWR MCP GR Total

# Medical Grievances 249 383 663 178 188 94 72 21 50 25 129 0 0 0 319 0 356 172 2899

Case 4:20-cv-00434-KGB Document 46-42 Filed 05/04/20 Page 1 of 5
Exhibit 42
ADC COVID Response

Case 4:20-cv-00434-KGB Document 46-42 Filed 05/04/20 Page 2 of 5
1. ADC’s policy concerning the protection of ADC employees, contractors, people incarcerated in ADC correctional institutions and people on community supervision (i.e. probation and/or parole) from contracting COVID-19;
I have attached some of the training provided to staff and inmates, including the posters that are posted throughout the divisions. Medical services available to inmates and community correction center residents are provided through a contract with Wellpath. I am unable to provide the school curricula of their doctors, nurses and other healthcare professionals. I also am unable to provide the curricula for the medical professionals that inmates are referred to in the community.
2. Each ADC correctional institution’s policies concerning the protection of ADC employees, contractors and people incarcerated in ADC correctional institutions from contracting COVID-19;
ADC and ACC facilities follow the guidance provided in Department policies, which are being provided to you.
3. Contingency plans for the event of a staffing shortage—including employees, contractors and incarcerated people—due to the spread of COVID-19;
Plans to manage staffing shortages are included in the Division of Correction’s emergency preparedness manual. Under ACA 12-27-137, the manual is confidential and not subject to public disclosure. If any amendments or additions to the manual are made, the Charitable, Penal and Correctional Institutions Subcommittee is to review them annually.
4. Inventories of hygiene supplies and protective equipment (e.g. soap and facial masks) available to ADC employees and people incarcerated in ADC correctional institutions;
Hygiene supplies are available to inmates and to staff. All staff and all inmates, except those in single cells, have protection masks. Employees have one. Inmates have two. More than 42,000 masks have been manufactured so far by Arkansas Correctional Industries. The plan is to make 80,000 masks.
5. Protocol for screening and testing ADC employees, contractors and people incarcerated in ADC correctional institutions for COVID-19;
Posters and notices have been put up throughout the prisons, community correction centers, parole/probation offices, and administration offices. The poster is attached

Case 4:20-cv-00434-KGB Document 46-42 Filed 05/04/20 Page 3 of 5
to this email. Emails from the directors of the correction and community correction divisions are also attached to this email.
6. An inventory of the personal protective equipment provided to, or required of, people providing medical care to people incarcerated in ADC correctional institutions;
Although there are no documents, Wellpath, the contracted medical provider for the Division of Correction and the Division of Community Correction, reports that healthcare professionals may wear a face shield/googles, gown, mask, and gloves. The items worn at any given time depend on the medical situation.
7. ADC’s policy requiring the use of personal protective equipment in ADC correctional institutions;
Although not in rule or directive form, the mandates are attached.
8. ADC’s policy for handling people incarcerated in ADC correctional institutions who test positive for COVID-19 (e.g. quarantine protocol and the provision of medical care);
As stated in response #4, plans for housing infectious inmates are exempt from public disclosure. However, I am attaching an Administrative Directive dealing with an outbreak of chicken pox to this email. This directive should provide a wide window into how an infectious outbreak is managed.
9. ADC’s policy for ensuring that vulnerable populations (e.g. the elderly, people with underlying health conditions and immunocompromised people) are protected from contracting COVID-19;
Our most vulnerable populations are housed at the Ouachita River Correctional Unit. It is designed for special needs inmates including those who are chronically ill and medically fragile. The facility provides hospital services. I would also suggest you follow us on Facebook and Twitter. We are providing new numbers every Tuesday and Friday. We also provide information from the Division of Emergency Management and the Arkansas Department of Health. The page can be accessed at this link: https://www.facebook.com/ARDeptofCorrections/. The Twitter site can be accessed at https://twitter.com/adcpio.
10. ADC’s policy implementing of social distancing within ADC correctional institutions;
No documents are responsive to this request. Social distancing has been explained to the inmates and center residents, and it is maintained wherever and whenever

Case 4:20-cv-00434-KGB Document 46-42 Filed 05/04/20 Page 4 of 5
possible. But, as you know, this is a confined population and social distancing isn’t always possible, which is why we are distributing masks and emphasizing the importance of proper hand washing. In addition, the $3.00 co-pay for inmateinitiated sick call requests has been suspended.
11. The lists the Director of the Division of Correction has certified to the Board of Corrections of incarcerated people she has recommended for parole, transfer or discharge, due to the prison overcrowding state of emergency declared earlier this year. These lists were created pursuant to A.C.A. s. 12-28-604(a)(1), (b)(1);
The lists of inmates eligible for consideration under the Emergency Powers Act since January 1, 2020, are being provided in a third email due to their size
12. The lists from which the Director of the Division of Correction has chosen which incarcerated people would be certified to the Board of Corrections with a recommendation for said people’s parole, transfer or discharge, due to the prison overcrowding state of emergency declared earlier this year;
No such listings exist. The EPA list is extracted from the inmate tracking system based on eligibility; the computer only extracts those inmates with a parole eligibility date falls within the specified time period who are Class I or Class II. The inmate must be Class I or Class II for consideration of early release by the Parole Board. No listing is made of inmates who are ineligible; however, a new extraction is done each month of the 90-day window to see if additional inmates have become eligible for consideration because their behavior status is improved.
13. The lists of incarcerated people who have been, or will be, released due to the prison overcrowding state of emergency declared earlier this year;
No such listing exists. The inmates certified as eligible for consideration for early release under the EPA still most be granted parole and have an approved parole plan. We do not compile a listing of the inmates who were released under the EPA.
14. Copies of grievances or complaints made by people incarcerated in ADC correctional institutions reporting flu-like symptoms since January 1, 2020.
A listing of the total number of medical grievances filed since January 1, 2020, is attached to this email. We do not track the type of medical issue the inmate claims to have.

Case 4:20-cv-00434-KGB Document 46-42 Filed 05/04/20 Page 5 of 5
In addition, please provide me an account of how many people incarcerated in each ADC correctional institution has been tested for COVID-19, and how many people at each such institution has tested positive; also provide a similar accounting for ADC employees and contractors. Please update this list every three business days.
As of April 18, 2020, 974 inmates had been tested for the virus at the Cummins Unit. Of them, 348 were positive, and 340 test results were pending. Also at Cummins, six employees had tested positive and ten had tested negative.
At the Central Arkansas CCC, 157 inmates were tested. Sixty-three were positive. In addition, 62 employees were tested, and 27 of them were positive. At the East Central Arkansas Community Correction Center, 49 employees were tested with no positives.

Case 4:20-cv-00434-KGB Document 46-43 Filed 05/04/20 Page 1 of 14
Exhibit 43
Eldon Vail Curriculum Vitae

Case 4:20-cv-00434-KGB Document 46-43 Filed 05/04/20 Page 2 of 14

Exhibit 1

ELDON VAIL
1516 8th Ave SE
Olympia, WA. 98501 360-349-3033
Nodleliav@comcast.net

WORK HISTORY

Nearly 35 years working in and administering adult and juvenile institutions, and probation and parole programs, starting at the entry level and rising to Department Secretary. Served as Superintendent of 3 adult institutions, maximum to minimum security, male and female. Served as Secretary for the Washington State Department of Corrections (WADOC) from 2007 until 201l.

! Secretary

WADOC

! Deputy Secretary

WADOC

! Assistant Deputy Secretary WADOC

! Assistant Director for Prisons WADOC

! Superintendent

McNeil Island Corrections Center

! Superintendent

WA. Corrections Center for Women

! Correctional Program Manager WA. Corrections Center

! Superintendent

Cedar Creek Corrections Center

! Correctional Program Manager Cedar Creek Corrections Center

! Juvenile Parole Officer

Division of Juvenile Rehabilitation

! Correctional Unit Supervisor Cedar Creek Corrections Center

! Juvenile Institution Counselor Division of Juvenile Rehabilitation

2007-2011 1999-2006 1997-1999 1994-1997 1992-1994 1989-1992 1988 1987 1984-1987 1984 1979-1983 1974-1979

SKILLS AND ABILITIES

! Ability to analyze complex situations, synthesize the information and find practical solutions that are acceptable to all parties.

! A history of work experience that demonstrates how a balance of strong security and robust inmate programs best improves institution and community safety.

! Leadership of a prison system with very little class action litigation based on practical knowledge that constitutional conditions are best achieved through negotiation with all parties and not through litigation.

! Extensive experience as a witness, both in deposition and at trial.

! Experience working with multiple Governors, legislators from both political parties, criminal justice partners and constituent groups in the legislative and policymaking process.

1

Case 4:20-cv-00434-KGB Document 46-43 Filed 05/04/20 Page 3 of 14
! Skilled labor negotiator for over a decade. Served as chief negotiator with the Teamsters and the Washington Public Employees Association for Collective Bargaining Agreements. Chaired Labor Management meetings with Washington Federation of State Employees.
HIGHLIGHTS OF CAREER ACCOMPLISHMENTS
! Reduced violence in adult prisons in Washington by over 30% during my tenure as Secretary and Deputy Secretary even though the prison population became more violent and high risk during this same time period.
! Long term collaboration with the University of Washington focusing on improving treatment for the mentally ill in prison and the management of prisoners in and through solitary confinement.
! Implemented and administered an extensive array of evidence based and promising programs:
o Education, drug and alcohol, sex offender and cognitive treatment programs.
o Implemented sentencing alternatives via legislation and policy, reducing the prison populations of non-violent, low risk offenders, including the Drug Offender Sentencing Alternative and, as the Secretary, the Parenting Sentencing Alternative. http://www.doc.wa.gov/corrections/justice/sentencing/parentingalternative.htm
o Pioneered extensive family based programs resulting in reductions in use of force incidents and infractions, as well as improved reentry outcomes for program participants.
o Established Intensive Treatment Unit for mentally ill inmates with behavioral problems.
o Established step down programs for long-term segregation inmates resulting in significant reduction in program graduate returns to segregation.
! Initiated the Sustainable Prisons Project http://blogs.evergreen.edu/sustainableprisons/
! Improved efficiency in the agency by administrative consolidation, closing 3 high cost institutions and eliminating over 1,200 positions. Housed inmates safely at lowest possible custody levels, also resulting in reduced operating costs.
! Increased partnerships with non-profits, law enforcement and community members in support of agency goals and improved community safety.
2

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! Successful settlement of the Jane Doe class action law suit, a PREA case regarding female prisoners in the state’s prisons for women.
! Resolved potential class action lawsuit regarding religious rights of Native Americans. https://www.seattletimes.com/opinion/a-precedent-for-native-americans-religiousfreedom-in-washington-prisons/
! Led the nation’s corrections directors to support fundamental change in the Interstate Compact as a result of the shooting of 4 police officers in Lakewood, WA.
! Dramatically improved media relations for the department by being aggressively open with journalists, challenging them to learn the difficult work performed by corrections professionals on a daily basis.
EDUCATION AND OTHER BACKGROUND INFORMATION
! Bachelor of Arts - The Evergreen State College, Washington – 1973
! Post graduate work in Public Administration - The Evergreen State College, Washington - 1980 and 1981
! National Institute of Corrections and Washington State Criminal Justice Training Commission - various corrections and leadership training courses
! Member of the American Correctional Association
! Associate member, Association of State Correctional Administrators (ASCA)
! Guest Speaker, Trainer and Author for the National Institute of Corrections (NIC)
! Instructor for Correctional Leadership Development for the National Institute of Corrections
! Author of Going Beyond Administrative Efficiency—The Budget Crisis in the State of Washington, published in Topics of Community Corrections by NIC, 2003
! Consultant for Correctional Leadership Competencies for the 21st Century, an NIC publication
! Consultant for Correctional Health Care Executive Curriculum Development, an NIC training program, 2012
! Commissioner, Washington State Criminal Justice Training Commission 20022006, 2008-2011
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! Member, Washington State Sentencing Guidelines Commission 2007-2011
! Advisory Panel Member, Correctional Technology—A User’s Guide
! Co-chair with King County Prosecutor Dan Satterberg, Examining the Tool Box: A Review of Supervision of Dangerous Mentally Ill Offenders
! Guest lecturer on solitary confinement, University of Montana Law School in 2012
! On retainer for Pioneer Human Services from July 2012 - July 2013
! On retainer for BRK Management Services from September 2012 – April 2013 ! Guest Editorials, Seattle Times, February 22, 2014 and April 5th, 2019
http://www.seattletimes.com/opinion/guest-opinions-should-washington-stateabolish-the-death-penalty/ https://www.seattletimes.com/opinion/washington-state-is-ready-to-put-an-endto-the-death-penalty/
CURRENT ACTIVITIES
! Serve on the Board of Advisors for Huy, a non-profit supporting Native American Prisoners
! Serve on the Board of Directors for HEAL for Reentry, a non-profit supporting Native Americans’ transition to the community from prison
! Retained as an expert witness or correctional consultant in the following:
o Mitchell v. Cate No. 08-CV-1196 JAM EFB United States District Court, Eastern District of California, Declarations, March 4, May 15 and June 7, 2013 Deposed, July 9, 2013 Case settled, October 2014
o Gifford v. State of Oregon No. 6:11-CV-06417-TC United States District Court, For the District of Oregon, Eugene Division, Expert report, March 29, 2013 Case settled, May 2013
4

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o Ananachescu v. County of Clark No. 3:13-cv-05222-BHS United States District Court, Western District of Tacoma Case settled, February 2014
o Parsons, et al v. Ryan No. CV 12-06010 PHX-NVW, United States District Court of Arizona Declarations and reports, November 8, 2013, January 31, February 24 and September 4, 2014 Deposed, February 28 and September 17, 2014 Case settled, October 2014
o Coleman, et al v. Brown, et al No. 2:90-cv-0520 LKK JMP, United States District Court, Eastern District of California, Declarations, March 14, May 29 and August 23, 2013; February 11, 2014 Deposed, March 19 and June 27, 2013 Testified, October 1, 2, 17 and 18, 2013
o Peoples v. Fischer No. 1:11-cv-02694-SAS, United States District Court, Southern District of New York Interim settlement agreement reached February 19, 2014 Case settled, March 2016 Continuing assignment monitoring for the Plaintiffs
o Dockery v. Hall No. 3:13-cv-326 TSL JMR, United States District Court for the Southern District of Mississippi, Jackson Division Reports, June 16, 2014, December 29, 2016; March 23, 2017; November 16, 2018 Deposed, April 7, 2017 Testified March 5-7, 2018
o C.B., et al v. Walnut Grove Correctional Authority, et al No. 3:10-cv-663 DPS-FKB, United States District Court for the Southern District of Mississippi, Jackson Division Memo to ACLU and Southern Poverty Law Center, March 14, 2014, filed with the court Reports, August 4, 2014 and February 10, 2015 Testified, April 1, 2 and 27, 2015
5

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o Wright v. Annucci, et al No. 13-CV-0564 (MAD)(ATB), United States District Court, Northern District of New York Reports, April 19 and December 12, 2014 Testified, February 13, 2017
o Graves v. Arpaio No. CV-77-00479-PHX-NVW, United States District Court of Arizona Declarations, December 15, 2013, April 1, 2016, December 22, 2017; February 9 and October 22, 2018; August 19 and 30, 2019 Testified, March 5, 2014
o Corbett v. Branker No. 5:13 CT-3201-BO, United States District Court, Eastern District of North Carolina, Western District Special Master appointment November 18, 2013 Expert Report, January 14, 2014 Testified, March 21, 2014
o Fontano v. Godinez No. 3:12-cv-3042, United States District Court, Central District of Illinois, Springfield Division Report, August 16, 2014 Testified June 29, 2016 Case settled June 30, 2016
o Atencio v. Arpaio No. CV12-02376-PHX-PGR, United States District Court of Arizona Reports, February 14 and May 12, 2014 Deposed, July 30, 2014 Case settled, March 2018
o Larry Heggem v. Snohomish County No. CV-01333-RSM, United States District Court, Western District of Washington at Seattle Report, May 29, 2014 Deposed, June 27, 2014
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o Doe v. Michigan Department of Corrections No. 5:13-cv-14356-RHC-RSW, United States District Court, Eastern District of Michigan, Southern Division Declarations, September 12, 2018 and September 30, 2019 Deposed, October 17, 2019 Case settled, January 2020
o Disability Rights, Montana, Inc. v. Richard Opper No. CV-14-25-BU-SHE, United State District Court for the District of Montana, Butte Division
o Padilla v. Beard, et al Case 2:14-at-00575, United States District Court, Eastern District of California, Sacramento Division Declaration, February 26, 2016 Deposed June 3, 2016 Testified April 19, 2017 Case settled, April 24, 2017
o Braggs, et al v. Dunn, et al No. 2:14-cv-00601-WKW-TFM, United States District Court, Middle District of Alabama Declarations, September 3, 2014, April 29, 2015, June 3, 2015 Expert Report, July 5, 2016 Declarations, February 9 and October 19, 2017 Expert Report, July 1, 2018 Deposed August 21, 2016 Testified, December 22, 2016, January 4, February 21, December 5, 2017; February 13, October 23, November 29, 2018; April 3, 2019
o Sassman v. Brown No. 2:14-cv-01679-MCE-KJN, United States District Court, Eastern District of California, Sacramento Division Declaration, August 27, 2014; Report, December 5, 2014 Deposed, December 15, 2014
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o Robertson v. Struffert, et al Case 4:12-cv-04698-JSW, United States District Court, Northern District of California Declaration, March 16, 2015 Deposed May 4, 2015 Case settled, October 2015
o Commonwealth of Virginia v. Reginald Cornelius Latson Case No: GC14008381—00, General District Court of the County of Stafford Report, January 12, 2015 Pardon granted
o Flores v. United States of America Civil Action No 14-3166, United States District Court, Eastern District of New York Report, August 14, 2015
o Latson v. Clarke No. 1:16-cv-00447-GBL-MSN, United States District Court, Eastern District of Virginia Reports, November 16, 2016 and January 6, 2017 Deposed, December 13, 2016 Case settled, May 2, 2017
o Latson v. Clarke Civil No. 1:16-cv-00039, United States District Court, Western District of Virginia, Abingdon Division Report, September 29, 2017 Deposed, December 28, 2017
o Doe v. Wolfe Case 4:15-cv-00250-DCB, United States District Court for the District of Arizona Reports, December 4, 2015; March 10, 2016; September 23 and November 20, 2017 Deposed, January 5, 2018 Testified, November 14, 2016 and January 13, 14 and 22, 2020 Permanent Injunction, April 2020
o Fant v. The City of Ferguson Case No. 415-cv-00253 E.D. MO, United States District Court, Eastern District of Missouri Report, January 8, 2016
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o Star v. Livingston Case No: 4:14-cv-03037, United States District Court, Southern District of Texas, Houston Division Reports, March 3, 2015 and October 12, 2016 Case settled, March 2018
o Redmond v. Crowther Civil No. 2:13-cv-00393-PMW, United States District Court, Central Division, State of Utah Report, April 28, 2015 Deposed, July 28, 2015
o Cole v. Livingston Civil Action No. 4:14-cv-1698, United States District Court, Southern District of Texas, Houston Division Reports, August 5, 2015 and April 28, 2017 Deposed, December 2, 2015 Testified, June 20, 2017 Case settled, March 2018
o State of Arizona, Appellee, v. Pete J. Van Winkle, Appellant No. CR–09–0322–AP, Testified, March 28, 2016
o Rasho v. Godinez Civil Action No. 07-CV-1298, United States District Court, Central Division of Illinois, Peoria Division Case settled, December 2015
o Morgal v. Williams No. CV 12-280-TUC-CKJ, United States District Court for the District of Arizona Report, February 1, 2016 Deposed, February 25, 2016
o Sacramento County Sheriff Retained by Sacramento County Sheriff to evaluate housing units in the Sacramento County jails, including maximum custody, segregation and protective custody Report, June 27, 2016 Case settled, June 2019
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Case 4:20-cv-00434-KGB Document 46-43 Filed 05/04/20 Page 11 of 14
o Community Legal Aid Society, Inc. v. Robert M. Coupe Case No. 1:15-cv-00688, United States District Court for the District of Delaware Report, March 31, 2016 Case settled, August 2016
o C-Pod Inmates of Middlesex County Adult Correction Center, et al. v. Middlesex County Civil Action No. 15-7920 (PGS), United States District Court for the District of New Jersey Report, July 29, 2016 Case settled, September 2018
o Williams v. Snohomish County Case No. 15-2-22078-1 SEA, Superior Court for the State of Washington, King County Case Settled, May 2017
o P.D. v. Middlesex County Case No. MID-L-3811-14, Superior Court of New Jersey Report, July 29, 2016
o Gould v. State of Oregon, et al Case No. 2:15-cv-01152-SU, United States District Court for the District of Oregon Case settled, October 2016
o Johnson v. Mason County NO. 3:14-cv-05832-RBL, United States District Court, Western District of Washington at Tacoma Declaration, April 5, 2016 Deposed, October 26, 2016 Case settled, March 2017
o United States Department of Justice Retained by DOJ to join a team investigating conditions for LGBT inmates including sexual harassment, sexual abuse and sexual assaults by inmates and staff in the Georgia Department of Corrections Report, October 2016
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Case 4:20-cv-00434-KGB Document 46-43 Filed 05/04/20 Page 12 of 14
o Carruthers v. Israel Case No. 76-6086-civ-Middlebrooks, United States District Court, Southern District of Florida
o Daniel Evans v. Management and Training Corporation, et al NO. 3:15-cv-770-DPJ-FKB, United States District Court, Southern District of Mississippi, Northern Division Report, October 17, 2016 Case settled, January 2017
o Webb v. Collier Civil Action NO. 6:13cv711, United States District Court, Eastern District of Texas, Tyler Division Report, March 13, 2017 Deposed, May 5, 2017 Case settled, March 2018
o Holbron v. Espinda Civil No. 16-1-0692-04 RAN, Circuit Court of the First Circuit, State of Hawai’i Reports, February 1 and November 20, 2017 Testified, December 20, 2017
o Dahl v. Mason County Case 3:16-cv-05719. United States District Court, Western District of Washington at Tacoma Report, August 21, 2017, Declaration, December 4, 2017 Case settled, August 2018
o Adams, James, Hudson v. Livingston Civil Action No. 4:14-cv-03326, United States District Court, Southern Division of Texas Houston Division Report, June 15, 2017 Case settled, March 2018
o Ashker v. Governor of the State of California, et al Case No. 4:09 CV 05796 CW, United States District Court, Northern District of California, Oakland Division Declaration, December 6, 2017
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o Togonidze v. Livingston Civil Action No. 3:13-cv-229, United States District Court, Southern District of Texas, Galveston Division Report, October 3, 2017 Case settled, March 2018
o Martone v. Livingston Civil Action No 4:13-CV-3369, United States District Court, Southern Division of Texas, Houston Division Case settled, March 2018
o Cody v. City of St. Louis Case 4:17-cv-02707-AGF, United States District Court, Eastern District of Missouri, Eastern Division Affidavit, August 30, 2018, Report September 27, 2019
o Sabata v. Nebraska Department of Correctional Services Case No. 4:17-CV-3107, United States District Court for the State of Nebraska Declarations, August 24, 2018, February 14, 2019 and June 26, 2019 Deposed, April 9, 2019
o Pickens v. Management & Training Corporation Civil Action No. 3:16cv-913-CWR-FKB, United States District Court for the Southern District of Mississippi, Northern Division Report, December 19, 2018 Case settled, January 2019
o Davis v. Baldwin Case No. 3:16-cv-600, United States District Court, Southern Division of Illinois Report, September 6, 2019 Deposed, November 13, 2019
o Amos v. Taylor No. 4:20-cv-00007-DMB-JMV, United States District Court, Northern District of Mississippi, Greenville Division Declarations, January 31, February 2 and 8, 2020
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o Armstrong v. Newsome No. C94-2307 CW United States District Court, Northern District of California, Oakland Division Declaration, February 24, 2020
o Valentine v. Collier Case 4:20-cv-01115 United States District Court, Southern District of Texas, Houston Division Declaration, April 1, 2020 Testified, April 16, 2020
o Cullors v. County of Los Angeles Case 2:20-cv-03760 United States District Court, Central District of California Declaration, April 23, 2020
13

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Exhibit 44
Image – ADC Graduation Ceremony 3.27.2020

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Exhibit 45
Image – Cummins Unit Facebook Post

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Exhibit 46
Image – Food Tray (Cummins Unit)

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Exhibit 47
Image – ADC Sergeant Facebook Post

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Exhibit 48
Dr. Naveen Patil (ADH) West Memphis Email to Austin Porter (ADH) 4/13/2020

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Exhibit 49
Dr. Naveen Patil (ADH) Email to Nate Smith (ADH) 4/12/2020

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Exhibit 50
Dr. Naveen Patil (ADH)Hand Sanitizer Email to Nate Smith (ADH) 4/10/2020

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Exhibit 51
First Declarations (Plaintiff Signed), April 26, 2020 – April 27, 2020

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Exhibit 52
Image – Food Tray 2

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Exhibit 53
Image – Food Tray 5

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Exhibit 54
Image – Food Tray 6

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 Case 4:20-cv-00434-KGB Document 64 Filed 05/08/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

v.

CASE NO. 4:20-CV-00434-KGB-JJV

WENDY KELLEY, et al.

PLAINTIFFS DEFENDANTS

DEFENDANTS’ HEARING BRIEF IN OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Defendants have extensively briefed the reasons why this Court should deny Plaintiffs’ request for a preliminary injunction, and yesterday’s preliminary injunction hearing further underscored the weakness of Plaintiffs’ claims. Indeed, as Defendants stressed during their closing argument, Plaintiffs’ claims fail as both a matter of law and fact. Consequently, Defendants do not believe it necessary to belabor those points. Instead, Defendants merely wish to highlight a few of the primary reasons Plaintiffs’ motion for a preliminary injunction fails.
1. Plaintiffs cannot get injunctive relief because Defendants failed to act “soon enough.”
The focus of Plaintiffs’ proof at yesterday’s hearing was Defendants’ alleged failure to act quickly enough to respond to COVID-19. Their expert witness, Eldon Vail, testified that the “biggest deficiency” in Defendants’ response was that they didn’t act “soon enough” and likely failed to do enough “advance planning” for a pandemic. Both through his testimony and Plaintiffs’ closing argument, Plaintiffs attempted to show that Defendants had, in Plaintiffs’ counsel’s words, “failed to harness” the outbreak last month at the Cummins unit by not acting soon enough. See Pls. Ex. 69 (DE 46-11) at 8 ¶ 13 (“The level of COVID-19 infection in the

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Cummins Unit . . . serves as an example of what happens when a corrections agency is slow to respond to the pandemic.”).
Time and time again, however, Vail testified that the measures Defendants were taking now were good—he just believed they should have occurred sooner. For example, his chief social-distancing recommendation, given his acknowledgement that ADC prisons weren’t built to accommodate six-foot social distancing, was to arrange bunks so that prisoners slept head to foot. See also Pls. Ex. 69 (DE 36-9) at 11 (CDC recommendation of head-to-foot sleeping arrangement). When showed Defendants’ Exhibit 96, Director Payne’s directive to ADC wardens on how to implement head-to-foot sleeping arrangements, Vail said that “this is good; it’s just late.” Likewise, when shown photographs of social distancing in cafeterias at one unit, which Director Payne later testified was being required in all units, Vail had praise for the socialdistancing measures shown there, only faulting them for being implemented too late.
Evidence that Defendants’ current measures weren’t taken soon enough would be relevant in a damages action for past deliberate indifference. But even if Plaintiffs’ claims that Defendants did not act fast enough were valid—and they aren’t—they don’t help Plaintiffs prove that Defendants are acting with deliberate indifference now. And as such, as a matter of law, they cannot support a claim for forward-looking injunctive relief. Indeed, to state the obvious, Plaintiffs do not need an injunction to compel Defendants to take the measures they’re already taking. And as the Fifth Circuit recently emphasized in a bevy of COVID-19 cases, “a federal court lacks jurisdiction to act as a super-state executive by ordering a state entity to comply with its own law.” Marlowe v. LeBlanc, — F. App’x —, 2020 WL 2043425, at *2 (5th Cir. Apr. 27, 2020); Valentine v. Collier, — F.3d —, 2020 WL 1934431, at *4 (5th Cir. Apr. 22, 2020).
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2. Plaintiffs cannot get injunctive relief against Defendants because some unit-level correctional officers occasionally fail to follow Defendants’ policies.
Plaintiffs’ expert also complained of a “disconnect” between Defendants’ policies and what inmates claim to have observed, or how a sanitation log did not reflect the amounts of disinfectants being used at a single unit. Plaintiffs’ only other witness, Susie Anita Daniel, testified about nothing but the gap—as it has been described to her by her grandson—between the Arkansas Division of Community Correction’s COVID-19 policies and what her grandson claimed to have seen.
The problem with this evidence is that it doesn’t support injunctive relief against the people whom Plaintiffs actually sued—the apex officials in the Department of Corrections and the Directors of its Divisions. As the Eleventh Circuit concluded just this week in a COVID-19 case, absent evidence that “the defendants are ignoring or approving the alleged lapses in enforcement of [their] policies . . . lapses in enforcement do little to establish that the defendants were deliberately indifferent.” Swain v. Junior, — F.3d —, 2020 WL 2161317, at *5 (11th Cir. May 5, 2020). And Plaintiffs have no evidence that Defendants are deliberately ignoring or approving any enforcement lapse; they merely speculate that such lapses must be the result of a failure to train correctional officers in Defendants’ policies. The only evidence they offered that Defendants knew of any enforcement lapse was a single incident where guards failed to wear masks at a hospital when bringing prisoners there for evaluation, see Pls. Ex. 80, and when questioned about that incident, Director Payne testified that the guards involved had received corrective counseling.
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3. Plaintiffs cannot prove deliberate indifference by faulting Defendants for following medical guidance.
Key parts of Plaintiffs’ “proof” at yesterday’s hearing consisted of argument that the CDC and Arkansas Department of Health have been giving Defendants bad guidance. In particular, Plaintiffs complain about allowing a small handful of asymptomatic but COVID-19positive staff to work with the quarantined COVID-19 positive inmates at the Cummins Unit. Of course, as Plaintiffs know, this wasn’t Defendants’ idea; it was recommended by the Arkansas Department of Health in cases of critical staffing shortages. See Defendants’ Ex. 19 & 20. But Plaintiffs’ correctional expert, who admitted he had no medical or epidemiological expertise, testified that in his view it was unwise, largely because positive staff could theoretically disobey Defendants’ policy and run to assist an emergency in the negative inmates’ barracks.
Plaintiffs also spent a large part of yesterday’s hearing faulting ADC for not using alcohol-based sanitizer. (As Mr. Banks testified, the Division of Community Corrections, given its facilities’ different security profile, does dispense alcohol-based sanitizer under staff control.) But as their expert conceded, the CDC only recommends alcohol-based sanitizer “where permissible based on security restrictions.” Pls. Ex. 69 at 10. Likewise, the Arkansas Department of Health only recommends alcohol-based sanitizer “when practical from [a] security . . . standpoint.” Defendants’ Ex. 20 at 1. And Plaintiffs’ expert’s disagreement is based on little more than his assertion that he just has a “different opinion,” DE 46-11 at 18, and thinks alcohol-based sanitizer is of such importance, medically (though he has no expertise in medicine), that its value overrides security concerns. Last, Plaintiffs’ expert tentatively opined that Defendants ought to “explore” spreading inmates’ bunks to gyms and cafeterias, but the
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CDC only recommends distancing bunks “[i]f space allows,” and otherwise recommends the head-to-foot arrangement Defendants have taken. DE 36-9 at 11.
It is not deliberate indifference for Defendants to follow the CDC and Arkansas Department of Health’s medical opinions and decline to follow Plaintiffs’ correctional expert’s “different opinion,” especially on matters of medicine. See Roman v. Wolf, No. 20-55346, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020) (staying every paragraph of a 29-paragraph COVID19 preliminary injunction except one, “to the extent that [it] requires substantial compliance” with CDC guidance); Valentine, 2020 WL 1934431, at *4 (“Plaintiffs have cited no precedent holding that the CDC’s recommendations are insufficient to satisfy the Eighth Amendment.”). The test for deliberate indifference, ultimately, is whether Defendants “knew that their conduct was inappropriate.” Washington v. Denney, 900 F.3d 549, 559 (8th Cir. 2018) (emphasis added) (quoting Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009)). Indeed, Plaintiffs cannot plausibly claim that Defendants knew their conduct was inappropriate when it’s the precise conduct that state and federal medical experts recommended.
Moreover, the CDC and Arkansas Department of Health’s guidelines are far from obviously unreasonable. If positive staff only work with positive inmates and stay out of break rooms and other common areas, as Director Payne testified they do, they cannot infect negative inmates. As for the supposed necessity of access to alcohol-based sanitizer, the CDC only recommends its use as a second-best substitute to soap and water. See DE 36-9 (recommending prisoners use alcohol-based sanitizer “[i]f soap and water are not available”). But Plaintiffs have access to soap and water. See Defendants’ Ex. 1, ¶ 58. Last, the head-to-foot sleeping arrangement Defendants have adopted creates over six feet of distance between prisoners’ heads,
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through which coronavirus is exhaled and inhaled, if not their entire bodies. See Defendants’ Ex. 96 (illustrating arrangement).
4. The balance of Plaintiffs’ attempts to prove deliberate indifference amount to little more than a request that this Court micromanage prison officials.
At yesterday’s hearing, Plaintiffs faulted Defendants for a variety of things that are too picayune for the CDC’s guidance to correctional institutions to even address. Plaintiffs believe Defendants should be using a different disinfectant because it doesn’t appear on their list of EPA-approved coronavirus disinfectants, though the disinfectant’s manufacturer says oit is EPAapproved (Defendants’ Ex. 75). And Plaintiffs’ expert, though praising the content of Defendants’ COVID-19 posters, thinks that Defendants should be gathering ADC prisoners—in seeming violation of social distancing principles—to give them oral guidance on COVID-19 safety measures. This, he claims, would better allow prisoners to ask questions. (Subsequently, Director Payne testified that prisoners are, in fact, able to request an interview with correctional staff to ask about COVID-19 safety measures.)
This is not the stuff of a deliberate-indifference claim. In the case of Citrus Breeze III, Director Payne’s testimony established that Defendants sincerely and reasonably believe Citrus Breeze III, given the representations of its manufacturer, is effective to combat coronavirus.1 As for gathering prisoners in rooms to lecture them on mask-wearing and social distancing, such lectures might, in theory, marginally enhance prisoners’ compliance with ADC’s written and
1 Defendants aren’t the only ones buying Citrus Breeze III. See KATV, Arkansas-based Razor Chemical sees increase in disinfectant production during pandemic (May 5, 2020), https://katv.com/news/local/arkansas-based-razor-chemical-sees-increase-in-disinfectantproduction-during-pandemic (Citrus Breeze III is sold to “hospitals, the Arkansas Department of Health, prisons, jails, and other commercial businesses,” thanks to its “certifi[cation] under the EPA’s Emerging Pathogen Policy”).
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broadcast guidance. But it is absurd to suggest that Defendants are deliberately disregarding the risks of COVID-19 by failing to issue their guidance in oral form.
5. Plaintiffs’ proof demonstrated that their class claims are uncertifiable. At yesterday’s hearing, Plaintiffs relied almost entirely on a series of unit-specific criticisms of Defendants’ policies and enforcement of them. Their chief complaint again is about Defendants’ policy of allowing positive staff to work with the quarantined COVID-19 positive inmates at Cummins. But even if that policy were problematic—and, again, Plaintiffs offer no reason it is—it has nothing to do with inmates outside of Cummins. They rely on evidence of non-enforcement, whether from Plaintiffs’ declarations about conditions at their particular unit (in many instances, the same one, Ouachita River), or from a sanitation log at a single unit, or from Ms. Daniel’s testimony about what her grandson told her. But even if Plaintiffs had proven systemic non-enforcement at any particular unit, that would only justify unit-level relief. Given the unit-level specificity of Plaintiffs’ evidence, at worst, any relief would have to be tailored to particular units—if not particular plaintiffs. Plaintiffs, however, seek to represent a class of all ADC inmates, along with subclasses of all disabled or “high-risk” ADC inmates. And as Defendants have previously explained, a Rule 23(b)(2) class can only be certified if its claims are such that “all the class members” are either entitled to the same injunction or no injunction at all. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Tellingly, though Plaintiffs cite many cases in which district courts have granted prisoners some provisional classwide relief for COVID-19, the vast majority involve individual prisons with outbreaks. The only decisions of which Defendants are aware granting class-wide relief on COVID-19 claims against a state prison system have been stayed by the Fifth Circuit in Valentine and Marlowe. Accordingly, Plaintiffs are unlikely to succeed in their bid for class certification.
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6. Plaintiffs’ habeas claims are uncognizable condition-of-confinement claims. Plaintiffs’ condition-of-confinement claims fail because Eighth Circuit precedent unequivocally bars inmates from bringing such condition-of-confinement claims in habeas. See Spencer v. Haynes, 774 F.3d 467, 470 (8th Cir. 2014) (“Spencer’s constitutional claim relates to the conditions of his confinement. Consequently, a habeas petition is not the proper claim to remedy his alleged injury.” (emphasis added) (citation omitted)). Recognizing that, Plaintiffs ask this Court to ignore the Eighth Circuit’s decisions in Spencer and Kruger v. Erickson, 77 F.3d 1071 (8th Cir. 1996), and hold that—under Willis v. Ciccone, 506 F.2d 1011, 1014 (8th Cir. 1974)—state condition of confinement claims are cognizable in habeas. That argument fails for two reasons. First, there is no dispute that Kruger held that state prisoners’ condition-of-confinement claims belong in Section 1983 suits, not in habeas. See 77 F.3d at 1073. Nor is there any dispute, that Spencer held Kruger—and not Willis—resolves that question. 774 F.3d at 470. And Plaintiffs do not point to any Eighth Circuit decisions contradicting that holding. As such, Plaintiffs’ disagreement about Spencer’s conclusion and whether it misapplied the prior-panel rule notwithstanding, that decision binds this Court. Second, Plaintiffs’ argument fails because—as other district courts have concluded—the basis for Willis’s holding, the “basic inequity” of allowing state prisoners to sue for deliberate indifference under Section 1983 while federal prisoners lacked a comparable cause of action, Willis, 506 F.2d at 1014, was undermined by later decisions allowing federal prisoners to bring Bivens damages claims for deliberate indifference. See Smith v. Warden of Duluth Prison Camp, No. 18-cv-2555, 2019 WL 3325837, at *3 (D. Minn. Apr. 23, 2019) (“[T]he lynchpin of Willis— the supposed disparity between the rights of state prisoners and the rights of federal prisoners— no longer exists.”), report and recommendation adopted, 2019 WL 332306 (D. Minn. July 24,
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2019); see also Carlson v. Green, 446 U.S. 14 (1980). Moreover, it would be strange indeed to follow Willis over Spencer in a habeas case brought by state prisoners when Willis’s holding was motivated by an inequity suffered by federal prisoners that no longer even exists.
7. Plaintiffs’ Section 1983 and ADA claims are unexhausted. Plaintiffs concede they have not—as required by the PRLA—fully exhausted the grievance process. Plaintiffs only response to Defendants’ exhaustion defense is that the ADC grievance process was unavailable to them. As Defendants predicted, Plaintiffs rest their entire argument for unavailability—and thus their entire Section 1983 and ADA case—on a passage of dictum in the Seventh Circuit’s opinion in Fletcher v. Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010). That passage theorized that, if a prisoner’s grievance were that guards were failing to protect him from a threat by “members of the Aryan Brotherhood . . . to kill him within the next 24 hours,” and the grievance process took “two weeks to respond,” that two-week process could not be deemed an available remedy for a 24-hour death-threat grievance. Id. at 1174 (emphasis added). This case is nothing like that hypothetical. Plaintiffs’ grievances aren’t about a 24-hour death threat or anything like it. They are about (at most) a continuing emergency. Indeed, there is no dispute that ADC is capable of providing some COVID-19 relief because COVID-19 continues to be a health risk. And so long as the “possibility of some relief” exists, Fletcher, 623 F.3d at 1173, an exhaustion procedure is available. Moreover, Plaintiffs haven’t shown ADC’s three-step grievance process cannot provide speedy relief. To the contrary, the only evidence of supposed unavailability shows that COVID19 grievances receive extraordinarily prompt responses, within two to three days, at the first two grievance steps and that, for reasons unknown, Plaintiffs refuse to even attempt the process’s third and last step. See DE 36-40 ¶ 16; DE 46-2 ¶ 15; DE 46-5 ¶ 15; DE 46-7 ¶ 21; DE 46-10
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Case 4:20-cv-00434-KGB Document 64 Filed 05/08/20 Page 10 of 11 ¶ 16. Thus, as was true in Fletcher, where a prisoner filed an emergency grievance and—much like Plaintiffs—sued two days later without waiting for a response, there is “no reason to think that the prison’s grievance procedure would take longer than judicial procedure.” Fletcher, 623 F.3d at 1175. And it is that holding, not Fletcher’s hypothetical, that mirrors this case.
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CONCLUSION The Court should deny the Plaintiffs’ motion for a preliminary injunction.
Respectfully submitted, LESLIE RUTLEDGE
Arkansas Attorney General NICHOLAS J. BRONNI (2016097)
Arkansas Solicitor General VINCENT M. WAGNER (2019071)
Deputy Solicitor General ASHER STEINBERG (2019058)
Assistant Solicitor General JENNIFER L. MERRITT (2002148) Senior Assistant Attorney General JERRY GARNER (2014134) Assistant Attorney General OFFICE OF THE ARKANSAS
ATTORNEY GENERAL 323 Center St., Suite 200 Little Rock, AR 72201 (501) 682-1051 asher.steinberg@arkansasag.gov
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 Case 4:20-cv-00434-KGB Document 65 Filed 05/08/20 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

v.

Case No. 4:20-cv-00434 KGB

WENDY KELLEY, et al.

PLAINTIFFS DEFENDANTS

POST-HEARING MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION

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INTRODUCTION On March 11, 2020—when Governor Hutchinson announced a state of emergency in response to the worldwide, COVID-19 pandemic—Defendants were on high alert. As acknowledged in the Arkansas State Department of Health’s (“ADH”) own guidance, correctional facilities and detention centers . . . pose a high risk for transmission of COVID19” due to their “congregate nature.” See ADH COVID-19: Guidance for State Correctional Facilities and Local Detention Facilities, dated Mar. 27, 2020 (“3/27/20 ADH Guidance, Def. Ex. 10”) (Dkt. No. 36-10). Thus, Defendants knew that, unless they fully prepared to take swift and systemwide action in the face of the greatest pandemic in modern history, it would only be a matter of time before COVID-19 would infect staff, incarcerated people, or both, with likely serious injury and possible death to follow. And the blueprint for this swift and systemwide action was laid out by the Centers for Disease Control and Prevention’s (“CDC”) guidance, which is specifically geared towards correctional facilities and identifies in detail the steps that Defendants should take in order to stem and mitigate the spread of COVID-19. See CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, dated Mar. 23, 2020 (“CDC Guidance, Def. Ex. 9”) (Dkt. No. 36-9). With full knowledge of the dangers involved with this lethal virus, and equipped with specific guidance from the CDC, Defendants turned a crisis situation into a greater catastrophe with their modest, uneven, and entirely inadequate measures. Six men (two more since our last submission to the Court) have already died from the Cummins Unit viral outbreak, which is the fourth largest in the nation with confirmed infections of 876 incarcerated people and 54 corrections staff. Andrew DeMillo, 6th inmate dies of coronavirus at Arkansas prison, Times Record, May 7, 2020, at
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https://www.swtimes.com/news/20200507/6th-inmate-dies-of-coronavirus-at-arkansasprison. It is no coincidence that this massive outbreak occurred in Cummins Unit, which also happens to be where Defendants allowed up to ten COVID-19-positive staff to work during their isolation period when they could still transmit the virus to others. Transcript of Preliminary Injunction Hearing, May 7, 2020 (“Hrg. Tr.”), at 211-12.
Social distancing, which is the most significant tactic to mitigate the spread of the virus, is all but non-existent in Arkansas Department of Corrections (“DOC”) facilities. Indeed, only on May 3, 2020 (almost two months after Governor Hutchinson declared a state of emergency) did Defendants make incarcerated people in the Ouachita River Unit, which houses the State’s most vulnerable prisoners, alternate their sleeping positions headto-toe—a specific recommendation in the March 23 CDC Guidance. Moreover, rather than enhanced cleaning and disinfecting of frequently used surfaces, as recommended by the CDC, Defendants’ own documents—consistent with multiple accounts of incarcerated people in multiple facilities—confirm why unsanitary conditions continue unabated, with commonly used facilities like toilets and showers disinfected only a few times per week. And Defendants’ most frequently used cleaning agent, Citrus Breeze III, is not included in the Environmental Protection Agency’s (“EPA”) list of 402 disinfectants found to be effective against the COVID-19 virus.
Finally, the appalling treatment of incarcerated people who exhibit symptoms of, or have tested positive with, COVID-19 in Cummins is a stark warning of the worst to come if this Court does not intervene right away. Incarcerated people who are sick from the virus are clustered into closed barracks with no medical attention—some so ill that they have defecated on themselves. And the extent of the virus spread in other facilities is
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presently unknown, with only 49 incarcerated people tested outside of Cummins Unit as of April 29, 2020.
It is imperative for this Court to issue a preliminary injunction to stem the tide of this growing public health disaster. Plaintiffs have established deliberate indifference under the Eighth Amendment and a violation of the Americans With Disabilities Act (“ADA”). There are no procedural hurdles under the PLRA because Plaintiffs’ grievances would not be resolved until June 11, 2020, far too late during this time-sensitive pandemic, which render administrative remedies unavailable. And given the impossibility of adequate social distancing, federal habeas relief is warranted and available for the High Risk and Disability Subclasses.
The balance of equities weighs heavily in favor of granting the requested preliminary injunction. And there is significant public interest in not only protecting Plaintiffs’ constitutional and statutory rights, but also—importantly—preventing the highly contagious and lethal COVID-19 virus from spreading into the larger community and using valuable and limited health care resources. Accordingly, for the reasons set forth in this submission and all prior submissions to the Court, Plaintiffs respectfully request the entry of a preliminary injunction order. I. Likelihood of Success on the Merits of the Eighth Amendment Claim
The Eighth Amendment imposes duties on prison officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care, and [to] take reasonable measures to guarantee the safety of the inmates . . . .” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and quotation marks omitted). In order to prevail, an incarcerated person must satisfy a two-part test, which includes both an objective and subjective component. First, the plaintiff must demonstrate exposure to a substantial risk
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of serious harm. Id. at 834. Second, the plaintiff “must show that the defendant has been deliberately indifferent to this risk. Id. “[A]n Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842.
A. Objective Prong—Substantial Risk of Serious Harm to Plaintiffs’ Health and Safety
As this Court has already ruled, Plaintiffs “are likely to satisfy the objective prong of the deliberate indifference test for their Eighth Amendment claims.” Temporary Restraining Order, dated May 5, 2020 (“TRO Order”), at 13 (Dkt. No. 42). That is because “it cannot be disputed that COVID-19 poses an objectively serious health risk to named plaintiffs and the putative classes given the nature of the disease and the congregate living environments of the ADC’s facilities.” Id.
B. Subjective Prong—Deliberate Disregard of a Known Substantial Risk to Plaintiffs’ Health and Safety
Plaintiffs have also satisfied the subjective prong of the deliberate indifference standard because Defendants “had knowledge of the substantial risk” of illness or death created by the COVID-19 pandemic “but nevertheless disregarded it.” TRO Order at 12 (quoting Davis v. Oregon Cty., 607 F.3d 543, 548 (8th Cir. 2010)). Whether Defendants knew of a substantial risk may be demonstrated by both direct and circumstantial evidence. Nelson v. Corr. Med. Servs., 583 F.3d 522, 529 (8th Cir. 2009). And Plaintiffs need not show that Defendants actually knew of the substantial risk of harm. Letterman v. Does, 789 F.3d 856, 862 (8th Cir. 2015). The district court can infer that knowledge if the risk is obvious. See id.; see also Schaub, 638 F.3d at 915; Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006); Jackson, 140 F.3d 1149, 1152 (8th Cir. 1998) (stating that
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the question of knowledge turns on “whether an excessive risk to [Plaintiffs’] health or safety was known or obvious”) (emphasis added)). In circumstances where the risk alone does not permit such an inference, Plaintiffs may establish actual knowledge if “the evidence shows that a substantial risk to the incarcerated individual’s health was welldocumented[,] and the circumstances suggest that the Defendant was exposed to information about the risk and thus must have known about it . . . .” Schaub v. VonWald, 638 F.3d 905, 916 (8th Cir. 2011) (citing Farmer, 511 U.S. at 842-43).
In addition to proving that Defendants knew of the risk, Plaintiffs must prove that Defendants deliberately disregarded it. Jackson, 140 F.3d at 1152. To make this showing, Plaintiffs must demonstrate that Defendants knew that conduct was inappropriate in light of the risk. See Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009). Although the Defendants’ level of culpability must rise above mere negligence, Plaintiffs need not show that prison officials acted with the intention to cause harm or with knowledge that harm would result. Letterman v. Does, 789 F.3d 856, 862 (8th Cir. 2015) (citing Farmer, 511 U.S. at 835).
Defendants cannot dispute the gravity of the risks posed by COVID-19. They knew that a highly contagious and possibly lethal virus was coming to Arkansas and was particularly dangerous for congregate settings like correctional facilities. See 3/27/20 ADH Guidance, Def. Ex. 10. In fact, Corrections Secretary Wendy Kelley, who is a defendant in this case, commented that “[o]nce it gets in, it will be disastrous.” John Moritz, CDC to aid response at Forrest City prison, Arkansas Democrat-Gazette, Apr. 8, 2020 at https://www.arkansasonline.com/news/2020/apr/08/cdc-to-aid-response-at-forrest-citypri/.
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Defendants also had the benefit of a detailed blueprint that instructed them on how to prevent and manage a possible COVID-19 outbreak in their facilities. See CDC Guidance, Def. Ex. 9; Email from Prof. Nick Zaller, University of Arkansas for Medical Sciences to Sheriff Eric Higgins & Corrections Secretary Wendy Kelley, dated Mar. 23, 2020, Pff. Ex. 96 (forwarding CDC Guidance) (Dkt. No. 60-1). Arkansas Division of Correction Director, Dexter Payne, another named defendant, stated that “in order to save lives and halt the spread of the virus we must be obedient to the recommendations of the Centers for Disease Control (CDC) and the Arkansas Department of Health (ADH).” Email from Dexter Paine to Dona Gordon & Charles Allen, dated April 8, 2020, Def. Ex. 60 (“4/8/20 Payne Email, Def. Ex. 60”) (Dkt. No. 49-18). As Plaintiffs’ expert Eldon Vail explained, unlike a spontaneous flu epidemic that comes with no warning, Defendants were alerted to the COVID-19 pandemic months in advance and were provided with the CDC Guidance, but failed to use that time to prepare sufficiently for the possible arrival of a serious and deadly virus. Hrg. Tr. at 56-58, 149.
Instead, Defendants emphasize the limited measures they have taken in response to the COVID-19 pandemic and suggest that these meager, halting, and untimely steps are sufficient to reduce Plaintiffs’ risk of contracting the disease. Def. Resp. at 56. Defendants, however, vastly overstate the measures they have taken and the speed with which they have acted. Indeed, many of their efforts did not begin until the last seven days, well after Plaintiffs initiated this lawsuit. See, e.g., infra (discussing minimal social distancing measures implemented 4 days ago). Furthermore, Defendants have not only failed to take the measures necessary to prevent and contain the spread of COVID-19, but their policies
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have actually served to exacerbate the viral outbreak. That was true when this suit was filed, and it is true today.
Although there are numerous deficiencies in Defendants’ preparation and response to the COVID-19 pandemic, Plaintiffs direct the Court to four general areas that demonstrate Defendants’ deliberate indifference: (1) having infectious correctional officers work in the highly congregate prison setting during their isolation period; (2) failing to implement appropriate social distancing practices; (3) failing to enhance cleaning and sanitation to prevent community spread of COVID-19 within the facility; and (4) failing to test, appropriately quarantine, and provide adequate medical care and treatment to incarcerated people who are suspected or confirmed to have contracted COVID-19. Defendants were aware that each of these actions or inactions, separately and cumulatively, would create a substantial risk of COVID-19 infection, illness, or possibe death, but nevertheless disregarded that risk. We have seen the results of that deliberate indifference in the Cummins Unit outbreak—and the six deaths that followed—and will likely witness even greater harm without immediate intervention from this Court.
1. Infectious Correctional Officers Defendants know that an individual infected with COVID-19 can carry and spread the disease even if the individual is asymptomatic. Hrg. Tr. at 61; Compl. ¶ 54 (Dkt. No. 1) (citing public health evidence)]. Yet, Defendants have a policy of instructing correctional officers who test positive for the virus, but are asymptomatic, to work in an Arkansas Department of Correction (“DOC”) facility. As Plaintiffs’ expert, Secretary Eldon Vail, testified, Defendants’ policy is an “outlier and dangerous,” and he has seen no such guidance from the CDC or other jurisdiction permitting infected correctional staff to report to work. Hrg. Tr. at 142.
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In his declaration prior to the hearing, Defendant Payne unequivocally stated that “ADC continued to ensure staff and visitors were not bringing the virus within ADC facilities.” Declaration of Dexter Payne, dated Apr. 29, 2020, Def. Ex. 1 ¶ 29 (Dkt. No. 361). But, in fact, Defendants do permit staff to bring the virus into ADC facilities. On April 24, 2020, Defendant Payne sent an email to prison officials throughout the State, directing them to have asymptomatic employees who tested positive for COVID-19 to report to the Cummins unit, where they would work in the positive barracks. Email from Dexter Payne, dated Apr. 24, 2020 (“4/24/20 Payne Email, Pff. Ex. 87”) at 5 (Dkt. No. 57-5). At the hearing, Defendant Payne admitted that this policy is being implemented and followed, and numerous infected corrections officers have reported to work at Cummins. Hrg. Tr. 211-12.
Defendants’ recklessness in carrying out this “outlier” policy is clear because they knew it was not safe for infected corrections officers to enter DOC facilities. As early as March 16, 2020, Defendant Kelley announced that employees “who have been exposed or exhibit the symptoms of COVID-19 (based on CDC guidance) shall not physically come to work and shall not report until the quarantined time has lapsed.” Email from Wendy Kelley, dated Mar. 16, 2020, Def. Ex. 51 (Dkt. No. 49-9). Moreover, the CDC Guidance on March 23, 2020, indicates that “[i]f staff test positive for COVID-19: . . . do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly.” CDC Guidance, Def. Ex. 9, at 12. The CDC Guidance further warned on March 23 that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress . . . .” Id. at 2. In
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other words, allowing an infected correctional officer to report to work risks the transmission of COVID-19, even if the infected officer spends most of their time at a barracks with incarcerated people who have already tested positive.
Both Plaintiffs’ experts Dr. Marc Stern and Secretary Eldon Vail stated that correctional officers who have tested positive should not return to DOC facilities to work. Hrg. Tr. at 71; Vail Decl., Pff. Ex 23 ¶ 58; Second Expert Declaration of Dr. Marc Stern, dated May 3, 2020, Pff. Ex. 24 (“Stern Decl. 2, Pff. Ex. 24”) ¶ 5 (Dkt. No. 46-12). Secretary Vail specifically stated that allowing “asymptomatic individuals to work creates a further risk for the spread of the virus” because they can still transmit the virus. Vail Decl., Pff. Ex. 23 ¶ 58. This information is not new. COVID-19 is an airborne virus that can be spread by an asymptomatic person by simply breathing or touching contaminated surfaces. Compl. ¶ 54 (citing public health evidence). Indeed, Defendants’ own witness, James Banks, the Deputy Director of Residential Services for Arkansas Community Correction, testified that staff who tested positive had “absolutely not” continued working at his facility during their quarantine period. Hrg. Tr. at 193. He later stated he would permit them to do so if ordered to, but he “just never even come close to having to think about” implementing that policy because of the risk of transmission. Hrg. Tr. at 195.
Defendants’ policy of allowing infectious officers to work in barracks with infectious prisoners ignores the realities of working in a correctional facility. Further, correctional staff will often respond to the scene of a disturbance in order to maintain order in a prison, as they have been trained, which may require them to come into contact with individuals who are not COVID-19 positive. Vail Decl., Pff. Ex 23 ¶ 58. Nor can Defendants ensure that infected individuals will not unintentionally touch and contaminate
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common areas. Corrections staff also must travel to their workplace and may encounter community members and co-workers who they will be putting at risk. Id.; see also Hrg. Tr. at 235.
Defendants’ recklessness in having infectious corrections officers report to work is particularly clear because they were on notice since at least April 9, 2020, that employees regularly “refused” to wear their masks. COVID-19 Pandemic Physicians’ Group Morning Notes, dated Apr. 9, 2020, Pff. Ex. 80 (Dkt. Nos. 48-7 and 51-9). On April 21, 2020, Defendant Payne told wardens in the Arkansas Division of Correction (“ADC”) to ensure officers were wearing masks because hospitals reported that officers continued to refuse to wear masks when transporting incarcerated people who were ill. Email from Dexter Payne dated Apr. 21, 2020, Pff. Ex. 90 (Dkt. No. 57-5). If correctional officers were refusing to wear their masks while knowingly transporting sick prisoners, there is no reason to believe that they were not similarly ignoring that directive behind the closed doors of DOC facilities. Indeed, that is exactly what is reported by Plaintiffs. Second Declaration of Nicholas Frazier, dated Apr. 29, 2020 (“Frazier Decl. 2, Pff. Ex. 13”) ¶ 10 (Dkt. No. 461); Second Declaration of Jonathan Neeley, dated Apr. 29, 2020 (“Neeley Decl. 2, Pff. Ex. 17”) ¶ 11 (Dkt. No. 46-5); Second Declaration of Robert Stiggers, dated Apr. 29, 2020 (“Stiggers Decl. 2, Pff. Ex. 21”) ¶ 6 (Dkt. No. 46-9); Second Declaration of Victor Williams, dated Apr. 29, 2020 (“Williams Decl. 2, Pff. Ex. 22”) ¶ 7 (Dkt. No. 46-10).
Defendants nonetheless insist they cannot be liable under the deliberate indifference standard because, according to Defendants, ADH guidance permitted them to have infected corrections officers report to work. Hrg. Tr. at 211; Second Declaration of Dexter Payne, dated May 4, 2020 (“Payne Decl. 2, Def. Ex. 56”) ¶¶ 6-7 (Dkt. No. 49-14);
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see also ADH Guidance for Reducing Spread on COVID-19 in Correctional Facilities, dated Apr. 15, 2020 (“4/15/20 ADH Guidance, Def. Ex. 20”) (Dkt. No. 36-20). This argument is without merit. As another court recently stated in rejecting its premise:
Defendants’ argument misses the point. Plaintiff’s case is premised on the proposition that [the health-related] policy at the time of the complaint was deliberately indifferent to his serious medical needs. By carrying out that policy, plaintiff argues that defendants . . . were deliberately indifferent. Defendants cite no authority for the proposition that “following policy” is an absolute defense to a deliberate indifference claim. Baca v. Biter, Case No. 1:15-cv-01916-DAD-JDP, 2019 WL 316815, at *2 (E.D. Cal. Jan. 24, 2019) (Peterson, M.J.), adopted 2019 WL 1353707, at *1 (Drozd, J.) (“The court finds this argument unpersuasive because, as noted by the assigned magistrate judge, ‘[d]efendants cite no authority for the proposition that “following policy” is an absolute defense to a deliberate indifference claim.’”). Moreover, the ADH guidance at issue does not indicate that it is safe for infected corrections officers to return to work. That guidance instead states that asymptomatic infected employees may return to work only “after approval is received from the Secretary of Corrections and appropriate Division Director” and only if certain circumstances are satisfied, including that there “is a critical shortage of workers and critical activities cannot occur without the use of these workers.” 4/15/20 ADH Guidance, Def. Ex. 20. The ADH guidance plainly does not represent a health judgment that it is safe for infected corrections officers to report to work; it allows DOC to have infected corrections officers report to work notwithstanding the safety risks on the condition that Defendant Kelley, Defendant Payne, and/or Defendant Bradshaw determine there are exigent circumstances. This is also clear from the bottom of the ADH guidance, which states, in bolded language: “ NOTE:
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Positive staff who continue to work should avoid contact with other staff, isolate at home and avoid contact with others when commuting (e.g. no shared rides, no shopping).” Id. This bolded admonition confirms ADH’s recognition that it is not safe for anyone infected with COVID to have contact with other people.
Defendants have proffered no evidence that infected corrections officers were permitted to work at Cummins only after Defendants Kelley and Payne determined there were exigent circumstances that required it. On the contrary, in his April 30, 2020 email, Director Payne simply instructed that infected but asymptomatic employees should be temporarily re-assigned to Cummins, where they could work in the positive barracks. 4/24/20 Payne Email, Pff. Ex. 87 at 5.
In sum, under ADH guidance, the decision of whether it is necessary for a COVID19 positive worker to be in DOC facilities lies with Defendants, not ADH. 4/15/20 ADH Guidance, Ex. 20. It is Defendants who have the relevant knowledge of staff shortages in DOC facilities and how to address such shortages. And as Plaintiffs’ expert Secretary Vail testified, there are alternative steps to addressing staff shortages, such as contracting with local law enforcement or the national guard to supplement staffing. Hrg. Tr. at 77; Vail Decl., Pff. Ex 23 ¶ 58.
Nor does Defendant Payne’s April 24 email address the additional requirements that the ADH guidance states are necessary for an infected employee to report to work even in exigent circumstances. 4/15/20 ADH Guidance, Def. Ex ¶ 20. It does not provide any information concerning screening procedures at the facility entrance, infected officers monitoring their symptoms throughout their shift, and steps if a positive employee becomes symptomatic at work. See 4/24/20 Payne Email, Ex. 87 at 5.
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Finally, the same ADH guidance, upon which Defendants rely to implement this reckless policy, also directs ADC to “provide available N95 masks for all staff transporting inmates to hospitals and clinics . . .” 4/15/20 ADH Guidance, Def. Ex. 20. There is no indication that Defendants have taken any steps to follow this part of the ADH guidance. Defendants cannot simultaneously insist that they cannot be liable to the degree they adhere to one part of an ADH guidance while violating another part of that same guidance.
2. Lack of Social Distancing Defendants knew that social distancing would be critical to prevent the outbreak of COVID-19 in its facilities. CDC Guidance, Def. Ex. 9, at 4. Medical experts have determined that the chance of contracting COVID-19 is reduced if people can stay six feet or more away from each other. Hrg. Tr. at 62. The CDC Guidance is clear: “although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” CDC Guidance, Def. Ex. 9. This is the guidance that Defendant Payne told his employees had to be followed to save lives and reduce the risk of COVID-19 transmission. 4/8/20 Payne Email, Def. Ex. 60 at 1. Indeed, at the hearing, Defendant Payne testified as to the importance of social distancing during this pandemic. Hrg. Tr. at 210. Yet, before April 30, 2020, social distancing was all but non-existent in DOC facilities. This was the case even though Plaintiffs and putative class members filed a number of grievances explaining their inability to social distance in their living areas. See e.g., Harold Otwell Grievances, Apr. 2020, Pff. Ex. 50 (Dkt. No. 46-37) (describing beds less than three feet apart and encountering 150-200 inmates and 30 guards daily despite underlying medical conditions); Declaration of Alvin Hampton, dated Apr. 26, 2020 (“Hampton Decl., Pff. Ex. 64”) (Dkt. No. 46-51) (describing beds 2.5 feet apart);
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Declaration of Trinidad Serrato, dated Apr. 26, 2020 (“Serrato Decl., Pff. Ex. 64”) (Dkt. No. 46-51) (same); Declaration of Michael Kouri, dated Apr. 26, 2020 (“Kouri Decl., Pff. Ex. 64”) (Dkt. No. 46-51) (describing gatherings of more than 10 inmates).
But, in the words of Plaintiffs’ corrections expert, Defendants were “asleep at the wheel” and did not have a plan to deal with this deadly pandemic despite having warning of its seriousness. Hrg. Tr. at 163. For example, surprisingly, Defendants did not address inmates sleeping arrangements to increase social distancing when CDC made specific social distancing recommendations on March 23, 2020. Hrg. Tr. at 62; CDC Guidance, Def. Ex. 9. Defendants did not even take the obvious and important step—specifically recommended by the CDC—of rearranging the direction in which inmates sleep to reduce the risk of COVID 19 transmission until this week, two months after Governor Hutchinson declared a state of emergency, six weeks after the CDC issued its guidance, and two weeks after this suit was filed. Hrg. Tr. at 67.
Specifically, it was not until April 30, 2020, that Defendant Kelley recognized that the “biggest threat [of COVID-19 transmission] is face to face exposure” and thus the facilities should have inmates “sleep with their heads of every bed on one end, and every alternate bed the other.” 4/30/20 Craig Email, Def. Ex. 90. Even then, it took several more days for this to happen. On May 3, 2020, Defendant Payne directed wardens to have inmates sleep in a way to maximize social distancing. 4/30/20 Emails, Pff. Ex. 88. The next day, DOC employees went into barracks and told inmates they had to change the way they sleep and suggested trying to move beds further apart if possible. Third Declaration of Harold Otwell, dated May 5, 2020 (“Otwell Decl 3, Pff. Ex. 85) ¶ 7 (Dkt. No. 57-3); see also Third Declaration of Jonathan Neeley, dated May 5, 2020 (“Neeley Decl. 3, Pff. Ex.
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86) (Dkt. No. 578-4) (same). Corrections officers also told inmates to hang sheets up between their beds with hammer and nails if the beds were not six feet apart. Neely Decl. 3, Pff. Ex. 86 ¶ 7. However, the necessary tools were not provided. Neely Decl. 3, Pff. Ex. 86 ¶ 8. This was the first time since the outbreak of the pandemic that any staff member tried to address inmate sleeping arrangements. Otwell Dec. 3, Pff. 85 Ex. ¶ 7.
That Defendants failed to implement this simple step even in the Ouachita River Unit, which houses the State’s most vulnerable prisoners, for six weeks after CDC made the recommendation demonstrates Defendants’ deliberate indifference. Defendants failed to implement a sleeping arrangement to reduce the spread of COVID-19, even among their most vulnerable inmates Furthermore, there is no evidence the Defendants have intensified social distancing for high risk individuals as called for by CDC Guidance. See Payne Decl., Pff. Ex. 71. Even though Defendants have taken the first step to finally address sleeping arrangements, they have done nothing more. For example, Defendants continue to serve inmate meals in dining halls of some facilities, requiring individuals to unnecessarily congregate. Hrg. Tr. at 177; Payne Decl., Pff. Ex. 71 ¶ 63.
Further, there is no evidence that Defendants have implemented a policy to utilize non-living areas in its facilities as temporary housing to facilitate social distancing. Hrg. Tr. at 68-69. In his declaration, Defedant Payne stated that usage of other units, like trailers. was not possible, but did not provide any reasoning or justification for that determination, especially weighed against the serious risk of illness and death of Plaintiffs. Hrg. Tr. at 66. And, at the hearing, Defendant Payne made clear that was no longer Defendants’ position. Hrg. Tr. at 210. He testified that in Cummins Unit, DOC has in fact started using non-living quarters such as the visitation area to provide temporary housing and provide for additional
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social distancing. Hrg. Tr. at 210. Despite providing 104 exhibits, Defendants have provided no documentation of this change, so it is not clear when it occurred or how many inmates have been moved to other parts of Cummins. But it is clear that Defendants’ sole justification for not having implemented this measure earlier (Defendant Payne’s conclusory assertion in his declaration that it would be impossible to do so) is not correct. In sum, failing to implement the important strategy of using additional space in prison facilities for housing outside of Cummins Unit—when Defendants unquestionably knew of the importance of social distancing to reduce the risk of COVID 19 transmission and the impossibility of adequate social distancing in existing dorms—demonstrates Defendants’ indifference to this known risk. Def. Resp. at 12 (Dkt. No. 36).
Moreover, reducing the prison population is critically important to increasing the ability of inmates to social distance within Defendants’ facilities. Hrg. Tr. at 63-64. The dorm style structures in a number of DOC facilities render it impossible for Defendants to sufficiently implement or enforce social distancing, as Defendants have themselves recognized. Def. Resp. at 12 . Given this reality, and given the degree to which COVID-19 has already spread through DOC facilities, release from confinement is the only constitutionally sufficient for the most medically vulnerable prisoners.
Ultimately, Defendants have wholly failed to consider or implement timely and adequate social distancing measures to reduce the known risk of harm to their own correctional staff or individuals in their custody. The minimal steps they have taken since Plaintiffs filed this lawsuit does not negate the need for injunctive relief. See Farmer v. Brennan, 511 U.S. 825, 846–47 (1994). Plaintiffs have demonstrated Defendants were deliberately indifferent, and remain deliberately indifferent, and there is a likelihood of
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ongoing harm given inadequacy and inconsistency of Defendants’ actions. See id; see also Young v. Hayes, 218 F.3d 850, 852 (8th Cir. 2000) (Defendant who voluntarily cease constitutional violation have burden of demonstrating mootness of Plaintiffs’ requested relief).
3. Unsanitary Conditions As discussed above, a month ago today, Defendant Payne told all ADC staff that “in order to save lives and halt the spread of the virus, we must be obedient to the recommendations of the Centers for Disease Control (CDC) and the Arkansas Department of Health.” 4/8/20 Payne Email, Def. Ex. 60. And the CDC Guidance makes is clear in recommending that “[e]ven if COVID-19 cases have not yet been identified inside the facility or in the surrounding community,” correctional facilities should “begin implementing intensified cleaning and disinfecting procedures . . . . These measures may prevent spread of COVID-19 if introduced.” CDC Guidance, Def. Ex. 9, at 9. Two of the CDC’s recommendations are particularly noteworthy in this case:
(1) “Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones).”
(2) “Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface . . . .”
Id. (emphasis added). Despite knowing that cleaning and disinfecting frequently touched surfaces and
objects several times per day with an EPA-registered disinfectant was essential to minimizing and hopefully preventing the spread of COVID-19, Defendants failed to ensure
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that these basic measures of protection would be uniformly implemented across the facilities within DOC.
First, Defendants are not using an “EPA-registered disinfectants effective against the virus that causes COVID-19,” in DOC facilities. By their own account, Defendants have distributed Razor Chemical Company’s Citrus Breeze III for cleaning and sanitation of DOC facilities. See Payne Decl., Def. Ex. 1 ¶ 54. This product, however, is not one of the 402 disinfectants recognized by the EPA as being effective against SARS-CoV-2, the virus that causes COVID-19. See Search Results for Citrus Breeze on EPA List of Disinfectants for Use Against SARS-CoV-2, Pff. Ex. 53 (Dkt. No. 46-40). While Razor Chemical Company may claim that Citrus Breeze III is effective for some “SARS Associated Corona Virus,” see Razor Citrus Breeze III Information Page, Def. Ex. 75 (Dkt. No. 49-33), COVID-19 is a “novel coronavirus,” which means that it “has not been previously identified,” Coronavirus Disease 2019 Basics, at https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics. That is why the CDC Guidance specifically recommends using “EPA-registered disinfectants effective against the virus that causes COVID-19” and provides a direct link to the EPA registration website to identify those disinfectants. CDC Guidance, Def. Ex. 9, at 9 (emphasis added).
Because Citrus Breeze III is not registered with the EPA as effective against the virus that caused COVID-19, “the EPA has not reviewed any data on whether the product will kill public health pathogens such as viruses,” which means that the EPA “has no data showing they will work and can be used safely.” Related Topics: Pesticide Registration, Coronavirus, Environmental Protection Agency, at https://www.epa.gov/coronavirus/i-
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want-use-product-kill-sars-cov-2-it-isnt-list-n-it-effective-against-sars-cov-2. Thus, in direct disregard of the CDC Guidance—which Defendant Payne acknowledged DOC “must be obedient to” in order “to save lives and halt the spread of the virus,” 4/8/20 Payne Email, Ex. 60 at 1—Defendants are utilizing a product that has not been proven to be effective against COVID-19, rather than one of the 402 disinfectants registered with EPA.
Further, regardless of whether a disinfectant has been registered with the EPA, nowhere does the CDC Guidance recommended using chemicals like Citrus Breeze III to disinfect face masks. But, this is what Defendants are directing employees to do. See Memo from Corporal Doris Greer to Deputy Warden John Craig, dated May 4, 2020, re COVid 19 updated precautions, Def. Ex. 89 (Dkt. No. 57-7). In fact, there may be a serious risk of poisoning from the inhalation of the chemicals’ fumes. See, e.g., Jeffrey Kluger, As Disinfectant Use Soars to Fight Coronavirus, So Do Accidental Poisonings, Time.com, Apr. 20, 2020, at https://time.com/5824316/coronavirus-disinfectant-poisoning/ (“Of all means of ingestion, inhalation of fumes represented the largest increase in exposure routes, jumping 35.3% for all forms of cleaners and a whopping 108.8% for disinfectants specifically.”)
In addition to these clear examples of deliberate indifference with respect to disinfectants, Plaintiffs have been deliberately indifferent by failing to provide Plaintiffs with access to supplies to clean and disinfectant their frequently touched areas. The evidence from Plaintiffs on this point is consistent and overwhelming. See Declaration of Janice Nicholson, dated May 3, 2020 (“Nicholson Decl., Pff. Ex. 38”) ¶ 15 (Dkt. No. 4625); Declaration of Tonya Williams, dated May 3, 2020 (“Williams Decl., Pff. Ex. 43”) ¶ 3 (Dkt. No. 46-30); Declaration of Rocxena Smith, dated May 1, 2020 (“Smith Decl., Pff.
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Ex. 41”) ¶ 3 (Dkt. 46-28); Amended Declaration of Susie Anita Daniels, dated May 4, 2020 (“Daniels Decl., Pff. Ex. 75”) ¶ 8 (Dkt. No. 51-4); Declaration of Nicole Cleveland, dated May 3, 2020 (“Cleveland Decl., Pff. Ex. 28”) ¶ 12 (Dkt. No. 46-16).
Moreover, shared facilities, like toilets, showers, and sinks, are only disinfected one to two times per week. See Second Declaration of Alvin Hampton, dated Apr. 29, 2020 (“Hampton Decl. 2, Pff. Ex. 14”) ¶ 6 (Dkt. No. 46-2); Second Declaration of Michael Kouri, dated Apr. 26, 2020 (“Kouri Decl. 2, Pff. Ex. 97”) ¶ 13 (Dkt. No. 60-2); Second Declaration of Harold Otwell, dated Apr. 29, 2929 (“Otwell Decl. 2, Pff. Ex. 19”) ¶ 14 (Dkt. No. 46-7); Second Declaration of Trinidad Serrato, dated Apr. 29, 2020 (“Serrato Decl. 2, Pff. Ex. 20”) ¶ 13 (Dkt. No. 46-8); Second Declaration of Victor Williams, dated Apr. 29, 2020 (“Williams Decl. 2, Pff. Ex. 22”) ¶ ¶ 4, 11 (Dkt. No. 46-10).
And porters assigned to clean open barracks in general population are provided access to disinfectant chemicals only once or twice per day at most. Hampton Decl. 2, Pff. Ex. 14”) ¶ 6; Otwell Decl. 2, Pff. Ex. 19 ¶ 14; Second Declaration of Marvin Kent, dated Apr. 29, 2019 (“Kent Decl. 2, Pff. Ex. 15”) ¶ 13 (Dkt. No. 46-3); Second Declaration of Jonathan Neeley, dated Apr. 29, 2020 (“Neeley Decl. 2, Pff. Ex. 17”) ¶ 6 (Dkt. No. 46-5); Serrato Decl. 2, Pff . Ex. 20 ¶ 13.
Defendants attempt to discredit this evidence by relying on descriptions of Cummins Unit from Kelley Garner, an Epidemiology Supervisor with the Arkansas Department of Health, on a single pre-planned visit. Declaration of Kelley Garner, dated Apr. 29, 2020 ¶ 11, Def. Ex. 11 (Dkt. No. 36-11); Hrg. Tr. at 102-03, 158. However, Plaintiffs, most of whom do not know each other, provide remarkably similar accounts from multiple correctional facilities across the State based on their everyday experiences.
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See Nicholson Decl., Pff. Ex. 38, Williams Decl., Pff. Ex. 43, Smith Decl., Pff. Ex. 41 (discussing Cummins Unit); Daniels Decl., Pff. Ex. 75 (discussing Central Arkansas Community Correction); Cleveland Decl., Pff. Ex. 28 (discussing Grimes Unit); Hampton Decl. 2, Pff. Ex. 14, Neeley Decl. 2, Pff. Ex. 17, Otwell Decl. 2, Pff. Ex. 19, Serrato Decl. 2, Pff. Ex. 20, Williams Decl. 2, Pff. Ex. 22 (discussing Ouachita River Unit); Kent Decl. 2, Pff. Ex. 15 (discussing Varner Unit). And it is the Plaintiffs, rather than Ms. Garner, who have first-hand knowledge of these conditions on a daily basis.
Moreover, Defendants’ own documents corroborate the infrequent cleaning and disinfecting occurring in DOC facilities described by Plaintiffs. For example, a memo to the superintendent of Ouachita River Unit, dated April 13, 2020, states that “[d]ue to the current COVID-19 Pandemic, . . . [t]he Sanitation Department bleaches showers/common areas 2x a week and cells in Housing 1-3 once a week . . . .” Memo from Lt. D. Edwards, FSSH to Superintendent D. Earl, dated Apr. 13, 2020 re: Covid-19 Sanitation Practices, Pff. Ex. 83, at 45 (Dkt. No. 57-1) (emphasis added). The sanitation logs of Barbara Ester Unit from March 11, 2020, to April 30, 2020, show that, even during the height of the Cummins Unit viral outbreak, the sanitation and disinfecting of barracks, sinks, toilets, and showers rarely occurred three times per day as contemplated in the logs. Barbara Ester Unit, Sanitation Issuance Logs, Pff Ex. 83, at 9-42 (Dkt. No. 57-1). During the approximately 1.5 month period represented in these sanitation logs, Barbara Ester Unit’s infirmary—which would be a high risk area for COVID-19 infection—was sanitized only once per day on 18 days and not all for 10 days. Id. The sanitation logs for March 16, 2020,
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to April 30, 2020, for Pine Bluff Unit make clear that cleaning and sanitation are expected, at most, once per day in the barracks, and often occurred only a few days per week.1
In addition, the CDC Guidance recommends that correctional facilities “consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol.” CDC Guidance, at 8, Def. Ex. 9. As explained by Plaintiffs’ expert:
[I]t is not realistic to expect all prisoners at all times will have access to hot water and soap. . . . It is highly likely there are prisoners in the ADC who do not have ready access to hot water and soap. In my opinion, the risks of alcohol based hand sanitizer in prisons are far outweighed by the benefits. Expert Declaration of Eldon Vail, dated May 3, 2020, Pff. Ex. 23 (“Vail Decl., Pff Ex. 23”) ¶ 33 (Dkt. No. 46-11); see also Hrg. Tr. at 73, 78-79, 118, 123-26. That is why states like New York, California, and Washington, which have prison populations comparable to— or far exceeding—the number of state prisoners in Arkansas have permitted the supervised use of hand sanitizer by incarcerated people during this pandemic. See id. ¶ 34; see also California COVID-19 Response Efforts, Pff. Ex. 72 (Dkt. No. 48-6); Washington Department of Corrections Memo, dated Apr. 18, 2020, re Appropriate Use of Hand Sanitizer, Pff. Ex. 73 (Dkt. No. 48-8); New York State Department of Corrections and
1 Some of the dates are for 2019, which is likely a typographical error that is supposed to be 2020. Moreover, as these are documents received from DOC from a public information request, Plaintiffs assume that they are complete, which would indicate that missing days reflect days when no cleaning and sanitation occurred. Even if DOC failed to produce all of the requested documents, these logs clearly show that cleaning and sanitation occurred only once per day, at most.
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Community Supervision, DOCS COVID-19 Report, Daily Update, dated May 4, 2020, at 13, Pff. Ex. 74 (Dkt. No. 48-4). By contrast, Defendants have not done so.
The only reason offered by Defendants not to provide the supervised use of hand sanitizer is the conclusory assertion of Defendant Payne that “[p]roviding inmates with unrestricted access to alcohol-based hand sanitizer and chemicals such as bleach would provide security risks to other inmates and staff” without any evidence to substantiate this claim. Payne Decl. ¶ 56, Def. Ex. 1. Defendants offer no evidence that they meaningfully studied this possibility or explored options that could have addressed any security concerns, such as making hand sanitizer available in specific locations under the supervision of corrections staff. Indeed, Central Arkansas Community Corrections previously provided non-alcohol-based hand sanitizer, but later made alcohol-based hand sanitizer available in the chow hall, and from individual corrections staff, due to the COVID-19 pandemic. Hrg. Tr. at 181. Once again, Defendants’ failure to implement this protective measure in all DOC facilities is inconsistent with the CDC Guidance they recognize as essential to reduce the spread of COVID-19 transmission, thereby demonstrating Defendants’ knowing disregard of the substantial risk of COVID-19 spread. See Vail Decl., Pff Ex. 23 ¶ 33; see also Hrg. Tr. at 73, 78-79, 118, 123-26.
Contrary to Defendants’ contention, Plaintiffs are not merely quibbling about a few instances of corrections staff and porters failing to do their jobs. Nor are Plaintiffs asking Defendants to merely improve upon the cleaning and sanitation procedures they already have in place. Rather, Plaintiffs have demonstrated Defendants’ wholesale failure to take seriously the CDC’s Guidance to “begin implementing intensified cleaning and disinfecting procedures” “[e]ven if COVID-19 cases have not yet been identified inside the
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facility or in the surrounding community” and to “prevent spread of COVID-19 if introduced.” CDC Guidance, Def. Ex. 9, at 9. Defendants, with full access to all DOC policies and procedures, have not proffered any evidence of a uniform, department-wide, emergency preparedness plan that would ensure the constant cleaning and disinfecting of frequently touched surfaces in the extremely congregate prison environment in the face of—and now in the midst of—an unprecedented and lethal pandemic. As represented by Defendant Payne, his declaration encompassed the universe of the Defendants’ cleaning and disinfecting measures. Hrg. at 215. And those measures consisted of piecemeal emails, a few memos, some flyers, ADH guidances, and Defendant Payne’s own words. Coupled with the failure to purchase EPA-registered disinfectants, which were readily identifiable, and the failure to provide much-needed hand sanitizer on a supervised basis, these piecemeal measures are precisely the late-coming, reactive, and ill-prepared approach to the pandemic that has facilitated and produced the viral outbreak in Cummins Unit and likely future outbreaks to come.
4. Treatment of Suspected or Confirmed COVID-19 Infection Plaintiffs have presented compelling, and essentially undisputed, evidence regarding the systemically inadequate provision of medical care prisoners have received in terms of: (1) lack of testing; (2) failure to isolate infected inmates; and (3) inadequate care of prisoners infected with COVID-19. With regard to inadequate testing, Plaintiff Hampton in Ouachita River Unit, who suffers from seizures and Bell’s Palsy, was never tested for COVID-19 despite constant coughing and congestion. Declaration of Alvin Hampton, April 26, 2020, ¶¶ 3-4 (“Hampton Decl., Pff. Ex. 64) (Dkt. # 46-51). Plaintiff Kouri in Ouachita River Unit, who has a degenerative heart condition, was not tested despite shortness of breath, headaches, chills, coughing, and productive pink eye; a nurse
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said that there was no coronavirus in the facility and no need to worry about it since there was no way he could have been exposed to it. Declaration of Michael Kouri, April 26, 2020 (“Kouri Decl., Pff. Ex. 64”) ¶¶ 3-4 (Dkt. # 46-51). As Ms. Daniels testified, her grandson at Central Arkansas Community Correctional Center (“CAC”), who suffers from asthma and previously tested positive for COVID-19, began to have difficulty breathing again and was not tested or treated for his symptoms. Hr’g Trans. at 32:12-17. With the exceptions of Cummins Unit, CAC and Ester Unit, other facilities have tested only one or two prisoners/residents total. See AR Inmate / Resident Testing, Pff. Ex. 77 (Dkt. # 48-9). This, despite the fact that positive COVID-19 results have been found among staff at several facilities and among Wellpath employees. See AR Inmate / Resident Testing, Pff. Ex. 77 (Dkt. # 48-9). Even at CAC, the site of the second largest outbreak in the DOC facilities, where 42% of the residents were infected with COVID-19, testing stopped after the initial testing on April 13, 2020. Hr’g Trans. at 187:19 - 188:11.
In part because of this inadequate testing, Defendants lack any mechanism for isolating infected prisoners. In other words, the lack of testing risks the health and safety not only for the infected prisoners experiencing potentially life-threatening symptoms of COVID-19 but who are not diagnosed early, but for those sleeping, working, and eating next to them. Without testing, prisoners who have COVID-19 are not isolated and remain in an open barracks setting with others where the virus can easily be spread. See Declaration of Janice Nicholson, May 3, 2020 (“Nicholson Decl., Pff. Ex. 38”) ¶¶ 3-4 (Dkt. # 46-25) (indicating that 14 out of 15 people in her son’s barracks in Cummins, including her son, tested positive for COVID-19). Ms. Lewis’s son, also incarcerated at Cummins, observed another prisoner in the barracks in bed with a fever for three days, who could not
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get up or “go to chow”; by the time the man was tested and removed from the barracks he was “shaking, sweating, convulsing and no longer coherent.” See Declaration of Kenna Lewis, May 3, 2020 (“Lewis Decl., Pff. 37”) (Dkt. # 46-24), ¶ 7. Far from being isolated, COVID-19 symptomatic prisoners are having to report to work to make masks intended to deter the spread of the virus, while they themselves were potentially infectious. See, e.g., Coleman Decl., Pff. Ex. 27 ¶ 4 (Carrie Coleman’s son was forced to him to work and make masks at Cummins Unit despite being sick from COVID-19); White Decl., Ex. 42 ¶¶ 6-8 (noting that infected prisoners at Cummins Unit have been compelled to continue to work in the kitchen).
Defendants’ failures in these respects are flatly inconsistent with state and federal health guidance. The ADH Guidance for the Department of Corrections recommends that state Corrections facilities “screen inmates daily” for symptoms and fever and “immediately isolate and inform onsite medical personnel” of those inmates who screen positive for symptoms and/or fever, who will inform ADH for priority testing. See Arkansas Dep’t of Health COVID-19: Guidance for State Correctional Facilities and Local Detention Facilities, dated April 13, 2020 (“3/27/20 ADH Guidance, Def. Ex. 19”) (Dkt. #. 36-19); Arkansas Dep’t of Health COVID-19: Guidance for State Correctional Facilities and Local Detention Facilities, dated April 13, 2020 (“3/27/20 ADH Guidance, Def. Ex. 20”) (Dkt. # 36-20). Instead, however, prisoners have been left to seek medical services from a third-party contractor if they are experiencing symptoms, where they are often turned away without testing or treatment. See supra. The CDC Guidance recommends “immediate medical isolation in a separate environment from other individuals” once an individual starts exhibiting COVID-19 symptoms, see Def. Ex. 9, at 15. Yet, as described above, prisoners who are experiencing severe symptoms are left in an open barracks within
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3 feet of other prisoners, and DOC has simply stopped testing prisoners. According to the CDC, “[f]acilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms” and an initial medical evaluation should determine whether a “symptomatic individual is at a higher risk for severe illness from COVID-19” due to an serious underlying medical condition “such as lung disease, heart disease or diabetes”—as are individuals within the plaintiff subclass and all of the Named Plaintiffs who have been denied medical evaluation. See id.at 23. An avalanche of medical grievances have been filed by prisoners recently – 2899 during the first quarter of year; many presumably related to the COVID-19 outbreak within DOC facilities. ADC Total of Medical Grievances, Jan 1 – April 1, 2020, Pff. Ex. 54 (Dkt # 4641). Defendants unacceptable response is that decisions as to who to test, treat, and even evaluate are left up to its medical contractor, Wellpath, and they are not responsible for those decisions. See, e.g., Hr’g Tr. at 199: 5-15 (Mr. Banks indicating that he plays no role in deciding who gets testing and they “would simply pass [the resident] on to the medical provider”); 199:17-200:8 (indicating that the guidelines from the medical provider, Wellpath, decides who gets testing and that the DOC or the division of community corrections “has never and will never decide who gets tested”); 237:23-25 (indicating that the ADH and Wellpath makes the decision as to who gets tested for COVID-19 and who does not).
The CDC further recommends quarantining of anyone who is considered a close contact of a confirmed or suspected case of COVID-19—defined as anyone within 6 feet of the individual for a prolonged period of time. See CDC Guidance, Ex. 9, at 19. Defendants have produced no evidence of quarantining close contacts or conducting any
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contact tracing. See Hr’g Tr. at 216:18-217:1 (Defendant Payne expressing no opinion as to whether contract tracing is even advisable and indicating that the ADH and the prison medical advisors would make that decision). Plaintiffs’ evidence, some of which is described above, that there is no such quarantining is undisputed.
For those prisoners who have tested positive and been quarantined, the care provided by the prison’s medical contractor is grossly inadequate. As Ms. Nicholson described: her son, Quintionus Parker, was quarantined at Cummins for days and could barely speak or catch his breath, had chills and every part of his body hurt, but he was not seen by medical staff. Nicholson Decl. ¶¶ 4-6, Pff. Ex. 38. Only when he passed out six days later was he finally taken to the infirmary. See id. ¶ 9. Medical staff checked on quarantined prisoners infrequently and when they did, they called out at the gate and yelled the prisoner name’s; if he did not respond because he was too weak or unable to walk, he was not seen. See id. ¶ 14. Mr. Parker’s attorney made repeated attempts to have the Warden transfer Mr. Parker to the hospital, only to be told that the “Warden has no control over that” and that Mr. Gillispie should contact medical services. See Pl. Ex. 30-31, 33, Declaration of Joshua Gillispie, May 3, 2020 (Dkt 46-18); Letters to Warden Culclager (Dkt 46-19, 46-20). Ms. Daniels also explained that her son Austin at CAC was only given Tylenol after he tested positive for COVID-19; despite having trouble breathing and having asthma, he was not given an inhaler. See Pl. Ex. 75, Am. Decl. of Susie Anita Daniels, ¶ 16. Defendants’ systematic failures to provide minimally adequate care to infected prisoners and CAC residents constitutes deliberate indifference. See, e.g., Langford v. Norris, 614 F.3d 445, 460, (8th Cir. 2010) (recognizing that “[g]rossly incompetent or inadequate care can constitute deliberate indifference, as can a doctor’s decision to take an
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easier and less efficacious course of treatment,” and that a total deprivation of care is not a necessary condition for finding a constitutional violation).
For the most part, Defendants do not refute the evidence describe above. Instead, Defendants seek to shift their constitutional obligations to a third party private medical provider to whom the ADC has outsourced its medical services for prisoners. See supra. But, as Plaintiffs’ corrections expert opined, based on his experience, he understood that it was the prison’s responsibility to ensure the constitutional standard of medical care is met regardless of any third-party contracting arrangement. See Hr’g Tr. 103: 18-25. And the law on this point is clear. See West v. Atkins, 487 U.S. 42, 56 (1988) (“Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.”). “Where a prisoner needs medical treatment prison officials are under a constitutional duty to see that it is furnished.” Crooks v. Nix, 872 F.2d 800, 804 (8th Cir. 1989) (remanding plaintiff's claim of deliberate indifference to serious medical needs based on failure to provide adequate or proper pain medication); accord Langford v. Norris, 614 F.3d 445, 460, (8th Cir. 2010). Accordingly, Defendants “remains liable for any constitutional deprivations caused by the policies or customs of the [private medical contractor].” Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985); accord King v. Kramer, 680 F.3d 1013, 1020 (7th Cir. 2012). II. Likelihood of Success on the Merits of the ADA Claim
Members of the Disability Subclass are individuals who, due to their disabilities, are particularly vulnerable to contracting COVID-19 and suffering serious illness or death if they contract the virus. As explained above, Defendants failed to adequately prepare for
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the threat posed by COVID-19, and continue to fail to take the reasonable steps necessary to ensure that members of the Disability Subclass are able to safely access living spaces.
“‘[D]eliberate refusal of prison officials to accommodate [an inmate’s] disabilityrelated needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs’ may constitute a violation of Title II.” Brown v. Houston, No. 8:16CV217, 2018 WL 1309833, at *7 (D. Neb. Mar. 13, 2018) (citing United States v. Georgia, 546 U.S. 151, 157, (2006)); see also Allen v. Morris, No. 4:93CV00398 BSMJWC, 2010 WL 1382112, at *8 (E.D. Ark. Jan. 6, 2010), report and recommendation adopted, No. 493CV00398BSM-JWC, 2010 WL 1382116 (E.D. Ark. Apr. 2, 2010) (considering, and allowing to go forward, claim that prison’s failure to make reasonable accommodations that would enable obviously disabled plaintiff to safely shower violated Title II); Phipps v. Sheriff of Cook Cnty., 681 F.Supp. 2d 899, 916 (N.D. Ill. 2009) (collecting cases holding that “showering, toileting, and lavatory use [are] regarded as programs and/or services under the ADA.”).
Defendants’ refusal to accommodate the Disability Subclass’s disability-related needs include, but are not limited to, Defendants’ failure to ensure that subclass members are not working with staff who are not infected with the virus, see 4/21/2020 Payne Email, Pff. Ex. 87, at 6 (ordering asymptomatic prisoners to return to work), ensure that staff use protective equipment, COVID-19 PPG Morning Notes, Pff. Ex. 80, at 1 (noting that guards are refusing to wear masks), ensure that common areas in prisoners’ living units are regularly cleaned, Sanitation Issuance Logs, Ester Unit, Pff. Ex. 83, at 20-31 (recording cleaning only on weekdays and then often only once per day). In addition, Defendants have failed to ensure that members of the Disability Subclass, all of whom are especially
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vulnerable to COVID-19, are provided with housing options other than crowded barracks and cells where social distancing is impossible. Vail Decl., Pff. Ex. 23 ¶ 56 (“It is an excellent suggestion to review all available space and repurpose it . . . . I have seen no indication that the Arkansas prison authorities have undertaken such an assessment of what could be done to increase social distancing.”). As explained during the hearing by Secretary Vail, each of these are basic steps that all correctional facilities, in line with the CDC Guidance, should be taking, and are necessary to preventing a repeat of what occurred at Cummins Unit—the infection of over 850 individuals, which Defendants continue to fail to acknowledge, explain, or accept responsibility for. III. Irreparable Harm to Plaintiffs
This Court has already found that “plaintiffs have properly alleged irreparable harm” because “the alleged harm is a high likelihood of serious illness or death.” TRO Order at 20 (Dkt. No. 42). Further, this Court noted that “Plaintiffs’ alleged harm is both imminent and irreparable, as plaintiffs face a risk of severe illness or possible death in the light of COVID-19. . . . Plaintiffs face the progression of the COVID-19 pandemic in a congregate environment. The irreparability of this harm is magnified by the fact that no known vaccine or cure for COVID-19 exists at the time.” Id. (citations omitted). IV. Balance of Equities in Favor of Relief
In the TRO Order, the Court considered the “balance of the equities at [the TRO] stage [to be] a neutral factor” when weighing the “irreparable harm to [Plaintiffs’] constitutional rights and their health, including severe illness, long-term health effects, and possible death” against Defendants’ representations that they had already taken steps to provide basic protective measures and that requiring them to do more “would impose undue
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costs, harms, burdens, and disruptions in running the ADC facilities.” TRO Order at 21 (Dkt. No. 42).
However, Plaintiffs have presented significant evidence that Defendants have not taken the basic steps required to protect both incarcerated people and corrections staff from the spread of COVID-19, including substantial evidence adduced since the Court issued the TRO Order. Among other things, Defendants have instructed infected corrections officers to report to work; ordered infected prisoners to cook and make masks for the uninfected and otherwise intermingled the sick and not-yet-sick; failed to take basic social distancing measures that were available within the prison; directed the use of a disinfectant not approved by the EPA for destroying COVID-19; and otherwise failed to implement sanitation measures necessary to reduce the risk of transmission. See First Declaration of Michael Kouri, Pff. Ex. 3, dated April 26, 2020 (“Kouri Decl. 1, Pff. Ex. 3”) ¶¶ 4, 5, 14 (Dkt. No. 3-3); First Declaration of Alvin Hampton, Pff. Ex. 10, dated April 26, 2020 (“Hampton Decl. 1, Pff. Ex 10”) ¶5 (Dkt. No. 3-10); Second Declaration of Trinidad Serrato, Pff. Ex. 20, dated April 29, 2020 (“Serrato Decl. 2, Pff. Ex. 20”) ¶¶ 12, 13, 14, 15 (Dkt. No. 46-8); Second Declaration of Marvin Kent, Pff. Ex. 15, dated April 29, 2020 (“Kent Decl. 2, Pff. Ex. 15”) ¶¶ 4,8 (Dkt. No. 46-3); Second Declaration of Robert Stiggers, Pff. Ex. 21, dated April 29, 2020 (“Stiggers Decl. 2, Pff. Ex. 21”) ¶ 4 (Dkt. No. 46-9); Second Declaration of Harold Scott Otwell, Pff. Ex. 19, dated April 29, 2020 (“Otwell Decl. 2, Pff. Ex. 19”) ¶ 14,15 (Dkt. No. 46-7); Second Declaration of Johnathan Neeley, Pff. Ex. 17, dated April 29, 2020 (“Neeley Decl. 2, Pff. Ex. 17”) ¶¶ 5,6 (Dkt. No. 47-5); Second Declaration of Alfred Nickson, Pff. Ex. 18, dated April 29, 2020 (“Nickson Decl. 2, Pff. Ex. 18”) ¶¶ 4,10 (Dkt. No. 46-6); Declaration of Carrie Coleman, Pff. Ex. 27, dated
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May 2, 2020 (“Coleman Decl., Pff. Ex. 27”) ¶ 4 (Dkt. No. 46-15); Declaration of Susie Anita Daniels, Pff. Ex. 29, dated May 3, 2020 (“Daniels Decl., Pff Ex. 29”) ¶¶ 14, 15 (Dkt. No. 46-17); Declaration of Kenna Lewis, Pff. Ex. 37, dated May 3, 2020 (“Lewis Decl., Pff. Ex. 37”) ¶¶ 5,7 (Dkt. No. 46-24); Declaration of Juanita Singleton, Pff. Ex. 40, dated May 3, 2020 (“Singleton Decl., Pff. Ex. 40”) ¶¶ 3,6 (Dkt. No. 46-27); Declaration of Roxcena Smith, Pff. Ex. 41, dated May 1, 2020 (“Smith Decl., Pff. Ex. 41”) ¶ 5 (Dkt. No. 46-28); Declaration of Valencia White, Pff. Ex. 42, dated May 1, 2020 (“White Decl., Pff. Ex. 42”) ¶¶ 3,4,6,9 (Dkt. No. 46-29); Hrg. Tr. at 226-228.
At the hearing before this Court yesterday, Defendants heralded several recent changes, such as finally changing bed alignment within dorms. See, e.g., 4/30/20 Craig Emails, Def. Ex. 90 (Dkt. No. 50-10); 5/3/20 Payne Email, Def Ex. 96. In assessing the balance of the equities, this Court should consider that even these changes were put in place this week, nearly two months after the President declared a national emergency, https://www.whitehouse.gov/presidential-actions/proclamation-declaring-nationalemergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (March 13, 2020), a month and a half after the CDC Guidance, and 2.5 weeks after the lawsuit in this case was filed. But Defendants have still failed to take more meaningful changes that they could implement, such as using space outside of dormitories to house some inmates and thereby reduce the number of people sharing space in the dorms. See, e.g., Hrg. Tr. at 67-68.
Defendants’ decision to delay making even straightforward changes—taken together with their failure to make meaningful reforms, and their decision to instead implement “outlier” policy innovations like permitting the infected to work in their
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prisons—have resulted in a uniquely grave public health crisis, one which promises to reverberate out into the broader community in ways that are difficult to completely predict.
Finally, it bears emphasis that the present record strongly supports the need for an injunction. Plaintiffs have been afforded only partial public records returns that skew heavily toward Defendants’ version of events (e.g., several Ouachita River Unit records disclosed, but almost no Cummins Unit records disclosed); had limited access to class members; and no access whatsoever to putative class members.2 The undated photos of the Ouachita River Correctional Unit contained in Defendants’ Exhibit 74, for instance, bear no resemblance to the reports of people actually living there.3
Given the evidence developed since the Court’s TRO order, it is clear that the balance of the equities heavily favors Plaintiffs. Plaintiffs “are likely to suffer irreparable harm absent an injunction, as they face a heightened risk of contracting this life-threatening virus simply as incarcerated individuals and even more so without the imposition of these cautionary measures.” Cameron v. Bouchard, No. CV 20-10949, 2020 WL 1929876, at *2 (E.D. Mich. Apr. 17, 2020), modified in part on other grounds, No. CV 20-10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020). Defendants’ actions—and inaction— have not only placed incarcerated persons in danger of succumbing to the virus, but have led to
2 Plaintiffs’ counsel specifically asked Defendants’ counsel to ensure confidential phone privileges with putative class members, but this request was denied on the grounds that the class had not yet been certified.
3 See, e.g., Kouri Decl. 1, Pff. Ex. 3 ¶¶ 8, 10 (“At chow, seating is four to a table, so we are all within a couple of feet of one another.” “No one wears masks in the barracks or in the chow hall.”); Hampton Decl. 1, Pff. Ex 10 ¶ 6, 7 (“Inmates are supposed to wear masks whenever we leave the barracks or we could get a disciplinary, but the rule is not really enforced. I closely interact with inmates during meal service, recreation, and in the line to receive my medicine. My current living situation makes social distancing impossible.”)
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serious security concerns resulting from severe staffing shortages. The irreparable harm to Plaintiffs in the absence of preliminary injunctive relief far outweighs any harm to Defendants if preliminary injunctive relief is granted, and therefore the balance of equities and public interest weighs in favor of granting injunctive relief. V. Public Interest in Protecting Plaintiffs, Corrections Staff, and Neighboring
Communities This Court has recognized the important public interests in “preservation of constitutional rights,” “protecting plaintiffs and the putative class members from COVID19 and its possible consequences,” “minimizing the spread of COVID-19 both within ADC facilities and among communities surrounding and interacting with those facilities,” and “efforts to stop the spread of COVID-19 and promote public health.” TRO Order at 21-22. While it is certainly true that this Court “should approach intrusion into the core activities of the state’s prison system with caution,” id. at 22, it is apparent that court intervention is necessary in this case because Defendants have abandoned their constitutional and statutory responsibilities to provide a safe and secure living environment for Plaintiffs. The evidence presented to the Court demonstrates that Defendants cannot be trusted to operate the state’s prison system during the COVID-19 pandemic and that such failures will directly harm not only the incarcerated people in Defendants’ care, but also their employees and the surrounding communities. If ever “federalism and comity” should give way to federal court intervention, see id. at 22, this should be that case. VI. Inapplicability of PLRA Exhaustion “Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). An administrative remedy is not “available” for purposes of the PLRA unless it is “capable of use for the accomplishment
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of a purpose,” id., which requires that the remedy be “immediately utilizable.” Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); see also Ross, 136 S.Ct. at 1856 (defining “available” as “present or ready for immediate use”). In Ross, the Supreme Court provided three common examples of situations in which a remedial process is unavailable. See id. at 1859-60. Two of those circumstances apply here. First, Defendants’ remedial process was unavailable because prison staff “thwart[ed] inmates from taking advantage of the grievance” process by refusing to sign or take their grievances and by otherwise impeding the grievance process. See id. at 1860. Second, the grievance process functioned as “a simple dead end” that was “unable to provide relief to aggrieved inmates,” see id. at 1859, both because the process moved too slowly to provide emergency relief in the context of a fast-moving pandemic, and because prison administrators disavowed their ability to take any corrective action for Petitioners’ legitimate grievances.
For several Plaintiffs, the grievance process was not “immediately utilizable,” see Miller 247 F.3d at 740, because prison staff impeded Plaintiffs’ ability to initiate or pursue the grievance process. For instance, Mr. Stiggers attempted to file an emergency grievance that entitled him to a response within 24 hours under the Defendants’ regulations. See Declaration of Terry Grigsby, filed on April 30, 2020, (ECF No. 36-37) (attaching AD 1934, definition of “emergency” available at § III(F)). Instead, prison staff refused to accept his emergency grievance for nine days, ensuring that it was functionally unavailable. See Second Declaration of Robert Stiggers, dated April 29, 2020 (“Stiggers 2 Decl., Pff. Ex. 21”) ¶ 8 (Dkt. No. 46-9). Mr. Nickson had a similar experience. He asked the same sergeant to sign and accept his grievance on three consecutive days and was denied each time. As he explained, “[a] lot of sergeants have stopped picking up and signing grievances.” See
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Second Declaration of Alfred Nickson, Dated April 29, 2020 (“Nickson 2 Decl., Pff. Ex. 18”) ¶ 8 (Dkt. No. 46-6). Prison staff repeatedly denied Mr. Nickson’s efforts to file a grievance even though he lives in Cummins Unit—the epicenter of Arkansas’ COVID-19 pandemic—and he suffers from diabetes and hypertension, see id. at ¶¶ 1, 3, which are conditions that puts him at high risk of suffering serious consequences from a COVID-19 infection. Declaration of Marc Stern, Dated Apr. 21, 2020 (“Stern Decl., Pff. Ex. 2”) ¶ 7 (Dkt. No. 3-2). When guards refuse to accept prisoners’ emergency grievances in the midst of a pandemic, the grievance process is not “present or ready for immediate use.” Ross, 136 S. Ct. at 1856.
Mr. Kent and Mr. Frazier were similarly prevented from pursuing their emergency grievances. Mr. Kent filed an emergency grievance seeking access to a mask because he knew that his underlying heart condition left him vulnerable to COVID-19. See Second Declaration of Marvin Kent, Dated April 29, 2020 (“Kent 2 Decl., Pff Ex. 15”) ¶ 6 (Dkt. No. 46-3). The prison not only denied his grievance but sent the response back through the mail so that Mr. Kent received it too late to file an appeal. See id. By providing a grievance response on a timetable that made further appeals impossible, the Defendants made the grievance process unavailable to Mr. Kent. See Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (finding grievance process unavailable where prison’s failure to respond made appeal of initial decision impossible). Similarly, Mr. Frazier attempted to file an emergency grievance requesting cleaning supplies and ADA accommodations because his pre-existing conditions left him vulnerable to COVID-19. See Nicholas Frazier Grievances, Dated April 18, 2020 (“Frazier Grievances, Pff. 46”) 3 (Dkt. No. 46-33). The guard who took his grievance refused to classify it as an emergency and then lost or discarded it. The
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Defendants have no record that the grievance exists (Def. Resp. 29), but Mr. Frazier retained a copy, complete with the staff signature. See Frazier Grievances 4, Pff. 46.
The Defendants’ grievance process is also unavailable for emergency COVID-19 grievances because it functioned as a “simple dead end.” Ross, 139 S. Ct. at 1859. It did so in two respects. First, it moved too slowly. “[B]ecause of the immediacy of the COVID-19 medical emergency,” if “prisoners’ grievances may not be addressed promptly,” “prison administrative remedies ‘operate[] as a simple dead end.’” Valentine v. Collier, No. 2020207, 2020 WL 1934431, at *8 (5th Cir. Apr. 22, 2020) (Higginson, J. concurring) (quoting Ross, 136 S.Ct. at 1859). See also Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“If a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can’t be thought available.”).
To date, Plaintiffs have filed 16 grievances. These grievances set out Plaintiffs’ serious underlying health issues, enumerated specific reasons that their daily lives in prison left them exposed to infection, classified their grievances as emergencies, and requested accommodations that would keep them safe. See Pff. Ex. 46-52. Yet, all 16 of Plaintiffs’ grievances have been dismissed or ignored. Michael Kouri, the only Plaintiff to successfully make it to step 3 of the grievance process, was recently informed that he could expect a response by June 11—nearly two months after he filed his emergency grievance. See Second Declaration of Michael Kouri, Dated May 6, 2020 (“Kouri 2 Decl., Pff. Ex. 97”) ¶ 16 (Dkt No. 60-2). Mr. Kouri’s appeal was not even received by prison officials until nine days after he mailed it. See id. Plaintiffs are in “immedia[te]” need of a remedy,
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but the Defendants have made it abundantly clear that they cannot—or will not— “promptly” address their grievances. See Valentine, 2020 WL 1934431, at *8 (Higginson, J., concurring). Given the “immediacy of the COVID-19 medical emergency,” see id., that means the Defendants’ grievance process is a functional dead end for Plaintiffs’ COVID19 emergency grievances, and not an “available” remedy that must be exhausted. See Ross, 159 S. Ct. at 1858.
During argument at the preliminary injunction hearing, the Defendants contended that their remedies must be deemed available because the pandemic is “a continuing emergency” rather than a time-limited emergency. See Hr’g Tr. at 253. The Defendants’ argument misses the point of the availability inquiry, which asks whether the grievance process is in fact available to remedy the plaintiffs’ injuries before it is too late. Regardless of how long the pandemic persists, it is an emergency for Plaintiffs who need a remedy before they become infected with COVID-19 and risk serious illness. COVID-19 moves too quickly and kills too frequently to count a remedy that might (but realistically will not) appear at some point within 60 days from when a grievance is first filed as “available” under the “ordinary meaning of the word.” Ross, 159 S. Ct. at 1858; Fletcher, 623 F.3d at 1173-74.
The unavailability of the Defendants’ grievance process is also demonstrated by the form letter that Plaintiffs each received in response to their emergency grievances seeking ADA accommodations sufficient to keep them safe. Plaintiffs received a grievance response that simply “said ‘see attachment’” and included a “typed statement from the deputy warden that stated they were doing everything they could and asked for patience.” Second Declaration of Alvin Hampton, Dated April 29, 2020 (“Hampton 2 Decl., Pff. Ex.
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14) ¶ 15 (Dkt. No. 46-2); see also Second Declaration of Jonathan Neeley, Dated April 29, 2020 (“Neeley 2 Decl., Pff. Ex. 17”) ¶ 15 (Dkt. No 46-5); Second Declaration of Harold Otwell, Dated April 29, 2020 (“Otwell 2 Decl., Pff. Ex. 19”) ¶ 21 (Dkt. No. 46-7); Second Declaration of Victor Williams, Dated April 29, 2020 “Williams 2 Decl., Pff. Ex. 22) ¶ 16 (Dkt. No. 46-10). During argument at the preliminary injunction hearing, the Defendants classified these responses as polite denials from which Plaintiffs should have appealed. See Hr’g Tr. at 254. But Plaintiffs received a form letter from upper management counseling “patience” because the prison was already doing “everything they could.” If Plaintiffs are told they can do nothing but wait because the prison is powerless to meet their requests— and they are told this in a form letter that is distributed broadly and has the imprimatur of the management—the obvious interpretation is that no relief is available. After all, if the prison is already doing “everything” that they can, by definition they are saying that they can do no more, and the Petitioners’ request for more is not available.
Whatever the general availability of the Defendants’ grievance process may be, that remedial process was unavailable for Plaintiffs seeking emergency relief during the COVID-19 pandemic. Consequently, the PLRA did not require Plaintiffs to exhaust their unavailable administrative remedies before bringing this action in court. VII. Petitioners’ Claim for Release Is Cognizable in Habeas Corpus and Is Not
Procedurally Barred In Count II of Petitioners’ Class Action Complaint and Petition for Writ of Habeas Corpus, Petitioners in the medically vulnerable and disabled subclasses requested their release because their continuing confinement in prison violates federal law for the duration of the pandemic. See Compl. 43. The pandemic has already spread to DOC facilities as a result of Respondents’ deliberate indifference to known risks of transmission. At this point,
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due to the highly contagious nature of COVID-19 and the debilitating threat it poses to the most vulnerable prisoners, Respondents cannot mitigate the risks sufficient to satisfy the Eighth Amendment and ADA by any means short of release.
The State raises various procedural objections to Petitioners’ habeas claim. Those objections lack merit. Petitioners’ claim is cognizable in habeas because it challenges the fact or duration of confinement. For the same reason, it is not barred by the PLRA’s limitation on prisoner release orders. Finally, the claim is not barred on exhaustion grounds because there were no state remedies for Petitioners’ to exhaust.
A. Plaintiff’s Claim is Cognizable in Habeas Corpus. Petitioners’ claim properly sounds in habeas because Petitioners are seeking release from confinement. Preiser v. Rodriguez, 411 U.S. 475, 498 (1973), holds that when a petitioner “challenges the fact or duration of his physical confinement” and “seeks immediate release or a speedier release from that confinement,”4 see id., his claim lies in habeas. Here, Petitioners are challenging the fact of their physical confinement and seeking immediate release so Preiser applies. Indeed, Preiser not only holds that Petitioners may bring their claim for release under habeas, it holds that they must. Id. at 500. Section 1983 is not an option. Id.
4 The State’s argument also relies on a conflation of the term “confinement” with “custody.” Preiser does not state that habeas Petitioners seek a release from “custody”; it states that they seek release from “physical confinement.” Preiser, 411 U.S. at 498. And Preiser confirms the intentional nature of its word choice by later repeating the same rule while substituting the phrase “physical confinement” with “physical detention.” See id. at 500. Thus, the fact that Petitioners may still legally be under state custody even if they are released from “physical confinement” is irrelevant. To illustrate the error of the State’s position, it is worth noting that petitions for writs of habeas corpus could not challenge sentences of death if habeas permitted only challenges to custody. See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003) (reversing petitioner’s death sentence in habeas based on ineffective assistance of counsel claim).
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The State contends that Petitioners’ claim must be pursued under § 1983 because it bears in some way on the conditions of Petitioners’ confinement. But that is not the line drawn by Preiser between habeas and § 1983. Instead, Preiser unequivocally held that so long as the relief requested by a prisoner is release from confinement, the claim is properly brought in habeas. See id.
The overwhelming weight of recent federal authority recognizes that claims like Petitioners’ are properly brought in habeas because Petitioners are challenging the fact of their confinement. Thus, a Sixth Circuit panel just unanimously ruled that a similar challenge should be brought in habeas: “Where a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement.” Wilson v. Williams, No. 20-3447, slip op. (6th Cir. May 4, 2020).5 The Court in Wilson refused to stay a district court order granting a preliminary injunction under habeas that required a prison to develop a plan for releasing prisoners based on the district court’s findings: that the prison’s “dorm-style structure rendered it unable to implement or enforce social distancing,” that “infections [were] rampant among inmates and staff, and numerous inmates have passed away,” that that the prison had especially high infection rates, and lacked adequate testing. See id. at 4. Those same facts support release in the case.
As another district court recently explained: “Although Respondents are correct that ‘prisoners may not challenge mere conditions of confinement in habeas corpus,’ ‘[c]hallenges to the validity of any confinement or to particulars affecting its duration are
5 The Sixth Circuit’s order in Wilson is attached to Petitioners’ Notice of Additional Authority. See Dkt. No. 54-1.
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the province of habeas corpus.’” See Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020) (quoting Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (en banc) (emphasis removed) and Muhammad v. Close, 540 U.S. 749, 750 (2004)); accord Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *7 (E.D. Mich. Apr. 5, 2020); Wilson v. Williams, No. 4:20-cv-00794, ––– F.Supp.3d ––––, ––––, 2020 WL 1940882, at *2 (N.D. Ohio Apr. 22, 2020); Money v. Pritzker, __ F.3d __, 2020 WL 1820660, at *21 (N.D. Ill. Apr. 10, 2020).6
The State’s position also finds no support in the Eighth Circuit, and its attempted reliance on Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam), and Spencer v. Haynes, 774 F.3d 467, 470-72 (8th Cir. 2014), is unavailing. The State’s argument hinges on the assertion that Kruger and Spencer require that Petitioners’ claim be classified as a § 1983 conditions-of-confinement claim. But Kruger and Spencer simply repeat the same distinction set forth in Preiser between habeas claims that seek release from confinement and section 1983 claims that do not—and they do so in explicit reliance on Preiser. See Kruger, 77 F.3d at 1073 (relying on Preiser); Spencer, 774 F.3d at 469-70 (same). Both cases ruled that claims challenging a prisoner’s conditions of
6 The State does cite one district court position that supports its position. See Def. Resp. 38 (citing Livas v. Myers, — F. Supp. 3d —, 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020)). But Livas cited multiple decisions that reach the opposite conclusion from its own on this point, and zero decisions that reached the same conclusion. See Livas, 2020 WL 1939583 at *8 n.10 & n.12; see also Pet. Repl. At 63 n.17. The Livas court nonetheless concluded that habeas was not an appropriate remedy because Petitioners were not seeking release from “custody.” See id.at *8. As discussed above, Preiser makes clear any request from confinement properly sounds in habeas even if a prisoner remains in custody. This Court should therefore reject the State’s invitation to follow Livas.
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confinement that did not challenge the fact of that confinement or seek release should be raised under § 1983. See id. Those decisions have no bearing on Petitioners’ claim.
The State’s cognizability argument is without merit. B. Petitioners Need Not Exhaust their Nonexistent State Court Remedies. Petitioners are not required to exhaust their state court remedies because Petitioners cannot obtain release for their Eighth Amendment claim in state court. Under Arkansas state law, postconviction challenges that seek relief from a sentence imposed by a circuit court may only be pursued under Rule 37, which governs state postconviction remedies in Arkansas. See Ark. R. Crim. P. 37.2. However, state postconviction relief is not available to Petitioners because they fall outside the jurisdictional time limits imposed by Rule 37.2 and because Petitioners’ claims are not cognizable under Rule 37. See, e.g., Whitmore v. State, 771 S.W.2d 266, 272 (Ark. 1989) (holding that “Rule 37 does not apply to the execution of a sentence”). Consequently, Arkansas law does not provide Petitioners with an “available state corrective process,” and their federal claim is not barred by 28 U.S.C. § 2254. C. The PLRA Does Not Apply to Petitioners’ Habeas Claim. The State contends that Petitioners’ habeas claim is barred by the PLRA’s limitations on prisoner release orders. But the PLRA provisions cited by Respondents do not apply where, as here, Petitioners seek release under habeas. The PLRA is unambiguous on this point. Its requirements for release orders apply only to “any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a)(3). And it expressly states that “the term ‘civil action with respect to prison conditions’ . . . does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2). The Sixth Circuit recently addressed and rejected an identical argument in
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Wilson. See Wilson v. Williams, No. 20-3447, slip op. (6th Cir. May 4, 2020) (recognizing the PLRA is inapplicable to a habeas claim contending that “no set of conditions would be constitutionally sufficient” for vulnerable prisoners in light of the COVID-19 pandemic, “given [the PLRA’s] express exclusion of ‘habeas corpus proceedings challenging the fact or duration of confinement in prison’ from its ambit. 18 U.S.C. § 3626(g)(2)”).
In sum, the State’s procedural objection to Petitioners’ habeas claim pose no obstacle to the resolution of petitioners’ substantive claims. VIII. Class Certification
Plaintiffs refer the Court to the arguments regarding class certification in Plaintiffs Reply Memorandum of Law in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction, dated May 4, 2020 (“Reply Brief”), at 80-87. Furthermore, Plaintiffs continue to maintain that the putative class includes residents of facilities within the Division of Community Corrections, a subdivision of the Arkansas Department of Corrections. IX. Plaintiffs’ Alternative Proposed Preliminary Injunction
In addition to the proposed preliminary injunction that Plaintiffs provided to the Court in its Reply Brief, Plaintiffs respectfully propose the following alternative preliminary injunction for the Court’s consideration.
Plaintiffs respectfully request that the Court appoint a special master or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding:
1. A comprehensive plan to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished;
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2. The number of incarcerated people that each Arkansas Department of Corrections facility can house in order to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished;
3. The identification of people in the custody of the Arkansas Department of Corrections (a) who are older than 50 years old; (b) who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19; and/or (c) who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability, and who should be released from their facility or transferred to home confinement due to their age, serious underlying medical condition(s), and/or disability, in a manner that is consistent with public safety.
Plaintiffs further request that the Court order Defendants to: 1. Ensure that each incarcerated individual receives EPA-registered disinfectants that are effective against COVID-19 infection, without costs; 2. Ensure that all incarcerated individuals have access to hand sanitizer containing at least 60% alcohol in specific locations or under the appropriate supervision of Arkansas Department of Corrections staff; 3. Clean and disinfect frequently touched surfaces, including but not limited to doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones, at least three times a day with EPA-registered disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface;
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4. Conduct immediate testing for anyone displaying known symptoms of COVID-19 or upon request;
5. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, hot meals during appropriate times, reading materials, commissary, phone and video visitation with loved ones, communication with counsel, and personal property;
6. Prohibit Arkansas Department of Corrections employees from entering Arkansas Department of Corrections facilities if they test positive for COVID-19 and/or exhibit symptoms of having contracted COVID-19;
7. Substantially comply with CDC guidance in all other respects, unless Defendants identify a specific reason why circumstances in one or more Arkansas Department of Corrections facilities render such substantial compliance unreasonable; and
8. Permit any Court-appointed special master or expert to freely visit Arkansas Department of Corrections facilities without advanced notice; to freely access relevant records maintained by the Arkansas Department of Corrections, including medical records of persons in custody provided the person whose medical records are accessed authorizes such access and inspection; and to freely contact, call, visit, and/or interview any person in the custody of the Arkansas Department of Correction facility within 24-hour notice.
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Dated: New York, NY May 8, 2020

Respectfully submitted,
By: /s/Omavi Shukur
Samuel Spital Jin Hee Lee Natasha Merle Omavi Shukur (Arkansas Bar No. 2016067) Patricia Okonta 40 Rector Street, 5th floor New York, NY 10006 Tel: (212) 965-2200 Fax: (212) 226-7592
Christopher Kemmitt Ajmel Quereshi NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall Jenay Nurse Corrine Irish Squire Patton Boggs (US) LLP 1211 Avenue of the Americas, 26th Floor New York, NY 10036 (212) 872-9800
Laura Fernandez 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 72201 (501) 296-1775

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Case 4:20-cv-00434-KGB Document 65 Filed 05/08/20 Page 50 of 50 Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202 (501) 374-2660 Attorneys for Plaintiffs and the Putative Classes
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 Case 4:20-cv-00434-KGB Document 68 Filed 05/19/20 Page 1 of 73

THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER

PLAINTIFF

v.

Case No. 4:20-cv-00434-KGB

WENDY KELLEY, et al.

DEFENDANTS

ORDER DENYING PRELIMINARY INJUNCTION

Before the Court is an emergency motion for temporary restraining order and preliminary

injunction filed by plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri,

Jonathan Neeley, Alfred Nickson, Harold “Scott” Otwell, Trinidad Serrato, Robert Stiggers, Victor

Williams, and John Doe, individually and on behalf of all others similarly situated (collectively,

“plaintiffs”) (Dkt. No. 2). A response was filed by defendants Wendy Kelley, Secretary of the

Arkansas Department of Corrections (“DOC”); Dexter Payne, Division of Correction Director,

Arkansas Department of Corrections (“ADC”); Jerry Bradshaw, Division of Community

Correction Director, Arkansas Department of Corrections (“ADCC”); Asa Hutchinson, Governor

of Arkansas; Benny Magness, Chairman of Arkansas Board of Corrections (“ABC”); Bobby

Glover, Vice Chairman of ABC; John Felts, Member of ABC; William “Dubs” Byers, Member of

ABC; and Whitney Gass, Member of ABC, all in their official capacities (collectively,

“defendants”) (Dkt. No. 36). Plaintiffs filed a reply on May 4, 2020 (Dkt. No. 44).

On Monday, April 27, 2020, plaintiffs also filed a supplemental motion for temporary

restraining order (Dkt. No. 22). Plaintiffs’ supplemental motion for temporary restraining order

requested that the Court enter immediately a temporary restraining order (Id., at 1). Plaintiffs

provided a draft proposed order outlining in detail the relief they requested in their motion, which

was comparable but not identical to the relief they seek in their current motion for preliminary

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injunction (Dkt. No. 22-1). The Court conducted a hearing with all parties on that motion on Tuesday, April 28, 2020 (Dkt. Nos. 24; 26). On May 4, 2020, the Court entered an order denying plaintiffs’ motion for temporary restraining order but holding under advisement plaintiffs’ previously filed motion for preliminary injunction (Dkt. No. 42).
Since the Court’s ruling on plaintiffs’ request for a temporary restraining order, plaintiffs and defendants have submitted to the Court additional record evidence and further briefing. The Court conducted a hearing on plaintiffs’ pending motion for preliminary injunction on May 7, 2020 (Dkt. Nos. 62; 63), and the parties filed post-hearing briefs on May 8, 2020 (Dkt. Nos. 64; 65). For the following reasons, the Court denies plaintiffs’ motion for preliminary injunction.
I. Overview A. Claims
On April 21, 2020, plaintiffs filed a class action complaint and petition for writ of habeas corpus (Dkt. No. 1). Plaintiffs allege that conditions in ADC facilities create a serious risk of COVID-19-related infection, disease, and death (Id., ¶¶ 72-89). Plaintiffs claim that the spread of COVID-19 in ADC facilities jeopardizes the public health of surrounding communities, especially black communities (Id., ¶¶ 90-97). Plaintiffs assert that defendants have intentionally failed to adopt and implement adequate policies and procedures to prevent and mitigate the spread of COVID-19 (Id., ¶¶ 98-126). Plaintiffs assert three causes of action: (1) violation of the Eighth Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all plaintiffs; (2) violation of the Eighth Amendment brought by a petition for writ of habeas corpus under 28 U.S.C. § 2241 on behalf of the proposed high risk subclass; and (3) violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., on behalf of the proposed disability subclass (Id., ¶¶ 12748).
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Plaintiffs also filed the instant emergency motion for temporary restraining order and preliminary injunction on April 21, 2020 (Dkt. No. 2). In this motion, plaintiffs request that this Court grant immediate relief to protect them against the substantial risk of COVID-19 infection, illness, and death while incarcerated in ADC facilities (Id., at 1-2). Plaintiffs assert that they are entitled to a preliminary injunction because they are substantially likely to succeed on the merits of their claim that defendants’ failure to take steps to address the imminent risk caused by COVID19 constitutes deliberate indifference in violation of plaintiffs’ Eighth Amendment rights (Id., at 2). Plaintiffs further assert that defendants have violated, and will continue to violate, the ADA by failing to provide plaintiffs with disabilities with reasonable accommodations that would allow them to have safe housing while serving their prison sentence that does not place them at substantial risk of COVID-19 infection, illness, or death by virtue of their disability (Id.). Plaintiffs maintain that defendants are aware of the substantial risk posed by the virus and the recommended steps issued by the Centers for Disease Control (“CDC”) to prevent its spread but have failed to take steps to protect plaintiffs (Id.). Plaintiffs assert that they and putative class members are also entitled to relief because they will suffer irreparable harm absent relief and that traditional legal remedies will not adequately protect their rights (Id.).
B. Class Allegations Plaintiffs are individuals incarcerated in facilities operated by the ADC (Dkt. No. 1, at 12). Based on the allegations in their complaint, each named plaintiff faces a heightened risk of death or serious injury if exposed to COVID-19 due to a chronic medical condition, a disability, or both (Id., ¶¶ 15-35). Plaintiffs seek relief on behalf of themselves and a class consisting of people who are currently incarcerated, or will be in the future, in an ADC detention facility during the duration of
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the COVID-19 pandemic (Id., ¶ 41). Plaintiffs also propose two subclasses: (a) high risk subclass,
defined as:
[P]eople in the custody of an ADC facility aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of a stroke; and people with any condition specifically identified by the Center for Disease Control (“CDC”), currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19.
and (b) disability subclass, defined as:
[P]eople in custody who suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability.
(Id.).
The Court determines that, for reasons unrelated to plaintiffs’ class allegations, plaintiffs
have not demonstrated that they are likely to succeed on the merits of their Eighth Amendment
and ADA claims. Therefore, the Court denies plaintiffs’ request for a preliminary injunction and,
at this stage of the proceeding, declines to address matters related to plaintiffs’ class allegations.
C. Request For Injunctive Relief
Plaintiffs request in their pending motion that the Court grant preliminary injunctive relief
and appoint a special master or an expert under Federal Rule of Evidence 706 to take certain
actions and to make recommendations to the Court regarding a number of issues (Dkt. No. 44, at
90-92). Plaintiffs also request a preliminary injunction requiring defendants to take 26 specific
actions with respect to COVID-19 (Id., at 92-96). After the preliminary injunction hearing,
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plaintiffs proposed an alternative preliminary injunction for the Court’s consideration (Dkt. No. 65, at 45-47). The Court has considered these requests in making its determination.
II. Findings Of Fact The Court has considered the entire evidentiary record presented by the parties in reaching its decision, although citing only specific portions in this Order. The Court makes the following specific findings of fact.
A. COVID-19 1. COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 2019. 2. The World Health Organization (“WHO”) declared COVID-19 a pandemic on March 11, 2020 (Dkt. Nos. 3, at 14; 3-1, ¶ 2). The COVID-19 pandemic has created a public health emergency (Id.). 3. COVID-19 has proven highly contagious in congregate environments such as nursing home facilities, cruise ships, naval aircraft carriers, and prisons (Dkt. Nos. 1, ¶ 3; 3-1, ¶¶ 12-13; 3-2, ¶ 9). 4. There is no cure for COVID-19, and once contracted it can have life-threatening consequences, particularly for people who have certain underlying medical conditions, have a disability, or are over the age of 50 (Dkt. Nos. 23, at 3; 3-1, ¶¶ 3, 10; 3-2, ¶¶ 7-8). 5. In most people, the virus causes fever, cough, and shortness of breath (Dkt. No. 31, ¶ 5). In high-risk individuals, the shortness of breath can often be severe, and even in younger and healthier individuals, infection of this virus requires supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation (Id.).
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6. The incubation period for COVID-19 is typically five days but can vary from as short as two days to an infected individual never developing symptoms (Id., ¶ 6). There is evidence that transmission can occur before the development of infection from infected individuals who remain asymptomatic or never develop symptoms (Id.).
7. On March 11, 2020, Governor Hutchinson signed Executive Order 20-03 declaring a state of emergency and confirmed the first presumptive case of COVID-19 in Arkansas (Dkt. No. 3, at 14).
8. On March 13, 2020, President Trump declared the COVID-19 outbreak a national emergency (Id., at 15).
9. On March 23, 2020, the CDC published its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Dkt. No. 36-9). The CDC published these guidelines, in part, to help correctional facilities ensure the protection, health, and safety of incarcerated people (Dkt. No. 3, at 26).
10. At the time plaintiffs filed their complaint, Arkansas had 1,971 COVID-19 infections and 42 deaths statewide; at that time, incarcerated people made up at least one in three confirmed COVID-19 infections statewide (Dkt. No. 1, ¶ 2).
11. At the time plaintiffs filed their reply on May 4, 2020, Arkansas had 3,431 COVID19 infections and 76 deaths statewide (Dkt. No. 44, at 4).
12. On or about April 13, 2020, in a 150-bed facility of the ADCC, 63 residents or people incarcerated at the center and 27 staff tested positive for COVID-19 (Dkt. No. 63, at 188).
13. As of April 27, 2020, 856 people incarcerated at the ADC’s Cummins Unit (“Cummins”) have been confirmed to have contracted COVID-19 (Dkt. No. 44, at 4).
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14. Two men from Cummins lost their lives to COVID-19 on May 1, 2020, and two more men from Cummins lost their lives to COVID-19 on May 3, 2020 (Id.).
15. A staff member from the ADC’s Grimes Unit (“Grimes”) has tested positive for COVID-19 (Dkt. No. 63, at 235).
16. After the preliminary injunction hearing concluded, plaintiffs filed with the Court a motion for the Court to take judicial notice of 45 inmates at the Randall L. Williams Unit (“Williams”) who tested positive for COVID-19 and three more inmates who are being treated as likely positive COVID-19 cases (Dkt. No. 66).
B. Parties 17. Mr. Frazier alleges that he suffers from seizures and asthma (Dkt. No. 1, ¶ 19). 18. Defendants assert that Mr. Frazier is not currently on any asthma medication and that his condition is well controlled (Dkt. No. 36-23, ¶ 14). 19. Mr. Frazier is serving a 10-year prison sentence for commercial burglary, manufacture, delivery, and possession of controlled substances, criminal mischief, possession of drug paraphernalia, and theft of property (Dkt. No. 36-21). 20. Mr. Hampton alleges that he suffers from seizures, Bell’s palsy, and bipolar disorder; has reported difficulty breathing in the morning, constant coughing, and congestion; and has not been tested for COVID-19 (Dkt. No. 1, ¶ 31). 21. Defendants dispute that Mr. Hampton has been diagnosed with bipolar disorder or prescribed medication for that disorder (Dkt. No. 36-23, ¶ 31). 22. Mr. Hampton is serving a five-year prison sentence for battery, terroristic threatening, and fleeing and resisting arrest (Dkt. No. 36-24).
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23. Mr. Kent alleges that he has been diagnosed with heart failure and has a pacemaker; suffers from chest pain daily; has hypertension and high cholesterol; is currently experiencing headaches, body aches, coughing, and nausea; and has not been tested for COVID-19 (Dkt. No. 1, ¶ 20).
24. Mr. Kent is serving an 18-year prison sentence for first degree battery and endangering the welfare of a minor, and he is serving the remainder of a prior conviction because he violated the terms of his probation (Dkt. No. 36-26).
25. Mr. Kouri alleges that he has been diagnosed with aortic heart valve degeneration; has an artificial heart valve and is on blood thinners; suffers from hypertension and extreme obesity; has been experiencing more severe shortness of breath, headaches, chills, coughing; was recently diagnosed with conjunctivitis; and has not been tested for COVID-19 (Dkt. No. 1, ¶¶ 1516).
26. Mr. Kouri is serving a 10-year prison sentence for aggravated robbery (Dkt. No. 36, at 21).
27. Mr. Neeley alleges that he was diagnosed with rectal cancer in January 2020; has not received treatment or chemotherapy; and has traveled to three local hospitals recently related to his cancer diagnosis (Dkt. No. 1, ¶ 33).
28. Defendants contend that Mr. Neeley received surgery for his condition in January 2020; saw an oncologist in approximately March 2020; visited another doctor who ordered additional treatment; and is currently scheduled to receive radiation treatment at an outside provider later this year (Dkt. No. 36-23, ¶¶ 34-35).
29. Mr. Neeley is serving a 10-year prison sentence for multiple counts of sexual assault (Dkt. No. 36-30).
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30. Mr. Nickson alleges that he suffers from diabetes, rheumatoid arthritis, and osteoarthritis; has experienced shortness of breath, fatigue, coughing, and repeated vomiting; and has not been tested for COVID-19 (Dkt. No. 1, ¶ 26).
31. Mr. Nickson is serving a 25-year prison sentence for murder (Dkt. No. 36-31). 32. Mr. Otwell alleges that he is obese, pre-diabetic, has osteoarthritis, receives physical therapy for his right hip, and has limited mobility (Dkt. No. 1, ¶ 22). 33. Defendants assert that neither the ADC nor Wellpath, LLC (“Wellpath”), the ADC’s contracted medical provider, have records suggesting Mr. Otwell has been diagnosed with pre-diabetes or that Mr. Otwell has been prescribed diabetes medication (Dkt. No. 36-23, ¶ 22). Defendants also assert that Mr. Otwell does not participate in physical therapy for any injury (Id., ¶ 23). 34. Mr. Otwell is serving a 15-year sentence for conspiracy to commit arson and jury tampering (Dkt. No. 36-33). 35. Mr. Serrato alleges that he is a carrier of tuberculosis and suffers from asthma (Dkt. No. 1, ¶ 17). 36. Defendants contend that Mr. Serrato has not been diagnosed with asthma (Dkt. No. 36-23, ¶ 10). 37. Mr. Serrato is incarcerated due to a 2017 conviction for felon in possession of a firearm, for which he was convicted as a habitual offender (Dkt. No. 36-34). 38. Mr. Stiggers alleges that he suffers from asthma (Dkt. No. 1, ¶ 24). 39. Mr. Stiggers is serving a 40-year sentence for first-degree murder and a 20-year sentence for battery, which are set to run consecutively (Dkt. No. 36, at 18).
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40. Mr. Williams alleges that his lymphoma is in remission and claims that he suffers from a collapsed lung, hypertension, and bruised tissue surrounding his heart (Dkt. No. 1, ¶ 28).
41. Defendants challenge Mr. Williams’ allegations regarding his health conditions (Dkt. No. 36-23, ¶¶ 27-29).
42. Mr. Williams is serving a five-year sentence for manslaughter (Dkt. No. 36, at 25). 43. Plaintiff John Doe recently tested positive for COVID-19 and suffers from severe asthma which requires use of an inhaler throughout the day, according to plaintiffs’ complaint (Dkt. No. 1, ¶ 35). 44. Mr. Hampton, Mr. Kouri, Mr. Neeley, Mr. Otwell, Mr. Serrato, and Mr. Williams are incarcerated in the ADC’s Ouachita River Correctional Unit (“Ouachita”)1 (Id., ¶¶ 15, 17, 22, 28, 31, 33). 45. Mr. Frazier and Mr. Kent are incarcerated in the Varner Supermax (“Varner”) (Id., ¶¶ 19-20). 46. Mr. Nickson, Mr. Stiggers, and John Doe are incarcerated in Cummins (Id., ¶¶ 24, 26, 35). 47. The Arkansas Department of Corrections (“DOC”) includes the Arkansas Department of Corrections (“ADC”), the Arkansas Department of Community Correction (“ADCC”), the Arkansas Board of Corrections (“ABC”), and the Arkansas Board of Parole (Dtk. No. 63, at 66).2
1 According to defendants, the “most vulnerable populations are housed at the Ouachita River Correctional Unit. It is designed for special needs inmates including those who are chronically ill and medically fragile. The facility provides hospital services.” (Dkt. No. 46-42, Response to Question 9).
2 Until July 1, 2019, the ADC was known as the Arkansas Department of Correction (Dkt. No. 36-1, ¶ 1).
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C. Grievance Policy 48. Defendants maintain that at all times relevant to this lawsuit ADC had a policy relating to grievances filed by inmates housed in its facilities (Dkt. No. 36, at 25). 49. The version of the policy in effect since December 2, 2019 is Administrative Directive 2019-34 (“AD 19-34”) (Dkt. Nos. 36, at 26; 36-37, ¶¶ 4-5). 50. AD 19-34 applies to both medical and non-medical grievances, the exhaustion process is similar for both types of grievances, and the procedure includes an informal resolution stage and a formal resolution stage (Dkt. Nos. 36, at 26; 36-38, ¶¶ 3, 8). 51. AD 19-34 contains a multi-step process to file and exhaust a grievance (Dkt. No. 36-37, ¶ 8). 52. An inmate initiates Step One by submitting his Unit Level Grievance Form to the designated problem solver on duty, and the problem solver has three business days to respond to the inmate (Id., ¶ 12). 53. If an inmate does not submit a Step One grievance within 15 days of the incident’s occurrence, the grievance is untimely and can be rejected by ADC (Id., ¶ 10). 54. If the grievance cannot be resolved by the problem solver, the inmate has three business days after receiving a response from the problem solver to initiate Step Two (Id., ¶ 12). 55. Alternatively, if the problem solver fails to contact the inmate regarding his grievance within three business days, the inmate may proceed to Step Two directly and file a formal Step Two grievance within six business days of submitting the original Unit Level Grievance Form (Id., ¶ 13). 56. ADC’s inmate grievance policy also accounts for emergencies and is designed to ensure that ADC staff act quickly to resolve emergencies, defining an “emergency” as “a problem
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that, if not immediately addressed, subjects the inmate to a substantial risk of personal injury or other serious and irreparable harm, such as physical abuse” (Dkt. Nos. 36, at 27; 36-37, at 8).
57. If the inmate believes the matter to be an emergency, the inmate is directed to designate the grievance as an emergency and present the form to any staff member (Dkt. No. 3637, ¶ 15).
58. If the staff recipient determines that an emergency does exist, corrective action should be taken within 24 hours (Id., ¶ 15, at 13).
59. If the problem solver determines that an emergency exists, the grievance is submitted immediately to the Warden without further completion of Step One, essentially converting an emergency informal grievance into a Step Two grievance (Id.).
60. Step Two’s procedure is slightly different for medical and non-medical grievances (Dkt. No. 36, at 27).
61. For non-medical grievances, the Warden or Warden’s designee will consider the grievance, any other documents relevant to the grievance, and respond to the Step Two grievance within 20 business days of receipt (Dkt. No. 36-37, ¶ 16).
62. If the inmate is not satisfied with the Warden’s response, the inmate may appeal within five business days to the appropriate Chief Deputy, Deputy, or Assistant Director who will attempt to resolve the matter or assign an appropriate staff member to do so (Id., ¶ 17).
63. To complete the appeal for a non-medical grievance, the inmate must state a reason for disagreeing and must date, sign, and write the inmate’s ADC number on the attachment being appealed (Id., ¶¶ 18-19).
64. The Chief Deputy, Deputy, or Assistant Director must respond to the non-medical grievance within 30 days (Id., at 19).
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65. For Step Two medical grievances, the Health Services Administrator at the Unit Medical Department will consider the grievance, any other documents relevant to the grievance, and respond within 20 business days of receipt (36-38, ¶ 8).
66. After receiving a response from the Health Services Administrator, the inmate may appeal to the Deputy Director for Health and Correctional Programs (Id., ¶ 9).
67. The Deputy Director for Health and Correctional Programs has 30 days to respond (Id., at 19).
68. The Deputy Director for Health and Correctional Program’s written decision or rejection of an appeal is the end of the medical grievance process (Id., ¶ 12).
D. Plaintiffs’ Use Of Grievance Procedures 69. Plaintiffs have submitted purported copies of grievances filed by Mr. Frazier, Mr. Hampton, Mr. Kouri, Mr. Neeley, Mr. Otwell, Mr. Serrato, and Mr. Williams (Dkt. Nos. 46-33; 46-34; 46-35; 46-36; 46-37; 46-38; 46-39). 70. Plaintiffs assert that Mr. Frazier, Mr. Kouri, and Mr. Nickson filed emergency grievances that prison officials failed to treat as emergency grievances in accordance with AD 1934 (Dkt. Nos. 44, at 53-54; 44-1, ¶ 14; 44-4, ¶ 16; 44-6, ¶ 11; 44-33). 71. Mr. Frazier designated his grievance as an emergency grievance and submitted that grievance on April 18, 2020 (Dkt. No. 46-33). When prompted to state why there is an emergency, Mr. Frazier wrote “[d]ue to proper cleaning supplies not being provided on a daily basis with Covid 19 going around” (Id., at 3-4). Mr. Frazier also wrote his grievance “under Reasonable Accomidation [sic] under the ‘ADA’ American Disability Act due to the fact that I have asthma and a seizure disorder, and feel I or we as a whole need daily cleaning supplies during this time of crisis while the Covid 19 disease is at peak points” (Id.). Mr. Frazier’s request was received by a
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staff member named Sergeant Garcia, Identification Number 90495, on April 18, 2020, and Sergeant Garcia designated the grievance as a Step One grievance rather than an emergency grievance (Id., at 4). The grievance was not forwarded to medical or mental health, and the section of the grievance asking staff to describe action taken to resolve the complaint is blank (Id.).
72. Gloria Thompson, Inmate Grievance Supervisor for Varner, states that she has reviewed the ADC’s grievance records pertaining to Mr. Frazier and that her office has no record of Mr. Frazier submitting a grievance on April 18, 2020, or any other grievance related to COVID19 (Dkt. No. 36-39, ¶¶ 5-7).
73. Mr. Hampton submitted informal grievances regarding COVID-19 on April 13, 2020, and April 19, 2020 (Dkt. No. 36-40, ¶¶ 6-7).
74. Mr. Hampton designated his first grievance as an emergency grievance and submitted that grievance on April 13, 2020 (Dkt. No. 46-34, at 2). In the grievance, Mr. Hampton complains of the inability to social distance; states that inmates have no gloves and only one mask; asserts that the majority of the barracks, including himself, are experiencing flu-like symptoms; and seeks immediate release for his safety (Id.). Mr. Hampton’s request was received by a staff member named Sergeant Griffin, Identification Number 91214, on April 13, 2020, and Sergeant Griffin designated the grievance as a Step One grievance rather than an emergency grievance (Id.). In describing the action taken to resolve the complaint, a staff member wrote that “[n]o matter the situation, release is a non-grievable issue” (Id.).
75. Mr. Hampton also designated his second grievance as an emergency grievance and submitted that grievance on April 19, 2020 (Id., at 3). Though this grievance is harder to read, a staff member designated the grievance as a Step One grievance rather than an emergency grievance
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(Id.). The section of the grievance asking staff to describe action taken to resolve the complaint is blank (Id.).
76. Jason Gray, Inmate Grievance Supervisor at Ouachita, avers that Mr. Hampton did not submit a formal grievance regarding COVID-19 or fully exhaust any such grievance by April 21, 2020 (Dkt. No. 36-40, ¶¶ 1, 6-8).
77. Mr. Kent maintains that, on April 21, 2020, he filed an emergency grievance explaining that he has a serious heart condition and pacemaker and asking for a mask to avoid contracting COVID-19 (Dkt. No. 46-3, ¶ 6).
78. Mr. Kent maintains that he received a response April 28, 2020; the facility mailed its response to him stating that, because he was an inmate in SuperMax, he did not need a mask (Id., ¶ 7).
79. By the time Mr. Kent received that response, he maintains he had been transferred out of SuperMax (Id.).
80. Further, Mr. Kent explains that the response was mailed to him, meaning more than 72 hours had passed before he received it which was passed the deadline for moving onto Step Two of the grievance process based on that response, and that in the ordinary course responses are handed to the inmate who can then inform the officer if he wishes to move to Step Two of the grievance process (Id.).
81. Mr. Kent maintains that he and most of the inmates he knows fear retaliation for speaking out about COVID-19 and asking for help (Id., ¶ 19).
82. Inmates and family members of inmates reported fearing retaliation, as well, for speaking out about COVID-19 issues (Dkt. Nos. 46-13, ¶ 10; 46-21, ¶ 10; 46-30, ¶ 9).
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83. Varner’s grievance office has no record of Mr. Kent submitting any COVID-related grievances, though he has filed multiple grievances since December 2019 (Dkt. Nos. 3-6, ¶ 3; 3639, ¶ 6).
84. Mr. Kouri submitted two grievances on April 18, 2020 (Dkt. No. 46-35). Mr. Kouri designated his first grievance as an emergency grievance (Dkt. Nos. 3-3, ¶ 16; 36-40, ¶ 9; 46-35, at 4). When prompted to state why there is an emergency, Mr. Kouri wrote “[t]he current conditions are an imminent threat to my life, health, and wellbeing” (Dkt. No. 46-35, at 4). Mr. Kouri complained of COVID-19-related issues in the prison related to social distancing, sanitation, PPE, and cleaning supplies (Id.). Mr. Kouri “request[ed] accommodations such as PPE, cleaning supplies[,] or release from prison” (Id.). No staff member signed the form indicating receipt, and the section of the grievance asking staff to describe action taken to resolve the complaint is blank (Id.).
85. After the appropriate problem solver responded to Mr. Kouri’s informal grievance, Mr. Kouri filed a Step Two grievance on April 18, 2020, to which the Warden responded two days later (Dkt. Nos. 36-40, ¶ 10; 60-2, ¶¶ 14-15). The Warden’s response to Mr. Kouri was the same response as many other people received (Dkt. No. 60-2, ¶ 15).
86. Mr. Gray characterizes the grievance as an informal grievance and avers that a problem solver responded to this initial grievance, after which Mr. Kouri moved to Step Two of the inmate grievance procedure (Dkt. No. 36-40, ¶¶ 9-10).
87. On April 20, 2020, Mr. Kouri mailed the grievance to Pine Bluff to initiate Step Three (Dkt. No. 60-2, ¶ 16). He received a notice that it was received in Pine Bluff on April 29, 2020, that it was assigned Grievance # OR-20-00357, and that he can expect a response by June 11, 2020 (Id.).
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88. Mr. Kouri avers that, when he was called to sign for the response to the grievance on April 18, 2020, a prison official sent him back to his barracks to get his own pen to sign and then confiscated the pen in what Mr. Kouri believes was a retaliatory move after Mr. Kouri signed for the grievance response, despite Mr. Kouri’s claim that he has “a hobby craft card that allows [him] to have that pen.” (Dkt. Nos. 3-3, ¶ 16; 60-2, ¶ 17).
89. Mr. Kouri filed an additional grievance and complained of retaliation for writing his first grievance, including having his pen confiscated (Dkt. Nos. 46-35, at 2; 60-2, ¶ 18). No staff member signed the form indicating receipt, and the section of the grievance asking staff to describe action taken to resolve the complaint is blank (Id.).
90. Mr. Kouri reports that he was told he improperly filed his grievance alleging retaliation; that it had to go to Step One; and that it could no longer go directly to the Warden under Step Two (Dkt. No. 60-2, ¶ 18).
91. Mr. Kouri then resubmitted his grievance alleging retaliation on April 20, 2020; received no response at the Step One level; and submitted the grievance to Step Two on April 23, 2020 (Dkt. No. 60-2, ¶ 19).
92. Mr. Kouri maintains that Captain Mulliguin returned Mr. Kouri’s confiscated pen to him on April 27, 2020 (Dkt. No. 60-2, ¶ 20).
93. On April 28, 2020, Mr. Kouri received a response from the Warden finding the grievance alleging retaliation with merit but claiming it had been resolved (Dkt. No. 60-2, ¶ 21).
94. Mr. Neeley submitted informal grievances regarding COVID-19 on April 13, 2020, and April 19, 2020 (Dkt. Nos. 3-11, ¶ 7; 36-40, ¶¶ 11-12). He designated both grievances as emergency grievances (Dkt. No. 46-36).
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95. When prompted to state why there is an emergency in his first grievance, Mr. Neeley wrote “Covid-19 pandemic” (Id., at 2). In his first grievance, Mr. Neeley complained that he was unable to social distance; that he had only been issued one mask and no gloves to protect himself; that he had been requesting medical care and had received no form of treatment; that he had received no teaching or information on how to protect himself from COVID-19; and that the conditions at Ouachita posed a serious risk and imminent harm to his health in violation of the Eighth Amendment (Id.). Mr. Neeley stated that he feared for his life and his immediate health because of the COVID-19 outbreak and his lack of protection from it, and he sought immediate release from prison for his safety (Id.).
96. Sergeant Griffin received this grievance and determined that it was a Step One grievance instead of an emergency grievance, and a staff member wrote that “[n]o matter the situation, release is a non-grievable issue” (Id.).
97. When prompted to state why there is an emergency in his second grievance, Mr. Neeley wrote “I fear for my life because of Covid-19 virus pandemic” (Id., at 3). Though Mr. Neeley’s second grievance is harder to read, Sergeant Griffin received this grievance and designated it as a Step One grievance rather than an emergency grievance (Id.). The section of the grievance asking staff to describe action taken to resolve the complaint is blank (Id.).
98. Mr. Gray avers that Mr. Neeley did not submit a formal grievance regarding COVID-19 or fully exhaust any such grievance by April 21, 2020 (Dkt. No. 36-40, ¶¶ 11-13).
99. Mr. Nickson claims to have filed a grievance on April 17, 2020, though the grievance officer at Cummins has no record of him submitting any such grievance or any COVIDrelated grievances (Dkt. Nos. 3-9, ¶ 8; 36-41, ¶¶ 6-7; 46-6, ¶ 11).
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100. Mr. Nickson also avers that “[a] lot of sergeants have stopped picking up and signing grievances” (Dkt. No. 46-6, ¶ 12). Mr. Nickson maintains that, when he attempted to submit a grievance, a sergeant refused to sign it on April 25, April 26, and April 27, 2020 (Id.).
101. Mr. Otwell submitted informal grievances regarding COVID-19 on April 13, 2020, and April 19, 2020 (Dkt. No. 36-40, ¶¶ 14-15). He designated both grievances as emergency grievances (Dkt. No. 46-37).
102. When prompted to state why there was an emergency in his first grievance, Mr. Otwell wrote “COVID-19” (Id., at 2). Mr. Otwell complained that he could not social distance; that he was issued one mask and no gloves; and that he had seen no memorandums on proper use of PPE or whether Ouachita had a plan for any COVID-19 outbreak (Id.). Mr. Otwell claimed that he was in serious risk of harm to his health from COVID-19 and that this risk violated the Eighth Amendment and the Arkansas Constitution (Id.).
103. Mr. Otwell’s request was received by a staff member named Sergeant Kemp, Identification Number 96204, on April 13, 2020, and Sergeant Kemp designated the grievance as a Step One grievance rather than an emergency grievance (Id.). In describing the action taken to resolve the complaint, a staff member wrote that “[n]o matter the situation, release is a nongrievable issue” (Id.).
104. When prompted to state why there was an emergency in his second grievance, Mr. Otwell wrote “COVID-19 and reasonable accommodations according to the guidelines of the ADA” (Id., at 4). Mr. Otwell raised similar complaints in his second grievance, but Mr. Otwell also asked for reasonable accommodations according to the guidelines of the ADA due to his medical conditions (Id.). Sergeant Griffin received this grievance and designated it as a Step One
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grievance rather than an emergency grievance (Id.). The section of the grievance asking staff to describe action taken to resolve the complaint is blank (Id.).
105. Mr. Gray avers that Mr. Otwell did not submit a formal grievance regarding COVID-19 or fully exhaust any such grievance by April 21, 2020 (Dkt. No. 36-40, ¶¶ 14-16).
106. Mr. Serrato submitted informal grievances regarding COVID-19 on April 12, 2020, and April 19, 2020 (Dkt. No. 36-40, ¶¶ 17-18). He designated both grievances as emergency grievances, though he failed to state why there was an emergency in either grievance where prompted to do so (Dkt. No. 46-38).
107. In his first grievance, Mr. Serrato complained that he had no gloves; that he could be around infected but asymptomatic staff; and that COVID-19 posed a serious risk to his health in violation of the Eighth Amendment and the Arkansas Constitution (Id., at 2). Mr. Serrato asked to be considered for release (Id.).
108. Sergeant Kemp received this grievance on April 14, 2020, and designated it as a Step One grievance rather than an emergency grievance (Id.). In describing the action taken to resolve the complaint, a staff member appears to have written that release is not grievable (Id.). This is consistent with Mr. Serrato’s recollection of the response to this grievance (Dkt. No. 3-4, ¶ 13).
109. Mr. Serrato’s second grievance is much harder to read, though it does mention COVID-19 (Id., at 3).
110. Sergeant Griffin received this grievance on April 19, 2020, and designated it as a Step One grievance rather than an emergency grievance (Id.). The section of the grievance asking staff to describe action taken to resolve the complaint is blank (Id.).
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111. Mr. Gray avers that Mr. Serrato did not submit a formal grievance regarding COVID-19 or fully exhaust any such grievance by April 21, 2020 (Dkt. No. 36-40, ¶¶ 17-19).
112. Mr. Stiggers claims to have prepared a grievance on April 18, 2020, but Cummins’ grievance office has no record of Mr. Stiggers filing any such grievance or any COVID-related grievances (Dkt. Nos. 3-7, ¶ 6; 36-41, ¶ 8).
113. Mr. Stiggers maintains that, although he prepared a greivance related to COVID19 on April 18, 2020, it took until April 27, 2020, “to get appropriate staff to sign and take the grievance, despite multiple attempts” (Dkt. No. 46-9, ¶ 8).
114. Mr. Stiggers maintains he received a response that inmates in restrictive housing cannot get masks, and he asked for his grievance to go to Step Two (Id.). As of April 29, 2020, Mr. Stiggers was waiting on the verification that his grievance had gone through to Step Two (Id.).
115. Mr. Williams submitted informal grievances regarding COVID-19 on April 13, 2020, and April 19, 2020 (Dkt. Nos. 36-40, ¶¶ 20-21; 46-10, ¶¶ 15-16). He designated both grievances as emergency grievances (Dkt. No. 46-39).
116. When prompted to state why there was an emergency in his first grievance, Mr. Williams wrote “Covid-19” (Id., at 2). Mr. Williams complained that he had no ability to social distance; that he had only one mask and no gloves to protect himself; that he could come in contact with infected but asymptomatic staff; that he had received no information on how to protect himself from the virus or on what Ouachita’s plan was for combatting COVID-19; and that these risks posed a serious risk and imminent harm to his health in violation of the Eighth Amendment and the Arkansas Constitution (Id.). Mr. Williams stated that he feared for his life because of the COVID-19 outbreak, his health risk, and the lack of protection, and Mr. Williams requested immediate release for his safety (Id.).
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117. Sergeant Griffin received this grievance on April 13, 2020, and designated it as a Step One grievance rather than an emergency grievance (Id.). In describing the action taken to resolve the complaint, a staff member wrote that “[n]o matter the situation, release is a nongrievable issue” (Id.).
118. Mr. Williams’ second grievance is harder to read, and Mr. Williams did not state why there was an emergency when prompted (Id., at 3). It appears that Mr. Williams’ second grievance was received by some staff member, though the Court cannot tell who received it (Id.). The section of the grievance asking staff to describe action taken to resolve the complaint appears blank (Id.).
119. Mr. Gray avers that Mr. Williams did not submit a formal grievance regarding COVID-19 or fully exhaust any such grievance by April 21, 2020 (Dkt. No. 36-40, ¶¶ 19-21).
120. Teri Grigsby, the ADC Inmate Grievance Supervisor, avers that her office has no record of any of the named plaintiffs appealing non-medical grievances related to COVID-19 before April 20, 2020 (Dkt. No. 36-37, ¶¶ 21-22).
121. Jacqueline Michele Buterbaugh, the ADC Medical Grievance Supervisor, avers that her office has no record of any of the named plaintiffs appealing medical grievances related to COVID-19 before April 19, 2020 (Dkt. No. 36-38, ¶¶ 15-16).
122. Director Payne avers that none of the plaintiffs ever requested any COVID-19 related accommodations from him or any of the named defendants to his knowledge (Dkt. No. 361, ¶ 110).
E. Claimed Response To COVID-19 123. On March 11, Secretary Kelley issued a memorandum outlining the ADC’s protocols to reduce the risk and combat the spread of COVID-19 within ADC facilities (Dkt. Nos.
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36-1, ¶¶ 14-16; 36-2). This memorandum encouraged regular handwashing, covering coughs and sneezes, avoiding handshakes, continuing cleaning, and telling staff members to stay at home if ill (Dkt. No. 36-2).
124. Defendants were on notice of the March 23, 2020, CDC guidance (Dkt. No. 60-1). 125. On March 27, 2020, the Arkansas Department of Health (“ADH”) issued recommendations entitled “COVID-19 Guidance for State Correctional Facilities and Local Detention Facilities,” which addressed the CDC’s recommendations and gave Arkansas-specific guidance (Dkt. No. 36-1, ¶¶ 36-37; 36-10). 126. The ADH has continued to issue additional guidance for correctional facilities including but not limited to guidance issued on April 13, 2020, and again on April 15, 2020; according to defendants, the ADC continues to comply to the extent possible (Dkt. Nos. 36-1, ¶ 102; 36-11, ¶¶ 5-7; 36-19; 36-20).
1. Visitors To And Movements Within Facilities 127. On March 16, 2020, the ADC suspended inmate visitation, regular and special visits, at all prisons and community correction centers in an effort to respond to COVID-19; the ADC maintains it took this action after discussions with the ADH and Wellpath (Dkt. Nos. 36-1, ¶¶ 5-7, 9, 19-21). 128. Director Payne maintains that the ADC continues to work closely with the ADH, other Arkansas state agencies, federal agencies, other states, and national correction organizations in formulating its response to COVID-19 (Dkt. Nos. 36-1, ¶¶ 5-7, 9; 36-23, ¶ 4; 49-7; 49-10; 4911; 49-12; 49-15). 129. In mid-March 2020, the ADC conferred with its telephone and video visitation providers and reduced the price of phone calls, emails, and video visitation; extended video
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visitation hours; and notified ADC inmates of these changes (Dkt. Nos. 36-1, ¶ 22; 36-3; 36-4; 365).
130. The ADCC took similar steps with regard to telephone and video visitation (Dkt. No. 36-1, ¶ 23).
131. Beginning on March 16, 2020, the ADC began to restrict volunteers and others permitted into the facilities (Dkt. Nos. 36-1, ¶¶ 24-25, 31; 36-6).
132. The ADC changed its practice with regard to inmates leaving the units for meritorious or emergency furloughs and work release (Dkt. Nos. 36-1, ¶¶ 26-27; 36-5).
133. The ADC and ADCC changed practices with regard to incoming inmates or residents, as well, to house new intakes together for a period of 14 days following intake (Dkt. Nos. 36-1, ¶ 28; 49-13).
134. Plaintiffs dispute whether practices regarding incoming inmates or residents, and the transfers or movements of inmates or residents, changed or changed sufficiently in response to COVID-19 (Dkt. Nos. 46-7, ¶ 5; 46-8, ¶¶ 5, 12; 57-3, ¶ 11).
135. The ADC has screened individuals for COVID-19 related symptoms, including staff, who enter facilities (Dkt. No. 36-1, ¶¶ 30, 32).
136. Plaintiffs dispute whether staff screening has continued among alleged staffing shortages (Dkt. No. 3-4, ¶ 8; 46-8, ¶ 9).
2. Information And Education 137. The ADC created a website, updated daily and sometimes multiple times a day, to inform the public about the ADC’s efforts in response to COVID-19 and regularly updated its social media accounts to provide information about its response to COVID-19 (Dkt. No. 36-1, ¶¶ 17-18).
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138. The ADC has posted signage informing staff and visitors of COVID-19 precautions (Dkt. Nos. 36-1, ¶ 29; 36-7; 63, at 205).
139. The ADC and Wellpath have posted signage in English and Spanish informing inmates of COVID-19 precautions and information recommended by the ADH (Dkt. Nos. 36-1, ¶ 39-40; 36-11, ¶ 10; 36-12 to 36-17).
140. Plaintiffs dispute the impact and effectiveness of that signage (Dkt. Nos. 46-22, ¶ 10; 50-2, ¶ 8).
141. The ADC has a closed-circuit television program called the Morning Show that is an educational tool, plays continuously from the morning until early afternoon, and on which COVID-19 information is shared, according to defendants; Director Payne is uncertain how many ADC units have a Morning Show but testified that most do (Dkt. No. 63, at 204-05).
142. Plaintiffs dispute the effectiveness of the Morning Show at conveying information about COVID-19 (Dkt. No. 60-2, ¶ 8).
143. The ADC permits inmates to watch on the television Governor Hutchinson’s briefings on COVID-19, during which information on COVID-19 and Arkansas’s response is relayed including but not limited to information from the ADH, the number of positive tests for COVID-19 in Arkansas, and the number of COVID-19 related deaths in Arkansas (Dkt. No. 63, at 206).
144. Defendants present an affidavit from Kelley Garner, an Epidemiology Supervisor with the ADH who is a member of a team known as Healthcare-Associated Infection Program and has worked preparing guidance for various industries in Arkansas in response to the threat posed by COVID-19, including nursing homes and prisons within the state (Dkt. No. 36-11, ¶¶ 1, 4). On
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April 17, 2020, she and others toured Cummins; she provides to the Court her observations from that tour in an affidavit (Id., ¶ 8).
145. Defendants present photographs, many of which appear to have been taken in late April 2020, regarding measures instituted at Ouachita River (Dkt. No. 49-32).
3. Personal Protective Equipment 146. In its March 27, 2020, guidance, the ADH recommended use of PPE for inmates and staff to the extent possible, so the ADC began to manufacture cloth masks for inmates and staff and has distributed cloth masks and face shields; updated guidance regarding PPE has been issued (Dkt. No. 36-1, ¶¶ 42-44; 49-29). 147. The ADC obtained additional PPE from the Arkansas Department of Emergency Management and purchased PPE on the open market (Dkt. Nos. 36-1, ¶ 45; 49-8; 49-19; 49-35). 148. Every inmate housed in general population has received one cloth mask, and the ADC is continuing production to ensure each inmate housed in general population also has a second mask (Dkt. Nos. 36-1, ¶ 46; 63, at 143). 149. Plaintiffs maintain that masks are being produced through inmate labor and submit record evidence from a family member suggesting that infected prisoners from Cummins make these masks (Dkt. No. 46-15, ¶ 4). 150. According to defendants, inmates in restricted housing, which are one-person or two-person cells, do not come into contact with other inmates, have limited exposure to staff, and therefore are not issued masks; the CDC guidance indicates masks protect others from risk of infection from the wearer but do not protect the wearer from risk of infection (Dkt. Nos. 36-1, ¶¶ 47-48; 63, at 143-44).
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151. Plaintiffs Mr. Frazier and Mr. Stiggers, who are in restricted housing and have not been provided with masks, state that they share recreational facilities with other inmates at a minimum, may have additional exposure to other inmates throughout the day, and are exposed to staff members during the day, too (Dkt. Nos. 46-1, ¶¶ 4-6; 46-9, ¶¶ 4-5). Mr. Frazier made his own mask from a t-shirt (Dkt. No. 46-1, ¶ 6).
152. According to defendants, ADC staff are directed to wear masks and gloves when interacting with inmates including those in restricted housing, and inmates and ADC staff have been told best practices for wearing masks (Dkt. Nos. 36-1, ¶¶ 49-50; 49-2; 49-4; 49-23; 49-24; 49-25; 49-27; 49-28; 49-37; 57-12).
153. Plaintiffs dispute that ADC staff wear masks and gloves as directed when interacting with inmates including those in restricted housing; they also dispute whether inmates wear masks and gloves as directed (Dkt. Nos. 3-3, ¶¶ 10, 12; 3-4, ¶ 6; 3-5, ¶¶ 7, 11-13; 3-10, ¶ 6; 36-4, ¶¶ 10, 12, 13; 46-1, ¶¶ 9-10; 46-2, ¶¶ 8-10; 46-3, ¶¶ 10-11; 46-4, ¶¶ 10, 12-13; 46-5, ¶¶ 1112; 46-6, ¶ 8; 46-7, ¶¶ 10-11, 19-20; 46-8, ¶¶ 6-8, 14; 46-9, ¶ 6; 46-10, ¶¶ 7, 10; 46-13, ¶ 9; 46-16, ¶ 7; 46-17, ¶¶ 10-11; 46-23, ¶ 8; 46-26, ¶¶ 12-13; 46-30, ¶ 3; 46-45; 60-2, ¶¶ 10-11).
154. Plaintiffs maintain that even some medical providers do not wear masks or gloves when interacting with inmates (Dkt. Nos. 3-3, ¶ 13; 3-4, ¶ 7; 60-2, ¶¶ 10-11).
155. Defendants present evidence of clear barriers installed and efforts to social distance implemented with respect to pill call and medical care (Dkt. Nos. 49-3; 49-32).
156. On April 9, 2020, at the COVID-19 Pandemic Physicians’ Group meeting a doctor reported that University of Arkansas for Medical Sciences (“UAMS”) had a problem with prisoners being brought for evaluation with guards who were refusing to wear their masks (Dkt. No. 51-9).
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157. On April 21, 2020, Director Payne sent an email to ADC Wardens, ADC Deputy Wardens, and others titled, “Masks during transports,” in which he directed that officers transporting inmates to outside hospitals wear their masks at all times at outside hospitals and specifically stated, “Hospitals are not wanting to treat our inmates because our staff are not following the guidelines that we are sending out.” (Dkt. No. 57-8).
158. As of May 1, 2020, and prior to that date, the DOC required that masks must be worn full time by staff, that staff “in direct care, such as [correctional officers] and healthcare, and in food service positions” are required to wear gloves, and that all also must implement social distancing when possible and practice regular and proper hand washing throughout the day (Dkt. Nos. 49-29; 63, at 144-45).
159. As of May 1, 2020, the DOC required that inmates and residents “assigned to the kitchen, as office and porters, or to community service in [ADCC] offices” wear aprons and safety glasses (Dkt. Nos. 49-29; 63, at 144-45).
160. Director Payne testified that he issues directives to Wardens and Deputy Directors, and then Wardens and Deputy Directors monitor compliance (Dkt. No. 63, at 203).
161. When made aware of a staff member who is not in compliance with directives, normally corrective action in the form of counseling up to termination occurs, depending on the event (Dkt. No. 63, at 203).
162. According to Director Payne, the only corrective action taken in response to issues around COVID-19 compliance has been a corrective counseling given to the staff members involved in the incident at UAMS (Dkt. No. 63, at 204).
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163. According to defendants, inmates have the ability to report anonymously staff or other inmates for failing to comply with health and safety procedures by anonymously submitting a request for interview form (Dkt. Nos. 36-1, ¶ 51; 63, at 205-06).
164. Plaintiff Mr. Kent and most of the inmates he knows fear retaliation for speaking out about COVID-19 and asking for help; inmates and family members of inmates reported fearing retaliation, as well, for speaking out about COVID-19 issues (Dkt. Nos. 46-3, ¶ 19; 46-13, ¶ 10; 46-21, ¶ 10; 46-30, ¶ 9).
4. Cleaning And Disinfecting 165. Defendants maintain that ADC has ordered enhanced cleaning and disinfecting of its units, including barracks and the residential areas, showers, bathrooms, and recreational areas in barracks, as well as hallways, the chow hall, the gym, and other areas (Dkt. Nos. 36-1, ¶¶ 5253; 49-34; 50-1; 50-8; 50-17; 50-18; 50-19; 50-20; 50-21; 50-22; 50-23; 50-24; 57-1; 57-2; 57-7; 63). 166. Plaintiffs dispute that enhanced cleaning and disinfecting are occurring (Dkt. Nos. 46-3, ¶ 13; 46-4, ¶ 15; 46-5, ¶ 6; 46-7, ¶ 14; 46-10, ¶ 12; 46-13, ¶ 7; 46-14, ¶¶ 15-19; 46-22, ¶¶ 56; 46-24, ¶ 9; 49-27; 49-30; 50-3; 50-12). 167. Inmates in restricted housing are provided the same cleaning products twice per week to clean their cells (Dkt. No. 36-1, ¶ 55). 168. Razor Chemical Company’s Citrus Breeze III (“Citrus Breeze III”) and nonalcohol-based hand sanitizer are provided to inmates in ADC, but, due to security risks, alcoholbased hand sanitizer and chemicals such as bleach are not; inmates in Cummins do not have access to non-alcohol-based hand sanitizer (Id., ¶¶ 54, 56).
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169. There is record evidence that the ADH discussed conferring with Secretary Kelley specifically about the use of alcohol-based hand sanitizer (Dkt. No. 46-50).
170. Soap, warm water, toilet paper, hand towels, and bath towels are provided free of charge and are accessible by inmates in the ADC; the towels are laundered multiple times per week with inmates receiving clean towels when soiled towels are laundered (Dkt. Nos. 36-1, ¶ 57; 5014).
171. The ADC maintains that inmates in general population housing have access to showers throughout the day, and inmates in restrictive housing have access to showers multiple times per week (Dkt. No. 36-1, ¶ 60).
5. Social Distancing 172. The ADC has implemented procedures to encourage social distancing, including suspending congregational religious services, staggering meal times, requiring certain seating at meal times, postponing non-urgent medical services, modifying inmate transfer procedures, limiting the numbers of inmates going to commissary, recreation, medical pill call and other areas at one time, and educating inmates about the practice (Dkt. Nos. 36-1, ¶¶ 72-74, 80-84; 49-22; 4924; 49-25; 49-27; 49-28; 50-5; 50-6; 50-7; 50-9; 50-10; 50-13; 50-15; 63, at 176-77). 173. Plaintiffs dispute the effectiveness of these procedures and whether these procedures are carried out at all (Dkt. Nos. 36-3, ¶¶ 9, 16; 36-4, ¶¶ 6-8; 46-2, ¶¶ 6, 13; 46-5, ¶¶ 4, 7, 8; 46-7, ¶¶ 4, 6-7; 46-8, ¶ 4; 46-9, ¶¶ 4, 9; 46-10, ¶¶ 4-6; 46-14, ¶¶ 13, 35-17; 46-17, ¶¶ 7-8; 4622, ¶ 9; 46-26, ¶ 11; 46-45). 174. The ADC concedes that it is difficult to ensure that all inmates remain six feet apart at all times and that making adjustments to achieve this would risk safety and security of the facilities, amounting to what ADC claims would be an undue burden ((Dkt. No. 36-1, ¶¶ 75-76).
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175. The CDC guidance issued March 23, 2020, included the recommendation that those in congregate environments like prions sleep head to foot (Dkt. No. 36-9, at 11).
176. The record evidence indicates this practice was not implemented in the DOC, if at all, until late April or early May 2020 (Dkt. Nos. 49-14, ¶ 12; 50-16; 57-3, ¶ 9; 57-4, ¶¶ 6-8; 576).
177. Based on Director Payne’s testimony at the May 7, 2020, hearing, the ADC at Cummins has utilized library, school, and visitation areas to house inmates in an effort to aid social distancing (Dkt. No. 63, at 210).
6. Application Of COVID-19 Policies And Practices 178. Due to the differences in inmate populations, ADC and ADCC have different cultures and policies (Id., at 170) 179. James Banks, Deputy Director of Residential Services for the ADCC, testified that, as to COVID-19 policies and procedures, those have been general overall recommendations and practices (Id., at 184). 180. Deputy Director Banks testified that, although each facility has its own specifications on emergency plans, overall all of the COVID-19 initiatives have been by the guidelines of the ADH and have applied to both ADC and ADCC facilities (Id.). 181. COVID-19 policies and practices are similar across the DOC, ADC, and ADCC, as the “ADC and [ADCC] facilities follow the guidance provided in [DOC] policies” (Dkt. No. 4642 (Question 2); 49-4; 49-16; 49-24; 50-2).
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7. First Cases Of COVID-19 In ADCC 182. The first state employee who passed away from COVID-19 was Richard Richardson, a substance abuse counselor who worked for the ADCC at the Central Arkansas Center (“CAC”) and who passed away April 9, 2020 (Dkt. No. 63, at 188-89). 183. According to Deputy Director Banks, many measures to respond to the threat of COVID-19 were put in place at ADCC centers prior to April 9, 2020, and Deputy Director Banks testified that all need to continue to take those measures and to be vigilant moving forward (Id., at 192). 184. Deputy Director Banks testified about those measures including decreasing incoming residents into ADCC facilities; taking steps to social distance, including head-to-toe staggering of residents on bunks and adjusting the feeding schedule; providing cleaning supplies to residents and tasking an assigned team of residents with responsibility for cleaning, including providing Citrus Breeze III for cleaning; providing soap and water to residents; providing alcohol and non-alcohol-based hand sanitizer to residents; and issuing two masks per resident with the expectation that staff and residents all will wear masks (Id., at 176-82). 185. Deputy Director Banks testified that every resident at CAC was tested on April 13, 2020 (Id., at 188). 186. In the 150-bed facility of CAC, 63 residents and 27 staff tested positive for COVID19 (Id.). 187. Residents who testified positive for COVID-19 were segregated within the CAC and quarantined for more than 14 days, with meals brought to those residents during that time to reduce their movements within the CAC; the COVID-19 positive residents have now been cleared by the ADH (Id., at 182-83).
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188. Staff who tested positive for COVID-19 did not return to work at CAC after testing positive for COVID-19 during their quarantine period, according to Deputy Director Banks (Id., at 194-95).
189. According to Deputy Director Banks, the last time any testing for COVID-19 was done at CAC was April 13, 2020 (Id., at 188).
190. Deputy Director Banks testified that no residents have been brought into the CAC facility since that date; no resident has signs or symptoms of COVID-19; no resident is reporting to the infirmary with signs or symptoms of COVID-19; and the ADH has not directed any further testing of residents at the facility (Id.).
191. Deputy Director Banks is aware a large number of people who contract COVID-19 are asymptomatic (Id.).
192. Deputy Director Banks testified that medical staff go around twice per day at CAC and take temperatures and are instructed to look for, listen for, and talk to residents about signs and symptoms of COVID-19 (Id., at 198).
193. According to Deputy Director Banks, if a resident complains of symptoms of COVID-19, correctional officers have been instructed to take the resident to the medical unit to have him examined; this is based solely on what the resident says, not on what the correctional officer sees; the medical unit staff should then examine the resident and make the determination whether the inmate meets the threshold established by the ADH to be tested for COVID-19 (Id., at 199-200).
194. It is Deputy Director Banks’ understanding that the ADH has given guidance to medical provider Wellpath on when to test for COVID-19 (Id., at 200).
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195. A family member of a COVID-19 positive resident of CAC testified and called into question certain of Deputy Director Banks’ representations regarding measures taken by the ADCC (Id., at 28-34).
8. First Cases Of COVID-19 In ADC 196. On April 12, 2020, the first ADC inmate tested positive for COVID-19 (Dkt. No. 36-1, ¶ 86). 197. According to defendants, the ADC then implemented new procedures aimed at reducing the spread of the virus as much as possible, including on April 13, 2020, testing every inmate housed in the barracks with the first confirmed positive inmate, randomly testing a sample of other inmates housed in Cummins which confirmed the virus had spread to other housing areas, and placing all barracks on “lockdown” meaning no inmates leave the barracks except to receive medical attention or unless the inmate has tested negative and is assisting daily operations; even then, those inmates assisting daily operations are continually monitored for symptoms of COVID19 according to defendants (Id., ¶¶ 87-91). 198. When the first person tested positive at Cummins, samples were taken from inmates housed in the different barracks and then other inmates were tested (Dkt. No. 63, at 217). 199. ADC tested nearly every inmate in Cummins, with nearly 1,700 inmates tested; according to defendants, inmates have been informed of their test results and given guidance on best practices to avoid transmission and on seeking additional medical treatment, according to defendants (Dkt. Nos. 36-1, ¶¶ 92-93, 99; 36-42). 200. Plaintiffs dispute that inmates have received tests; received their test results in some cases at all and in other cases timely; and received information on best practices and seeking treatment (Dkt. Nos. 46-13, ¶¶ 4, 8; 46-25, ¶ 4; 46-29, ¶ 4; 46-30, ¶¶ 5-6).
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201. Based on test results, according to defendants, the ADC has restructured housing in compliance with ADH guidelines by separating COVID-19 positive, negative, and indeterminate inmates and assigning staff so that only certain staff work with each of these specific group of inmates to reduce the risk of exposure (Dkt. No. 36-1, ¶¶ 96-98).
202. Plaintiffs dispute that this always occurs and describe observing one situation in which a COVID-19 positive inmate was housed in the same cell as a COVID-19 negative inmate, despite protest (Dkt. No. 46-6, ¶ 10).
203. According to defendants, the ADC also conducted contact tracing of people who had contact with infected staff members (Dkt. No. 63, at 217).
204. Cummins has created a field hospital for COVID-19 positive inmates who need medical care to keep those inmates separated from other inmates who require medical attention at the Cummins infirmary (Dkt. No. 36-1, ¶¶ 100-01).
9. Medical Care 205. On March 23, 2020, to encourage inmates to seek medical attention if they experienced symptoms of COVID-19, the ADC immediately suspended medical copays inmates would normally have incurred for health services visits; according to defendants, any inmate experiencing symptoms of COVID-19 could seek immediate treatment from Wellpath for free and were informed to report any symptoms to ADC staff or medical personnel as soon as possible (Dkt. No. 36-1, ¶¶ 34, 41, 66-67). 206. On March 27, 2020, Wellpath sent a memorandum to ADC inmates and ADCC residents informing them that non-urgent on- and off-site medical appointments could be rescheduled to limit the COVID-19 risk and informed them that urgent consultations and emergencies would be treated as usual (Dkt. No. 36-1, ¶ 33; 36-8).
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207. There is record evidence that, on May 1, 2020, defendants changed, or at a minimum considered changing, the policy with respect to medical copays and that only inmates who submit requests related to COVID-19 will no longer be charged a copay, that medical staff will determine if a copay is appropriate, and that inmates must use the grievance process if they believe they are inappropriately charged a copay; defendants indicate this change in policy occurred because “medical departments [were] overwhelmed with requests that [were] not all related to COVID symptoms” (Dkt. No. 57-11).
208. The ADC has implemented procedures to check inmates’ temperatures to monitor for COVID-19 in its facilities ((Dkt. Nos. 36-1, ¶¶ 63-64; 57-5).
209. Plaintiffs generally agree that procedures to check inmates’ temperatures have been instituted, but plaintiffs dispute the timing, consistency, and implementation of those procedures (Dkt. Nos. 46-1, ¶ 7; 46-2, ¶ 12; 46-5, ¶¶ 10, 14; 46-9, ¶ 9; 46-22, ¶ 12; 62-2, ¶ 7).
210. According to defendants, inmates who register temperatures indicating potential infection are taken to medical services and treated in accord with ADH guidelines (Dkt. No. 36-1, ¶¶ 65, 69-70).
211. According to defendants, ADC staff have been educated on the symptoms of COVID-19, instructed to watch for symptoms in inmates and staff, and instructed to take inmates exhibiting symptoms to be seen by medical services (Dkt. No. 36-1, ¶ 68).
212. Plaintiffs dispute that inmates exhibiting symptoms of COVID-19 have received attention or been taken to be seen by medical services (Dkt. No. 46-5, ¶ 5; 46-7, ¶ 9; 46-22, ¶ 4).
213. Plaintiffs dispute that individuals with COVID-19 symptoms, including those who have tested positive for COVID-19, are being seen, tested, or treated (Dkt. Nos. 46-2, ¶ 4; 46-3, ¶¶ 3-4; 46-4, ¶¶ 4-5; 46-7, ¶ 9; 46-13, ¶ 5; 46-14, ¶¶ 8, 9, 14, 22-24; 46-15, ¶¶ 4-14; 46-18 to 46-
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20; 46-23, ¶¶ 5-6; 46-24, ¶ 7; 46-25, ¶¶ 3-15; 46-26, ¶¶ 9, 15-17; 46-27, ¶ 5; 46-28, ¶¶ 3-4; 46-30, ¶¶ 7-8).
214. Family members report inmates suffering from COVID-19 symptoms but receiving no assistance in the barracks from staff or medical providers (Dkt. Nos. 46-15, ¶¶ 4-7, 16-17, 19; 46-24, ¶¶ 7-9).
215. One family reported that, when inquiring about inmates suffering from COVID-19, “a staff member” informed her that her son, an inmate, “was refusing treatment” for COVID-19, when this is false information; her son reported to her about medical providers barely coming to the barracks to check on inmates and, when they do, standing at the gate of the barracks, calling for inmates to come to the gate to be seen, and if the inmate is too sick to approach the gate they do not treat or check on the inmate (Dkt. No. 46-25, ¶¶ 12-14).
216. The family member who made this inquiry works for the ADC and even hired an attorney to aid in obtaining information about her son’s health, but the attorney received no timely response from defendants to letters or phone calls (Dkt. Nos. 46-25, ¶¶ 1, 11; 46-18; 46-19; 4620).
217. From January 1, 2020, to April 1, 2020, approximately 2,899 medical grievances were filed (Dkt. No. 46-41).
218. According to Director Payne, the ADC does not track how many of its medical grievances are related to inmates reporting COVID-19 symptoms; he testified that this “would be hard” (Dkt. No. 63, at 232).
10. Staffing During COVID-19 219. ADC has implemented wide-spread testing of its staff (Dkt. Nos. 36-1, ¶ 94; 49-1).
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220. The April 13, 2020, ADH guidance for correctional facilities addresses circumstances under which staff who test positive for COVID-19 are permitted to return to work during their isolation period (Dkt. No. 36-19).
221. Director Payne testified that having staff who tested positive for COVID-19 but were asymptomatic report to work under the conditions specified by the ADH was done only upon guidance from the ADH with the CDC providing that this is possible if necessary (Dkt. Nos. 4914, ¶¶ 4-12; 63, at 211).
222. Director Payne testified that less than ten positive but asymptomatic staff members have actually reported to work at Cummins; those employees did not participate in shift briefings or enter break rooms; those employees wear masks and gloves; and they work only with inmates who have tested positive and are not to interact with other inmates and staff who have not tested positive (Dkt. No. 63, at 211-13).
223. A staff member tested positive for COVID-19 at Grimes (Id., at 235). 224. That COVID-19 positive staff member from Grimes was asymptomatic and allowed to work at Cummins while positive (Id.). 225. Grimes is approximately a two-and-a-half-hour drive to Cummins (Id.). 226. All parties acknowledge that certain COVID-19 positive, asymptomatic staff have been reporting to work (Dkt. No. 46-32). 227. Plaintiffs’ medical expert opines that “staff who have or are suspected of having COVID-19, even if asymptomatic, should not be allowed in any ADC facility until they are no longer contagious.” (Dkt. No. 46-12, ¶ 5).
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228. Plaintiffs also report apparent staffing shortages with an impact in facility operations, including the feeding of inmates even those in quarantine (Dkt. Nos. 46-14, ¶¶ 28-29; 46-24, ¶ 10; 46-28, ¶ 5; 46-29, ¶¶ 6-10, 14; 46-30, ¶ 10).
11. Release Of Inmates 229. On April 24, 2020, the Board of Corrections voted to invoke the expanded Emergency Powers Act and certify a list of certain inmates identified as eligible for release, pending the Arkansas Board of Parole’s decision; this was not done in response to COVID-19 but measures are being taken to ensure released inmates are screened for COVID-19 and medically cleared before release (Dkt. No. 36-1, ¶¶ 103-09). 230. Director Payne testified that, as of May 7, 2020, 300 inmates on the list of 1,200 inmates had been released, with the screening process continuing and with the ADC waiting on the Arkansas Board of Parole to conduct screening as well (Dkt. No. 63, at 210) 231. ADC has no authority to release inmates before the Arkansas Board of Parole has the opportunity to screen the inmate, according to Director Payne (Id.). III. Standing Defendants assert that plaintiffs lack standing to seek preliminary injunctive relief (Dkt. No. 36, at 34-35). The Court rejects defendants’ argument on standing and determines that plaintiffs have standing to seek preliminary injunctive relief. Defendants maintain that they are taking many of the measures plaintiffs seek. To the extent plaintiffs seek relief based on the measures defendants are taking, defendants claim plaintiffs lack standing to seek such relief through a preliminary injunction. Further, to the extent plaintiffs request additional measures beyond those defendants currently are taking, such a request would not preserve the status quo, according to defendants, and they claim it is improper injunctive
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relief (Id.). Defendants maintain that directing them to take plaintiffs’ additional measures “would fundamentally alter [the status quo] from what it is or ever has been.” (Id., at 35).
Plaintiffs dispute that defendants have taken the measures plaintiffs seek in their motion for preliminary injunction and, therefore, argue that they have standing to seek this relief (Dkt. No. 44, at 32-33). Further, all parties concede defendants have not taken all measures plaintiffs seek. Therefore, plaintiffs challenge defendants’ characterization of the “status quo” (Id., at 33-35).
Plaintiffs agree with defendants that “[t]he primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full, effective relief.” FerryMorse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984).3 Plaintiffs maintain that “the ‘status quo’ for Plaintiffs is not an environment where they are exposed to infection from a lethal virus. Sanitizing and other measures to eliminate and prevent the spread of a deadly infection would not fundamentally alter the status quo; it would maintain it.” (Dkt. No. 44, at 34). Further, plaintiffs argue that “where the status quo is a condition not of rest, but of action, and the condition of rest . . . will cause irreparable harm, a mandatory preliminary injunction [that requires action] is proper.” Ferry-Morse Seed Co., 729 F.2d at 593; see also N. States Power Co v. Fed. Transit Admin., 270 F.3d 586, 587 (8th Cir. 2001); Mental Health Ass’n v. Heckler, 720 F.2d 965, 973 (8th Cir. 1983).
3 This Court acknowledges that Ferry-Morse Seed involved a preliminary injunction issued prior to arbitration, but in a later case, the Eighth Circuit observed as to those circumstances:
In Ferry–Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589 (8th Cir. 1984), this court did apply the Dataphase criteria in a case involving arbitration. However, the injunction at issue in Ferry–Morse was a traditional preliminary injunction. The district court had not yet determined whether the underlying dispute was arbitrable. Applying the Dataphase criteria, this court affirmed a grant of injunctive relief while the district court addressed the merits of the arbitrability issue. Peabody Coalsales Co. v. Tampa Elec. Co., 36 F.3d 46, 49 n.7 (8th Cir. 1994).
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The Court determines on the record before it at this stage of the proceeding that plaintiffs have standing to maintain their request for preliminary injunctive relief under these circumstances.4
IV. Legal Standard For Awarding Preliminary Injunctive Relief In the Eighth Circuit, the same standards are applied to a request for a preliminary injunction as to a request for a temporary restraining order. See S.B. McLaughlin & Co. v. Tudor Oaks Condo. Project, 877 F.2d 707, 708 (8th Cir. 1989). A preliminary injunction “is an extraordinary remedy, and the burden of establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (internal citations omitted). In determining whether to issue a preliminary injunction, a district court should consider: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)). The Court examines the Dataphase factors as applied to plaintiffs’ request for a preliminary injunction. See Dataphase, 640 F.2d at 109. “While no single factor is determinative, the probability of success factor is the most significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (citing Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013)) (internal quotations and citation omitted). However, likelihood of success “is insufficient on its own.”
4 The Court does not understand defendants to contest plaintiffs’ standing to bring these claims but instead only to contest standing to seek the preliminary injunctive relief plaintiffs request. The Court determines plaintiffs have standing to bring these claims, even if defendants maintain they have already taken many of the measures plaintiffs seek. See Helling v. McKinney, 509 U.S. 25, 33 (1993); United States v. Or. State Med. Soc’y, 343 U.S. 326, 333 (1952); DeGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990); Enterprises, Inc. v. Humble, 622 F.2d 400, 401-02 (8th Cir. 1980).
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Roudachevski v. All-American Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011) (citing Watkins, 846 F.3d at 844). “Even when a plaintiff has a strong claim on the merits, preliminary injunctive relief is improper absent a showing of a threat of irreparable harm.” Id. The focus is on “whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Watkins, 346 F.3d at 844.
V. Analysis In ruling on plaintiffs’ motion, the Court must consider: (1) plaintiffs’ likelihood of success on the merits; (2) the threat of irreparable harm; (3) the balance of the equities; and (4) the public interest. See Dataphase, 640 F.2d at 113. Having conducted this analysis, the Court concludes that the Dataphase factors weigh in favor of denying plaintiffs’ motion for preliminary injunction. Plaintiffs have styled this lawsuit as a civil rights action claiming Eighth Amendment violations pursuant to 42 U.S.C. § 1983 for all plaintiffs, a petition for writ of habeas corpus claiming Eighth Amendment violations pursuant to 28 U.S.C. § 2241 for the proposed high risk subclass, and an ADA action pursuant to 42 U.S.C. § 12101 for the proposed disability subclass (Dkt. No. 1, ¶¶ 127-38). The Court examines each claim.
A. Likelihood Of Success: Habeas Corpus Claim Plaintiffs on behalf of the proposed high risk subclass bring a petition for writ of habeas corpus claiming Eighth Amendment violations pursuant to 28 U.S.C. § 2241. As part of the relief they seek, plaintiffs request that the Court release or transfer to home confinement any person currently in the custody of the ADC pursuant to any recommendation by any Court-appointed special master or expert that has been approved by the Court (Dkt. Nos. 1, ¶ 138; 44, at 96). Based on that request, the Court understands plaintiffs to seek two types of relief. Plaintiffs represent that they “do not seek unconditional release” but instead seek measures such as transferring
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vulnerable plaintiffs “to their homes to self-isolate, while still in ADC custody and being monitored via electronic monitoring, until the emergency abates” (Dkt. No. 3, at 56). Plaintiffs describe this request for relief as seeking a “transfer[] on medical furlough to home confinement” (Id., at 36). Alternatively, it appears plaintiffs also may seek unconditional release from confinement (Dkt. No. 65, at 41-45).
The parties dispute whether plaintiffs’ habeas corpus claims are cognizable under controlling Eighth Circuit precedent. Further, the parties dispute whether, even if plaintiffs’ habeas corpus claims are cognizable, an exhaustion requirement applies to those claims. The Court acknowledges these disputes. However, the Court determines that, assuming without deciding that plaintiffs’ habeas corpus claims are cognizable and that plaintiffs are able to maintain them in this action, plaintiffs are not likely to succeed on the merits of their Eighth Amendment claims.
There is no indication before the Court that the analysis of plaintiffs’ Eighth Amendment habeas claims should be different from the analysis the Court applies to plaintiffs’ Eighth Amendment claims brought pursuant to § 1983. The Court acknowledges that plaintiffs’ proposed high risk subclass are intended plaintiffs for the habeas claims. Under habeas or § 1983, plaintiffs challenge the same alleged conduct by defendants and maintain that it violates the Eighth Amendment. For the reasons explained in this Order, the Court determines plaintiffs have not demonstrated at this early stage of the litigation that they are likely to succeed on the merits of their Eighth Amendment claims.
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B. Likelihood Of Success: Exhaustion Under The PLRA Plaintiffs’ Eighth Amendment claims brought pursuant to § 1983 and ADA claims must adhere to the Prison Litigation Reform Act (“PLRA”).5 The PLRA states that “[n]o 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). Accordingly, plaintiffs’ Eighth Amendment claims brought pursuant to § 1983 and ADA claims are governed by the PLRA’s exhaustion requirement. To determine whether plaintiffs are likely to succeed on these claims, the Court first examines the issue of exhaustion, which is an affirmative defense defendants have the burden of pleading and proving.
1. PLRA Legal Standard On claims covered by the PLRA, prisoner plaintiffs are required to exhaust administrative remedies before seeking a preliminary injunction, just as they are required to do before seeking other remedies. See Jones v. Bock, 549 U.S. 199, 211 (2007); Farmer v. Brennan, 511 U.S. 825, 847 (1994). Notably, exhaustion is not a pleading requirement for plaintiffs. See Jones, 549 U.S. at 212 (citing Fed. R. Civ. P. 8(a), (c)). Instead, “[f]ailure to exhaust is an affirmative defense under the PLRA; ‘inmates are not required to specially plead or demonstrate exhaustion in their complaints.’” Minter v. Bartruff, 939 F.3d 925, 928 (8th Cir. 2019) (quoting Jones, 549 U.S. at 216); see also Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (“This Circuit considers the PLRA’s exhaustion requirement to be an affirmative defense that the defendant has the burden to plead and to prove.”). A complaint may be subject to dismissal for failure to state a claim if the
5 By its terms, the PLRA does not apply to habeas corpus proceedings challenging the fact or duration of confinement in prison. 18 U.S.C. §§ 3626(a)(3) and (g)(2). The PLRA’s exhaustion requirement also does not apply to habeas corpus proceedings. 42 U.S.C. § 1997e(a).
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allegations, taken as true, show that relief is barred by an applicable affirmative defense. See Jones, 549 U.S. at 215. Although failure to exhaust is an affirmative defense, the Court must consider at the preliminary injunction stage whether defendants are likely to succeed in establishing this defense. See Gonzales v. O Centro Espirita Benificente Uniao de Vegetal, 546 U.S. 418, 428-29 (2006); see also Junior v. Swain, No. 20-11622-C, 2020 WL 2161317, at *6-7 (11th Cir. May 5, 2020).
The PLRA requires inmates: (1) fully and properly to exhaust their administrative remedies as to each claim in the complaint; and (2) to complete the exhaustion process prior to filing an action in federal court. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218.
“Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). “[T]he availability of a remedy, according to the Supreme Court, is about more than just whether an administrative procedure is ‘on the books.’” Townsend v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018) (quoting Ross, 136 S. Ct. at 1859). “[A]n inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). A prison administrative procedure or remedy may be “unavailable” for purposes of the PLRA’s exhaustion requirement when “despite what regulations or guidance materials may promise[,] it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; when “an administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use”; when the remedy is “essentially ‘unknowable’—so that no ordinary prisoner can make sense of what it demands”; or when “prison
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administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. However, when the administrative procedure grants “authority to take some action in response to a complaint,” that procedure is considered “available,” even if it cannot provide “the remedial action an inmate demands.” Booth, 532 U.S. at 736.
The PLRA also provides that “no court shall enter a prisoner release order unless . . . a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right,” and defendants have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. §§ 3626(a)(3)(A)(i)-(ii).
2. PLRA Exhaustion Analysis Defendants do not argue that plaintiffs’ complaint is subject to dismissal on the basis of exhaustion. Plaintiffs’ allegations, if taken as true, do not show that relief is barred by the affirmative defense of exhaustion (Dkt. No. 1). See Jones, 549 U.S. at 215. Plaintiffs allege that several, but not all, named plaintiffs filed grievances prior to filing suit (Dkt. No. 1, ¶¶ 16, 18, 19, 23, 25, 27, 30, 32, 34); the complaint is silent as to whether two plaintiffs filed grievances at all (Dkt. No. 1, ¶¶ 20-21; 35). Defendants do assert plaintiffs’ claims subject to the PLRA are barred by exhaustion, and defendants have the burden of establishing this affirmative defense. At this stage of the litigation and on the record before the Court, there are factual disputes regarding whether and to what extent plaintiffs filed grievances, exhausted grievances, and the ADC’s administrative remedies were available to plaintiffs. On the record before the Court, and for the reasons explained in this Order, defendants have not demonstrated a likelihood of success on this affirmative defense as to all
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named plaintiffs. For this reason, the Court will analyze the merits of plaintiffs’ Eighth Amendment claims brought pursuant to § 1983 and ther ADA claims.
a. ADC Grievance Process Defendants maintain that at all times relevant to this lawsuit ADC had a policy relating to grievances filed by inmates housed in its facilities (Dkt. No. 36, at 25). The version of the policy in effect since December 2, 2019 is AD 19-34. AD 19-34 applies to both non-medical and medical grievances, the exhaustion process is similar for both types of grievances, and the procedure includes an informal resolution stage and a formal resolution stage. AD 19-34 provides detailed procedures for how inmates must grieve their problems and complaints with ADC and explains the steps inmates must take in order to exhaust their grievance fully. Of relevance here, AD 1934 deems release a non-grievable issue. ADC’s inmate grievance policy also accounts for emergencies and is designed to ensure that ADC staff act quickly to resolve emergencies, defining an “emergency” as “a problem that, if not immediately addressed, subjects the inmate to a substantial risk of personal injury or other serious and irreparable harm, such as physical abuse” (Dkt. Nos. 36, at 27; 36-37, at 8).
b. Analysis Of Plaintiffs’ Grievances In part, plaintiffs argue that ADC’s grievance procedure does not provide emergency relief that will protect plaintiffs’ safety and remedy the alleged violation of their rights under the Eighth Amendment and the ADA. See Ross, 136 S.Ct. at 1859 (directing courts to consider “the facts on the ground” when evaluating exhaustion issues). Plaintiffs assert that, although “Defendants insist that Plaintiffs must wait to file a federal lawsuit in these emergency circumstances until an appeal to the appropriate Chief Deputy/ Deputy/Assistant Director is filed and resolved,” even defendants admit that process “can take more than two months.” (Dkt. No. 44, at 56). Plaintiffs argue that
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this “grievance process for an emergency requiring immediate action is plainly not available if it would take two months to address.” (Id.).
Along with considering these general arguments, the Court has reviewed purported copies of grievances filed by Mr. Frazier, Mr. Hampton, Mr. Kouri, Mr. Neeley, Mr. Otwell, Mr. Serrato, and Mr. Williams (Dkt. Nos. 46-33; 46-34; 46-35; 46-36; 46-37; 46-38; 46-39). Each grievance outlines some or all of these plaintiffs’ alleged health vulnerabilities or disabilities and raises complaints related to social distancing, sanitation, protective gear, and health risks in the light of COVID-19 (Id.).
Defendants claim to have no record of Mr. Frazier’s grievance, yet there is record evidence of a grievance submitted by Mr. Frazier signed for by an ADC staff member.
Mr. Nickson claims to have filed a grievance on April 17, 2020, though the grievance officer at Cummins has no record of him submitting any such grievance or any COVID-related grievances. Mr. Nickson also avers that “[a] lot of sergeants have stopped picking up and signing grievances” (Dkt. No. 46-4, ¶ 12). Mr. Nickson maintains that, when he attempted to submit a grievance, a sergeant refused to sign it on April 25, April 26, and April 27, 2020.
Mr. Stiggers maintains that he completed a grievance on April 18, 2020, but he could not get an appropriate staff member to sign and take the grievance, despite multiple attempts. He states that nine days later on April 27, 2020, a staff member accepted his grievance. Mr. Stiggers avers that he received a response to his grievance stating that inmates in restrictive housing cannot get masks, and he asked for his grievance to go to Step Two of the process but that, as of April 29, 2020, he was waiting on the verification that his grievance had gone through to Step Two. The Cummins’ grievance office has no record of Mr. Stiggers filing any such grievance or any COVIDrelated grievances.
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Mr. Kent maintains that, on April 21, 2020, he filed an emergency grievance explaining that he has a serious heart condition and pacemaker and asking for a mask to avoid contracting COVID-19. Mr. Kent states that he received a response April 28, 2020; the facility mailed its response to him stating that, because he was an inmate in SuperMax, he did not need a mask. By the time Mr. Kent received that response, he maintains he had been transferred out of SuperMax. Further, Mr. Kent explains that the response was mailed to him, meaning more than 72 hours had passed before he received the response, and that in the ordinary course responses are handed to the inmate who can then inform the officer if he wishes to move to Step Two of the grievance process. Varner’s grievance office has no record of Mr. Kent submitting any COVID-related grievances, though he has filed multiple medical grievances since December 2019.
Mr. Kouri claims he experienced retaliation for filing his first grievance related to COVID19 issues, and he grieved that retaliation in a second grievance he filed.
Plaintiffs maintain that their concerns regarding COVID-19 rise to the level of an emergency as defined by AD 19-34, meaning “a problem that, if not immediately addressed, subjects the inmate to a substantial risk, of personal injury or other serious and irreparable harm” (Dkt. No. 36-37, at 8). As early as April 12, 2020, multiple named plaintiffs filed emergency grievances describing the serious risks they believed they were facing as a result of COVID-19. Record evidence suggests none of named plaintiffs’ grievances were treated as emergency grievances; it is unclear whether any COVID-19 grievances were or have been treated as emergency grievances by defendants.
In response to plaintiffs’ grievances, prison officials stated that plaintiffs’ request for release was not grievable. Under controlling precedent, courts will “not read futility or other exceptions into statutory exhaustion requirements.” Booth, 523 U.S. at 741 n.6 (determining the
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PLRA required administrative exhaustion even where grievance process did not permit an award of money damages and the inmate sought only money damages, as long as the grievance tribunal had authority to take some action).
Even acknowledging that AD 19-34 stipulates release is a non-grievable issue, plaintiffs’ grievances in the record clearly demonstrate additional concerns raised by plaintiffs regarding COVID-19 besides requests for release. These additional concerns provide the foundation of plaintiffs’ Eighth Amendment and ADA claims, and multiple grievances invoke the Eighth Amendment and ADA by name. Plaintiffs contend that, during the days between the filing of these grievances and the filing of their complaint, “the number of COVID-19 cases increased from 1 to approximately 850 in the Cummins Unit.” (Dkt. No. 44, at 53 n.10 (citing Emma Tucker, 850 of 1,200 Inmates at Arkansas Prison Reportedly Have Coronavirus, Daily Beast, Apr. 21, 2020, https://www.thedailybeast.com/850-of-1200-inmates-in-arkansas-prison-reportedly-havecoronavirus (last visited May 18, 2020)).
In addition, there is record evidence that Mr. Hampton, Mr. Kouri, Mr. Neely, Mr. Otwell, and Mr. Williams all filed grievances seeking reasonable accommodations under the ADA (Dkt. Nos. 46-2, ¶ 15; 46-4, ¶ 16; 46-5, ¶ 15; 46-10, ¶ 16; 46-34; 46-35; 46-36; 46-37). In response, each received a typed form letter telling them that they needed to be patient and that the Division of Correction was already doing all that they could (Dkt. No. 46-35, at 3). In response to his request for reasonable accommodations, Mr Kouri was told that ADC was already doing everything CDC had recommended and that upper management had directed (Dkt. No. 46-4, ¶ 16).
The Court has considered all record evidence related to the grievance process, plaintiffs’ grievances, and exhaustion. At this stage, defendants have not demonstrated on the record evidence currently before the Court that they are likely to succeed in establishing the affirmative
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defense that each named plaintiff failed to exhaust his claims pursuant to the PLRA such that the Court need not reach the merits of plaintiffs’ Eighth Amendment claims brought pursuant to § 1983 and their ADA claims. On this record, the Court determines that genuine issues of material fact remain in dispute as to whether the administrative remedies offered by defendants are “unavailable” or “not capable of use” as interpreted by the Supreme Court. See Ross, 136 S. Ct. at 1859-60. Further, the Court concludes that, at least at this stage of the proceeding, there are disputes regarding whether and to what extent plaintiffs filed grievances, exhausted grievances, and the ADC’s administrative remedies were available to plaintiffs.
3. PLRA’s Impact On Prisoner Transfer Or Release Further, the Court determines that, regardless of the merits of plaintiffs’ claims subject to the PLRA, the PLRA prevents this Court from granting temporary release or transferring to home confinement members of the proposed disability subclass who bring Title II ADA claims seeking such relief. As stated above, the PLRA governs plaintiffs’ ADA claims. The PLRA provides that “no court shall enter a prisoner release order unless . . . a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right,” and defendants have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. §§ 3626(a)(3)(A)(i)-(ii). The Court has entered no such previous order. Additionally, the PLRA provides that “only” a “three-judge court” can enter a prisoner release order, meaning this Court on its own lacks the authority to issue “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population” to the extent plaintiffs seek release of any members of the disability subclass. 18 U.S.C. §§ 3626(a)(3)(B), (g)(4). Accordingly, regardless of the merits of plaintiffs’ ADA claims,
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under the PLRA, the Court may not at this time issue any prisoner release order sought by plaintiffs on behalf of the disability subclass in the instant motion.
C. Likelihood Of Success: Eighth Amendment Claims Plaintiffs allege that defendants’ failure to provide adequate protection and, if necessary, medical care in response to the rapid spread of COVID-19 constitutes deliberate indifference to the serious medical needs of incarcerated individuals in violation of the Eighth Amendment (Dkt. No. 1, ¶ 129). Additionally, plaintiffs allege through their habeas claims that defendants are holding members of the proposed high risk subclass in violation of the Eighth Amendment (Id., ¶ 138). The Court addresses whether plaintiffs’ habeas claims are cognizable elsewhere in this Order. For the following reasons, although certain aspects of the record evidence before the Court give it pause, the Court determines on the record evidence as a whole that plaintiffs have not demonstrated that they are likely to succeed on the merits of their Eighth Amendment claims at this early stage of the proceeding.
1. Deliberate Indifference Standard “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling, 509 U.S. 36. It is “cruel and unusual punishment to hold convicted criminals in unsafe conditions.” Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). State officials have a responsibility under the Eighth Amendment to “provide humane conditions of confinement,” “ensure that inmates receive adequate food, clothing, shelter, and medical care,” and “‘take reasonable measures to guarantee the safety of the inmates.’” Farmer, 511 U.S 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-57 (1984)). The Eighth Amendment standard for conditions of confinement asks whether defendants acted with “deliberate indifference.” Davis v. Oregon Cty., 607 F.3d 543, 548 (8th Cir. 2010).
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The Eighth Amendment forbids deliberate indifference to conditions that “pose an unreasonable risk of serious damage to . . . future health.” Helling, 509 U.S. at 35; see also DeGidio, 920 F.2d at 533 (continuing failure by prison officials to institute a system to prevent the spread of tuberculosis violated the Eighth Amendment); Brown v. Moore, 93 F. Supp. 3d 1032, 1041 (W.D. Ark. 2015) (“Plaintiff need not have contracted the disease for an actionable [Eighth Amendment] claim to be stated.”). Deliberate indifference has both an objective and subjective component. See Davis, 607 F.3d at 548. The objective component considers “whether a substantial risk to the inmate’s safety existed,” and the subjective component considers “whether the officer had knowledge of the substantial risk to the inmate’s safety but nevertheless disregarded it.” Id. This “subjective component of deliberate indifference requires proof that [defendants] ‘actually knew of and recklessly disregarded’ this substantial risk of serious harm” Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006) (quoting Pietrafeso v. Lawrence Cty., S.D., 452 F.3d 978, 983 (8th Cir. 2006)). “In order to demonstrate that a defendant actually knew of, but deliberately disregarded, a serious medical need, the plaintiff must establish a ‘mental state akin to criminal recklessness: disregarding a known risk to the inmate’s health.’” Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009) (quoting Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)).
Under controlling precedent, the deliberate indifference standard may be satisfied when officials respond to an infectious disease “outbreak with a series of negligent and reckless actions.” DeGidio, 920 F.2d at 533. The Court stresses that these objective and subjective components should not be “collapsed” into one another and remain separate but related inquiries. See Swain v. Junior, No. 20-11622-C, 2020 WL 2161317, at *4 (11th Cir. May 5, 2020); see also Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425, at *2-3 (5th Cir. Apr. 27, 2020) (separating the
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“objective” prong of the deliberate indifference test from the “subjective” consideration of whether defendants’ measures were inadequate).
The district court may consider either the objective or subjective prong first and, if there is a failure of proof on the first prong the court chooses to consider, it need not proceed to the other prong. Helling, 509 U.S. at 35. This Court considers the subjective prong first, determines that plaintiffs are unlikely to succeed on the merits of the subjective prong of their Eighth Amendment claims, and declines to consider at this stage plaintiffs’ likelihood of succeeding on the objective prong of the Eighth Amendment.
2. Subjective Prong As to the subjective prong, plaintiffs assert that defendants have failed to address the COVID-19 risk despite being aware of it (Dkt. No. 3, at 41-45). Plaintiffs also argue that defendants can address this matter by ensuring that proper cleaning supplies are available, suitable distance between prisoners is possible, regular care is provided to those infected, and releasing on at least a temporary basis while maintaining ADC monitoring extremely vulnerable individuals who cannot be safely confined in a congregate setting (Id., at 43-44). Plaintiffs assert that defendants must institute immediate testing, immediate screening, appropriate use of quarantine, and significant improvements in hygiene, among other things (Id., at 45). In short, plaintiffs argue that “[d]efendants’ policies fall well short of CDC guidance with respect to social distancing and sanitation to reduce the risk of COVID-19 transmission” (Dkt. No. 44, at 44). In his testimony at the preliminary injunction hearing, Eldon Vail, who formerly served as the Secretary for the Washington State Department of Corrections, has over 35 years of experience working in corrections, and testified as an expert witness on behalf of plaintiffs, offered his opinions regarding defendants’ actions with regard to COVID-19 (Dkt. No. 63, at 50, 56). Overall,
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Secretary Vail opined that the ADC was slow to act in response to COVID-19; that the ADC has now has taken some actions but that those actions were taken later than they needed to be; and that there is a disconnect between what actions the ADC reports taking and the actions plaintiffs report experiencing and observing in their declarations (Dkt. No. 63, at 56).
All parties agree that defendants have taken some action in response to COVID-19. At this stage of the proceedings, the record evidence suggests that, over time, defendants have adopted policies and practices in response to COVID-19. To the extent plaintiffs’ argument is that defendants did not act quickly enough throughout the events leading up to or since the filing of their complaint in this action, a request for preliminary injunctive relief is moot if the injunctive relief sought would no longer have any meaning for the party seeking it. See Forbes v. Ark. Educ. Television Comm. Network Found., 982 F.2d 289, 289 (8th Cir. 1992) (per curiam); McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir. 1992). In other words, the Court will not grant preliminary injunctive relief to direct defendants to put into place policies and practices the record evidence establishes are already in place.
Plaintiffs challenge whether defendants’ policies and practices are sufficient and whether defendants have implemented effectively those policies and practices. To the extent plaintiffs fault defendants for failing to implement effectively the policies and practices put into place, plaintiffs have sued defendants in their official capacities as policy makers. In general, state actors may not be sued under § 1983 for an injury inflicted solely by its employees or agents on a respondeat superior theory of liability. See Monnell v. New York Dep't of Soc. Servs., 436 U.S. 658, 694, (1978). However, a state actor may be liable for inadequate training or supervision of its employees “where (1) the . . . training practices [were] inadequate; (2) the [state actor] was deliberately indifferent to the rights of others in adopting them, such that the ‘failure to train
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reflects a deliberate or conscious choice by [the state actor]’; and (3) an alleged deficiency in the . . . training procedures actually caused the plaintiff's injury.” Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)); see also Parrish v. Ball, 594 F.3d 993, 997-98 (8th Cir. 2010).
Even if certain employees or agents received training that was minimal at best, that finding alone will not satisfy a § 1983 claim for failure to train. City of Canton, 489 U.S. at 390-91. Instead, to satisfy the standard, a § 1983 plaintiff must demonstrate that in the light of the duties assigned to specific employees and agents the need “for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.” Id. at 390. A § 1983 plaintiff must demonstrate that the state actor “‘had notice that its procedures were inadequate and likely to result in a violation of constitutional rights.’” Andrews, 98 F.3d at 1076 (quoting Thelma D. v. Bd. of Educ., 934 F.2d 929, 934 (8th Cir. 1991)).
Having reviewed all of the record evidence before it, at this stage of the litigation, the Court concludes that plaintiffs have not demonstrated a likelihood of success on the subjective prong of their Eighth Amendment claims. The Court has considered all arguments raised by the parties in reaching its determination and addresses specific issues here.
a. Visitors To And Movement Within Facilities The record indicates that the ADC has taken steps to limit visitors to and movements within facilities and that steps have been taken in regard to incoming inmates. Plaintiffs dispute whether practices regarding incoming inmates or residents, and the transfers or movements of inmates or residents, changed or changed sufficiently in response to COVID-19. Based on the record
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evidence at this stage, the Court determines that plaintiffs have not demonstrated a likelihood of success on their Eighth Amendment claims based on this allegation.
b. Information And Education By mid-March 2020, the ADC had taken steps to inform inmates, staff, and visitors about COVID-19 and the topics discussed in the ADH guidance. Shortly thereafter, the ADC posted signage throughout its facilities, in both English and Spanish, informing inmates and staff to wash their hands often with soap and water for at least 20 seconds; wear facemasks as much as possible; avoid touching their eyes, nose, or mouth without cleaning their hands first; clean their personal belongings; and keep as much distance between each other as possible. Defendants have also utilized the Morning Show to provide COVID-19-related information to ADC inmates. ADC inmates also are permitted to watch Governor Hutchinson’s briefings on COVID-19. While plaintiffs may disclaim the effectiveness of these measures, plaintiffs do not deny that these measures have been taken, and the Court determines plaintiffs have not demonstrated a likelihood of success on their Eighth Amendment claims based on this allegation.
c. Personal Protective Equipment Director Payne testified that defendants began distributing masks to ADC inmates in March—prior to the first positive COVID-19 test at Cummins—and that well over 40,000 masks have been distributed, leaving each ADC inmate housed in general population with two masks. The ADC intends to create a total of 80,000 masks. The Court acknowledges that defendants do not provide masks to inmates in restricted housing; defendants explain this action by claiming that these inmates do not come into contact with other inmates, have limited exposure to staff, and therefore are not issued masks as a result. Plaintiffs dispute how frequently inmates in restricted
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housing interact with others. Further, there is record evidence that Mr. Frazier, an inmate in restricted housing, made his own mask from a t-shirt.
There is record evidence that ADC staff are directed to wear masks and gloves when interacting with inmates, including those in restricted housing, and ADC staff and inmates have been told best practices for wearing masks. Defendants do not dispute that compliance with ADC staff wearing masks has been an issue. It gives the Court pause that, on April 9, 2020, a doctor reported at the COVID-19 Pandemic Physicians’ Group meeting that UAMS had a problem with prisoners being brought for evaluation with guards who were refusing to wear their masks. It also gives the Court pause that, on April 21, 2020, Director Payne sent an email to ADC Wardens, ADC Deputy Wardens, and others directing that officers transporting inmates to outside hospitals wear their masks at all times and specifically stated, “Hospitals are not wanting to treat our inmates because our staff are not following the guidelines that we are sending out.” (Dkt. No. 57-8).
Along with this record evidence, Director Payne testified that remedial measures exist for staff who disregard COVID-19 directives, ranging from corrective counseling to termination. He also explained that, after an issue was reported to defendants regarding staff members not wearing masks, those staff members received corrective counseling.
The Court acknowledges that plaintiffs present other record evidence in support of their claim that ADC staff do not wear masks and gloves as directed when interacting with inmates, including those in restricted housing, and that inmates do not wear masks as directed.
As of May 1, 2020, and prior to that date, the DOC required that masks must be worn full time by staff, that staff “in direct care, such as [correctional officers] and healthcare, and in food service positions” are required to wear gloves, and that all also must implement social distancing when possible and practice regular and proper hand washing throughout the day (Dkt. Nos. 49-29;
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63, at 144-45). Further, as of May 1, 2020, the DOC required that inmates and residents “assigned to the kitchen, as office and porters, or to community service in [ADCC] offices” wear aprons and safety glasses (Dkt. Nos. 49-29; 63, at 144-45).
Inmates have the ability to report anonymously staff or other inmates for failing to comply with health and safety procedures by anonymously submitting a request for interview form, according to defendants. Although there is record evidence to suggest inmates are reluctant to make such complaints, that record evidence is non-specific and not well-developed at this stage.
On the record as a whole, the Court determines plaintiffs have not demonstrated a likelihood of succeeding on the subject prong of their Eighth Amendment claims against the named defendants based on these allegations.
d. Cleaning And Disinfecting Defendants maintain that ADC and ADCC have ordered enhanced cleaning and disinfecting of its units, including barracks and the residential areas, showers, bathrooms, and recreational areas in barrack, as well as hallways, the chow hall, the gym and other areas; there is record evidence to support that such orders have been given. Although plaintiffs dispute that enhanced cleaning and disinfecting are occurring, they do not challenge specifically the orders given by ADC and ADCC. Plaintiffs do specifically assert that defendants are not using any “EPA-registered disinfectants effective against the virus that causes COVID-19,” in ADC facilities (Dkt. No. 65, at 19). Defendants have distributed Citrus Breeze III for cleaning and sanitation. The EPA’s website has a page titled “List N: Disinfectants for Use Against SARS-CoV-2,” which lists products that “meet the EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.” Pesticide Registration, List N: Disinfectants for Use Against SARS-CoV-2,
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https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2 (last visited

May 11, 2020). The List N webpage states that individuals hoping to find a product should “enter

the first two sets of its EPA registration number into the search bar below.” See id. The website

further provides an example that “if EPA Reg. No. 12345-12 is on List N, you can buy EPA Reg.

No. 12345-12-2567 and know you’re getting an equivalent product.” See id. Citrus Breeze III’s

EPA Registration Number is 47371-131-70332.

Razor Citrus Breeze III,

http://www.razorchemical.com/wp-content/uploads/2020/03/127667-1-CitrusBreeze3-Net-

Contents-v2.pdf (last visited May 18, 2020). A search for Registration Number 47371-131, in

accordance with the website’s instructions, reveals a product named HWS-64 included on List N.

Per the EPA, EPA Registration Number 47371-131-70332 is an “equivalent product” to EPA

Registration Number 47371-131, which the Court understands to mean that Citrus Breeze III

suffices as or is an equivalent to an EPA-approved disinfectant based on these representations on

the website. Additionally, Razor Chemical has represented that its Citrus Breeze III is EPA-

approved for combatting COVID-19 and certified as such via the EPA’s Emerging Pathogen

Policy (Dkt. No. 49-33). As a result, at least on this record evidence, plaintiffs have not

demonstrated a likelihood of succeeding on this claim regarding disinfectant.

On the issue of alcohol-based sanitizer, the CDC guidelines are clear that correctional

facilities should “consider relaxing restrictions on allowing alcohol-based hand sanitizer in the

secure setting where security concerns allow. If soap and water are not available, CDC

recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60%

alcohol” (Dkt. No. 36-9, at 8). Additionally, the ADH only recommends alcohol-based sanitizer

“when practical from security and supply standpoint and under staff control” (Dkt. No. 36-20, at

1). Thus, alcohol-based sanitizer is a secondary option to soap and water, and facilities are only

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encouraged to consider relaxing restrictions regarding alcohol-based sanitizer where security concerns allow. Although plaintiffs argue that other states have implemented alcohol-based hand sanitizer in prisons, on the record as a whole at this stage, plaintiffs have not demonstrated a likelihood of succeeding on their claim that defendants’ decision not to make alcohol-based sanitizer available constitutes deliberate indifference, where record evidence indicates that ADC inmates have access to soap—the CDC’s preferred method of handwashing—and where defendants believe that security concerns do not allow for the introduction of alcohol-based sanitizer into ADC facilities.
e. Social Distancing As to social distancing, the CDC guidelines themselves acknowledge that social distancing “[s]trategies will need to be tailored to the individual space in the facility and the needs of the population and staff,” and that “[n]ot all strategies will be feasible in all facilities.” (Dkt. No. 369, at 11). The record evidence shows that defendants have heeded the following CDC recommendations: “[s]tagger meals”; “[s]uspend group programs where participants are likely to be in closer contact than they are in their housing environment”; and “[a]rrange bunks so that individuals sleep head to foot to increase the distance between them” (Id.). Defendants have suspended visitation, and incoming inmates are housed separately from existing inmates for an isolation period of 14 days. Only one barracks goes to the chow hall or uses the hallways at a time, and Director Payne testified that the Cummins has started using non-living quarters such as the school, library, and visitation area to provide temporary housing, which Mr. Vail called “better late than never” (Dkt. No. 63, at 128, 210). In Cummins where inmates have tested positive with COVID-19, inmates who have tested negative are isolated generally from those who have tested positive and the staff who serve them based on the record currently before the Court.
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It gives the Court pause that the CDC guidance issued March 23, 2020, included the recommendation that those in congregate environments like prions sleep head to foot. Despite this, the record evidence indicates this practice was not implemented in the DOC, if at all, until late April or early May 2020. Defendants offer no explanation for why the recommendation was not implemented earlier. Despite this, the record suggests defendants have implemented this practice to some extent now.
f. Medical Care Plaintiffs also challenge the testing and medical care inmates receive in regard to COVID19. Generally, to prevail on an Eighth Amendment claim for deprivation of medical care, an inmate must show that the prison official was deliberately indifferent to the inmate’s serious medical needs. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). This requires a two-part showing that: (1) the inmate suffered from an objectively serious medical need, and (2) the prison official knew of the need yet deliberately disregarded it. Id.; see also Farmer, 511 U.S. 837; Estelle v. Gamble, 429 U.S. 97, 105 (1976). The law defines a serious medical need as “one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (citation omitted). A medical need that would be obvious to a layperson makes verifying medical evidence unnecessary. Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004). An obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate. Lenz v. Wade, 490 F.3d 991, 995 (8th Cir.2007). Whether an inmate’s condition is a serious medical need and whether an official was deliberately indifferent to the
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inmate’s serious medical need are questions of fact. Coleman, 114 F.3d at 785; see also Schaub v. VonWald, 638 F.3d 905, 914–15 (8th Cir. 2011).
Here, plaintiffs have not sued the contracted provider for medical care at the ADC, Wellpath. Instead, plaintiffs have sued defendants in their official capacities as policy makers. While a policy maker or supervisor’s general responsibility for supervising operations of a prison is insufficient to establish personal involvement giving rise to liability under § 1983, Ouzts v. Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987), individuals personally involved in decisions regarding treatment and care become responsible for seeing that the inmate is adequately cared for once his needs are brought to the individual’s attention, see Schaub, 638 F.3d at 918; Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (noting that even though defendant prison supervisor was “not a medical doctor and does not personally treat inmates’ medical needs, . . . [t]here is no doubt that [defendant] has a constitutional duty to see that prisoners in his charge who need medical care receive it.”); see also West v. Atkins, 487 U.S. 42, 56 (1988) (“Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody.”). The Court recognizes the well-established proposition that, although prison officials are not doctors, when personally confronted with the serious medical needs of a prisoner, prison officials cannot be deliberately indifferent to those needs by inaction. Schaub, 638 F.3d at 918 n.6.
The Court also is mindful that, in DeGidio v. Pung, when confronted with § 1983 claims over the tuberculosis epidemic, the district court observed:
No one claims ultimate responsibility for the many supervisory functions within the health services unit. The passing of blame and responsibility between the Department of Health, the administrative director of health services, and the staff physicians has been discussed at length earlier. Each person describes his or her role narrowly, and disclaims ultimate responsibility for directing the effort at controlling tuberculosis. Plaintiffs have shown through the great weight of the
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evidence that this failure of coordination persists and is a reason why Stillwater's response to the tuberculosis epidemic lagged. 704 F. Supp. 922, 957 (D. Minn. 1989), aff'd, 920 F.2d 525 (8th Cir. 1990). The Court has these precedents in mind when reviewing the record evidence before it at this stage of the proceeding. Record evidence suggesting inmates with claimed symptoms of COVID-19 being denied care and testing, record evidence suggesting a lack of follow-up evaluation or care for those with symptoms or reported COVID-positive cases, and record evidence suggesting inmates with claimed symptoms of COVID-19 being too weak to care for themselves or to seek medical care for themselves with no aid from prison staff or medical staff gives the Court pause. It is unclear from this record how frequently these events have occurred, if at all; whether these events have given rise to medical grievances related to COVID-19 testing and treatment; and where these inmates were housed when certain of these claimed events occurred—barracks, restricted housing, infirmaries, or isolated COVID-19 treatment units. Defendants maintain that ADC staff are directed to look for symptoms of COVID-19 and to bring inmates to the medical unit for assessment and attention. Further, they maintain that ADH along with Wellpath are determining whether COVID-19 testing should be conducted. Having considered all of the record evidence before it, the Court determines that, at this stage, plaintiffs have not demonstrated a sufficient likelihood of prevailing on this aspect of their Eighth Amendment claims against these defendants to warrant injunctive relief.
g. Staffing During COVID-19 Based on record evidence, the ADC has implemented wide-spread testing of its staff. At the preliminary injunction hearing, plaintiffs’ expert witness Mr. Vail was critical of the practice of bringing COVID-19 positive but asymptomatic staff to work with COVID-19 positive inmates, under certain conditions. The ADH issued guidance with respect to this staffing issue on April 13,
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2020 (Dkt. No. 36-19). Director Payne testified that less than ten COVID-19 positive but asymptomatic staff members have actually reported to work at Cummins, and then those staff members were restricted in their movements, were required to wear masks and gloves, and only worked with other inmates and staff positive for COVID-19. In addition, there is evidence that a COVID-19 positive staff member from Grimes was asymptomatic and allowed to work at Cummins while positive. Director Payne testified that having staff members who tested positive but were asymptomatic report to work under the conditions specified by the ADH was done only upon guidance from the ADH with the CDC providing that this is possible if necessary.
All parties acknowledge that certain COVID-19 positive, asymptomatic staff have been reporting to work. Plaintiffs also report apparent staffing shortages with an impact in facility operations, including the feeding of inmates even those in quarantine. The Court acknowledges that plaintiffs submit an expert opinion with respect to COVID-19 positive staff reporting to work, but that opinion does not address the specific circumstances alleged here with respect to COVID19 positive, asymptomatic staff reporting to work with COVID-19 positive, asymptomatic inmates under the stated conditions and with the ADH’s requirements imposed.
At this stage of the litigation, on the limited record before it, the Court determines plaintiffs have not demonstrated a likelihood of success on their claim that this staffing practice amounts to subjective deliberate indifference so as to entitle them to preliminary injunctive relief.
h. Release On April 24, 2020, the Board of Corrections voted to invoke the expanded Emergency Powers Act and certify a list of certain inmates identified as eligible for release, pending the Arkansas Board of Parole’s decision. As of May 7, 2020, record evidence indicates that 300 inmates on the list of 1,200 inmates had been released, with the screening process continuing, and
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the ADC waiting on the Arkansas Parole Board to conduct screening as well. The ADC has no authority to release inmates before the Arkansas Board of Parole has the opportunity to screen the inmate, according to Director Payne. Further, according to defendants, none of this was done in response to COVID-19, but measures are being taken to ensure released inmates are screened for COVID-19 and medically cleared before release. These facts weigh into the Court’s overall analysis and determination.
The Court is mindful of the numbers of inmates and staff diagnosed with COVID-19 and that those numbers have increased during the few weeks this case has been pending. On this record, at this stage of the litigation, the Court cannot conclude that such an outbreak necessarily arises from deficiencies sufficient to establish plaintiffs’ Eighth Amendment claims.
Having considered all record evidence before, the Court determines that plaintiffs have not demonstrated a sufficient likelihood of success on their Eighth Amendment claims so as to be entitled to preliminary injunctive relief.
D. Likelihood Of Success: Title II ADA Claims Plaintiffs claim that defendants have intentionally discriminated against named plaintiffs and members of the proposed disability subclass by denying them reasonable accommodations that have been recommended by the CDC and are necessary to protect them from COVID-19 (Dkt. No. 1, ¶ 140). In their complaint, plaintiffs assert that reasonable accommodations necessary to protect incarcerated individuals with disabilities include, but are not limited to: access to alcoholbased sanitizer; provision of cleaning supplies, including products containing bleach, adequate to clean individuals’ housing areas; provision of PPE; access to antibacterial hand soap and towels to enable individuals to wash their hands as necessary; implementation of social distancing measures in all locations where incarcerated people are required to congregate; and release or
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transfer to home confinement if social distancing is not practicable (Id., ¶ 141). Plaintiffs claim that defendants have violated the ADA by failing to provide plaintiffs in the disability subclass with reasonable accommodations that would allow them to access safely their facilities and failing to release incarcerated people with disabilities or transfer to home detention, where they could quarantine safely during the pandemic (Dkt. No. 44, at 49).
1. Legal Standard For Title II ADA Claims The ADA prohibits public entities, including state prisons, from discriminating on the basis of disability. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To assert a claim under Title II of the ADA, plaintiffs must show that: (1) each plaintiff is a “qualified individual with a disability”; (2) defendants denied plaintiffs “the benefits of the services, programs, or activities of a public entity”; and (3) plaintiffs were discriminated against “by reason of” their disabilities. See 42 U.S.C. § 12132; see also Folkerts v. City of Waverly, 707 F.3d 975, 983 (8th Cir. 2013). A “qualified individual with a disability” means an individual “with a disability who, with or without reasonable modifications . . . , meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” See 42 U.S.C. § 12131(2). The Eighth Circuit construes broadly the “services, programs, or activities” language in the ADA to encompass “anything a public entity does.” Bahl v. Cty. of Ramsey, 695 F.3d 778, 787 (8th Cir. 2012) (citations omitted). State actors may rely on the “reasonable assessments” of their own professionals in determining whether an individual is qualified for services and programs and whether “reasonable modifications” are available to prevent discrimination. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (citing 28 C.F.R. §§ 35.130(b)(7), (d)). Plaintiffs need not plead exclusion from participation in or denial of benefits offered to state a claim under Title II of the ADA. See, e.g., Loye v. Cty. of Dakota, 625 F.3d 494,
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496 (8th Cir. 2010) (“[W]e construe Title II of the ADA as requiring that qualified persons with disabilities receive ‘meaningful access’ to a public entity’s services, not merely ‘limited participation.’”).
The regulations implementing Title II of the ADA require that a public entity “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). This is considered an affirmative defense to an ADA Title II claim; the ADA regulations explicitly provide that the entity must demonstrate that making the modification would fundamentally alter the subject program. 28 C.F.R. § 35.130(b)(7). For this affirmative defense, the entity may demonstrate that the requested action “would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.” 28 C.F.R. § 35.150(a)(3). The Eighth Circuit has noted that whether a requested accommodation is reasonable or imposes an undue burden on defendants should be considered in the light of “the heightened security concerns of a prison.” Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (examining Title II ADA claim against prison). Generally, ADA plaintiffs are entitled to reasonable accommodations, which may not always be plaintiffs’ preferred or ideal accommodations. See Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (8th Cir. 2011); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007).
Plaintiffs may prove unlawful discrimination under Title II by offering evidence of disparate treatment based on disability or by showing that a facially-neutral policy has the “effect of discriminating against the disabled or the severely disabled.” DeBord v. Bd. of Educ., 126 F.3d 1102, 1105 (8th Cir. 1997). In regard to an ADA failure-to-accommodate claim, ““the
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‘discrimination’ is framed in terms of the failure to fulfill an affirmative duty—the failure to reasonably accommodate the disabled individual’s limitations . . . . The known disability triggers the duty to reasonably accommodate and, if the [defendant] fails to fulfill that duty, [the Court] do[es] not care if he was motivated by the disability.” Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004) (internal citation omitted); see also Sak v. City of Aurelia, 832 F. Supp. 2d 1026, 1040 (N.D. Ia. 2011) (failure to accommodate is an independent basis for liability under the ADA, but accommodation is only required when necessary to avoid discrimination on the basis of disability, and accommodation must be reasonable) (citing 28 C.F.R. § 35.130(b)(7)). Though a plaintiff seeking compensatory money damages under Title II must show intentional discrimination on the basis of disability, a plaintiff seeking prospective injunctive relief is not required to make this showing. See Meagley v. City of Little Rock, 639 F.3d 384, 388-89 (8th Cir. 2011).
2. Analysis Of Title II ADA Claims On this record, and at this stage of the litigation, the Court concludes that plaintiffs have failed to demonstrate a likelihood of success on their claims under Title II of the ADA. Assuming arguendo that named plaintiffs and proposed members of the disability subclass are qualified individuals with a disability, and there is some dispute in the record evidence at this stage with respect to that point, the Court concludes that plaintiffs are not likely to succeed on their claim that defendants’ action or inaction in combatting the COVID-19 risk in DOC facilities has had the effect of denying plaintiffs in the disability subclass “the benefits of the services, programs, or activities” within the ADC “by reason of” those plaintiffs’ disabilities. See 42 U.S.C. § 12132. The Court has examined plaintiffs’ claimed deficiencies in defendants’ response to the COVID19 risk when examining plaintiffs’ Eighth Amendment claims and determined plaintiffs have not demonstrated a likelihood of success on those claims. The Court acknowledges that the standard
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applied to evaluate Title II ADA claims and Eighth Amendment claims may differ, see United States v. Georgia, 546 U.S. 151 (2006), but the Court does not see which reasonable accommodations have been denied for plaintiffs in the proposed disability subclass. Further, on the record currently before it, to the extent plaintiffs requested and were denied reasonable accommodations, the Court is unconvinced that defendants denied those requests because of plaintiffs’ alleged disabilities.
E. Threat Of Irreparable Harm “Irreparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages.” Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009). “To succeed in demonstrating a threat of irreparable harm, ‘a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.’” Roudachevski v. All-American Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011) (quoting Ia. Utils. Bd. v. Fed. Commc’ns Comm’n, 109 F.3d 418, 425 (8th Cir. 1996)). A plaintiff must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original) (citations omitted). The Eighth Circuit has held that it is “no question . . . that irreparable injury exist[s]” when the harm contemplated is “a life threatening illness.” Harris v. Blue Cross Blue Shield of Mo., 995 F.2d 877, 879 (8th Cir. 1993); see also Kai v. Ross, 336 F.3d 650, 656 (8th Cir. 2003) (“[T]he danger to plaintiffs’ health, and perhaps even their lives, gives them a strong argument of irreparable injury.”). Plaintiffs’ alleged harm is both imminent and irreparable, as plaintiffs face a risk of severe illness or possible death in the light of COVID-19. Based on allegations in plaintiffs’ complaint, one of the named plaintiffs has already tested positive for COVID-19, along with hundreds more
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individuals in ADC facilities. Plaintiffs face the progression of the COVID-19 pandemic in a congregate environment. The irreparability of this harm is magnified by the fact that no known vaccine or cure for COVID-19 exists at this time. Accordingly, the Court finds the threat of irreparable harm to cut in plaintiffs’ favor.
F. Balance Of The Equities “The third Dataphase factor requires a district court to consider the balance between the harm to the movant and the injury that granting the injunction will inflict on other interested parties.” Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 489 (8th Cir. 1993) (citing Dataphase, 640 F.2d at 114). “At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113 (footnote omitted). “No single [Dataphase] factor in itself is dispositive; rather, each factor must be considered to determine whether the balance of equities weighs toward granting the injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (citations omitted). The balance of the equities at this stage is a neutral factor in this analysis. Plaintiffs face irreparable harm to their constitutional rights and their health, including severe illness, long-term health effects, and possible death. Plaintiffs argue that there is not much potential harm to defendants in granting plaintiffs’ requested relief in the instant motion other than potentially increased costs and energy, which are insufficient to justify a denial of plaintiffs’ motion. Defendants maintain that requiring defendants to implement steps they already have taken as demonstrated by record evidence is unnecessary and that requiring them to implement the steps requested that go beyond those already implemented would impose undue costs, harms, burdens, and disruptions in running the ADC facilities. Further, defendants argue that the State of Arkansas
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has a significant interest in preserving the health, welfare, and safety of its citizens, whether in prison or out of prison, and that its choices not to release certain ADC prisoners serves that interest. There are strong considerations that favor both sides in this dispute.
G. Public Interest “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). The public is certainly served by the preservation of constitutional rights. See D.M. by Bao Xiong v. Minn. State High Sch. League, 917 F.3d 994, 1004 (8th Cir. 2019) (internal quotations and citations omitted). However, in assessing the public interest, the Supreme Court has also cautioned that federal courts must tread lightly when it comes to questions of managing prisons, particularly state prisons. States have a strong interest in the administration of their prisons, which is “bound up with state laws, regulations, and procedures.” Woodford v. Ngo, 548 U.S. 81, 94 (2006). The Supreme Court has stated that “[i]t 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.” Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973); see also Turner v. Safley, 482 U.S. 78, 85 (1987) (“[W]here a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.”); Meachum v. Fano, 427 U.S. 215, 229 (1976) (“Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.”). Courts accordingly should give deference to prison authorities. See Turner, 482 U.S. at 84-85. The public interest in this case cuts both ways. In plaintiffs’ favor, the public interest is served by protecting plaintiffs and the putative class members from COVID-19 and its possible
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Case 4:20-cv-00434-KGB Document 68 Filed 05/19/20 Page 73 of 73 consequences. Further, minimizing the spread of COVID-19 both within DOC facilities and among communities surrounding and interacting with those facilities serves the public interest. Efforts to stop the spread of COVID-19 and promote public health appear to be in the public interest. In defendants’ favor, the public interest also commands respect for federalism and comity. These factors dictate that the Court should approach intrusion into the core activities of the state’s prison system with caution.
VI. Conclusion For the above reasons, the Court denies plaintiffs’ motion for preliminary injunction (Dkt. No. 2). It is so ordered this 19th day of May, 2020.
_________________________________ Kristine G. Baker United States District Judge
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 Case 4:20-cv-00434-KGB Document 74 Filed 06/04/20 Page 1 of 3

THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER

PLAINTIFF

v.

Case No. 4:20-cv-00434-KGB

WENDY KELLEY, et al.

DEFENDANTS

ORDER

Before the Court is a motion to stay discovery filed by defendants Wendy Kelley, Secretary

of the Arkansas Department of Corrections (“DOC”); Dexter Payne, Division of Correction

Director, Arkansas Department of Corrections (“ADC”); Jerry Bradshaw, Division of Community

Correction Director, Arkansas Department of Corrections (“ADCC”); Asa Hutchinson, Governor

of Arkansas; Benny Magness, Chairman of Arkansas Board of Corrections (“ABC”); Bobby

Glover, Vice Chairman of ABC; John Felts, Member of ABC; William “Dubs” Byers, Member of

ABC; and Whitney Gass, Member of ABC, all in their official capacities (collectively,

“defendants”) (Dkt. No. 69). Also pending before the Court is an emergency motion for initial

scheduling order filed by plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael

Kouri, Jonathan Neeley, Alfred Nickson, Harold “Scott” Otwell, Trinidad Serrato, Robert Stiggers,

Victor Williams, and John Doe, individually and on behalf of all others similarly situated

(collectively, “plaintiffs”) (Dkt. No. 70). For the following reasons, the Court denies defendants’

motion to stay discovery and grants plaintiffs’ emergency motion for initial scheduling order (Dkt.

Nos. 69; 70).

I. Defendants’ Motion To Stay Discovery

Defendants move to stay the Rule 26(f) conference deadline and all discovery pending a

final decision on their forthcoming motion to dismiss pursuant to Rule 26(c) of the Federal Rules

Case 4:20-cv-00434-KGB Document 74 Filed 06/04/20 Page 2 of 3
of Civil Procedure and Local Rule 7.2 (Dkt. No. 69, at 1). Defendants state their intention to file a motion to dismiss asserting the defense of sovereign immunity on behalf of Governor Hutchinson as to all claims and as to all defendants with respect to plaintiffs’ request for declaratory judgment; assert that plaintiffs’ complaint fails to state any claim upon which relief can be granted as to all defendants; and believe that dismissal of the entire case will be appropriate under the Eleventh Amendment and Federal Rule of Civil Procedure 12(b) (Id., ¶ 3). Defendants maintain that a stay of discovery would have the following effects: promote the interests of judicial economy and efficiency until this Court has ruled on the forthcoming motion to dismiss and that decision becomes final; preserve the parties’ resources and maintain the status quo until the Court decides whether this case may proceed on the merits at all and, if so, the nature and scope of such claims; and preserve defendants’ immunity from suit, which defendants allege would be effectively lost if discovery were permitted to proceed at this time (Id., ¶¶ 6-8). Defendants argue that plaintiffs will suffer no prejudice if a stay is entered (Id., ¶ 9).
At this stage of the litigation, having reviewed the authorities cited by defendants and all filings in this case, the Court denies defendants’ motion to stay discovery (Dkt. No. 69). The Court will take up defendants’ anticipated motion to dismiss when that motion is filed, but discovery should proceed as envisioned by the Federal Rules of Civil Procedure on the record before this Court.
II. Plaintiffs’ Emergency Motion For Initial Scheduling Order Plaintiffs state that Federal Rule of Civil Procedure 26(f) provides, in part, that parties must confer “as soon as practicable—and in any events at least 21 days before . . . a scheduling order is due under Rule 16(b)” (Dkt. No. 70, ¶ 1). Plaintiffs state that a scheduling order is due no later
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than 60 days after defendants appeared, unless the Court finds good cause for delay, per Federal Rule of Civil Procedure 16(b)(2) (Id., ¶ 2).
Plaintiffs’ complaint in this matter was filed on April 21, 2020 (Dkt. No. 1). Defendants appeared on April 23, 2020 (Dkt. No. 13). The Court has not yet found good cause for delaying the issuance of a scheduling order. Accordingly, the scheduling order in this matter is currently due on June 22, 2020, and the Federal Rules of Civil Procedure contemplate that the Rule 26(f) conference must occur no later than June 1, 2020 (Dkt. No. 70, ¶ 4). Plaintiffs state that they have attempted to schedule a Rule 26(f) conference on June 1, 2020, and plaintiffs assert that defendants have objected to conducting a Rule 26(f) conference until the resolution of a motion to dismiss that they have not yet filed (Id., ¶ 5). Plaintiffs note that defendants have filed the above-referenced motion to stay discovery and argue that this motion is meritless and should be denied (Id., ¶¶ 7-8). Plaintiffs ask this Court to issue an initial scheduling order governing this matter so that the Rule 26(f) conference may proceed (Id., ¶ 10).
For good cause shown, the Court grants plaintiffs’ emergency motion for initial scheduling order (Dkt. No. 70). The Court will enter an initial scheduling order by separate order.
III. Conclusion For the above reasons, the Court denies defendants’ motion to stay discovery and grants plaintiffs’ emergency motion for initial scheduling order (Dkt. Nos. 69; 70). It is so ordered, this the 4th day of June 2020.
_________________________________ Kristine G. Baker United States District Judge
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 Case 4:20-cv-00434-KGB Document 76 Filed 06/22/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

v.

CASE NO. 4:20-CV-00434-KGB-JJV

WENDY KELLEY, et al.

PLAINTIFFS DEFENDANTS

DEFENDANTS’ MOTION TO DISMISS

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants move to dismiss Plaintiffs’ Complaint for the reasons stated in the accompanying brief. See E.D. Ark. R. 7.2(a), (e).

Respectfully submitted,
LESLIE RUTLEDGE Arkansas Attorney General
NICHOLAS J. BRONNI (2016097) Arkansas Solicitor General
VINCENT M. WAGNER (2019071) Deputy Solicitor General
ASHER STEINBERG (2019058) Assistant Solicitor General
JENNIFER L. MERRITT (2002148) Senior Assistant Attorney General JERRY GARNER (2014134) Assistant Attorney General
OFFICE OF THE ARKANSAS ATTORNEY GENERAL
323 Center St., Suite 200 Little Rock, AR 72201 asher.steinberg@arkansasag.gov

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

v.

CASE NO. 4:20-CV-00434-KGB-JJV

WENDY KELLEY, et al.

PLAINTIFFS DEFENDANTS

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

INTRODUCTION Plaintiffs are murderers, rapists, armed robbers, arsonists, and repeat violent offenders. Each has a history of assaulting fellow inmates and staff. Many have a history of absconding from supervised release. And all are security risks. Yet under the guise of challenging the Arkansas Division of Correction’s response to the COVID-19 pandemic, they ask this Court to order their release or impose requirements that will put their fellow inmates, prison staff, and society at great risk. Plaintiffs fail to state a claim for multiple reasons. Their request for declaratory relief is retrospective and barred by sovereign immunity. Their claims against Governor Hutchinson and Director Bradshaw are barred by sovereign immunity because Governor Hutchinson and Director Bradshaw have no connection to the policies Plaintiffs challenge. Their Eighth Amendment claim is merely a litany of disagreements with Defendants’ COVID-19 policies that falls far short of a serious allegation of deliberate indifference. Their Americans with Disabilities Act claim, as this Court has already held, fails to seek any reasonable accommodation that Defendants do not already provide, and seeks accommodations that Plaintiffs never requested before bringing suit. And their request for temporary release to home

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confinement is a condition-of-confinement claim that is not cognizable in habeas. This Court should dismiss Plaintiffs’ suit.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold “Scott” Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, and an unidentified John Doe are inmates housed at three of 20 units within ADC. DE 1 at 7-13 ¶¶ 15-35. Plaintiff Stiggers is a first-degree murderer who, for no apparent reason, shot a longtime friend and his passenger after asking them for a ride. See Stiggers v. State, 433 S.W.3d 252, 254-55 (Ark. 2014). Plaintiff Neeley is a former youth minister who pled guilty to sexually assaulting a series of teenage girls in his congregation. See Former youth minister guilty of sexual assault in Howard, Pope counties, Nashville News Leader, Sept. 24, 2015, available at https://www.swarkansasnews.com/2015/09/former-youth-minister-pleads-guilty-to-sexualassault-4-more-charges-pending-in-pope-county/. Plaintiff Frazier is serving a 10-year prison sentence for commercial burglary, manufacture, delivery, and possession of controlled substances, criminal mischief, possession of drug paraphernalia, and theft of property, DE 36-21, and is housed in the Varner Super Maximum Security Unit, ADC’s most secure housing facility for inmates who have shown they cannot be safely housed in other units. DE 1 at 8 ¶ 19. Plaintiff Hampton is serving a five-year sentence for assaulting the director of a Salvation Army office and then assaulting and threatening to murder the police officer who arrested him. DE 36-25.
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Plaintiff Kent, who is housed in the Varner Super Maximum Unit, DE 1 at 9 ¶ 20, is a habitual offender serving an 18-year sentence for first degree battery and endangering the welfare of a minor. DE 36-26.
Plaintiff Kouri, who is also known as Michael Mercouri, is serving a 10-year sentence for the armed robbery of his former supervisor at an Aaron’s furniture store. See Mercouri v. State, 480 S.W.3d 864, 865 (Ark. 2016).
Plaintiff Otwell is serving a 15-year sentence for attempting to set an Arkansas Fish and Game Commission agent’s car on fire, in apparent retaliation for the Commission’s investigating him, and then tampering with the jury in his subsequent trial for arson. See DE 36-33; Caitlan Butler, Man sentenced to prison for attempted truck arson, jury tampering, El Dorado News, May 2, 2019, available at https://www.eldoradonews.com/news/2019/may/02/man-sentencedprison-attempted-truck-arson-jury-ta/.
Plaintiff Serrato is currently in prison on a felon-in-possession-of-a-handgun conviction, after a lifetime of theft and controlled substances convictions. See DE 36-34.
Plaintiff Williams is in prison for manslaughter, a charge to which he pled guilty after being charged with murder in a double homicide that had gone unsolved for seven years. See DE 36 at 25.
Finally, Plaintiff Nickson is in prison for murdering his 73-year-old neighbor, 26 years after strangling his roommate to death and then setting their apartment on fire. See DE 36-31; Hot Springs Man Admits to Neighbor’s 2013 Murder, KARK, Aug. 30, 2016, available at https://www.kark.com/news/local-news/hot-springs-man-admits-to-neighbors-2013murder/541904923/; John Kass & Fred Marc Biddle, Roommate Seized in School Adviser’s
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Death, Chicago Tribune, May 22, 1987, available at https://www.chicagotribune.com/news/ctxpm-1987-05-22-8702070942-story.html.
These plaintiffs filed this putative class action on April 21, 2020, naming 11 separate Defendants and alleging that ADC’s response to the COVID-19 pandemic violates the Eighth Amendment to the United States Constitution and Title II of the Americans with Disabilities Act. DE 1 at 42-45 ¶¶ 127-148. More particularly, Plaintiffs allege that two sub-classes of inmates, including a “high-risk subclass” and a “disability subclass,” are at a heightened risk of harm from the virus. They seek a myriad of injunctive and declaratory relief, including release from incarceration for inmates within those two subclasses, along with federal-court micromanagement of ADC’s comprehensive response to the COVID-19 pandemic. DE 1 at 1516 ¶ 41. Defendants accepted service on April 22, 2020, DE 4, 7, making their responsive pleading due June 22, 2020. See Fed. R. Civ. P. 12(a)(1)(ii).
On the same day that they filed their complaint, Plaintiffs filed an emergency motion for a temporary restraining order and preliminary injunction. DE 2. That motion requested the same relief sought in the complaint. On April 27, 2020, Plaintiffs filed a supplemental motion for a temporary restraining order. DE 22. In that motion, Plaintiffs sought a subset of the relief requested in their original motion, omitting their request for release and the appointment of a special master. This Court denied Plaintiffs’ TRO motion on May 4, 2020, holding Plaintiffs had not yet shown a likelihood of success on any of their claims. DE 42. It held a hearing on Plaintiffs’ PI motion on May 7, 2020. It denied that motion on May 19, 2020 in a comprehensive, 73-page order, again holding that Plaintiffs had failed to show a likelihood of success on any of their claims. DE 68.
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STANDARD OF REVIEW Rule 8 of the Federal Rules of Civil Procedure states that “[a] pleading that states a claim for relief must contain . . . a sort and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may raise, as a defense, a plaintiff’s “failure to state a claim upon which relief can be granted” by motion. When analyzing a Rule 12(b)(6) motion, the complaint’s factual allegations are accepted as true and viewed in the light most favorable to the plaintiff. Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999) (citing Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999)). “At a minimum, however, a complaint must contain facts to state a claim as a matter of law and must not be merely conclusory in its allegations.” Id. (quoting Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. An “important mechanism for weeding out meritless claims [is a] motion to dismiss for failure to state a claim.” Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2471 (2014). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 50). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels
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and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557); see also Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 934 (8th Cir. 2012) (“A gallimaufry of labels, [legal] conclusions, formulaic recitations, naked assertions and the like will not pass muster.”) (citing Twombly, 550 U.S. at 555-57).
In evaluating a motion to dismiss, a district court should employ a two-pronged approach. First, the court should identify and set aside “pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Second, the court should assume the veracity of the plaintiff’s “well-pleaded factual allegations . . . and then determine whether they plausibly give rise to an entitlement for relief.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If the factual allegations “do not permit the court to infer more than the mere possibility of misconduct,” then the complaint fails to show a plausible claim for relief.” Id. (citing Fed. R. Civ. P. 8(a)(2)).
The court should dismiss a complaint if the plaintiff has failed to “nudge[] [his] claims” of unlawful conduct “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. In other words, “if the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” then the complaint fails to “show[] that the pleader is entitled to relief” under Rule 8((a)(2) and must be dismissed. Iqbal, 556 U.S. at 679. Likewise, a court should dismiss when, based on the plaintiff’s own allegations, he has no cognizable claims. “[D]ismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their
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legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
ARGUMENT I. Defendants are immune from Plaintiffs’ claims for declaratory relief.
“The Eleventh Amendment establishes a general prohibition of suits in federal court by a citizen of a state against his state or an officer or agency of that state.” 281 Care Comm. v. Aronson, 638 F.3d 621, 632 (8th Cir. 2011). But under the limited exception to that rule identified in Ex parte Young, a citizen of a state may sue state officials where she “alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). That exception, however, obviously “does not permit judgments against state officers declaring that they violated federal law in the past,” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993), or what the Eighth Circuit has recently termed “retrospective declaratory relief.” Justice Network, Inc. v. Craighead Cty., 931 F.3d 753, 764 (8th Cir. 2019). That means that in order to satisfy the Ex parte Young exception, a request for declaratory relief must seek to “define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability for a past act.” Id.
Plaintiffs’ complaint seeks an order “declaring that Defendants/Respondents’ policies and practices regarding COVID-19 violate the Eighth Amendment to the United States Constitution,” and an order “declaring that Defendants/Respondents have violated the ADA by failing to reasonably accommodate incarcerated individuals with disabilities.” DE1 at 45-46 (Prayer for Relief) (emphasis added). That is, Plaintiffs seek a declaration that Defendants’ past policies and practices are unlawful.
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The fact that those policies might continue—though as this Court has already found, Defendants’ COVID-19 policies and practices have continuously evolved—is not enough to make Plaintiffs’ request prospective. In Justice Network, for example, a probation services provider sought a declaration that two state court judges’ probation-service debt-forgiveness program violated the Takings Clause. 931 F.3d at 757. That program was implemented before the provider sued, but it continued thereafter and was still in effect when the Eighth Circuit rendered its decision. Id. at 758. But because the program had been initially implemented in the past, the Eighth Circuit nevertheless held that the provider’s request for a declaratory judgment was “retrospective” and sought to “invalidate the [judges’ past] actions.” Id. at 764. So too here; Plaintiffs do not seek a declaratory judgment “in anticipation of some future conduct,” id., but rather request a declaration that policies and practices Defendants adopted in the past are unlawful. Defendants’ requests for declaratory relief should be dismissed on the ground of sovereign immunity.
II. Governor Hutchinson has sovereign immunity from all of Plaintiffs’ claims. Governor Hutchinson also enjoys immunity from all of Plaintiffs’ requests for relief
because he has no connection to the policies and practices that Plaintiffs challenge. Indeed, another judge of this Court has recently so held in a COVID-19-related prisoners’ suit. See Schuler v. Hutchinson, No. 2:20-cv-97, 2020 WL 3104668, at *1 (E.D. Ark. June 11, 2020) (“The Governor and Attorney General are not proper defendants.”) (citing Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 956-58 (8th Cir. 2015)).
Under Ex parte Young, a “state official is amenable to suit to enjoin the enforcement of an unconstitutional state statute only if the officer has ‘some connection with the enforcement of the act.’” Dig. Recognition Network, 803 F.3d at 960 (quoting Ex parte Young, 209 U.S. 123,
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157 (1908)); see also Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017) (requiring “some connection to the enforcement of the challenged laws”). “Without that connection, the officer would be sued merely ‘as a representative of the state’ in an impermissible attempt ‘to make the state a party.’” Dig. Recognition Network, 803 F.3d at 960 (quoting Ex parte Young, 209 U.S. at 157). But Plaintiffs do not allege that Governor Hutchinson has had any role in crafting the policies and practices they challenge. They allege instead that under Arkansas’s Constitution he “has the ultimate authority for ensuring that all [state] agencies . . . function in compliance with state and federal law.” Compl. at 15 ¶ 40. And they allege that he “has the power to release people incarcerated in ADC correctional facilities.” Id. Neither allegation suffices to make out the requisite connection between Governor Hutchinson and the policies Plaintiffs challenge.
First, as to Governor Hutchinson’s general-enforcement authority under the Arkansas Constitution, it is well-settled that “a governor’s general-enforcement authority is ‘some connection’ [only] if that authority gives the governor methods of enforcement.” Church v. Missouri, 913 F.3d 736, 749 (8th Cir. 2019). Plaintiffs cite no enforcement method; they only cite the Governor’s enforcement authority itself. But neither “a broad duty to uphold state law,” id. (quoting Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 517 (5th Cir. 2017)), nor “general supervisory power over the persons responsible for enforcing the challenged provision will . . . subject an official to suit.” Id. (quoting L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)). Indeed, the Eighth Circuit has specifically held that “the executive authority of the [Arkansas] governor” under the Arkansas Constitution is not the sort of connection to challenged state law or policy that Ex parte Young requires. Dig. Recognition Network, 803 F.3d at 960 (citing Ark. Const. art VI, secs. 2, 7).
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Second, as for the Governor’s “power to release people incarcerated in ADC correctional facilities,” Compl. at 15 ¶ 40, the Governor does have the power to grant “[e]xecutive clemency,” Ark. Const. art. VI, sec. 18, but that power has no connection to the policies and practices Plaintiffs challenge or the relief Plaintiffs seek. As this Court has noted, “Plaintiffs represent that they ‘do not seek unconditional release’ but instead seek measures such as transferring vulnerable plaintiffs ‘to their homes to self-isolate, while still in ADC custody . . . until the emergency abates.’” DE 68 at 42-43 (quoting DE 3 at 56). But the Governor’s clemency power is a power to pardon inmates or commute their sentences. See Ark. Code Ann. 16-93-204, 16-93-207. It is not a power to micromanage the conditions of inmates’ sentences; that power is reserved to the Department of Corrections officials Plaintiffs have sued. Indeed, even in habeas proceedings that do seek unconditional release, governors are never sued as respondents because an order compelling a governor to exercise his discretionary pardon or commutation power is not a permissible remedy in habeas proceedings. See Pennington v. Norris, 257 F.3d 857, 858 n.2 (8th Cir. 2001) (declining to address possible procedural defects in a prisoner’s “statutory executive clemency and/or commutation of sentence claim, because that claim is not cognizable in federal habeas proceedings in any event”). The Governor’s discretionary pardon and commutation power has no connection to Plaintiffs’ requests for temporary transfer to home confinement or modifications of prison conditions. Plaintiffs’ claims against Governor Hutchinson thus fail as a matter of law.
III. Director Bradshaw has sovereign immunity from all of Plaintiffs’ claims. Plaintiffs sue Jerry Bradshaw, Director of the Arkansas Division of Community
Correction, a state agency that manages several minimum-security residential treatment facilities housing low-risk offenders. DE 1 at 15 ¶ 39. Plaintiffs do not allege that Director Bradshaw’s
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action or inaction has harmed them or even mention him outside of the paragraph of their complaint listing him as a party. Nor could they. Plaintiffs are all inmates of facilities managed by the Arkansas Division of Correction, the state agency that manages Arkansas’s prisons. See DE 1 at 7-13 ¶¶ 15, 17, 19, 20, 22, 24, 26, 28, 31, 33, 35. Plaintiffs do not allege that Director Bradshaw has any supervisory authority over Arkansas’s prisons, and as a matter of law, he does not. See Ark. Code Ann. 12-27-126 (detailing powers of the Director of the Division of Community Correction).
Because Director Bradshaw has nothing whatsoever to do with the conditions of Plaintiffs’ prisons, Plaintiffs fail to state a claim against Director Bradshaw. And as was true of Governor Hutchinson, the lack of any connection between Director Bradshaw and the policies and practices that Plaintiffs challenge means that Director Bradshaw has sovereign immunity.
In response, Plaintiffs will surely aver that they seek to represent a class of inmates that includes Community Correction inmates. See DE 1 at 15 ¶ 41 (proposed class definition). But as a matter of law, Plaintiffs cannot represent a class insofar as that class asserts claims against Director Bradshaw, because Plaintiffs themselves have no claims against Director Bradshaw. Rule 23 provides that “One or more members of a class may sue . . . as representative parties on behalf of all members only if,” inter alia, “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a), 23(a)(3). Plaintiffs have no claims against Director Bradshaw at all, so their claims against Director Bradshaw cannot be typical of the class’s claims against Director Bradshaw. Therefore, they cannot assert class claims against Director Bradshaw. See Golan v. Veritas Entm’t, LLC, 788 F.3d 814, 821 (8th Cir. 2015) (“It is well established that a plaintiff who lacks standing to assert his claims cannot be a proper class representative under Rule 23(a).”); Hall v. Lhaco, Inc., 140 F.3d 1190, 1196
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(8th Cir. 1998) (“Because Hall does not have standing to pursue his claim [under a particular statute], it is immaterial whether any member of the potential class would have standing to pursue this claim. Hall is not a proper representative of the class where he himself lacks standing to pursue the claim.”). Since Plaintiffs fail to state a claim against Director Bradshaw in their own right, and cannot represent a class against Director Bradshaw, Director Bradshaw is immune from and must be dismissed from this action.
IV. Plaintiffs fail to state an Eighth Amendment claim. Plaintiffs assert that Defendants’ COVID-19 policies and practices amount to deliberate
indifference to the risks posed by COVID-19, in violation of the Eighth Amendment. Yet Plaintiffs’ own allegations belie that claim. Rather than allege reckless indifference to the risks of COVID-19, Plaintiffs merely allege that Defendants’ responses aren’t what Plaintiffs would do. Plaintiffs’ disagreement with Defendants’ measures, whether reasonable or not, is not enough to state a deliberate indifference claim.
As this Court has already explained, “[d]eliberate indifference has both an objective and a subjective component.” DE 68 at 53. As relevant here, the “subjective component of deliberate indifference requires proof that defendants actually knew of and recklessly disregarded [a] substantial risk of serious harm” to prisoners. Id. (alteration omitted) (internal quotation marks omitted) (quoting Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006)). And “[i]n order to demonstrate that a defendant actually knew of, but deliberately disregarded, a serious medical need, the plaintiff must establish a mental state akin to criminal recklessness: disregarding a known risk to the inmate’s health.” Id. (internal quotation marks omitted) (quoting Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009)). Plaintiffs’ allegations—particularly in light of
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judicially noticeable public records this Court discussed in denying Plaintiffs’ preliminaryinjunction motion—do not meet that standard.
Plaintiffs first allege that Defendants failed before the COVID-19 pandemic began to develop “contingency plans for reduced workforces due to staff absences.” DE 1 at 36 ¶ 102. But an alleged failure to develop a contingency plan for staff shortages in the event of a pandemic that did not yet exist does not constitute deliberate indifference to the known risk of harm from that pandemic. Moreover, Plaintiffs themselves allege—and this Court has found on the basis of judicially noticeable public records—that Defendants have addressed staff shortages by allowing, in the event of a critical staffing shortage, staff who have tested positive to return to work on the condition that they only work with positive-tested inmates. DE 1 at 41 ¶ 121; DE 68 at 38 (citing DE 36-19 (Arkansas Department of Health guidance)).
Next, while affirmatively alleging that “many . . . masks” have been provided to ADC inmates, DE 1 at 37 ¶ 106, and that ADC itself is manufacturing those masks in response to the COVID-19 pandemic, id., Plaintiffs allege that some “Named Plaintiffs” have not been provided masks, DE 1 at 36 ¶ 105, and that “several” others are housed with inmates who have not been provided masks. DE 1 at 36 ¶ 104.
As this Court has already held, see DE 68 at 57-59, the fact that some individual inmates may not have been provided masks in spite of Defendants’ policy of manufacturing and providing masks to all inmates but those in restrictive housing does not show deliberate indifference—especially not on the part of the officials at the very top of the Department of Corrections and its Divisions that Plaintiffs have sued. In order to state a deliberate-indifference claim against those apex officials premised on the failure of unit-level correctional officers to provide masks to individual inmates, Plaintiffs would need to allege a deliberate failure to train
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those correctional officers—one where “the need ‘for more or different training is so obvious, and the inadequacy so likely to result in the deprivation of constitutional rights, that the policymakers can reasonably be said to have been deliberately indifferent to the need.’” Id. at 56 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Yet Plaintiffs’ complaint contains not a word about Defendants’ failure to train correctional officers or others in their employ. Plaintiffs’ bare allegations of individualized instances of failures to implement Defendants’ mask policies do not state a deliberate-indifference claim against Defendants.
Plaintiffs further initially alleged that the only COVID-19-related signage Defendants ordered posted was directed to staff, DE 1 at 37 ¶ 108, and that inmates received no education or training on donning masks. DE 1 at 37 ¶ 107. When Defendants put an abundance of COVID19-related, inmate-facing signage in the record, see DE36-12–17, Plaintiffs abandoned that allegation, DE 68 at 57 (“Plaintiffs do not deny that these measures have been taken”), and only quibbled with the lack of oral instruction on the matters addressed in the signs. Plaintiffs may protest that this signage cannot be considered at the motion-to-dismiss stage and that the Court must indulge the counterfactual fantasy that it does not exist, thereby keeping their claims on temporary life support until summary judgment. But a “district court may take judicial notice of public records and may thus consider them on a motion to dismiss.” Stahl v. USDA, 327 F.3d 697, 700 (8th Cir. 2003).
Plaintiffs also vaguely allege that “Defendants have not implemented the heightened hygienic, cleaning, and disinfecting practices called for by the CDC Guidance,” DE 1 at 38 ¶ 109, and have “not followed the CDC’s recommendation that staff clean shared surfaces several times a day.” DE 1 at 38 ¶ 112. The only facts Plaintiffs allege in support of these conclusory allegations are conditions observed by three inmates at two of ADC’s twenty-odd
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units. DE 1 at 38 ¶¶ 110-12. Absent an allegation of an actual policy on Defendants’ part to disregard CDC guidance—which Plaintiffs do not make—these allegations of isolated unit-level implementation failures do not state a claim of deliberate indifference on Defendants’ part. And as the Court is now aware, Defendants have given orders to ADC units to engage in heightened cleaning, see DE 68 at 29 (citing 17 documents in the record documenting those orders), and Plaintiffs “do not challenge [those] orders.” DE 68 at 59. Plaintiffs themselves, for example, filed an ADC memo directing sanitizer to be “continuously used daily” to “disinfect frequently touched surface[s].” DE 57-7.
Plaintiffs cannot oppose dismissal by denying the existence of orders to increase cleaning that they admit have been issued, as evidenced by a slew of judicially noticeable public records, some of which they themselves offered as evidence in support of their claims. The only allegations on which they can rely where cleaning is concerned, then, are their scattered unitlevel allegations of implementation failures. But those sorts of allegations, again, do not suffice to state a claim against Defendants absent allegations of deliberately indifferent failures to train or supervise. And Plaintiffs have made no such allegations.
Plaintiffs next allege that Defendants’ social-distancing measures have been inadequate, particularly with respect to the space between inmates’ beds. See DE 1 at 39 ¶¶ 114-16. This Court has already held that given the flexibility of CDC guidance on the subject, a mere failure to space inmates’ beds six feet apart is not deliberately indifferent. See DE 68 at 61 (citing DE 36-9 at 11). Plaintiffs also allege inadequate spacing at meals. But as this Court has found on the basis of a large array of judicially noticeable public records, Defendants have ordered staggered meal times and required spaced seating at meals. See DE 68 at 30. What remains, like so many of Plaintiffs’ allegations, is an allegation of unit-level shortcomings in implementation,
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unaccompanied by any allegations that Defendants have failed to train or supervise the unit-level officials responsible for those shortcomings.
Plaintiffs also make allegations about several isolated incidents where symptomatic inmates were not given masks, tested for COVID-19, or treated. DE 1 at 40 ¶ 119. As this Court has already held when Plaintiffs put on further evidence of the sorts of incidents alleged in their complaint, such isolated failures do not show that Defendants have been deliberately indifferent. DE 68 at 63-64. Rather, Plaintiffs must allege Defendants have a policy of indifference to symptomatic inmates’ needs or that Defendants have been deliberately indifferent in their supervision of ADC’s contracted medical provider. They make no allegations of that kind.
Plaintiffs further allege that Defendants have not adequately isolated COVID-19-positive staff. DE 1 at 40-41 ¶ 121. This Court has addressed Defendants’ practice of permitting positive staff to work with positive inmates, and concluded it does not constitute subjective deliberate indifference given that it was adopted on the advice of judicially noticeable expert guidance from the Arkansas Department of Health. DE 68 at 65. Obviously, Defendants cannot exhibit a mental state akin to criminal recklessness by following the advice of medical experts.
Finally, Plaintiffs claim that Defendants have shown deliberate indifference to COVID19 by failing to “close off the areas used by [any] person who has contracted COVID-19,” contrary to CDC guidance. DE 1 at 41 ¶ 122. The CDC’s guidance does make that recommendation, but it also acknowledges that all of its recommendations “may need to be adapted based on individual facilities’ physical space,” DE 36-9 at 1 (emphasis in original), and closing off all the areas used by any positive inmate is not practicable in open-barracks facilities. As the Court has found, Defendants have separated positive inmates from negative ones, DE 68 at 61, under the Department of Health’s judicially noticeable public-record
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guidance. DE 36-10 at 2. No infected inmate can be infected again by living in the same barracks as other positive inmates. Defendants’ inability to take the further step of moving positive inmates to other quarters—which is not only impossible under the circumstances, but would do little to reduce the risk of infection that separating positive from negative inmates does not do already—does not amount to deliberate indifference.
V. Plaintiffs fail to state an ADA claim. Plaintiffs also assert a claim against all Defendants under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Plaintiffs allege that Defendants have intentionally discriminated against them “by denying them reasonable accommodations that have been recommended by the CDC and are necessary to protect them from COVID-19.” DE 1 at 44 ¶ 140. The “reasonable accommodations” they seek include: (1) access to alcohol-based hand sanitizer; (2) provision of cleaning supplies including products containing bleach, adequate to clean individuals’ housing areas; (3) provision of PPE; (4) access to antibacterial hand soap and towels for hand washing; (5) implementation of social distancing measures “in all locations where incarcerated people are required to congregate”; and (6) release from prison or transfer to home confinement “if social distancing is not practicable.” DE 1 at 44 ¶ 141. The ADA does not require these accommodations, especially where Plaintiffs did not request them before suing. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. 12132. Title II regulations require public entities, including prisons, to “make reasonable modifications in policies . . . when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would
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fundamentally alter the nature of the service, program, or activity” at issue. 28 C.F.R. 35.130(b)(7)(i); see also Pa. Dep’t. of Corr. v. Yeskey, 524 U.S. 206 (1998) (holding that prisons are entities subject to Title II). The Supreme Court has explained that states may generally rely on the “reasonable assessments” of their own professionals in determining whether an individual is qualified for services and programs and whether “reasonable modifications” are available to prevent discrimination. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (citing 28 C.F.R. 35.130(b)(7) and (d)).
To succeed on their claim, Plaintiffs must show that Defendants refused to provide accommodations they requested “because of [their] disability.” DeBord v. Bd. of Educ., 126 F.3d 1102, 1105 (8th Cir. 1997). The Eighth Circuit has explained that plaintiffs may prove unlawful “discrimination” under Title II by offering evidence of disparate treatment based on disability or by showing that a facially-neutral policy has the “effect of discriminating against the disabled or the severely disabled.” Id. And as noted above, states need not make modifications that “would fundamentally alter the nature of the service, program, or activity” at issue. 28 C.F.R. 35.130(b)(7)(i). Nor must states make modifications that would impose an undue burden on the entity, service, or program. Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). Finally, and particularly important in the context of the state prison system, “[a] public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.” 28 C.F.R. 35.130(h).
Plaintiffs are not entitled to the accommodations they seek for three reasons. First, Plaintiffs do not allege that they requested these accommodations. That is fatal to their claims as a matter of law because a person “seeking a reasonable accommodation must request such an accommodation.” Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 (8th Cir. 2001); see also
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Wallin v. Minn. Dept. of Corr., 153 F.3d 681, 689 (8th Cir. 1998) (holding in ADA suit against employer that “it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed”).
Second, as this Court has already held, none of the accommodations Plaintiffs seek are “reasonable accommodations [that] have been denied for plaintiffs.” DE 68 at 70. Alcoholbased sanitizer is, under the CDC’s guidance, merely a secondary option to handwashing and one that prisons may opt to deny for security reasons. See id. at 60 (citing CDC guidance). Under Olmstead and the federal regulations interpreting the ADA, the Court owes deference to ADC’s judgment that providing alcohol-based sanitizer would be unsafe. The same is true of bleach, which the CDC’s guidance does not even conditionally recommend providing to inmates. On the other hand, the Court has already found, based on judicially noticeable public records, that inmates are being provided soap. See DE 68 at 30 (citing DE 50-14). And Plaintiffs do not even allege that they have been denied soap. The complaint’s only mentions of soap are: (1) an allegation that one of the Plaintiffs hand-washes his face mask with soap, DE 1 at 8 ¶ 16, and (2) requests for soap that Plaintiffs don’t allege they’ve been denied. DE 1 at 44 ¶ 141(d), 46 (Prayer for Relief(f)(ii)).
Third, as this Court has already held, it cannot grant release under Plaintiffs’ ADA claim. See DE 68 at 51 (holding that “the PLRA prevents this Court from granting temporary release or transferring to home confinement members of the proposed disability subclass who bring Title II ADA claims seeking such relief”). That is because the PLRA, which governs ADA suits, provides that only a three-judge court may enter a prisoner release order outside a habeas proceeding, and that even a three-judge court may only do so after the entry of a prior order granting less intrusive relief on the same claim that has failed to remedy the deprivation of a
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federal right. See id. (citing 18 U.S.C. 3626(a)(3)(A)(i), (a)(3)(B), (g)(4)). No three-judge court has been empaneled, and as this Court previously held, it “has entered no such previous order.” Id. So “regardless of the merits of plaintiffs’ claims” for release under the ADA, this Court must dismiss their ADA claim insofar as it seeks release. Id.
VI. Plaintiffs’ condition-of-confinement claims are not cognizable in habeas. Plaintiffs’ habeas claim challenges their conditions of confinement. They argue that, due to temporary conditions that they allege exist in ADC prisons on account of COVID-19, a putative subclass of medically vulnerable plaintiffs have an Eighth Amendment right to be transferred from prisons to home confinement. See DE 1 at 43 ¶ 138. That claim encounters an insurmountable obstacle at the starting gate: In the Eighth Circuit, “a habeas petition is not a proper remedy for a condition-of-confinement claim.” Holt v. Kelley, No. 5:18-cv-00264, 2019 WL 3928633, at *1 (E.D. Ark. Aug. 18, 2019) (Baker, J.) (citing Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014)). In Spencer v. Haynes, the Eighth Circuit held that if a prisoner’s “constitutional claim relates to the conditions of his confinement . . . a habeas petition is not the proper claim to remedy his alleged injury.” 774 F.3d at 470. And that is how this Court understood Spencer in Holt. See Holt, 2019 WL 3928633, at *1-2 (reading Spencer as “holding that a habeas petition is not a proper remedy for a condition-of-confinement claim,” and “declin[ing] Mr. Holt’s invitation to distinguish or decline to follow . . . Spencer”). Plaintiffs’ claim “relates to the conditions of their confinement,” “as distinct from the fact or length of the confinement.” Spencer, 774 F.3d at 470 (quoting Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979)). Plaintiffs do not challenge the validity of their sentences, nor their length; their claim has nothing to do with the legality of their sentence as imposed. It only attacks living conditions in one venue of
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confinement, ADC prisons as currently affected by COVID-19. As such, they cannot bring that claim in a habeas proceeding.
Moreover, the relief that Plaintiffs seek is not cognizable in habeas. In Kruger v. Erickson, 77 F.3d 1071 (8th Cir. 1996), the Eighth Circuit held that “[i]f the prisoner is not challenging the validity of his conviction or the length of his detention, then a writ of habeas corpus is not the proper remedy . . . [and] the district court lacks the power or subject matter jurisdiction to issue the writ.” Id. at 1073. The Eighth Circuit reaffirmed that rule in Spencer and held that habeas relief was unavailable in that case because Spencer did “not challenge his conviction, nor . . . seek a remedy that would result in an earlier release.” Spencer, 774 F.3d at 469. Plaintiffs do not “challenge [their] conviction[s].” Id. Nor do they seek a writ that would reduce “the length of their state custody.” Kruger, 77 F.3d at 1073. Rather, under Plaintiffs’ proposed remedy they would “still [be] in ADC custody,” DE 3 at 56, just in a different location: their homes. During that “temporary medical furlough” to “home confinement,” id. at 36, 45, they would continue to serve their sentences, whose length Plaintiffs do not attack.
At the preliminary-injunction stage, Plaintiffs maintained that their claim is not a condition-of-confinement claim. Instead, they argued their request is tantamount to a request for early release because a temporary transfer to home confinement would amount to “a quantum change in the level of custody.” DE 44 at 66 n.17. But even if an order granting home confinement were permissible relief in habeas, Plaintiffs still could not bring that claim because they do not assert that their sentences are unlawful; they only claim that the present health-andsafety conditions of their confinement have made their imprisonment temporarily unlawful.
Moreover, courts have overwhelmingly rejected Plaintiffs’ construction of their claim. Plaintiffs have identified over twenty cases which they say hold COVID-19-based requests for
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release from prison to less restrictive confinement are cognizable in habeas. See DE 44 at 67
n.18 and accompanying text. Of these, Plaintiffs focus on just two that say a COVID-19-based
request for release from prison is not a condition-of-confinement claim. See DE 44 at 65-66
(citing Wilson v. Williams, — F. Supp. 3d —, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020),
vacated on other grounds, — F.3d —, 2020 WL 3056217 (6th Cir. June 9, 2020); Malam v.
Adduci, — F. Supp. 3d —, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020)); see also DE 54 at 2
(citing Wilson v. Williams, No. 20-3447 (6th Cir. May 4, 2020) (denying stay of Wilson)). The
focus on these cases is not accidental. Virtually every other case granting habeas relief on such
claims has said they are condition-of-confinement claims and can be heard in habeas because
local circuit precedent has condoned condition-of-confinement habeas petitions. The following
are examples, culled from cases Plaintiffs themselves cite in supposed support of their argument
that their claims are not condition-of-confinement claims and can be heard in habeas:
 “Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. Accordingly, we find that Petitioners have appropriately invoked this court's jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.” Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020) (citations omitted).
 Federal courts . . . have seemingly condoned challenges to conditions of confinement raised through a habeas petition. Accordingly, I find the caselaw indicates that an immigration detainee may raise a conditions of confinement claim in his § 2241.” Leandro R. P. v. Decker, No. CV 203853, 2020 WL 1899791, at *4 (D.N.J. Apr. 17, 2020) (alterations omitted) (citations omitted) (internal quotation marks omitted).
 “An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 22

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F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate's ‘transfer while seriously ill’ where that transfer posed a risk of fatal heart failure).” Basank v. Decker, No. 20 CIV. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020).
 “Courts are divided on whether section 2241 provides a vehicle for challenging (and a remedy for addressing) allegedly unconstitutional conditions of confinement. This Court need not resolve these difficult questions at this junction because the Second Circuit ‘has long interpreted section 2241 as applying to challenges to ... prison conditions,’ Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008)[.]” Jones v. Wolf, No. 20-CV361, 2020 WL 1643857, at *14 (W.D.N.Y. Apr. 2, 2020) (footnote omitted) (alteration omitted).
On the other hand, courts in Circuits like the Eighth that bar condition-of-confinement
claims from being heard in habeas overwhelmingly conclude that claims like Plaintiffs are
condition-of-confinement claims and therefore cannot be heard in habeas. For example:
 “Although Plaintiffs are requesting immediate release, they are not challenging the legality or duration of their detention. At the core of their argument, they contend that the conditions of their detention at Otero are inadequate to protect them from exposure to COVID-19 . . . Accordingly, the Court finds that Plaintiffs are challenging the conditions of their detention, as opposed to its fact or duration, which is not appropriate under 28 U.S.C. § 2241.” Barco v. Price, —F. Supp. 3d —, 2020 WL 2099890, at *6 (D.N.M. May 1, 2020).
 “[Petitioner] seeks release on the basis of his ‘Living Conditions’ at Terminal Island. Petitioner's allegations sound in civil rights, not in habeas. Although Petitioner requests relief in the form of release from prison, which is within the ambit of a writ of habeas corpus, Petitioner's claims challenge the conditions of his confinement and are properly the subject of a civil rights complaint, despite the relief he seeks.” Bolden v. Ponce, No. 220CV03870JFWMAA, 2020 WL 2097751, at *2 (C.D. Cal. May 1, 2020) (alteration omitted) (citations omitted) (internal quotation marks omitted).
 “Drakos does not challenge the fact or duration of his confinement. While he requests injunctive relief ordering his release, his attack is on the conditions of his confinement, not on the fact that he was ordered detained before trial. Therefore, the relief Drakos seeks is not available in habeas corpus.” Drakos v. Gonzalez, No. H-20-1505, 2020 WL 2110409, at *1 (S.D. Tex. May 1, 2020) (citations omitted). 23

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Despite the abundance of authority holding that claims like Plaintiffs’ are condition-ofconfinement claims, only cognizable in habeas if condition-of-confinement claims are, Plaintiffs insist all these courts are wrong. They rest that argument almost entirely on an Ohio district court decision in Wilson v. Williams, which Justice Sotomayor subsequently stayed and the Sixth Circuit subsequently vacated. That decision is singularly unpersuasive and rests on an approach to condition-of-confinement claims that the Eighth Circuit explicitly rejected in Spencer.
In that case, the district court ordered that the Bureau of Prisons grant inmates in a federal prison with a severe COVID-19 outbreak one of either compassionate release, release to home confinement, or transfer to another BOP facility. Wilson, 2020 WL 1940882, at *10-11. According to the district court, all of these remedies, including transfer to a different prison, were available in habeas because in the Sixth Circuit, habeas petitioners could not only challenge “the fact or duration of confinement,” but “also . . . the execution or manner in which the sentence is served.” Id. at *5 (internal quotation marks omitted) (quoting United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2002)).
On appeal, the Sixth Circuit took a somewhat different view.1 It held the prisoners’ request for transfer to safer prisons merely sought “an improvement of prison conditions” and
1 Prior to the Sixth Circuit vacating the district court’s injunction, the government twice sought a stay in the Supreme Court. On the first occasion, the district court modified its order while the government’s stay application regarding the original order was pending. See Williams v. Wilson, — S. Ct. —, 2020 WL 2644305, at *1 (U.S. May 26, 2020). “Particularly in light of that procedural posture, the Court decline[d] to stay the [original] preliminary injunction without prejudice to the Government seeking a new stay.” Id. Justices Thomas, Alito and Gorsuch, however, would have granted a stay, the intervening order notwithstanding. Id. The government then sought a new stay. This time Justice Sotomayor, the Sixth Circuit’s Circuit Justice, granted a stay on her own. Williams v. Wilson, — S. Ct. —, 2020 WL 2988458 (U.S. June 4, 2020). Notably, both of the government’s stay applications relied heavily on the argument that the relief the district court granted was non-cognizable in habeas.
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“could not be brought under § 2241.” Wilson, 2020 WL 3056217, at *5, *6. It concluded, however, that a claim seeking release to home confinement on the basis of conditions of confinement should be “construed” as though it were not a conditions claim. Id. at *5. As it put it, “[o]ur precedent supports the conclusion that where a petitioner claims that no set of conditions would be constitutionally sufficient”—thus challenging conditions—“the claim should be construed as challenging the fact or extent, rather than the conditions, of the confinement.” Id. (citing Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011)). For reasons left unexplained, it understood the prisoners’ request for release to home confinement to make such a claim—only to vacate the district court’s grant of that relief on the merits for reasons closely paralleling this Court’s denial of injunctive relief. See id. at *8-11.
Besides the Supreme Court’s strong hint that it would stay Wilson in an appropriate procedural posture, and Justice Sotomayor’s stay, Wilson is unpersuasive for two reasons. First, it is inconsistent with the Sixth Circuit’s own stated approach to habeas and condition-ofconfinement claims; second, the Eighth Circuit has, in any event, rejected that approach.
The Sixth Circuit reasoned that the prisoners’ claims in Wilson were attacks on their sentences themselves because they asserted that all possible conditions of those sentences were unconstitutional—relying on a lethal-injection case holding that where a prisoner claimed there was no “acceptable . . . procedure” for lethal injection, the claim was cognizable in habeas because it would “render his death sentence effectively invalid.” Adams, 644 F.3d at 483. That, however, was not what the prisoners in Wilson were claiming.
Rather, the prisoners in Wilson sought to temporarily serve the balances of their sentences at home; by definition, then, they claimed that there were conditions under which their sentences could be administered constitutionally. The same is true of Plaintiffs’ claims, which both
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acknowledge that they can be constitutionally confined at home, and that they can be confined in prison once “the emergency abates.” DE 68 at 43 (quoting DE 3 at 56). Far from resembling a challenge to the very sentence of death by lethal injection, Plaintiffs’ claim is more like a claim that due to a temporary health condition, lethal injection must be postponed or administered by a different procedure until the condition subsides. No court would entertain that sort of claim in habeas. C.f. Bucklew v. Precythe, 139 S. Ct. 1112 (2019) (entertaining a lethal-injection claim based on a more permanent medical condition under Section 1983).
Second, the Eighth Circuit rejected the Sixth Circuit’s approach to conditions claims in Spencer. In Adams, the Sixth Circuit said that Eighth Amendment challenges to the conditions of a sentence transform into challenges to the “fact” of sentence if they assert that a sentence would be unconstitutional under any set of conditions. Likewise, Plaintiffs reason that their claim is not a conditions claim because it claims no set of prison conditions could be safe enough for certain inmates. In Spencer, however, the Eighth Circuit specifically addressed Adams and rejected it. There, it acknowledged “a split ha[d] arisen amongst our sister circuits” in permitting condition-of-confinement claims in habeas. Spencer, 774 F.3d at 470. “Notwithstanding” that split, it wrote it was “bound” by Kruger to reject the view of those circuits that allowed condition-of-confinement habeas petitions. In cataloguing the split, the Spencer court wrote that “the Sixth Circuit firmly stand[s] in the camp of allowing conditions-of-confinement claims to be brought in the habeas corpus context.” Id. at 470 n.6 (emphasis added). Spencer’s only authority for that statement was Adams—which on the Sixth Circuit’s and Plaintiffs’ theory, only permitted a challenge to the fact of sentence. Id. Thus, the Eighth Circuit necessarily rejected Adams’ distinction of condition claims that effectively attack a sentence itself, deeming those claims condition-of-confinement claims too. As Wilson is based entirely (albeit unpersuasively)
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on the Sixth Circuit’s hybrid approach to conditions claims in Adams that the Eighth Circuit rejected in Spencer, the Eighth Circuit would necessarily reject Wilson.
VII. Plaintiffs’ habeas claims are barred for non-exhaustion. Even if Plaintiffs had brought their habeas claim in a circuit where condition-ofconfinement claims were cognizable in habeas, their claim would be barred for failure to exhaust. Plaintiffs style their habeas claim as one under 28 U.S.C. 2241. DE 1 at 43 ¶ 137. But in the Eighth Circuit, “[28 U.S.C.] § 2254 is the only means by which ‘a person in custody pursuant to the judgment of a State court’ may raise challenges to the validity of his conviction or sentence or to the execution of his sentence.” Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (en banc) (emphasis added) (citing Crouch v. Norris, 251 F.3d 720, 722-23 (8th Cir. 2001)). Indeed, Singleton specifically rejected a state prisoner’s argument that his habeas “claim [wa]s properly before the court under authority of § 2241,” id. at 1022, as did Crouch. See 251 F.3d at 722 (“According to Crouch, his proposed petition is properly classified as a habeas action under 28 U.S.C. § 2241 . . . We disagree.”). Because in the Eighth Circuit, prisoners in custody pursuant to state-court judgments can only seek habeas relief under Section 2254, “[t]he petition at bar must . . . be construed as one pursuant to 28 U.S.C. 2254.” Jones v. Norris, No. 5:09CV00353, 2010 WL 346440, at *5 (E.D. Ark. Jan. 25, 2010) (Moody, J.); see also Murphy v. Bradly, No. 1:19cv00091, 2019 WL 5777712, at *1 n.1 (E.D. Ark. Sept. 20, 2019) (Volpe, J.), report and recommendation adopted, 2019 WL 5755886 (E.D. Ark. Nov. 5, 2019) (Miller, J.) (“constru[ing]” habeas petition that “purport[ed] to be pursuant to 28 U.S.C. § 2241 . . . as being pursuant to § 2254” because “where a habeas petitioner is in custody pursuant to a state court judgment, she ‘can only obtain habeas
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relief through § 2254, no matter how [her] pleadings are styled.’” (quoting Crouch, 251 F.3d at 723).
As a Section 2254 petition, however, Plaintiffs’ would-be habeas petition hits an insurmountable roadblock: Section 2254’s prohibition against granting relief “unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State”—which the “applicant shall not be deemed to have [done], within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. 2254(b)(1)(A), 2254(c). Plaintiffs do not allege that they have pursued any state-court remedy. To the contrary, their briefing concedes they did not. See DE 44 at 64-65.
Plaintiffs may raise their deliberate-indifference claims in state court under Section 1983 and the Arkansas Civil Rights Act (ACRA), Ark. Code Ann. 16-123-105, which this Court has interpreted as providing identical protections to Section 1983. See Hess v. Ables, No. 5:11-cv00249, 2012 WL 3882184, at *14 (E.D. Ark. Sept. 6, 2012) (Baker, J.), aff’d, 714 F.3d 1048, 1054 (8th Cir. 2013) (upholding this Court’s analysis). Indeed, the Arkansas Supreme Court has decided deliberate-indifference claims under both Section 1983 and the ACRA. See, e.g., Early v. Crockett, 436 S.W.3d 141 (Ark. 2014).
Plaintiffs may contend that their claim for release is only cognizable in habeas, not Section 1983. But as discussed above, many courts disagree, and so might the Arkansas courts. Therefore, whatever conclusion this Court reaches on that question, it must dismiss for nonexhaustion. For “[i]f a federal court is unsure whether a claim would be rejected by the state courts, the habeas proceeding should be dismissed without prejudice or stayed until the claim is fairly presented to them.” Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995) (emphasis added).
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Here the Court can be, at best, unsure whether Arkansas courts would reject Plaintiffs’ potential 1983 and ACRA claims out of hand.
CONCLUSION The Court should grant Defendants’ motion to dismiss.
Respectfully submitted, LESLIE RUTLEDGE
Arkansas Attorney General NICHOLAS J. BRONNI (2016097)
Arkansas Solicitor General VINCENT M. WAGNER (2019071)
Deputy Solicitor General ASHER STEINBERG (2019058)
Assistant Solicitor General JENNIFER L. MERRITT (2002148) Senior Assistant Attorney General JERRY GARNER (2014134) Assistant Attorney General OFFICE OF THE ARKANSAS
ATTORNEY GENERAL 323 Center St., Suite 200 Little Rock, AR 72201 asher.steinberg@arkansasag.gov
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 Case 4:20-cv-00434-KGB Document 84 Filed 07/13/20 Page 1 of 95

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

JUL 13 2020

NICHOLAS FRAZIER, ALVIN HAMPTON, MARVIN KENT, MICHAEL KOURI, JONATHAN NEELEY, ALFRED NICKSON, HAROLD ("SCOTT") OTWELL, TRINIDAD SERRATO, ROBERT STIGGERS, VICTOR WILLIAMS, JOHN DOE No. 1, AARON ELROD, CEDRIC SIMS, PRICE BROWN, TORRIS RICHARDSON, RODERICK WESLEY, CHARLES CZARNETZKI, DARRYL HUSSEY, LEE OWENS, JOSEPH "DALLAS" HEAD, WESLEY "GRANT" BRAY, JIMMY LITTLE, JOHN DOE No. 2 individually and on behalf of all others similarly situated,

'> ts: JAMES W. McCORMACK, CLERK

By:

DEP CLERK

Case No. 4:20-cv-00434-KGB
AMENDED CLASS ACTION COMPLAINT AND
PETITION FOR WRIT OF HABEAS CORPUS

Plaintiffs/Petitioners,
v.

WENDY KELLEY, Secretary of Arkansas Department of Corrections, in her official capacity; DEXTER PAYNE, Division of Correction Director, Arkansas Department of Corrections, in his official capacity; JERRY BRADSHAW, Division of Community Correction Director, Arkansas Department of Corrections, in his official capacity; ASA HUTCHINSON, Governor of Arkansas, in his official capacity; BENNY MAGNESS, Chairman of Arkansas Board of Corrections, in his official capacity; BOBBY GLOVER, Vice Chairman of Arkansas Board of Corrections, in his official capacity; LEE WATSON, Secretary of Arkansas Board of Corrections, in his official capacity; TYRONNE BROOMFIELD, Member of Arkansas Board of Corrections, in his official capacity; JOHN FELTS, Member of Arkansas Board of Corrections, in his official capacity; WILLIAM ("DUBS") BYERS, Member of Arkansas Board of Corrections, in his official capacity; WHITNEY GASS, Member of Arkansas Board of Corrections, in his official capacity; NATHANIEL SMITH, Secretary of Arkansas Department of Health, in his official capacity; WELLPATH LLC,

Defendants/Res ondents.

Case 4:20-cv-00434-KGB Document 84 Filed 07/13/20 Page 2 of 95
Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold Scott Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, John Doe No. 1, Aaron Elrod, Cedric Sims, Price Brown, Torris Richardson, Roderick Wesley, Charles Czarnetzki, Darryl Hussey, Lee Owens, Joseph "Dallas" Head, Wesley "Grant" Bray, Jimmy Little, John Doe No. 2 (collectively, "Named Plaintiffs"), individually and on behalfofall others similarly situated, bring this class action lawsuit and petition for writ of habeas corpus to seek relief against the substantial risk of COVID-19 infection, illness, and death while incarcerated in facilities operated by the Arkansas Department of Corrections ("DOC").
PRELIMINARY STATEMENT 1. Arkansas-like the rest of the United States and nations throughout the world-is facing an unprecedented public health crisis due to the COVID-19 pandemic. As of the filing of this Amended Complaint, 3,304,878 Americans have been infected with the virus, leading to 135,203 deaths nationwide. 1 The risk of infection, serious illness, and possible death from the coronavirus, especially among vulnerable populations, has led Arkansas to take the extraordinary measure of declaring a public health emergency and closing public schools for much of the past spring semester. 2. The rate of COVID-19 infection in Arkansas continues to rise, as with many other parts of the country, with 28,367 COVID-19 infections and 321 deaths statewide.2 COVID-19 infections in the state's correctional facilities make up a substantial portion of the infections statewide, with an infection rate of 1,368 per 10,000 incarcerated people-one ofthe highest prison
1 Arkansas COVJD-19 Update, Ark. Dep't of Health, https://experience.arcgis.com/ experience/c2ef4a4fcbe5458fbf2e48a21e4fece9 (last visited July 13, 2020).
2 Id. 2

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infection rates in the country.3 It is not a matter of ifor when the pandemic will wreak havoc in Arkansas' state prison system: the crisis has been underway for months, drawing national attention. It is now beyond debate that the measures put in place by Defendants to suppress COVID-19 are completely inadequate, and dangerously so.
3. When Plaintiffs filed their Complaint on April 21, 2020, there were 600 confirmed COVID-19 infections in Cummins Unit,4 after a single infection there only a week earlier.5 The day after this Court held a preliminary injunction hearing in this case, at which time Defendants pointed to the absence of viral outbreaks in other correctional facilities as evidence that the pandemic was well under control, 876 incarcerated people and 54 corrections staff in Cummins Unit had been infected, and six incarcerated people had died from COVID-19-related illness.6
4. Today, the COVID-19 statistics in Arkansas correctional facilities are even more stark with the virus spreading to five additional DOC facilities-East Arkansas Regional, Grimes, Northwest Arkansas Work Release, Ouachita River Correctional, Randall L. Williams, and Wrightsville Units-with 2,581 total confirmed infections of incarcerated people and 241 confirmed infections of corrections staff.7 The number of incarcerated people infected with
3 A State-by-State Look at Coronavirus in Prisons, The Marshall Project, https://www. themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons (last updated July 2, 2020).
4 Meghan Rhoos, One Arkansas Prison Makes Up Almost a Third ofState's Coronavirus Cases, Newsweek (Apr. 20, 2020), https://www.newsweek.com/one-arkansas-prison-makesalmost-third-states-coronavirus-cases-1499045.
5 First inmate tests positive for COVJD-19 at Arkansas prison, KATY (Apr. 12, 2020), https://katv .com/news/coronavirus/arkansas-department-of-correction-inmate-tests-positive-forcovid-19.
6 Andrew DeMillo, 6th inmate dies of coronavirus at Arkansas prison, Times Record, 2 (May 7, 2020), https://www.swtimes.com/news/20200507/6th-inmate-dies-of-coronavirus-atarkansas-prison.
7 Coronavirus (COVJD-19) Updates, DOC, (July 3, 2020), at https://adc.arkansas.gov/ coronavirus-covid-19-updates.
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COVID-19 has increased over 400% since Plaintiffs filed their initial Complaint. And these numbers are likely gross underestimates due to the lack of widespread testing in all of the correctional facilities throughout the State.
5. As we have seen from the COVID-19 outbreaks in nursing home facilities, cruise ships, and a naval aircraft carrier-as well as prisons and jails--congregate environments are breeding grounds for this highly contagious virus. Indeed, "mounting evidence has suggested that in crowded indoor spaces, the virus can stay aloft for hours and infect others, and may even seed so-called superspreader events."8 Infection rates in prisons are 5.5 times higher than in the general population and death rates are 3 times higher, but "while these numbers are striking, ... the disparities within prisons is much greater" due to lack of testing and reporting."9
6. People who are incarcerated eat together, sleep together, share restroom facilities, and have minimal control over their physical space. On a daily basis, they may come in close contact with hundreds of other incarcerated people as well as corrections staff. There are multiple opportunities on any given day when the COVID-19 virus could spread quickly from one infected person to several more due to the congregate setting and close living quarters. Because of inadequate COVID-19 prevention policies and ineffective implementation of policies that exist, people in DOC facilities cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear adequate protective clothing, obtain specific products for cleaning or laundry, or avoid high-touch surfaces.
7. President Trump's Coronavirus Guidelines for America, which are now ubiquitous,
8 Apoorva Mandavilli, The Coronavirus Can Be Airborne Indoors, W.H.O. Says, N.Y. Times (July 9, 2020) https://www.nytimes.com/2020/07/09/health/virus-aerosols-who.html.
9 Amanda Watts & Shelby Lin Erdman, Coronavirus deaths and infection rates higher in US prisons than general population, study says, CNN (July 8, 2020), https://www.cnn.com/2020/07/08/health/coronavirus-prisons-death-rates/index.html.
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highlight the importance of avoiding social gatherings of 10 or more people, washing your hands after touching a frequently used item or surface, and disinfecting frequently used items and surfaces as much as possible. 10 These general guidelines have been translated into correctional settings in the Centers for Disease and Control and Prevention's ("CDC") Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities ("CDC Guidance"), which emphasize, inter alia, operational preparedness for the virus, enhanced cleaning/disinfecting and hygiene practices, social distancing, infection control with use of personal protective equipment ("PPE"), medical isolation of confirmed or suspected cases and contacts, clinical care for confirmed or suspected cases, and considerations ofindividuals at higher risk of severe disease from COVID-19. 11
8. Despite the availability of the CDC Guidance since March 23, 2020, and the experience of witnessing one ofthe largest COVID-19 outbreaks in the country at Cummins Unit, Defendants have failed to comply with the standards set by the Eighth Amendment and the Americans With Disabilities Act ("ADA") through their official policies-and the implementation of those policies-by not sufficiently preventing and stemming the spread of COVID-19 and not properly treating those infected. Defendants have likewise failed to properly supervise and train corrections staff to carry out effective prevention practices and ensure appropriate medical treatment. Most importantly, Plaintiffs' personal experiences demonstrate Defendants' complete disregard for their health and safety during the crisis of this pandemic.
9. Some Plaintiffs continue to physically interact with well over a hundred people
10 The President's Coronavirus Guidelinesfor America, The White House (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_ 8.5xl 1_315PM.pdf.
11 CDC Guidance, CDC (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/ community/correction-detention/guidance-correctional-detention.html.
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each day, often without PPE or ready access to hygiene products. Corrections officers and incarcerated people continue to serve meals often without properly using masks and gloves-if they use them at all---exposing everyone to transmission of the virus. Showers are cleaned after everyone in the barrack (typically about 50 to 100 people) have used them, and restroom facilities are often in unsanitary conditions. Beds are within three feet of one another, far short of the recommended six feet. Incarcerated people who exhibit symptoms are not immediately tested and are forced to wait days for a sick call, increasing the likelihood of spreading the virus to others. Those who test positive are kept in substandard conditions in punitive isolation and areas of facilities that are not designed for housing-in many cases without access to running water or a restroom. Many who have not tested positive are exposed to people who have. Through all ofthis, incarcerated people are not fully informed ofany plans Defendants may have to protect them from COVID-19, nor are they adequately apprised of their medical condition and medical care should they be suspected or confirmed of infection.
I0. Of particular concern is the vulnerability of incarcerated people with disabilities, advanced age, and/or underlying medical conditions who could easily render COVID-19 infection a death sentence. Those individuals with chronic underlying health conditions, such as diabetes, heart disease, chronic lung and liver diseases, respiratory disease, and compromised immune systems, are at particular risk for grave outcomes from infection. People incarcerated in correctional facilities overall have a greater likelihood of infectious diseases, hypertension, diabetes, heart disease, and respiratory illness that have been found to increase the mortality of COVID-19 infection. And many ofthe Named Plaintiffs have severe conditions like heart disease, asthma, and cancer that would make them especially susceptible to serious illness or death from COVID-19. At the same time, prison medical facilities are limited; they lack vital equipment,
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expertise, and treatment mechanisms that are critical to providing adequate COVID-19 treatment and care.
11. Plaintiffs are in the custody and care of Defendants while they serve their prison sentences, and it is Defendants' responsibility to ensure that Plaintiffs' constitutional and statutory rights are protected during their confinement. Needlessly and recklessly subjecting Plaintiffs to the known risk of COVID-19 infection, with a likelihood of severe illness and possible death, is a wholesale abdication ofthat responsibility. Without court intervention, Plaintiffs fear that they will be left to suffer and possibly die as expendable casualties of this pandemic.
12. The outbreak of a highly infectious, deadly virus in a closed detention setting requires urgent and decisive action to protect the health and safety of those confined, those who work there, and the medical professionals who will treat the infected. A failure to take appropriate action will not only threaten all these lives, but also the lives ofArkansans far beyond prison walls, as the virus inevitably boomerangs back into surrounding communities, straining the limited medical capacity available, and accelerating the spread across the State, where intensive care units are already starting to reach capacity.12
13. While this lawsuit centers on the violation of Plaintiffs' rights and the extreme suffering they have endured-and will continue to endure-in the absence of relief from this Court, it also raises significant public health concerns for Arkansans in communities surrounding the correctional facilities. No prison is fully isolated from neighboring communities, and any COVID-19 infection can easily pass between people incarcerated in detention settings and corrections staff with subsequent transmission to friends, families, neighbors, store clerks, and
12 'We are on the edge'": UAMS chancellor says ICU is full, KATV (July l 0, 2020), https://katv.com/news/local/uams-intensive-care-unit-full-chancellor-says.
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others. And with at least 25%, ifnot more, ofCOVID-19 carriers exhibiting no symptoms, it would be impossible to screen individuals entering and leaving correctional facilities without the sort of widespread and immediate testing that is currently unavailable.
14. Importantly, the COVID-19 crisis in Arkansas correctional settings-like the pandemic at large-disproportionately harms Black and Latino Arkansans who are imprisoned at a rate four times and 1.5 times, respectively, higher than white Arkansans.13 Already, the percentage of Black Arkansans who are infected with, and die from, COVID-19 is roughly 1.5 times more than their percentage in the statewide population.14 The racial disparities for Latino communities are even greater: their percentage of COVID-19 cases is three times higher than their percentage of the state population. 1s The spread of COVID-19 from correctional facilities to the surrounding communities will further exacerbate this extreme racial disparity, as DOC facilities are mostly located in Southeastern Arkansas, which has a disproportionately higher population of Black residents than the rest of the state. The containment of the COVID-19 infection in DOC facilities, therefore, not only relates to Plaintiffs' rights to be free from unnecessary harm, but is also a larger racial justice issue regarding state officials' failures to equitably respond to this pandemic for all Arkansans.
15. Accordingly, Defendants must take serious, immediate action to mitigate the public health crisis the likes of which have never been encountered, not only to protect persons confined to their facilities, but also for the sake of corrections staff and neighboring communities.
13 Arkansas Profile, Prison Policy Institute, https://www.prisonpolicy.org/profiles/AR. html (last visited, July 13, 2020).
14 Arkansas COVID-19 Update: Case Demographics, Arkansas Dep't of Health, https://experience.arcgis.com/experience/c2ef4a4fcbe5458tbf2e48a21e4fece9 (last visited July 9, 2020); Quick Facts: Arkansas, U.S. Census Bureau (July 1, 2019), https://www.census. gov/quickfacts/AR.
IS Id.
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JURISDICTION AND VENUE 16. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343,2241,& 1651,and42U.S.C.§ 1983. 17. Venue is proper in this Court under 28 U.S.C. § 1391(e)(l) because a substantial part ofthe events, acts, and/or omissions giving rise to this action occurred, and continue to occur, in this District.
PARTIES I. Plaintiffs
18. Plaintiff Michael Kouri is 40 years old and is incarcerated in the Ouachita River Correctional Unit, a DOC prison. Mr. Kouri is housed in the 7 barracks. Mr. Kouri has been diagnosed with heart disease, specifically, aortic heart valve degeneration. He has an artificial heart valve and is on blood thinners. He also suffers from hypertension and extreme obesity. Mr. Kouri has difficulty walking more than 20 feet without stopping to catch his breath
19. On June 21, 2020 Mr. Kouri was tested for COVID-19. On June 23, 2020, approximately seven individuals, who were believed to have tested positive, were moved out of the barracks. The next day, on June 24, 2020, five individuals, presumed to have tested negative, were moved into the barrack. Around this same time, a corrections officer who works in the barracks tested positive. On June 26, 2020, everyone in the barrack received their test results. Mr. Kouri's result was negative. On that date, however, a corrections officer asked everyone to double-check their results noting that sometimes people "slip through the cracks." It turned out that one of the five individuals moved into Mr. Kouri's barrack two days prior had in fact been positive. He was moved out of the barrack 6 hours later.
20. On June 27, 2020, Mr. Kouri began experiencing more severe shortness of breath,
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headaches, lost sense of taste and smell, feverishness, and a cough. Previously, Mr. Kouri experienced more severe shortness of breath, headaches, chills, coughing, and was previously diagnosed with pink eye. According to the American Academy of Ophthalmology, conjunctivitis could be a symptom of COVID-19. 16 Mr. Kouri requested sick calls on June 25, 26, and 27, 2020. The only response Mr. Kouri received-at the end ofthe day on June 28, 2020--said that he would be contacted. Mr. Kouri submitted an emergency grievance that same evening. It was only then that he was seen by a nurse.
21. Mr. Kouri is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions. Mr. Kouri shares a small cell with one other person and lives in a barrack with approximately 80 other incarcerated people. On an average day, Mr. Kouri closely interacts with the other people housed in his barrack as well as approximately five correctional staff members, making social distancing impossible.
22. Mr. Kouri believes that the majority of his barracks is infected with COVID-19. The entire housing unit was tested again on July 8, 2020, with results pending. Many people in the barracks recently lost their sense oftaste and smell. Others have exhibited additional symptomsincluding fevers, coughing, and extreme exhaustion. Mr. Kouri believes the virus spread after either correctional staff moved someone who had tested positive into the barrack or after an infected corrections officer came to work sick. The cells were not sanitized or disinfected before the new people moved in. Although Ouachita River Correctional Unit took steps to improve conditions in the facility in late April and early May 2020, by the end ofMay,just after this Court issued an order denying a preliminary injunction, correctional staff members failed to maintain
16 Reena Mukamal, Eye Care During the Coronavirus Pandemic, Am. Acad. Ophthalmology (Mar. I 0, 2020), https://www.aao.org/eye-health/tips-prevention/coronaviruscovid 19-eye-infection-pinkeye.
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adequate measures to mitigate the spread of infection. Since at least June 2020, hand sanitizer has not been readily available and correctional staff members have not enforced social distancing protocols.
23. Mr. Kouri frequently observes staff members not wearing masks properly-below their chin--or sometimes not wearing masks at all. Mr. Kouri is also aware of staff members returning to work within less than 14 days after testing positive for the virus. Mr. Kouri filed a grievance related to his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread of the virus. When the grievance was denied, he appealed the grievance to step three. He received a denial from Pine Bluff, dated June 10, 2020, some three weeks later, on July 2, 2020. On April 18, 2020, Mr. Kouri submitted an emergency grievance requesting reasonable accommodations under the ADA for a single man cell, extra cleaning supplies, PPE, and release. He received a response the same day that DOC is doing everything the CDC has outlined and upper management has directed.
24. Mr. Kouri indicated that it is difficult to file a grievance. Often, there are no grievance forms readily available to inmates and even if an inmate can locate a form, it can take hours to obtain a signature from a Sergeant. Mr. Kouri is a member of the Class and both Subclasses.
25. Plaintiff Trinidad Serrato is 34 years old and is incarcerated in the Ouachita River Correctional Unit. Mr. Serrato is a carrier for tuberculosis and suffers from asthma. He resides in a barrack with approximately 44 other people. Mr. Serrato was tested twice for COVID-19. Mr. Serrato received negative results from both tests. Seven other people in his barracks tested positive. More recently, Mr. Serrato has experienced symptoms of COVID-19, including cold sweats and muscle aches. Mr. Serrato is critically vulnerable to COVID-19 because of his
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underlying health issues. 26. Mr. Serrato encounters about 60 people a day. Mr. Serrato is assigned to work in
the kitchen. Prior to exhibiting symptoms, Mr. Serrato worked for 13 hours in the kitchen with other inmates that had tested positive for COVID-19. Twenty to thirty people from different barracks work in the kitchen at a time. Mr. Serrato was told he must continue working until he tests positive. Food is delivered to the kitchen from Cummins Unit, which has the highest number of documented COVID-19 cases of all DOC facilities. Mr. Serrato's current living and working conditions make social distancing impossible. Mr. Serrato filed a grievance regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread ofthe virus.
27. On April 19, 2020, Mr. Serrato submitted an emergency grievance explaining his vulnerability to COVID-19 due to his medical conditions and requesting reasonable accommodations under the ADA. Sergeant D. Griffin (91214) acknowledged receipt by signing off on this grievance on April 19, 2020. Mr. Serrato is a member of the Class and both Subclasses.
28. PlaintiffNicholas Frazier is 37 years old and is incarcerated in the Varner Supermax facility, a DOC prison. Mr. Frazier suffers from seizures, asthma, and Hepatitis. Mr. Frazier has not received a COVID-19 test. Mr. Frazier is critically vulnerable to COVID-19 because of his underlying health conditions. Mr. Frazier comes in close contact with other people about six times a day. Mr. Frazier has noticed staffing shortages within the correctional facility. Staff shortages have made it difficult for Mr. Frazier and other inmates to request and receive assistance. Mr. Frazier has observed many staff members not wearing masks. Mr. Frazier has not been provided a mask or any other PPE. He also has not been provided with disinfectant to sanitize his cell.
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29. Mr. Frazier filed multiple grievances regarding his vulnerability to COVID-19, availability ofCOVID-19 testing, and the prison's non-compliance with procedures to decrease or prevent the spread ofthe virus. On April 18, 2020, Mr. Frazier submitted an emergency grievance explaining that his medical conditions make him high risk for COVID-19 and requesting reasonable accommodations under the ADA for daily access to cleaning supplies. Sergeant Garcia acknowledged receipt by signed off on this grievance on April 18, 2020. Mr. Frazier is a member of the Class and both Subclasses.
30. Plaintiff Marvin Kent is 40 years old and is incarcerated in the Varner Unit. Mr. Kent has been diagnosed with heart failure and has a pacemaker. He suffers from chest pain daily. Mr. Kent also has hypertension and high cholesterol. Despite experiencing COVID- 19 symptoms, including headaches, body aches, coughing, and nausea, Mr. Kent was not tested for the virus while in restrictive housing in Varner's supermax facility. Since returning to general population, Mr. Kent continues to be critically vulnerable to complications from COVID-19 because of his significant underlying health conditions. In the past, it has taken between three weeks and one month for Mr. Kent to be seen by a doctor after submitting a medical request. Mr. Kent experienced COVID-like symptoms for approximately two months, but prison staff refused to test him. He is also aware of many other incarcerated men at Varner who similarly exhibited symptoms and were not tested.
31. Although Varner has taken some precautions since the start of the pandemic, it remains impossible for Mr. Kent to practice social distancing as of early July 2020. He lives in an open barracks with 50 other men, and comes into contact with more than 50 individuals a day, including 15-20 staff members. Only half the staff members wear masks, and even those staff members who wear masks often wear them improperly. Mr. Kent is a member of the Class and
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both Subclasses. 32. Plaintiff Harold Otwell is 49 years old. He is incarcerated in the Ouachita River
Correctional Unit and is housed in the Alpha barracks. Mr. Otwell is a first-time, non-violent offender. He was approved for parole at the end ofJune. Mr. Otwell is obese, pre-diabetic, and has osteoarthritis. He receives physical therapy for his right hip and has limited mobility. Mr. Otwell was tested for COVID-19 twice in the month of June 2020 in a mass testing of his barracks. After receiving the results of the first test, correctional staff removed eight people out of the barracks. Six of the people removed were food services workers and one was a porter in the hospital wing. Mr. Otwell received a negative test result on his first test and has not received the results of his second test administered around June 29, 2020. Mr. Otwell is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions.
33. Mr. Otwell resides in a barrack with approximately 46 other people. He sleeps in a bed that is 2.5 feet away from neighboring beds. Mr. Otwell's laundry assignment also requires frequent interaction with newly incarcerated people who have recently been committed to the facility. At least one person housed with Mr. Otwell has demonstrated symptoms ofCOVID-19. Mr. Otwell's current living and working conditions make social distancing impossible. Mr. Otwell filed a grievance regarding his vulnerability to COVID-19. His grievance was denied.
34. On April 19, 2020, Mr. Otwell submitted an emergency grievance explaining his vulnerability to COVID-19 due to his medical conditions and requesting reasonable accommodations under the ADA. He received a response on April 21, 2020, that said, "see attachment." The attachment was a typed statement from the deputy warden stating that they were doing everything they could and asking him to be patient. This typed response was given to several other men in his barrack in response to grievances related to COVID precautions. Mr. Otwell is a
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member ofthe Class and both Subclasses. 35. Plaintiff Robert Stiggers is 35 years old and is incarcerated in Cummins Unit, a
DOC prison. Mr. Stiggers suffers from asthma, which makes him critically vulnerable to complications from COVID-19. He lives in a cell with another inmate, where they share a toilet and sink. In Mr. Stiggers' housing unit, five people shower at a time. The showers are not cleaned until after everyone in the barrack has showered, which is approximately 90 people. During recreation time, Mr. Stiggers is placed outside with ten other incarcerated people. Although he has observed corrections officers wearing masks, they do not wear them properly--exposing their mouth and/or nose about half the time.
36. Mr. Stiggers's current living conditions make social distancing impossible. Mr. Stiggers filed a grievance regarding his vulnerability to COVID- I9 and the prison's noncompliance with procedures to decrease or prevent the spread of the virus. Mr. Stiggers is a member of the Class and both Subclasses.
37. Plaintiff Alfred Nickson is 61 years old and is incarcerated in Cummins Unit. Mr. Nickson suffers from diabetes, rheumatoid arthritis, and osteoarthritis. Before his incarceration, Mr. Nickson also received medication for bipolar disorder-Mr. Nickson has not received any psychiatric medication while incarcerated. Mr. Nickson is critically vulnerable to complications from COVID-19 because of his age and significant underlying health conditions. Mr. Nickson lives in Barracks 12-B with 46 other inmates. In the barrack, beds are less than 2.5 feet apart and inmates are not sleeping from head to foot. Mr. Nickson was provided with one mask, which he must regularly wash and dry himself. Barrack 12-B has major structural and sanitary issues-bathroom sinks are not functioning properly and are blackened with dirt and grime, showers are clogged and often flood, latrines are not flushing properly, and there are holes
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in the ceiling that leak when it's raining. Mr. Nickson and other inmates in Barrack 12-B are not provided with sufficient cleaning equipment to maintain sanitary conditions. Previously, Mr. Nickson lived in a cell with another inmate, where they shared a toilet and sink. Mr. Nickson has not been provided with disinfectant to sanitize his cell since the COVID-19 pandemic began.
38. Mr. Nickson filed two grievances regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread of the virus. The original copies ofMr. Nickson's grievances were lost. Mr. Nickson has attempted to file additional grievances, but correctional staff members have refused to sign his grievance forms. Mr. Nickson is a member ofthe Class and both Subclasses.
39. Plaintiff Victor Williams is 56 years old. He is incarcerated in the Ouachita River Correctional Unit. Mr. Williams is currently in remission from lymphoma. He also suffers from a collapsed lung, hypertension, and bruised tissue surrounding his heart. On May 30, 2020, and at the end ofJune 2020, Mr. Williams was tested for COVID-19, as a part of a mass testing initiative within his barracks. After the administration of the mass tests, seven to eight people were moved out of his barracks. Some inmates tested negative, but were still exhibiting symptoms for COVID19. Mr. Williams tested negative on each of his tests. Mr. Williams has experienced body aches, headaches, severe coughing, and a sore throat for over a month. Mr. Williams is critically vulnerable to complications from COVID-19 because of his significant underlying health conditions.
40. Mr. Williams is housed with 46 other people. He sleeps in a bed that is 2.5 feet away from neighboring beds. Social distancing and mask protocols are not enforced within Mr. William's housing unit. Only 15-20 people wear masks and there is no social distancing in common areas. In Mr. Williams's housing unit, multiple people shower at a time, and showers are
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not disinfected daily. In the past, common areas and bathrooms were cleaned by inmates twice a week. More recently, correctional staff have taken responsibility for cleaning the facility and have only cleaned once over a period of several weeks.
41. Mr. Williams is a peer counselor in his barrack. He has been exposed to many people who are currently sick, and he fears that it is only a matter oftime before he starts exhibiting COVID-19 symptoms. Also, many of the same corrections officers move throughout different barracks. Some officers have been sent home with high fevers. Mr. Williams has observed staff shortages in his barracks. Mr. Williams has regularly observed officers working double shifts or extended hours because there are not enough staff members available to replace them. Mr. Williams regularly observes correctional staff members without masks.
42. Mr. Williams has noticed major delays in medical services at his facility. Normally, medical requests are addressed within two to three days. Recently, Mr. Williams waited three weeks after making a request for medical attention for a severe cough. Mr. Williams filed a grievance regarding his vulnerability to COVID-19 and the prison's non-compliance with procedures to decrease or prevent the spread ofthe virus. His grievance was denied. Mr. Williams is a member of the Class and both Subclasses.
43. Plaintiff Alvin Hampton is 43 years old and is incarcerated in the Ouachita River Correctional Unit. Mr. Hampton suffers from seizures, Bell's palsy, and bipolar disorder. Mr. Hampton received two tests for COVID-19 after some people in his barrack tested positive for the virus. Mr. Hampton's first test was negative. Mr. Hampton has not received the results of his second test, taken on June 30, 2020. Many people housed in Mr. Hampton's barracks have been sick with COVID-19 symptoms, including people working in the kitchen. Mr. Hampton is critically vulnerable to complications from COVID-19 because ofhis significant underlying health
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conditions. 44. Since early May, Mr. Hampton has not gone to the cafeteria or recreational yard.
However, even within his barrack, there are limited opportunities to social distance. He resides in a barrack with approximately 46 other people. He sleeps in a bed that is 2.5 feet away from neighboring beds. In Mr. Hampton's housing unit, multiple people shower at a time, and showers are not disinfected daily. Mr. Hampton's current living conditions make social distancing impossible.
45. Mr. Hampton has observed major staff shortages in his barrack. Staff are forced to cover more than one barrack at a time and sometimes do not wear masks or gloves when moving between barracks. Mr. Hampton has filed two grievances regarding his vulnerability to COVID19 and the prison's non-compliance with procedures to decrease or prevent the spread ofthe virus. Both grievances were denied. He submitted his second grievance on April 19, 2020. It was an emergency grievance requesting reasonable accommodations under the ADA. He received a response on April 22, 2020, that said, "see attachment." The attachment was a typed statement from the deputy warden stating that they were doing everything they could and asking him to be patient. This typed response was given to several other men in his barrack in response to grievances related to COVID precautions. Mr. Hampton has been unable to file additional grievances. The deputy warden in Mr. Hampton's facility is refusing to make grievance forms available. Mr. Hampton is a member ofthe Class and both Subclasses.
46. Plaintiff Jonathan Neeley is 36 years old and is incarcerated in the Ouachita River Correctional Unit. He is housed in the Special Needs Unit. Mr. Neeley was diagnosed with rectal cancer in January 2020. For the past month, he has been receiving both radiation and chemo treatments, which vastly suppress his immune system. His civilian doctor has repeatedly urged
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prison officials to relocate Mr. Neeley to a place where he will have little contact with others, but he remains in an open barrack. Mr. Neeley took a COVID-19 test on June 30 and June 21, 2020. Mr. Neeley never received the results of either test. Mr. Neeley is critically vulnerable to complications from COVID-19 because of his significant underlying health condition.
47. Mr. Neeley has traveled to three local hospitals recently related to his cancer diagnosis. On one ofhis recent trips to radiation and chemotherapy treatment for his stage 3 cancer, his corrections officer escort was coughing and had a runny nose. They were in the same vehicle for approximately three hours. At no point during the ride did the corrections officer wear a mask or any other PPE, despite his condition and the fact that they were traveling to a medical facility.
48. Mr. Neeley resides in the SNU barracks with approximately 46 other people. New people are moved into Mr. Neeley's barrack without first being tested to determine if they are infected with COVID-19. Mr. Neeley sleeps in a bed that is approximately 1.5-2 feet away from neighboring beds. Mr. Neeley must shower in close proximity to other inmates. About 20 people travel from their barracks to the cafeteria together. Mr. Neeley has chosen to self-quarantine and not go to the cafeteria during meal times to protect himself. Mr. Neeley does not have access to adequate cleaning supplies or disinfectant. Mr. Neeley has also noticed less staff throughout the prison. Mr. Neeley believes the spread ofthe virus amongst staffmembers has left the prison shortstaffed.
49. Due to his health condition, Mr. Neeley frequently visits the medical clinic. While waiting to be seen by a clinician, he is put in a small holding cell with approximately 10 other incarcerated people. Mr. Neeley's current living conditions make social distancing impossible. Mr. Neeley filed a grievance regarding his vulnerability to COVID-19 and the prison's noncompliance with procedures to decrease or prevent the spread of the virus. His grievance was
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denied. 50. On April 19, 2020, Mr. Neely submitted an emergency grievance explaining his
vulnerability to COVID-19 due to his medical conditions and requesting reasonable accommodations under the ADA. He received a response on April 21, 2020, that said, "see attachment." The attachment was a typed statement from the deputy warden stating that they were doing everything they could and asking him to be patient. This typed response was given to several other men in his barrack in response to grievances related to COVID-19 measures. Mr. Neeley is two years past his release date and has completed all required pre-release programs. Mr. Neeley is a member of the Class and both Subclasses.
51. Plaintiff John Doe No. 1 is in his twenties and is incarcerated in Cummins Unit. John Doe No. 1 is housed in a barrack with approximately 50 other people. Mr. Doe tested positive for COVID-19. He suffers from severe asthma, which requires use of an inhaler throughout the day. John Doe No. 1 is critically vulnerable to complications from COVID-19 because of his significant underlying health condition. John Doe No. 1 reported feeling unwell and suffering from fatigue on April 11, 2020. John Doe No. 1 believes he was placed in lock down as retaliation for disclosing the unconstitutional conditions at Cummins Unit. John Doe No. 1 is a member of the Class and both Subclasses.
52. Aaron Elrod is a 30-year-old man who is currently incarcerated at the Central Arkansas Community Correction Center ("CACCC"). In late March or early April 2020, Mr. Elrod began exhibiting symptoms ofCOVID-19. Contrary to representations made by Defendants that all individuals at CACCC who tested positive were asymptomatic, Mr. Elrod experienced various COVID-19 symptoms, including a fever, severe headache, and loss of taste and smell. Mr. Elrod has only recently begun to regain his sense oftaste and smell. Mr. Elrod received only Tylenol and
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a cough suppressant for his symptoms, and he never saw a doctor visit any ofthe sick residents on his wing.
53. Mr. Elrod currently resides on a wing with approximately 40 other men with whom he sleeps, eats, and attends classes in very close proximity. His job requires him to continuously walk throughout much of the facility, closely interacting with people from other wings. Mr. Elrod also regularly interacts with most of the security and treatment staff. Mr. Elrod understands that there are currently people quarantined on A-wing who are infected with COVID-19, and staff members regularly move in and out ofthat wing. He fears that nothing has changed since the April outbreak and that the entire facility remains at risk.
54. Cedric Sims is a 30-year-old man who is currently incarcerated at CACCC. Mr. Sims has high blood pressure, which places him at a heightened risk from COVID-19. In late March or early April 2020, Mr. Sims began exhibiting symptoms of COVID-19. He went to medical for treatment, where a nurse took his temperature and observed that he had a fever. Mr. Sims requested a test for COVID-19, but the nurse tested him only for the flu and then placed him in a punitive isolation cell for six days. Mr. Sims experienced various COVID-19 symptoms, including a high fever, serious headache, the worst body aches of his life, chest pain, difficulty breathing, and loss of taste and smell. He received only Tylenol and Mucinex for his symptoms.
55. After six days in isolation and without testing him for COVID-19, medical staff returned Mr. Sims to his unit, where there was no social distancing, and individuals who did and did not exhibit symptoms were mixed together. Sometime later, after the death of counselor Richard Richardson, CACCC staff tested individuals for COVID-19. During the two-day period between Mr. Sims's test and his receipt of a positive test result, CACCC staff left him in general population. After he tested positive, they sent him back to isolation and never retested him. In
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addition to the incarcerated individuals who tested positive, some CACCC stafftested positive and returned to work without waiting 14 days from the date oftheir positive results.
56. Mr. Sims currently resides in a wing with 40 other individuals who eat together daily with no separation from each other. On an average day, he encounters at least 50 incarcerated individuals and twelve staff members. Staff members often wear masks incorrectly, leaving the masks below their mouth and nose, and rarely wear gloves. Mr. Sims sits in classes in the gym for several hours a day along with all other residents-about I00 people. During these classes, residents sit elbow-to-elbow with other residents on their wing and each wing is separated by only a few feet. Each wing eats and goes to yard call separately, but otherwise all residents can and do interact with one another throughout the day. Mr. Sims is a member of the Class and the HighRisk Subclass.
57. Mr. Sims, along with other residents, cleans the bathroom and sleeping area twice per day. However, they are not provided chemicals effective against COVID-19. A cleaning crew comes only once per day to clean sinks and showers with bleach.
58. Price Brown is a 48-year-old man, who is currently incarcerated at the East Arkansas Regional Unit ("EARU") in the maximum-security unit. He has high blood pressure. Although Mr. Brown is in a solitary cell, he showers at the same time as five other individuals. His repeated requests for a mask have been denied by prison staff. He receives cleaning supplies for his cell three times a week, but the quantity is insufficient. Mr. Brown has not observed increased cleaning ofthe prison since the beginning ofthe outbreak. As ofJuly 6, 2020, there were 650 positive cases of COVID-19 in EARU. He is a member of the Class and the High-Risk Subclass.
59. Torris Richardson is 37 years old and currently incarcerated at Cummins Unit. He
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has multiple underlying conditions that place him at an elevated risk from a COVID-19 infection, including asthma, high blood pressure, and a thyroid issue. Like many individuals at Cummins, he has tested positive for COVID-19. As a result of his infection, Mr. Richardson lost 50 pounds, became very weak, struggled to breathe, and alternated between feeling both very hot and very cold. When he first tested positive, he was living in an open barrack where the beds are approximately 18 inches from each other. The barrack residents knew something was wrong when they all began losing their sense of taste.
60. Mr. Richardson is currently in restrictive housing, where he has been placed since early June 2020. When he moved into his current cell, Mr. Richardson was still symptomatic, and his cellmate did not have COVID-19. Now his cellmate is sick but has not been retested since Mr. Richardson moved in with him. It is not possible to socially distance in the cell because the two men sleep in a bunk bed and there is not enough room in the cell to be six feet apart from each other during the day. Some corrections officers wear masks, but Mr. Richardson estimates that a little less than half do not. Mr. Richardson is a member of the Class and both Subclasses.
61. Roderick Wesley is a 43-year-old man, who is incarcerated at the Varner Unit. Mr. Wesley has high blood pressure and a chronic issue with his kidneys that place him at elevated risk from a COVID-19 infection. Social distancing is difficult or impossible for him because he lives in an open barracks with 47-50 other people.
62. Mr. Wesley currently has a single mask, and Varner staff denied his request for a second mask. He encounters five to six staffmembers a day, and he estimates that a little less than half of them wear masks. Incarcerated people frequently complain about corrections staff not wearing masks, but the staff do not take wearing masks seriously. Based on Mr. Wesley's experience and observations, it is very difficult to get medical treatment from the prison medical
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facilities. He is a member ofthe Class and both Subclasses. 63. Charles Czarnetzki is 45 years old and is currently incarcerated at the Tucker Unit.
He has Hepatitis C and breathing issues, and he was treated for chronic obstructive pulmonary disease before his incarceration. He also struggles with seizures, which is compounded by the inadequate medical care that he receives at Tucker.
64. Social distancing is not possible for Mr. Czarnetzki. He lives in a barracks with 136 other men. They sleep head to head, and their beds are separated only by 12-inch aisles. The men are supposed to share ten toilets, but only five are functioning. He takes classes where 40-60 individuals sit shoulder to shoulder in a classroom. The counselors who teach the classes generally wear masks, but they pull them aside to make themselves heard. In the chow hall, four men sit at each crowded table. On a normal day, he comes into contact with hundreds of other incarcerated men plus seven staff members.
65. Mr. Czarnetzki received one mask, which he has been forced to repair himself multiple times, and his requests for a second mask and for gloves have been denied. He has observed only one small sign posted regarding COVID-19. In early May 2020, Tucker Unit staff began taking individuals' temperatures before they went to chow hall, but they do so inconsistently and sometimes not at all. In mid-May 2020, Tucker Unit staffbegan an increased cleaning regimen in the facility, but it only lasted about two weeks before reverting to previous practices. Mr. Czarnetzki has observed some corrections officers not wearing masks. Mr. Czarnetzki is a member of the Class and both Subclasses.
66. Darryl Hussey is a 49-year-old resident of Cummins Unit who suffers from epilepsy. Mr. Hussey became infected with COVID-19 in March 2020 of this year. He exhibited symptoms, including a temperature that ranged from 101-104 degrees, for approximately one
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month before he was placed in quarantine. Over that period, he lost 30 pounds. A doctor wanted to keep Mr. Hussey in the infirmary after seeing how ill he was; however, the warden overruled the doctor and had him moved to a punitive isolation cell. While in quarantine, Mr. Hussey would be left up to six hours without staff checking on him.
67. On April 9, 2020, a nurse became concerned about his condition and sent him to the UAMS Medical Center, where he remained for a week. After returning to Cummins Unit, he was placed back in a punitive detention cell for a month, where staff rarely checked on him. At one point, staff found him passed out and took him to medical, where he regained consciousness with a swollen left leg and no feeling in his right arm. Following his month in isolation, Mr. Hussey was sent to a barrack with COVID-positive individuals. He was not retested.
68. Social distancing is impossible for Mr. Hussey, and Cummins Unit staffrepeatedly
mix barracks that are on quarantine with those that are not. Beds are placed three feet apart from
each other, and Mr. Hussey comes into contact with approximately 50-55 incarcerated men each day. Multiple barracks go to the chow hall at the same time, including a mix of quarantined and non-quarantined barracks. Similarly, two barracks at a time are sent for recreation, and Mr. Hussey's quarantined barrack was recently sent for recreation with a non-quarantined barrack.
69. Mr. Hussey knows of one staff member who exhibited COVID-19 symptoms and continued to report to work while symptomatic. Corrections officers wear masks at their discretion. Those who work in the quarantined barracks generally wear masks, but those who come through the quarantined barracks on security rounds generally do not. Even when corrections officers do wear masks, they often wear them improperly, usually keeping the masks below their chins.
70. Mr. Hussey has not seen signs posted with information about COVID-19 and has not received COVID-19 information from corrections staff. Ifhe wants to obtain information about
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the pandemic, he has to watch the news on television. Mr. Hussey received one mask from the prison, and two from the hospital. Cummins Unit staff encourage individuals to wear masks when outside oftheir barracks, but have not suggested that they wear masks inside barracks. Mr. Hussey has not observed increased cleaning of the prison during the pandemic and he notes that cleaning is conducted with watered-down cleaning supplies. He is a member of the Class and both Subclasses.
71. Lee Owens is 47 years old and incarcerated at East Arkansas Regional Unit ("EARU"). He has been diagnosed with diabetes and chronic respiratory illness. Until mid-June 2020, he lived in an open barracks with 39 people, where he could touch the bed next to him. The men were provided some information about sleeping head to foot, but few people were doing it. Because of the major outbreak at EARU, everyone in his barrack was tested for COVID-19 on June 10, 2020. They received their results a week later, and Mr. Owens and the 19 other individuals who tested negative were moved to a single classroom in the facility's school building.
72. The men are sleeping on mats on the floor and have been told they will be quarantined in the building for three weeks. The building does not have running water, and ifthey need to use the bathroom, they must knock on the door to get a staffescort. Mr. Owens' medication requires him to use the bathroom with some regularity, and corrections officers have in some instances refused to escort people to the bathroom at all.
73. Mr. Owens is aware of multiple corrections officers who continued to report to work while infected with COVID-19. Currently, only about one-half of corrections officers wear masks, and those who do wear masks usually wear them incorrectly, covering their mouths but not their noses. People incarcerated at EARU are expected to wear masks when they leave their barracks, but not inside their barracks. EARU does not have soap in the bathrooms for individuals
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to wash their hands. Mr. Owens is a member ofthe Class and of both Subclasses. 74. Joseph "Dallas" Head is a 42-year-old man who is incarcerated in the maximum
security unit at Tucker Unit. He has asthma, cardiovascular issues resulting from two prior heart attacks, and Hepatitis C. On any given day, he comes into contact with most of the 54 men who live in his barracks and with approximately 20 staff members. Mr. Head has observed only one CDC sign posted in English and no other signage related to COVID-19. The men incarcerated at Tucker do not have access to the Morning Show. Approximately half of the staff members whom Mr. Head encounters wear their masks correctly; the other half use them as "chin straps or beard nets." Although Mr. Head has seen Citrus Breeze in the front office, he has never seen it used elsewhere in the facility. Mr. Head is a member of the Class and both Subclasses.
75. Wesley "Grant" Bray is 29 years old and is incarcerated at the Grimes Unit. Until a few weeks ago, Mr. Bray worked in the kitchen, where several individuals exhibited symptoms consistent with COVID-19. The symptomatic men were told by prison staffto put in for a sick call and keep working in the kitchen. The treatment of these symptomatic kitchen workers was reflective ofthe prison's approach to symptomatic individuals generally; symptomatic inmates had no immediate access to medical care and were required to put in a sick call and wait for it to be scheduled.
76. Mr. Bray is unable to practice social distancing. On any given day, he comes into contact with between 300-400 other incarcerated men. He lives in a barracks with 40 other people, and all ofthe beds are three feet apart. Although they received a memo suggesting that they sleep head to foot, none of the men in the barracks do so. Two (and sometimes three) barracks go to the chow hall at a time, and they also come into contact with the next group of barracks when they are rotating out ofthe hall after eating. Mr. Bray has also recently been moved from the kitchen to the
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hoe squad, where he works in a group of I00 men who are forced to stand in close proximity to each other.
77. Mr. Bray has observed corrections officers wearing masks sparingly. There are currently no posted signs with information regarding COVID-19, though signs had been posted previously. Mr. Bray is a member of the Class.
78. Jimmy Little is 40 years old and incarcerated at Randall L. Williams Correctional Facility, a DOC prison facility. Mr. Little has a has a collapsed lung, emphysema, and Chron's Disease, which weakens his immune system. Mr. Little is in a SATP program in five barrack with approximately 60 other men. The program continued to operate, and he was expected to continue attending classes after the COVID-19 outbreak at his facility. He sleeps in the center of an open barrack. Seven men sleep in an eight-foot circle around him.
79. In May 2020, despite the program continuing to run, mental health services and the law library were shut down. Although Mr. Little experienced increased anxiety due to the pandemic, he was unable to access mental health services. Because the law library was closed, Mr. Little was not able to access the ACLU's phone number or a 1883 form. During this time, seven barrack was infected with COVID-19. There is a window at the security station between Mr. Little's barrack and seven barrack that allows a free flow of air between the two barracks. Corrections staff also allowed peer guides from seven barrack into his barrack to get items like tablets.
80. Mr. Little has submitted several grievances related to Defendants' failure to take precautions to protect incarcerated individuals from the spread of COVID-19 and keep incarcerated individuals informed about COVID-19. Some of his grievances were thrown in the trash. He has submitted a grievance about his grievances being thrown away. He also submitted a
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request form seeking clarification of the grievance process. Instead of receiving assistance, he received a response that stated, "You have a #122430 inmate number. You should know the process. Most any inmate should be able to assist."
81. Mr. Little submitted a grievance on May I0, 2020, requesting better masks, as the masks made at Cummins Unit do not seal on around the checks and leave open a gap. He also expressed concern that the masks came from a unit with a significant COVID-19 outbreak. Additionally, he addressed his inability to social distance and the transfer of incarcerated individuals from an infected barracks into his barrack. On that same day, Mr. Little received a response stating, "All masks issued were sanitized beforehand. Precautions are being taken within ADC to combat COVID-19. Hand sanitizers and soap are located throughout the facility."
82. Mr. Little escalated this grievance to an emergency grievance when moving to step two. In step two of his grievance, he explained that the hand sanitizer dispensers are in the hallways, and no one is allowed to leave the barracks due to quarantine. Thus, the hand sanitizer is inaccessible. The deputy warden's response focused on COVID-19 testing procedures and did not address the issues raised by Mr. Little. The denial of the grievance was upheld at step 3, and the issues raised by Mr. Little were never addressed.
83. Mr. Little is critically vulnerable to COVID- I9 because of his underlying health conditions. Mr. Little is a member ofthe Class and both Subclasses.
84. PlaintiffJohn Doe No. 2 is 36 years old and incarcerated at the Randall L. Williams Correctional Facility. He is obese with a history ofhigh blood pressure, and suffers from a lifelong history of respiratory issues, including childhood asthma and intermittent bouts of pneumonia beginning in early childhood. He has been diagnosed with pneumonia approximately five times in his life, most recently in 2015. At that time, the medical personnel treating him removed close to
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two liters of fluids from his lungs, noting that it was the most they had ever seen. 85. John Doe No. 2 tested positive for the virus in May 2020. He had a cough, body
aches, loss of taste and smell, and was unable to get out of bed for four days. His oxygen level dropped to 93 percent. While ill, he was not provided with even Tylenol/Ibuprofen most days. He had to purchase Tylenol from the commissary, but there was a period where the commissary no longer had any fever-reducing medication left to sell. He has been advised that the filing of a grievance could lead to expulsion from his program. He was so ill at one point that he was unable to walk to a scheduled legal call. John Doe No. 2 is a member of the Class and the High-Risk Subclass. II. Defendants
86. Defendant Wendy Kelly is the Secretary of DOC. As such, she is the executive head of DOC and commanding officer of all DOC correctional officers, guards, employees and contractors, and is responsible for their training, supervision, and conduct. At all times described herein, she was acting under color of state law. She is sued in her official capacity for declaratory and injunctive relief.
87. Defendant Dexter Payne is the Director of the DOC Division of Correction ("ADC"). As such, he is the executive and administrative officer of ADC, and is responsible for supervising the administration ofall ADC correctional institutions, facilities and services; ensuring adequate staffing levels at correctional institutions; instituting training and development of correctional staff; and coordinating with judicial districts, counties, and municipalities to provide guidance and services to ensure a full range of correctional options for the State as a whole. Defendant Payne, as the Director ofthe ADC, has the power to make people incarcerated in ADC
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correctional facilities eligible for release. He is sued in his official capacity for declaratory and injunctive relief.
88. Defendants Benny Magness, Bobby Glover, Lee Watson, Rev. Tyronne Broomfield, John Felts, Dr. William Byers, and Whitney Gass are members ofthe Arkansas Board of Corrections ("BOC") (collectively, "BOC Defendants"). The BOC is the governing authority ofDOC and performs all functions with respect to the management and control of DOC. The BOC, along with the Director ofthe Division ofCorrection, has the power to release people incarcerated in DOC facilities. At all times described herein, the BOC Defendants were acting under color of state law. They are being sued in their official capacity for declaratory and injunctive relief.
89. Defendant Jerry Bradshaw is the Director of the DOC Division of Community Corrections ("ACC"). As such, he is the administrative officer of ACC, and is responsible for supervising the administration of all ACC facilities, programs and services; maintaining adequate staffing levels; providing ACC staffwith training and professional development opportunities; and coordinating with judicial districts, counties, and municipalities to provide guidance and services to ensure a full range of correctional options for the State as a whole. He is sued in his official capacity for declaratory and injunctive relief.
90. Defendant Asa Hutchinson is the Governor of Arkansas. As such, he has executive power over the State of Arkansas. Defendant Hutchinson has the ultimate authority for ensuring that all executive agencies, including DOC and ADH, function in compliance with state and federal law, and has the power to release people incarcerated in DOC correctional facilities. He is sued in his official capacity for declaratory and injunctive relief.
91. Defendant Nathaniel Smith is the Secretary of the Arkansas Department of Health ("ADH"). As such, he is the executive head of the ADH and is responsible for the provision of
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public health guidance and directives in the State of Arkansas. Mr. Smith has the power to direct and control the State's sanitary and quarantine measures for dealing with infectious, contagious, and communicable diseases, to conduct testing to detect cases of the diseases, to suppress the diseases, and to prevent their spread; this includes the authority to issue guidance to DOC regarding how to address the COVID-19 pandemic. He is sued in his official capacity for declaratory and injunctive relief.
92. Wellpath LLC ("Wellpath"), formerly known as Correct Care Solutions LLC, is a limited liability company with a principal address at 1283 Murfreesboro Pike, Suite 500, Nashville, TN 37217-2421, a registered address at 3411 Silverside Road Tatnall Building Suite 104, Wilmington, DE 19810, and a regional office at 6814 Princeton Pike, Pine Bluff, AR 71602. Wellpath is contracted to provide medical services, including without limitation medical services related to COVID-19 testing, infection, and related illnesses, in DOC facilities.
CLASS ALLEGATIONS 93. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual Named Plaintiffs bring this action on behalf of themselves and a class consisting of people who are currently incarcerated, or will be in the future, in a DOC facility during the duration of the COVID-19 pandemic. Plaintiffs also propose the following Subclasses:
a) High Risk Subclass: People in the custody of a DOC facility aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal
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failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of stroke; and people with any condition specifically identified by CDC, currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19; and
b) Disability Subclass: People in custody who suffer from a disability that substantially limits one or more oftheir major life activities and who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability, with a broad construction of "disability" pursuant to 28 C.F.R. § 35.101, which favors expansive coverage to the maximum extent permitted by the terms of the Americans With Disabilities Act ("ADA") that does not require extensive analysis. 94. A class action is the only practicable means by which the individual Named Plaintiffs and the putative class members may challenge Defendants' unconstitutional actions. Many members ofthe Class are without the means to retain an attorney to represent them in a civil rights lawsuit. 95. The Class and Subclasses are so numerous that joinder of all members is impractical. The number ofpeople in custody exceeds 15,000 on any given day, and each Subclass contains hundreds, and possibly thousands, of people. Disposition of this matter as a class action will provide substantial benefits and efficiencies to the parties and the Court. 96. There are questions of law and fact common to all class members and to the subclass members, including: (a) does COVID-19 present a substantial risk of harm to people in DOC custody; (b) have Defendants failed to adequately protect the Class from the immediate threat
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ofCOVID-19; (c) what practices are Defendants actually implementing with respect to COVID19; (d) whether Defendants' actions and/or inactions constitute deliberate indifference to the rights of putative class members; (e) whether members of the High Risk Subclass are entitled to habeas corpus relief; (f) whether the rights of the Disability Subclass under the Americans with Disabilities Act ("ADA") are being violated by Defendants' policies and practices; and (g) whether Defendants illegally discriminated against the Disability Subclass by denying them reasonable accommodations recommended by the COC, both in policy and practice.
97. The claims ofthe Named Plaintiffs are typical of those of the Class, the High Risk Subclass, and the Disability Subclass. This typicality stems from Plaintiffs' claims that Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk ofCOVID-19 throughout DOC. The claims of Plaintiffs, the Class, and Subclasses arise from the same conduct by Defendants and are based not only on identical legal theories, but also seek identical relief. All members of the Class and Subclasses are similarly injured by Defendants' wrongful conduct, and the harms Plaintiffs suffer are typical of the harms suffered by the Class and Subclasses.
98. A class action is superior to other available methods for fairly and efficiently adjudicating this controversy, especially since joinder of all Class and Subclass members is impracticable.
99. Each class member is irreparably harmed as a result of Defendants' wrongful conduct. Litigating this case as a class action will reduce the risk of repetitious litigation relating to the Defendants' conduct.
100. The individual Named Plaintiffs will fairly and adequately represent the interest of the Class and Subclasses. The Named Plaintiffs have no conflicts with the unnamed members of
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the proposed Class and Subclasses. In addition, their lawyers are experienced in complex civil rights cases, including federal class actions against governmental entities.
101. Defendants have engaged in unlawful actions and/or inactions in a manner that applies generally to the Class and Subclasses, rendering class-wide injunctive and declaratory relief appropriate. 2:30-2:45
STATEMENT OF FACTS I. COVID-19 is a Highly Contagious, Deadly Disease that Poses a Serious Risk of
Death or Injury to Anyone Who Becomes Infected. 102. The COVID-19 pandemic has created a public health emergency of historic proportions. Currently, more than 11 million individuals worldwide have tested positive for COVID-19, and more than 500,000 have died from the disease. 17 The pandemic has affected every comer of the world, with the United States at its epicenter. 103. In the United States alone, 3,304,942 individuals have tested positive for COVID19, and 135,205 have died. 18 The number ofdeaths and the number of individuals who have tested positive have increased exponentially over the past few months. Arkansas has reported 28,367 positive tests and 321 deaths19-up from 1,971 positive tests and 42 deaths when Plaintiffs filed their initial Complaint. 104. The World Health Organization ("WHO") declared COVID-19 a pandemic on March 11, 2020.20 The same day, Governor Asa Hutchinson signed Executive Order 20-03 ("EO
17 See Coronavirus Disease 2019 (COVID-19): Situation Report-168, WHO, (July 6, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200706-covid19-sitrep-168.pdf?sfvrsn=7fed5c0b_2.
18 Arkansas COVID-19 Update, supra note 1. 19 ld. 20 WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020, WHO (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-directorgeneral-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020.
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20-03") declaring a state of emergency,21 and confirmed the first presumptive case of COVID-19
in Arkansas.22 Governor Hutchinson noted, "For months, Arkansas has been well prepared to
respond to COVID-19.... [I have] asked each ofmy Cabinet secretaries to prepare a continuity
of operation plan in the event of an outbreak of the virus."23 EO 20-03 has since been amended to
specify procedures to be undertaken across the State, encouraging social distancing, disinfecting,
and other reasonable precautions.
105. On March 13, 2020, President Trump declared ''that the COVID-19 outbreak in the
United States constitutes a national emergency."24
106. COVID-19 is a highly contagious disease. When "unconstrained, the coronavirus
spreads exponentially, the caseload doubling at a steady rate."25 Infected individuals can pass the
virus to others by coughing, sneezing, ortalking.26 Individuals may become infected ifthey breathe
in a respiratory droplet containing the virus, or touch a surface that has the virus on it and then
touch their mouth, nose, or eyes.27 The virus can survive in the air in droplet form for at least three
21 Ark. Proclamation No. 20-03 (Mar. 11, 2020), https://governor.arkansas.gov/images/ uploads/executiveOrders/EO_20-03._l .pdf.
22 Press Release, Gov. Asa Hutchinson, Governor Hutchinson Confirms State's First Presumptive Positive COVID-19 Case (Mar. 11, 2020), https://governor.arkansas.gov/newsmedia/press-releases/governor-hutchinson-confirms-states-first-presumptive-positive-covid-1 9cas.
23 See id. 24 Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020), https://www. federalregister.gov/documents/2020/03/18/2020-05794/declaring-a-national-emergencyconcerning-the-novel-coronavirus-disease-covid-l 9-outbreak; see also President Donald Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/ proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19outbreak/. 25 Kenneth Chang, A Different Way to Chart the Spread ofCoronavirus, N.Y. Times (Mar. 20, 2020), https://www.nytimes.com/2020/03/20/health/coronavirus-data-logarithm-chart.html. 26 What you should know about COVID-19, CDC (June 1, 2020), https://www .cdc.gov/coronavirus/20l9-ncov/downloads/2019-ncov-factsheet.pdf. 27 See id.
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hours, and it can survive up to one day on cardboard, two days on plastic, and three days on steel.28
There is evidence that transmission ofthe virus can occur before the onset of symptoms or through
infected individuals who never develop symptoms.29
l07. Because COVID- I9 is a novel virus, no vaccine exists, and no cure has been
developed.30 Unlike the flu, there is no effective antiviral medication to prevent or treat infection.31
108. The combination ofCOVID-19's highly contagious nature and the lack ofa vaccine
or effective antiviral treatment mean that the disease spreads rampantly absent substantial public
health interventions. Without such interventions, the CDC projects that 200 million people in the
United States could become infected, and 1.5 million people could die.32
109. The only known effective means of controlling the virus are social distancing-
remaining physically separated from known or potentially infected individuals-and the use of
hygienic measures, including frequent hand washing.33 For purposes of social distancing, the CDC
recommends that individuals stay at least six feet away from others and stay out of crowded
places.34
28 Neeltje van Doremalen et al., Aerosol and Surface Stability ofSARS-Co V-2 as Compared with SARS-CoV-1, 382 New Eng. J. Med. 1564, 1564-67 (2020), https://www.nejm.org/doi/fulVl 0.1056/NEJMc2004973.
29 Declaration of Dr. Jonathan Louis Golob ("Golob Deel."), filed Apr. 21, 2020, at, 6, attached as Exhibit I to Plaintiffs' Memorandum in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. No. 3-1); Wycliffe E. Wei et al., Presymptomatic Transmission ofSARS-CoV-2 - Singapore, January 23 - March 16, 2020, 69 MMWR. Morbidity & Mortality Wkly Rep., 411-15 (2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm69l 4e l .htm.
30 Declaration of Dr. Marc Stern ("Stern Deel."), filed Apr. 21, 2020, at , 5, attached as Exhibit 2 to Plaintiffs' Memorandum in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. No. 3-2).
31 Golob Deel. at, IO. 32 See id. at , 11. 33 See id. at , 10-11 ; Stern Deel. at , 1. 34 Coronavirus Disease 2019 (COVID-19): Social Distancing, CDC, https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (last updated July 6, 2020).
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110. The virus also spreads more quickly in poorly ventilated spaces. An infected person who speaks for five minutes in a poorly ventilated area can produce as many infection droplets of the virus as one infectious cough.35 That effect is magnified when multiple people share a space, which "build[s] up" the concentration of infectious droplets in the air. 36
111. The time period between when an individual becomes infected and the time that the individual exhibits symptoms varies from person to person.37 The typical period is five days, but it can be as short as two days, and some people will never develop symptoms while still potentially spreading the disease.38 As a result, the only way to establish the lack of risk from COVID-19 is through an aggressive testing regime.39
112. People of all ages risk serious illness, injury, or death ifthey contract COVID-19.40 Even mild cases of COVID-19 generally involve about two weeks of fevers and dry coughs and are more severe than the flu.41
113. According to the WHO, approximately 20% of people who contract COVID-19 require treatment by a specialist, and one in six becomes seriously ill.42 In serious cases, individuals' lungs "become filled with inflammatory material [and] are unable to get enough
35 See id. 36 See id.
37 Golob Deel. at ,r 6. 38 See id. at ,r 6.
39 See id. 40 Stephanie Bialek et al., Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) - United States, February 12-March 16, 2020, 69 MMWR. Morbidity & Mortality Wkly Rep. (2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid= mm6912e2 w. 41 Holly Secon & Aria Bendix, There is a wide misconception of what a 'mild' case of COVID-19 looks like. It can be ugly and brutal., Business Insider (Apr. 16, 2020), https://www.businessinsider.com/mild-coronavirus-cases-high-fever-dry-cough-2020-3. 42 Graham Readfeam, What Happens to People's Lungs When They Get Coronavirus?, The Guardian (Apr. 14, 2020), https://www.theguardian.com/world/2020/apr/15/what-happensto-your-lungs-with-coronavirus-covid-19.
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oxygen to the bloodstream."43
114. Severe cases ofCOVID-19 cause acute respiratory distress syndrome ("ARDS") in
which fluid displaces air in the lungs. COVID-19 patients with ARDS "are essentially drowning
in their own blood and fluids because their lungs are so full."44
115. The virus frequently causes extreme symptoms, including fever and chills that can
last for weeks, excruciating pain, debilitating fatigue, an unremitting cough, uncontrollable
diarrhea, and an inability to keep down food and water.45 CNN Anchor Chris Cuomo contracted
COVID-19 and explained that "[i]t was like somebody was beating me like a pii'iata."46 Cuomo
shivered so much that he chipped a tooth, hallucinated, and experienced a fever in excess of 103
degrees.47 And Cuomo's illness was not one of the more serious manifestations of the illness that
required hospitalization. Others have characterized the experience of COVID-19 as ''the most
excruciating pain I've ever felt."48
116. Even among young and healthy people, a COVID-19 infection requires supportive
care, including supplemental oxygen, positive pressure ventilation, and extracorporeal mechanical
43 See id. 44 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 -Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/amedical-worker-describes--terrifying-lung-failure-from-covid 19-even-in-his-young-patients. 45 See, e.g., id.; Leah Groth, Is Diarrhea a Symptom of COVID-19? New Study Says Digestive Issues May Be Common With Coronavirus, Health (Mar. 20, 2020), https://www.health.com/condition/infectious-diseases/coronavirus/is-diarrhea-a-symptom-ofcovid-l 9. 46 Quint Forgey, 'Like somebody was beating me like a pinata': Chris Cuomo describes coronavirus battle, Politico (Apr. 2, 2020), https://www.politico.com/news/ 2020/04/02/chris-cuomo-coronavirus-experience-l 6 l 057. 47 See id. 48 Edward Pevos, WDIV-TV anchor, Evrod Cassimy, recovered from coronavirus, describes 'most excruciating pain I've ever felt', MLive (Apr. 6, 2020), https://www.mlive.com/coronavirus/2020/04/wdiv-tv-anchor-evrod-cassimy-recovered-fromcoronavirus-describes-most-excruciating-pain-ive-ever-felt.html.
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oxygenation. 49 117. For a significant number ofpeople, contracting COVID-19 will result in death. The
mortality rate from COVID-19 varies widely internationally but is currently 4.4% in the United States.50
118. Beyond the initial symptoms and the risk of death, COVID-19 also causes serious long-term medical conditions.51 It severely damages lung tissue and can cause a permanent loss of lung capacity.52 COVID-19 targets the heart muscle, causing inflammation of the muscle called myocarditis.53 Myocarditis affects both the heart muscle and electrical system leading to heart failure that limits an individual's ability to work and exercise for the remainder of their life.54 COVID-19 also triggers an exaggerated response of the immune system called cytokine release syndrome, which can result in damage to various organs, including permanent kidney injury that requires dialysis and neurological injury.55
119. Although COVID-19 can cause serious symptoms for any individual, up to and including death, its effects are much more severe for certain populations.
120. Among the highest risk populations, the fatality rate from COVID- 19 is
49 Golob Deel. at, 5. 50 Mortality Analysis, Johns Hopkins Univ. of Med., Coronavirus Res. Ctr., https://coronavirus.jhu.edu/data/mortality (last updated July 9, 2020). 51 Tian-Yuan Xiong et al., Coronaviruses and the cardiovascular system: acute and longterm implications, 41 Eur. Heart J. 1798, 1798-1800 (2020), https://academic.oup.com/eurheartj/ article/doi/10.1093/eurheartj/ehaa231/5809453. 52 Golob Deel. at, 9. 53 See id. 54 See id. 55 See id. See also Victoria Forster, Brain Damage and Hallucinations Associated With Even Mild COVID-19 Coronavirus Infection, Forbes (July 8, 2020), https://www.forbes.com/sites/ victoriaforster/2 020/07/08/brai n-damage-and-hal Iuc inations-assoc iated-with-even-mi ld-cov id19-coronavirus-infect ion/# 26 b89c3 b6d 91.
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approximately 15%.56 For high risk patients who do not die from the disease, the recovery period is prolonged, and individuals have a "profound" "need for extensive rehabilitation."57
121. Individuals older than 50 are more vulnerable to COVID-19, and those over 70 face a particularly serious risk of death from the disease.58
122. Various medical conditions also increase the risk of serious consequences from COVID-19 for individuals of any age. These conditions include lung disease, heart disease, diabetes, being immunocompromised (from cancer, HIV, autoimmune disease, etc.), blood disorders (including sickle cell disease), chronic liver or kidney disease, inherited metabolic disorders, stroke, developmental delay, or pregnancy.59
123. Black individuals have faced significantly increased risks of both infection and death from COVID-19 in Arkansas, making up less than 16% ofthe population but accounting for 24% of confirmed cases and 25% of deaths.60 This is consistent with the severe racial disparities with respect to the pandemic nationally. Black Americans have 65.8 COVID-related deaths per 100,000, compared to 28.5 deaths per 100,000 among white Americans.61 The overall mortality rate for Black Americans is about 2.3 times as high as the rate for their white counterparts.62 COVID-19 has a disproportionately harmful effect on Black people because they are more likely to have pre-existing conditions that exacerbate the symptoms of the disease due to environmental
56 Id. at ,r 4.
51 Id.
58 See Stem Deel. at ,r 4; Golob Deel. at ,r 3. 59 Golob Deel. at ,r 3.
60 Arkansas COVID-19 Update, supra note 1. 61 The Color ofCoronavirus: COVID-I9 Deaths by Race and Ethnicity in the US., APM Research Lab (July 8, 2020), https://www.apmresearchlab.org/covid/deaths-by-race. 62 Id.
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and economic factors and because of inequalities in the health care system.63
II. Conditions in DOC Facilities Create Serious Risk of COVID-19-Related Infection, Disease, and Death. 124. On March 27 and April 15, 2020, Arkansas Secretary of the Department of Health
Nathaniel Smith acknowledged that there is a high risk of COVID-19 in the correctional facility.
At Governor Hutchinson's COVID-19 press briefing on April 2, 2020, Secretary Wendy Kelley
commented that "once it gets in, it will be disastrous.''64
125. Indeed, correctional facilities are epicenters for infectious diseases, like COVID-
19, because of they have higher levels of risk factors for infection; conditions that "unavoidab[ly]
entail close contact in often overcrowded, poorly ventilated, and unsanitary facilities; and ... poor
access to healthcare services relative to that available in community settings.''65
126. Prisons are congregate environments (i.e., places where people live and sleep in
close proximity).66 In such environments, infectious diseases that are transmitted via the air or
touch are more likely to spread, and therefore present an increased danger for the spread of
63 Jan Wolfe, African Americans more likely to die from coronavirus, early data shows, Reuters (Apr. 6, 2020), https://www.reuters.com/article/us-health-coronavirus-usa-race/africanamericans-more-likely-to-die-from-coronavirus-illness-early-data-shows-idUSKBN2102B6; Colleen Walsh, COVID-19 targets communities of color, Harv. Gazette (Apr. 14, 2020), https://news.harvard.edu/gazette/story/2020/04/health-care-disparities-in-the-age-ofcoronavirus/.
64 Gov. Asa Hutchinson, Live: Governor Hutchinson Provides COVID-19 Update to Media, YouTube at 25:47 (Apr. 2, 2020), https://www.youtube.com/watch?v=xmZQ7MOJ9FQ; John Moritz, Federal prison has positive virus tests, Ark. Democrat-Gazette, (Apr. 4, 2020) at https://www.arkansasonline.com/news/2020/apr/04/federal-prison-has-positive-virus-tests/.
65 Stuart A. Kinner et al., Comment, Prisons and custodial settings are part of a comprehensive response to COVID-19, 5 Lancet Pub. Health el88, e188 (2020), https://www.thelancet.com/action/showPdf?pii=S2468-2667%2820%2930058-X; see also Bethany Young & Katie Robertson, How Should Prisons and Jails Prepare for COVID-19?, Urb. Instit.:Urb. Wire (Mar. 20, 2020), https://www.urban.org/urban-wire/how-should-prisons-andjails-prepare-covid-19.
66 Stern Deel. at, 9.
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COVID-19 if and when it is introduced into the facility.67 127. COVID-19 has been especially dangerous in areas of close confinement, such as
cruise ships and assisted living facilities. In early March 2020, the highest known person-to-person transmission rates for the virus were in a nursing home in Kirkland, Washington and on cruise ships in Japan and off the coast of Califomia.68 More recently, the highest recorded transmission rates have been in Rikers Island, a jail facility in New York City, with a rate of transmission that is over seven times higher than the city overall.69
128. Similarly, on March 30, 2020, the captain of the aircraft carrier USS Theodore Roosevelt, Captain Brett Crozier, raised alarms about the spread of COVID-19 infection among the thousands of sailors on board.70 In his letter to Navy officials, Captain Crozer noted that the "environment most conducive to spread of the disease is the environment the crew of the [Theodore Roosevelt] is in right now," including:
a. "Large amounts of Sailors in a confined space"; b. "Open, shared berthing"; c. "Shared restroom facilities"'; d. "Confined, shared workspaces ..."; e. "Shared messing for large numbers"; and f. "Meals cooked/ food provided by exposed personnel ...."71
61 Id.
68 Golob Deel. at ,r 12.
69 Id. 70 Matthias Gafni & Joe Garofoli, Exclusive: Captain of aircraft carrier with growing coronavirus outbreak pleads for help from Navy, S.F. Chron. (Mar. 31, 2020), https://www .sfchronicle.com/bayarea/article/Exclusive-Captain-of-aircraft-carrier-with15167883 .php. 71 Id., Letter from Capt. Brett E. Crozier, U.S. Navy, to U.S. Dep't of the Navy, Subj: Request for Assistance in Response to COVID-19 Pandemic 2 (Mar. 30, 2020).
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129. In order to "[p]revent unnecessary deaths, reduce the number of Sailors that contract COVID-19 and eliminate future virus spread," Capt. Crozier agreed that "[e]very Sailor must be guaranteed virus-free and the ship environment must be disinfected. One infected Sailor introduced to the ship will spread the virus."72 Capt. Crozier further asserted that "[d]ecisive action is required.... Sailors do not need to die."73
130. As of April 17, 2020, 660 crew members (13%) tested positive for the virus,74 with one casualty---41-year-old Aviation Ordnanceman Chief Petty Officer Charles Robert Thacker Jr., who is from Fort Smith, Arkansas.75
131. Because people incarcerated in DOC facilities are housed in close quarters, unable to maintain a six-foot distance from others, and share or touch objects used by others, the risks of contracting COVID-19 are greatly, if not exponentially, increased, as is already evidenced by the spread ofCOVID-19 in other congregate environments.76 Indeed, despite the significant resources and discipline of the U.S. military, over 600 sailors have become infected and one sailor has died from widespread infection in a single aircraft carrier.
132. The risk of COVID-19 spreading throughout DOC facilities is exceptionally high, in part because of the presence of outsiders and staff, who may be asymptomatic or presenting COVID-19 symptoms in these facilities.77 Dr. Robert Redfield, Director of the CDC, has warned
72 Id at 3. 73 Id. at 3-4. 74 Matthew Impelli, 660 Crew Members on USS Theodore Roosevelt Test Positive for Coronavirus, Newsweek (Apr. 17, 2020), https://www.newsweek.com/660-crew-members-usstheodore-roosevelt-test-positive-coronavirus-1498612. 75 Sam LaGrone, Navy Identifies Carrier Roosevelt Sailor Who Died.from COVID-19, U.S. Naval lnstit. News (Apr. 16, 2020), https://news.usni.org/2020/04/16/navy-identifies-carrierroosevelt-sailor-who-died-from-covid-19.
76 Stem Deel. at ,r 9; see also Watts & Erdman, supra note 9. 77 Stem Deel. at ,r 9.
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that as many as 25% of individuals infected with COVID-19 may not show symptoms.78 In fact, of the 600 confirmed infections in Cummins Unit, most are asymptomatic.79 Thus, screening outsiders, including staff and visitors, for symptoms of COVID-19, will not necessarily prevent the introduction of COVID-19 from the outside because the virus can spread before people show symptoms.
133. Along with facing greater risk ofinfection, incarcerated people in Arkansas are also more likely to have underlying medical conditions that render them especially vulnerable to severe illness and even death from COVID-19. Health profiles of incarcerated people show that they are
° significantly sicker and more vulnerable to COVID-19 than the general population.8 For example,
incarcerated people are more likely to have medical conditions such as asthma, tuberculosis, hypertension, diabetes, and heart disease, as compared to the general population.81 The Department of Justice has found that "[b]oth prisoners and jail inmates were more likely than the general population to report ever having a chronic condition or infectious disease."82 "[H]alf of state and federal prisoners and local jail inmates reported ever having a chronic condition," such as "cancer, high blood pressure, stroke-related problems, diabetes, heart-related problems, kidney-related problems, arthritis, asthma, and cirrhosis of the liver," and "[t]wenty-one percent of prisoners
78 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html.
79 Meghan Rhoos, One Arkansas Prison Makes Up Almost a Third ofState's Coronavirus Cases, Newsweek (Apr. 20, 2020), https://www.newsweek.com/one-arkansas-prison-makesalmost-third-states-coronavirus-cases-1499045.
80 Peter Wagner & Emily Widra, No need to wait/or pandemics: The public health case for criminal justice reform, Prison Pol'y Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/.
s1 Id. 82 Laura M. Maruschak et al., Bureau of Justice Stats, Medical Problems of State and Federal Prisons and Jail Inmates, 2011-12, U.S. Dep't of Justice, l (2016), https://www.bjs.gov/content/pub/pdf/mpsfpji 1112.pdf.
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... reported ever having an infectious disease," "including tuberculosis, hepatitis B and C, and other sexually transmitted diseases (STDs)."83 Also, the prevalence of tuberculosis is 12 times higher in state and federal prisons compared to overall U.S. population.84

Health condition Ever tested positive for Tuberculosis Asthma Cigarette smoking HIV positive High blood pressure/hypertension Diabetes/high blood sugar Heart-related problems Pregnancy

Prevalence of health condition by population

State

Federal

United

Jails

prisons

prisons

States

2.5%

6.0%

0.5%

20.1% n/a 1.3%
30.2% 7.2% 10.4% 5.0%

64.7% 4.0%

14.9% 45.2%
1.3% 26.3% 9.0% 9.8%
3.0%

10.2% 21.2% 0.4% 18.1% 6.5% 2.9% 3.9%

Health co11ditio11s that 111ake respiratory diseases like CO\ "ID-10 more dangerous are fa,· 111ore co,11111011 111 the incarcerated

populatio11 than in the general l".S. population. Pregmmcy data co111eJi·o111 our report.

. the CDC's

. and data_ti-0111 the

. Cigarette

s111oki11g data are_ti·o111 a :2016 study.

. and all otlre,· data are_ti·o111 the :2015

B.JS repo1·t.

. 11'11iclr does not o_(fer separate data for

the federal and state prison pop11/at1011s. Cigarette smoking

oft/re lrighe,·fatality rate i11 China

a111011g 111e11. ll'lro are fa,· more likely to s111oke tlra11 IL'Ollle11.

Source: Prison Policy Initiative, https://www.prisonpolicy.org/blog/2020/03/06/pandemic

134. As with tuberculosis, the hazardous combination of overcrowding and poor ventilation, along with incarcerated people living in close quarters and without available means to ensure preventative hygiene practices, causes correctional facilities to become known breeding grounds for highly infectious respiratory illnesses like COVID-19.
135. "Chronic health conditions, such as diabetes, hypertension, and asthma, ... [are a] growing proportion of correctional health care needs" due to ''two trends: the aging prison population and the nation's general obesity epidemic. About 40% of all inmates are estimated to have at least one chronic health condition. With a few exceptions, nearly all chronic health

83 Id. 84 Id.
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conditions are more prevalent among inmates than in the general population."85 136. The Department of Justice has reported that 74% of incarcerated people are
overweight, obese, or morbidly obese.86 Problems with obesity within the prison population are especially troubling in this pandemic because obesity may be an important predictor of severe COVID-19-related illness, especially among younger people.87 This is because people with obesity may already have a compromised respiratory system, and "[a]bdominal obesity, [which is] more prominent in men, can cause compression ofthe diaphragm, lungs and chest capacity."88
137. In addition, a growing elderly prison population is especially at risk of serious COVID-19 disease or death. In fact, the "percentage of people in state prisons who are 55 and older more than tripled between 2000 and 2016," and, "[f]or the first time, older adults make up a larger share of the state prison population than people from 18 to 24."89
138. Because individuals in jails and prisons are considered physiologically comparable to individuals in the community several years older, many state departments ofcorrections and the Federal Bureau of Prisons define "elderly" or "older" variously between 50 and 60 years of age.90 Accordingly, people over the age of 50 in correctional settings are considered vulnerable to the
85 Alexandria Macmadu & Josiah D. Rich, Correctional Health Is Community Health, 13 Issues in Sci. & Tech., Vol. XXXII, No. 1 (2015), https://issues.org/correctional-health-iscommunity-health/.
86 U.S. Dep't of Justice, Bureau of Justice Stats., Medical Problems ofState and Federal Prisons and Jail Inmates, 2011-12 p. 1 (2016), https://www.bjs.gov/content/pub/pdf/ mpsfpjil 112.pdf.
87 Roni Caryn Rabin, Obesity Linked to Severe Coronavirus Disease, Especially for Younger Patients, N.Y. Times (Apr. 16, 2020), https://www.nytimes.com/2020/04/16/health/ coronavirus-obesity-higher-risk.html.
88 Id. 89 Weihua Li and Nicole Lewis, This Chart Shows Why The Prison Population Is So Vulnerable to COVID-19, Marshall Project (Mar. 19, 2020), https://www.themarshallproject.org/ 2020/03/l 9/this-chart-shows-why-the-prison-population-is-so-vulnerable-to-covid-l 9. 90 Stern Deel. at, 9.
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COVID-19 virus.91 III. The Spread of Covid-19 In DOC Facilities Jeopardizes the Public Health of
Surrounding Communities, Especially Black Communities. 139. Prisons are not fully closed environments. When the COVID-19 virus is introduced to a prison, all persons within the facility-whether they are staff or a incarcerated people-are at heightened risk of contracting the virus and, in turn, spreading the virus to others with whom they live or come into contact with in their own homes and neighborhoods.92 The harm caused by a COVID-19 outbreak in a correctional facility, therefore, is not confined to those who are incarcerated or work in that facility. Instead, this harm poses a serious health risk to the surrounding community.93 140. For example, scarce community health resources like emergency departments, hospital beds, and ventilators inevitably become more scarce when there is a COVID-19 outbreak in a detention facility, because incarcerated people are more likely to have underlying medical conditions that carry a significantly increased risk of severe complications from COVID-19.94 141. A COVID-19 outbreak exceeds the capacity of the local health infrastructure because treatment for serious cases requires significant medical intervention, including ventilator assistance and intensive care support.95 Ifthe need for ICU beds and life-saving medical equipment exceeds supply, the death rate increases for the entire population of Arkansas. Indeed, at least one major hospital has almost reached capacity in its intensive care unit.96
91 Id. 92 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Pol'y Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic/.
93 Stern Deel. at ,r 11. 94 Stern Deel. at ,r 9. 95 See id. at ,r 8.
96 'We are on the edge', KATV, supra note 12.
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142. The distribution of correctional facilities also poses a substantial risk that a
COVID-19 outbreak in DOC facilities will create a dangerous shortage ofICU beds in surrounding areas. Of the 20 DOC facilities, nine are located in counties with no ICU beds in surrounding communities.97 Six more are located in Jefferson County, which has only 34 ICU beds.98 All three of the facilities with the largest detention capacities-Cummins Unit, East Arkansas Regional Unit, and Varner Unit-are in counties with no ICU beds.99
143. The geographic distribution of DOC facilities greatly increases the risk additional or exacerbated COVID-19 outbreaks in communities surrounding those facilities, which would disproportionately impact Arkansas's Black residents.
144. The DOC runs 20 detention facilities across the State.100 These facilities are not evenly distributed across Arkansas. Instead, they are concentrated in the southeastern part of the State, near Pine Bluff. 101
145. Black people make up 15.7% of the Arkansas population. 102 Yet eight of the 20
DOC facilities are located in counties where Black individuals comprise a majority of residents. 103 In total, 16 of the 20 DOC detention facilities are located in counties that have a higher percentage
97 These facilities are Cummins Unit, Delta Regional Unit, East Arkansas Regional Unit, Grimes Unit, McPherson Unit, North Central Unit, Texarkana Regional Corrections Center, Varner and Varner Supermax Unit, Wrightsville Unit. See Facilities, DOC, , https://adc.arkansas.gov/facilities (last visited July 9, 2020) (listing facilities and locations); Ninette Sosa, A Closer Look: Arkansas and ICU Beds by County, KNWA Fox (Mar. 27, 2020), https://www.nwahomepage.com/lifestyle/health/coronavirus/a-closer-look-arkansas-and-icubeds-per-county/ (listing ICU beds by county).
98 See id. 99 See id. 100 Facilities, DOC, supra note 97. 101 See id. 102 Quick Facts: Arkansas, U.S. Census Bureau, supra note 14. 103 See Facilities, DOC, supra note 97 (listing facilities and locations); Quick Facts, U.S. Census Bureau, supra note 14 (providing search tool for demographic data for all Arkansas counties).
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of Black people than the State-usually by a significant margin. 104 146. If COVID-19 spreads throughout DOC's facilities, Black Arkansans will
disproportionately suffer consequences from that spread, as compared to their percentage of the Arkansas state population. IV. Defendants Have Failed to Adopt and Implement Adequate Policies and Procedures
to Prevent and Mitigate the Spread of COVID-19. 147. On March 11, 2020, Defendant Kelley issued a memorandum outlining DOC's protocols to reduce the risk and combat the spread of COVID-19 within DOC facilities. This memorandum only encouraged regular hand washing, covering coughs and sneezes, avoiding handshakes, continuing cleaning (instead of intensifying it), and telling staff members to stay at home if ill. 105 148. On March 23, 2020, the CDC published its guidance for correctional facilities. 106 The purpose of the CDC Guidance is, in part, to help correctional facilities ensure the protection of the health and safety of incarcerated people. DOC leadership, including Defendant Kelly, were made aware of the CDC guidance on March 23, 2020. Defendant ADC Director, Dexter Payne, has stated that "in order to save lives and halt the spread of the virus we must be obedient to the recommendations of the Centers for Disease Control (CDC) and the Arkansas Department of Health (ADH)." 107 149. On March 27, 2020, ADH issued its Guidance for State Correctional Facilities and
104 See id. 105 Memorandum from Wendy Kelley, Sec. of Corrs., DOC, to DOC (Mar. 11, 2020), https://ssl-adc.ark.org/images/uploads/Coronavirus_Notice_for_ W e b _-_ 3-11-2020.pdf. 106 The CDC is a federal agency and the leading national public health institute of the United States. It is charged with protecting public health and safety through the control and prevention of disease; See CDC Guidance, CDC, supra note 11 107 Email from Dexter Paine to Dona Gordon & Charles Allen (Apr. 8, 2020), filed on May 5, 2020, attached as Exhibit 18 to Defendants Exhibit List, (Dkt. No. 49-18).
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Local Detention Facilities, which noted that correctional facilities and detention centers "pose a high risk for transmission of COVID-19." ADH issued subs~quent guidance, including the ADH Guidance for Reducing Spread on COVID-19 in Correctional Facilities, issued on April 13, 2020, and April 15, 2020.
150. Defendants and IX>C officials have consulted with and/or relied on this guidance, as well as other communications from ADH officials, to develop and/or implement policies and practices related to the preparation for, and response to, the COVID-19 pandemic in IX>C facilities, including without limitation COVID-19 prevention, testing, quarantining, and/or medical treatment. According to DOC officials, including some of the named Defendants, ADH and/or Wellpath determine which incarcerated person gets tested for COVID-19, receives medical treatment for related illnesses, is quarantined, and/or is released from quarantine. Moreover, IX>C officials have stated that ADH determines whether infected, but asymptomatic DOC staff, should report to work.
151. People incarcerated in DOC facilities are purportedly eligible for COVID-19 tests if they present symptoms of infection. Defendant Nathaniel Smith has stated that the "only way to know whether someone has symptoms or not is to ask them. By definition, symptoms are something people report." 108 However, Defendant Smith does not consider incarcerated people to always be reliable sources about their symptoms.109
152. Governor Hutchinson repeatedly denied requests to reduce prison populations in
108 Anna Stitt, COVID-19 Inside Arkansas Prisons: Virus Spreads Through Inmate Populations and Staff, FM 89.1 KUAR NPR (June 8, 2020), https://www.ualrpublicradio.org/post/covid-19-inside-arkansas-prisons-virus-spreads-throughinmate-populations-and-staff.
109 Id.
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Arkansas despite expert recommendations for such reductions. 110 On April 19, 2020, the Governor finally announced that he had asked for a review for potential release only of "non-violent" and "non-sex-offenders," and only those due for release within six months of his request. 111 The Governor noted that this review was "important ... [because] we want to have sufficient space available so that we can have the inmates that test positive isolated." 112 Ultimately, only 907 people were approved for early release. 113
153. This minimal number ofreleases did not achieve what the Governor acknowledged was important to prevent the spread ofCOVID-19 in DOC facilities-namely, to provide sufficient space for quarantining people who test positive, as well as to facilitate the practice of social

110 See e.g., Letter Holly Dickson, Interim Exec. Dir. & Legal Dir., ACLU, to Hon. Asa

Hutchinson, Gov. ofthe State of Ark. et al, Re: COVID-19 and the Criminal Justice System (Mar.

18, 2020), https://www.acluarkansas.org/sites/default/files/field_documents/aclu_ar_letter_to_sta

te_and_local_officials_2020-3-18.pdf (noting that health experts recommended reducing prison

populations); see also John Moritz, Arkansas Governor: Not considering prison releases over

coronavirus

concerns,

Ark.

Democrat-Gazette

(Mar.

19,

2020),

https://www.arkansasonline.com/news/2020/mar/19/arkansas-governor-not-considering-prison-

releases-/ (reporting that the Governor was not considering early release after the Mar. 18 ACLU

Letter); Paige Cushman et al., 44 inmates at Arkansas prison test positive for COVID-19, KATV

(Apr. 13, 2020), https://katv.com/news/local/43-inmates-in-one-arkansas-prison-barrack-test-

positive-for-covid-19 (reporting that Reps. Jamie Scott and Vivian Flowers urged a reduction in

prison population and quoting the Governor as stating he had no plans to review any incarcerated

people for early release); Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19

Update (Apr. 17, 2020), at 44:04, https://www.youtube.com/watch?v=LcyyCs8y_aQ (denying

requests from legislators like Rep. Scott to review incarcerated people for compassionate release).

111 Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube

(Apr. 19, 2020), at 13:10-13:18, https://www.youtube.com/watch?v=YVYS2NQF1j1; Scott

Carroll, Arkansas suspends parole requirement, makes 1,244 inmates eligible for early release,

KATV (Apr. 24, 2020), https://katv.com/news/local/arkansas-suspends-parole-rule-makes-1244-

inmates-eligib le-for-early-release.

112 Gov. Asa Hutchinson, Governor Hutchinson Provides COVID-19 Update, YouTube

(Apr. 19, 2020), at 13:10-13:18, https://www.youtube.com/watch?v=YVYS2NQF1jl; Scott

Carroll, Arkansas suspends parole requirement, makes 1,244 inmates eligible for early release,

KATV (Apr. 24, 2020), https://katv.com/news/local/arkansas-suspends-parole-rule-makes-1244-

inmates-eligib le-for-early-release.

113 DOC, Modified EPA Update, (Updated June 1, 2020) at

https://adc.arkansas.gov/modified-epa-update.

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distancing. In fact, from March through the end of May 2020, populations at some DOC facilities-such as Grimes, North Central, and Tucker Units-actually increased.114 Many prisons, including Cummins, East Arkansas, and Varner, remained near or over capacity as of the end of May, 2020. 115 The Governor has continued to refuse to act to protect those incarcerated who have health conditions making them more vulnerable to complications from COVID-19, including those with health conditions so debilitating that they almost certainly pose no risk to public safety.
154. As the contract medical provider for DOC facilities, Defendant Wellpathindependently and/or under the direction of any of the other Defendants-failed to provide adequate testing and/or medical services to incarcerated people who are suspected or confirmed to have contracted the COVID-19 virus in a manner that is reasonably necessary to prevent the spread of COVID-19 and to properly treat all infected individuals incarcerated in DOC facilities.
155. Incarcerated people who presented symptoms ofCOVID-19 infection, or who were exposed to infected individuals, have been denied testing. Many are required to put in sick calls, which may take days if not more to receive medical assistance-if any medical assistance is provided at all. Moreover, many of those incarcerated people with confirmed infections who become seriously ill are left unattended without appropriate medical treatment and suffer greatly as a result. On information and belief, incarcerated people have died from COVID-19 due to the
114 Compare Dexter Payne, Dir., AOC, Board Report: April 2020 at 12, https://adc.arkansas.gov/images/uploads/Division_of_Correction_Directors_Board_Report_April 2020-FINAL.pdf, with Dexter Payne, Dir., AOC, Board Report: June 2020 at 12, https://adc.arkansas.gov/images/uploads/Division_of_Correction_Directors_Board_Report_June 2020-FINAL.pdf.
115 See Dexter Payne& Wendy Kelley, Ark. Div. of Co"ection Annual Fiscal Report, (2019) at 45-52 https://adc.arkansas.gov/images/uploads/Division_of_Correction_FYI 9_Annual _Report_BOC_Approval-5272020.pdf; Dexter Payne, Dir., ADC, Board Report: June 2020 at 12, https://adc.arkansas.gov/images/uploads/Division_of_Correction_Directors_Board_Report_June 2020-FINAL.pdf.
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lack of adequate medical care and attention and future deaths may also occur. 156. Defendants' failures with respect to their preparation for and/or response to
COVID-19 have placed incarcerated people in DOC facilities at a significant and unnecessarily heightened risk of infection, severe illness, and/or death despite widespread awareness of the highly contagious nature of COVID-19 and the severe consequences of infection, especially among older people and people with underlying health and medical conditions.
157. Defendants' failures to adopt and implement adequate policies and procedures to prevent and mitigate the spread ofCOVID-19-as well as to sufficiently supervise and train DOC staff to ensure the effectiveness of mitigation measures-fall into eight broad categories, which are discussed below.
158. First, Defendants failed to adequately plan to prevent or mitigate the spread of COVID-19 in DOC facilities. Importantly, for instance, the CDC Guidance recommends that correctional facilities should develop contingency plans for reduced workforces due to staff absences.
159. As a result of Defendants' failure to adequately plan for staff shortages, DOC facilities are experiencing unmitigated staffing shortages amid the COVID-19pandemic.116 These shortages place Named Plaintiffs and the putative class members at great risk. For example, some Ouachita River Unit staff are not being screened for COVID-19 symptoms, because the facility is desperate for staff due to staffing shortages amid the COVID-19 pandemic. Notably, this failure to screen staff is also in contravention of CDC Guidance. Staff shortages are further exacerbated
116 Ninette Sosa, A CLOSER LOOK: COVID-19 continues to impact Arkansas state prisons & staff, KNWA (June 30, 2020) https://www.nwahomepage.com/lifestyle/health/coronavirus/acloser-look-covid-19-continues-to-impact-state-prisons-staff/.
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by the need for corrections staff to conduct tasks, such as preparation of meals, that are normally handled by incarcerated people who are unavailable due to COVID-19 infection and/or illness.
160. The CDC Guidance calls for the provision of PPE and contingency planning for shortages of PPE. Some Named Plaintiffs have yet to receive a mask or have received only one. When only one mask is provided, any attempt to clean the mask requires incarcerated people being without the mask for an unsafe period. After a mask is handwashed, it cannot be worn while it is drying. Also, an incarcerated person who sends their mask to the laundry goes without the mask until it is returned to them, and even then, they risk their mask being damaged by the laundry machines.
161. Second, Defendants have failed to implement the training and educational interventions necessary to prevent the spread of COVID-19 in correctional facilities. The CDC Guidance states that correctional staff and incarcerated people should be trained on donning, doffing, and disposing of PPE. However, the guidance provided by ADH makes no mention of any training. Plaintiffs and the putative class members have not been instructed on how to properly don, doff, or dispose of PPE. And incarcerated people are instructed by DOC staff to use masks outside their barracks, but not inside the barracks.
162. Whereas the CDC Guidance recommends that correctional facilities post signage informing staff and incarcerated people how to report COVID-19 symptoms and telling staff to stay at home when sick, Defendants do not require any such signage. Some units have utilized signage, but it is not consistently displayed throughout or across units. Many barracks do not have any signage at all. Many Named Plaintiffs and putative class members are therefore being deprived of needed information and reminders regarding how they can seek help if they become symptomatic.
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163. Moreover, despite knowledge of widespread problems with corrections staff properly following PPE protocol, Defendants have not properly and sufficiently supervised and/or trained staffto ensure satisfactory compliance with DOC policies and procedures. Many DOC staff members wear their face masks below their nose-ifthey wear them at all. The few staff members who wear protective gloves do not change them regularly, in contravention of the CDC Guidance for the use of PPE. The failure of DOC staff to properly use masks and other PPE has continued despite Defendants' knowledge of this widespread problem, both prior to and after the filing of this lawsuit.
164. Third, Defendants have not implemented the heightened hygienic, cleaning, and disinfecting practices called for by the CDC Guidance. Named Plaintiffs also do not have access to the cleaning supplies necessary to sanitize themselves, their personal items, or their living areas. Indeed, DOC rules continue to restrict access to such crucial cleaning supplies, even in the midst of the COVID-19 pandemic.
165. Defendants' failures are also reflected in the unsanitary conditions of DOC facilities. DOC has not intensified cleaning and disinfecting its facilities amid the pandemic. For example, Mr. Brown has never observed intensified cleaning and disinfecting at EARU throughout the pandemic. And besides a two-week period in May, Mr. Czametzki likewise has not witnessed intensified cleaning and disinfecting at Tucker Unit. At CACCC, Mr. Elrod and Mr. Sims clean their bathrooms and living areas twice each day, but they are not provided any chemicals that are effective against COVID-19. Bleach may be used by a cleaning team only once per day and only in showers and sinks. Mr. Elrod has not witnessed regular cleaning of frequently touched surfaces such as doorknobs.
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166. In addition, DOC has not followed the CDC's recommendation that staff clean shared surfaces several times a day. Even though Mr. Serrato shares a barracks with over 40 people, frequently touched surfaces in his barracks are not disinfected several times a day as recommended by the CDC.
167. These unsanitary conditions and inadequate levels of cleaning and disinfecting, which are in contravention of the CDC Guidance, place Named Plaintiffs and the putative class members at an inexcusably higher risk of contracting COVID-19. Defendants have been aware of the deficiencies in the cleaning and disinfecting of DOC facilities, as evidenced in sanitation logs and other forms of documentation and communication, but have not taken sufficient steps to remedy the ongoing problems throughout DOC through appropriate follow-up, supervision, and/or training.
168. Fourth, Defendants have failed to adequately implement measures to reduce crowding, minimize interpersonal contact, and encourage social distancing. The CDC Guidance makes clear that "although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone ofreducing transmission ofrespiratory diseases such as COVID19." Yet, despite purporting to rely on the CDC Guidance, Defendants have taken insufficient and inadequate steps to facilitate social distancing. The minimal measures Defendants have taken, such as proposing alternating beds head-to-toe and staggered meals, have not been properly implemented or enforced, and despite widespread knowledge of these deficiencies, Defendants have failed to follow up with appropriate supervision and training.
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169. The DOC has not heeded the CDC's caution against unnecessarily transferring incarcerated people from one facility to another. 117 As was the case before the COVID-19 pandemic, dozens of incarcerated people are currently being transported from Ouachita River Correctional Unit to other DOC facilities daily. Similarly, the transfer of incarcerated people into Varner Unit from other DOC facilities has continued unabated amid the pandemic. Incarcerated people are also moved within DOC facilities without appropriate assurance of isolation and quarantining for those individuals exposed to-or infected with--COVID-19.
170. Dozens of incarcerated people are currently engaging in recreational activities and having meals together in the same place, at the same time. Also, people incarcerated in DOC facilities sit within two feet of each other while dining; this is in contravention of the CDC's recommendation of six feet of social distancing. Mr. Sims and Mr. Elrod report interacting with people from all the wings at CACCC, including sitting close together in the gym for hours each day.
171. Named Plaintiffs and the putative class members are similarly unable to social distance in their barracks, where they sleep. Mr. Otwell is housed in a barracks in which the beds are located within 2.5 feet of each other. Mr. Serrato's bed is similarly situated within 2.5 feet of the beds ofmen around him. Although the men in Mr. Owens' barracks were told to alternate their
117 Cf Timothy Williams and Rebecca Griesbach, San Quentin Prison Was Free of the Virus. One Decision Fueled an Outbreak., N.Y. Times, (June 30, 2020), https://www.nytimes. com/2020/06/30/us/san-quentin-prison-coronavirus.html, ("The transfer of inmates-an effort intended to slow the virus, which instead apparently created a new outbreak-has been denounced by health officials, a federal judge and a growing number of state lawmakers as a public health failure. How San Quentin went from being a prison that had held off the virus for months to a place inundated with sick inmates represents a cautionary tale for the nation's prison system amid the pandemic.")
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beds head-to-toe, DOC staff have not enforced this rule, and so few actually have changed their sleeping placement.
172. This inability to social distance, together with a failure to adequately implement measures to reduce overcrowding, places Named Plaintiffs and the putative class members at a heightened risk of contracting COVID-19.
173. Fifth, Defendants do not adequately address suspected cases of COVID-19. If an incarcerated person exhibits symptoms of COVID-19, the CDC Guidance calls for them to be immediately given a face mask, placed in isolation, provided a medical evaluation and treatment, and evaluated for possible testing. In contrast, Defendants are not medically evaluating or treating all symptomatic people in DOC facilities and/or do not evaluate them for testing, nor are they appropriately supervising and/or training DOC staff to ensure that suspected cases of COVID-19 are properly addressed.
174. Named Plaintiffs have firsthand experience with Defendants' inadequate treatment ofincarcerated people exhibiting symptoms ofCOVID-19. For example, Mr. Kent informed prison staff that he had symptoms of COVID-19, but did not receive medical treatment, despite being especially vulnerable to contracting COVID-19 due to his serious heart condition. When Mr. Kouri, who is severely obese and therefore vulnerable to COVID-19, initially reported COVID-19 symptoms, such as shortness of breath and a cough, he was not evaluated for testing. Instead, he was provided eyedrops and sent back to his regular barrack. Similarly, Mr. Nicksonwho, as a 61-year-old with diabetes, has an increased risk of contracting and dying from COVID19---was not placed in isolation, despite his reporting symptoms of COVID-19. Instead, he continued to be housed with his non-symptomatic roommate. Residents at CACCC were not tested
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until it became public that a staff member had died of COVID-19, despite many of them showing symptoms such as high fever.
175. Defendants' unconstitutionally inadequate manner of handling suspected COVID19 cases places Named Plaintiffs and the putative class members at a heightened risk ofcontracting COVID-19.
176. Sixth, Defendants have failed to adequately manage staff who have tested positive for COVID-19. Instead, Defendants have permitted-and at times required-staff members who test positive to report to work, purporting to set guidelines that positive staff be asymptomatic and only interact with infected incarcerated people, though infected staff must use the same secured entrance as not-yet-infected staff.
177. Defendants knew or should have known that this policy and implemented practice placed Named Plaintiffs and the putative class members in great peril. The CDC Guidance indicates that "[i]f staff test positive for COVID-19: ... do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly." The CDC Guidance further warns that "[t]here are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress . . . ." Defendants have acknowledged that employees who have been exposed to or exhibit symptoms ofCOVID-19 should not report to work until they have completed their quarantine, yet they nevertheless instituted policies and practices that heighten this well-established risk.
178. Seventh, Defendants do not adequately handle incarcerated people and/or corrections staff who have had contact with people known to have tested positive for COVID-19 ("Close Contact Case"). In contravention ofthe CDC Guidance, Defendants have not implemented
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a 14-day quarantine of Close Contact Cases (with the exception of positive incarcerated people's cellmates), nor do they call for monitoring Close Contact Cases for COVID-19 symptoms. Defendants have also departed from the CDC Guidance by not requiring ADC staff who have had close contact with a COVID-19-positive person to not return to work unless they are asymptomatic 14 days after their exposure to COVID-19.
179. Eighth, Defendants have woefully inadequate policies and procedures for addressing the presence of a person who has tested positive for COVID-19 in a DOC facility. In the event that an incarcerated person or staff member tests positive for COVID-19, the CDC Guidance calls for the facility to close off the areas used by the person who contracted COVID19. These areas are to be well ventilated for at least 24 hours before they are disinfected by people equipped with proper PPE. Defendants, however, have not implemented any of these measures.
180. Moreover, due to inadequate testing, Defendants do not have an accurate accounting of who among the incarcerated population have been infected with COVID-19 and thus should be isolated to avoid spread ofthe virus.
181. In addition, Defendants have departed from the CDC Guidance by not informing incarcerated people that someone in their correctional facility has tested positive for COVID-19, thereby foregoing an opportunity to encourage incarcerated people to exercise more vigilance in their hygiene and cleaning habits when such extra vigilance is needed most.
182. Defendant Payne's claim that "ADC has [] used contact tracing to test inmates who may have been exposed to COVID-19 by staff members that became infected by the virus" (Dkt. No. 49-14, para. 13) is belied by the fact that, as of April 29, 2020, no incarcerated people had been tested at Grimes or EARU, despite staff at each facility having tested positive for the virus
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(Dkt. No. 51-6). Defendants' failure to conduct needed contact tracing with follow-up testing facilitated the subsequent outbreaks of COVID-19 at each of these facilities.
183. For those incarcerated people who are confinned to have contracted the COVID19 virus and have been quarantined, the medical care provided to them has been grossly inadequate. Despite exhibiting obvious symptoms, many putative class members do not receive timely and appropriate medical attention, but instead are left to suffer on their own. Those who do receive some fonn of medical care may receive treatment that is medically insufficient or inappropriate for the symptoms presented and/or provided long after it is medically required.
184. Defendants know that the aforementioned failures to adequately prevent and mitigate against the risk ofCOVID-19 spreading throughout DOC facilities unnecessarily heighten the risk ofPlaintiffs and the putative class members contracting COVID-19. Defendants also know what actions should be taken to quarantine those Named Plaintiffs and putative class members who have contracted COVID-19 to prevent further spread of the virus and to provide adequate medical care to avoid serious illness and possible death. Despite this knowledge, Defendants have failed to take reasonable steps to protect the health, safety, and well-being of people incarcerated in DOC facilities amidst the COVID-19 pandemic.
185. On April 8, 2020, the Arkansas Civil Liberties Union sent a letter to Governor Hutchinson, emphasizing the need to comply with the CDC Guidance in DOC facilities, in part by mandating social distancing and minimizing the transfer ofincarcerated people from one detention facility to another. This letter was also sent to Defendant Kelley. Despite the serious warnings in this letter, Defendants failed to implement any of the recommendations.
186. Even in those instances where Defendants have instituted policies and procedures to prevent and mitigate the spread ofCOVID-19 in DOC facilities, they have failed to ensure their
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proper implementation although they knew that there were problems with implementation. Despite being on notice ofthese problems, Defendants have not sufficiently supervised and/or trained DOC staff to remedy widespread problems with the implementation of DOC policies and procedures. V. Wellpath's Failure to Provide Adequate COVID-19-Related Medical Care to Those
Incarcerated in Arkansas' Prisons. 187. Wellpath's provision of medical care during the pandemic has been deliberately indifferent, but its egregious failure to provide adequate medical care predates the pandemic-and was known to the Arkansas Board of Corrections months before the pandemic's onset. 188. Although Arkansas pays Wellpath $371 per month per incarcerated person for healthcare services, Wellpath endeavors to spend as little of that money as possible on medical care for incarcerated people. 118 As a result, prison medical facilities are understaffed, the staff are underqualified, and incarcerated people suffer from grossly inadequate care. 189. Cummins Unit, for example, is served by one doctor, fewer than four registered nurses ornurse practitioners, and fewer than fourteen licensed practical nurses, or LPN's. 119 "LPNs are neither trained nor medically allowed to assess patients without supervision ... but nurses say that LPNs are the ones who evaluate prisoners when they place sick calls."120 190. The only doctor at Cummins has a revoked medical license, but the Arkansas State Medical Board has granted him permission to keep practicing so long as he reports to them. 121 His medical license has been revoked three times, most recently in 2018, for misconduct that involved drug use and treating patients while under the influence. 122 On one occasion, the Board described
118 Anna Stitt, Covid-19 Inside Arkansas Prisons: The Death of Derick Coley, FM 89.1 KUAR (June 9, 2020), https://www.ualrpublicradio.org/post/covid-l 9-inside-arkansas-prisonsdeath-derick-coley.
119 See id. 120 Id. 121 See id. 122 See id.
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his behavior as "exhibit[ing] gross negligence and ignorant malpractice."123 I91. Wellpath's chronic understaffing also denies incarcerated persons access to
medical care. According to one former nurse, incarcerated people who placed sick calls would not be seen by a doctor for approximately two weeks. 124 Wellpath instructed its nurses that an incarcerated person must place three sick calls for the same symptoms before they may see a doctor or nurse practitioner.125 Even if someone did everything correctly, it would take them a minimum often and a maximum of20 days to receive an appointment. 126 Mr. Elrod noticed Wellpath nurses taking temperatures with multiple thermometers and recording only the lowest temperatures. A Wellpath employee also attempted to take Mr. Elrod's temperature using an oral thermometer without a protective sleeve.
192. Because Wellpath understaffs its infirmaries, they are often hundreds of sick calls behind.127 In order to avoid fines from DOC for undue delay in seeing patients, Wellpath employees shredded paper sick calls and threw them away rather than scan them into their system.128 According to a former nurse, "'It was general operating procedure[.]' ... 'I watched nurses put the paper sick calls in the shredder and never blink an eye.' When prisoners complained, the nurses would say, 'Oh, the slip got lost in the box,' or 'You filled out the wrong form.' [The nurse] said, 'They could easily blame it on the inmate."' 129
193. This behavior is representative ofthe culture at Wellpath. One woman, who worked
123 Rachel Aviv, Punishment by Pandemic, The New Yorker (June 22, 2020), https://www.newyorker.com/magazine/2020/06/22/punishment-by-pandemic.
124 See id. 125 See Stitt, The Death ofDerick Coley, supra note 118. 126 See id. 127 See id. 128 See id.; see also Aviv, supra note 123. 129 See Aviv, supra note 123.
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as a physician's assistant for Wellpath until earlier this year, reported that "when officers called about sick inmates, 'nine times out of ten the nurses would say he's just faking it or trying to get out of something. If the officer says the inmate has been throwing up, the nurse will ask, 'Well, have you seen the inmate throw up? Until you see the inmate throw up, he can't come to the infirmary. "'130
194. A former Wellpath nurse explained, "'It's a pride issue. The mentality of the infirmary is: these individuals are worthless.' She said that new staff members quickly 'built up a brick wall' in order to assimilate to the culture. Those who didn't were dismissed as 'givers.' 'They would say, 'I can't believe you're falling for their games,' she said."131
195. Nor were these Wellpath's only issues. A nurse witnessed Black inmates being neglected while white inmates with similar needs were provided with treatment. 132 The nurse also reported that the administrator at her prison often denied her requests for medical supplies or substituted cheaper medications that posed a higher risk to the incarcerated patients who would take them. 133
196. The nurse reported her concerns to Defendant Benny Magness, chairman of the Board ofCorrections, but she "was told Wellpath is a private company and his hands were tied." 134 She ultimately reported her concerns to Wellpath management and was fired three weeks later. 135 VI. Defendants' Deliberate Indifference in Cummins Unit
197. Each morning at Cummins Unit, the "hoe squad"-the name given to the prison's field workers-crowds into a trailer and sits shoulder to shoulder as the trailer drives them to work
130 See id. 131 See id. 132 See Stitt, The Death ofDerick Coley, supra note 118. 133 See id. 134 See id. 135 See id.
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in the fields of a 16,000-acre farm that used to be several slave plantations. Unlike most other states, Arkansas does not pay incarcerated people for their labor, 136 who may be sent to isolation cells known as the Hole if they lag behind on their work. 137 When Gov. Hutchinson declared a state of emergency in the state on March 11, 2020, incarcerated people continued to work in the fields. When a worker at another state prison farm tested positive for COVID-19 on March 24, 2020, incarcerated people were required to work with no precautions to reduce the risk ofCOVID infection.138 Indeed, the prison did not formally inform them about the pandemic at all in March. Instead, the DOC officials simply posted signs on March 11, 2020 instructing incarcerated people to wash their hands for 20 seconds. 139
198. As March progressed and the "hoe squad" continued ''to swing-blade the grass in muddy ditches around a chicken plant reeking of ammonia," some began to question whether they should be working at all. 140 On March 26, 2020, one incarcerated person filed a grievance asking for the hoe squad to stop. 141 The corrections staff laughed his grievance off and returned it to him with the cover sheet still attached. 142 One man's grievance read, "'There's a global pandemic that is air-born .... I'm being forced to go out into the field thus putting my life in danger."' 143 In late March 2020, dozens of hoe squad members refused to go to the fields, lying down in their beds when their names were called for work. 144 The men were disciplined for "unexcused absence,"
136 See id. 137 See Aviv, supra note 123. 138 See Stitt, Virus Spreads Through Inmate Populations and Staff, supra note 108. 139 See id. 140 Molly Minta, Incarcerated, Infected, andIgnored: Inside an Arkansas Prison Outbreak, Nation, (June 17, 2020), https://www.thenation.com/article/society/cummins-prison-arkansascoronavirus/. 141 See id. 142 See id. 143 See Aviv, supra note 123. 144 See id.
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which carries a punishment of up to 15 days in isolation. 14s As one member of the hoe squad explained, "Over 19 guys got written disciplinaries for not going to work even though a pandemic was going on." 146
199. On April I, 2020, the first DOC staff member at Cummins Unit-a farmworkertested positive for COVID-19. 147 Cummins Unit did not respond by mass testing incarcerated people or ending the "hoe squad." Instead, the hoe squad continued until the first inmate at Cummins Unit received a positive test. 148 One member of the group described the last day in the fields: '"The last actual day, our hoe squad supervisor, she jumped off of her horse because she wasn't feeling good,' [he] said. 'She threw up, and lieutenants all came down off horses and surrounded her."' 149
200. The treatment of the "hoe squad" was a microcosm of Defendants' approach to pandemic preparation in general. When a staff member tested positive for COVID-19 on April I, 2020, the DOC officials withheld the information from corrections staff. One corrections officer observed, "You would think our captains or sergeants or majors would warn us about something like this, but they didn't speak about it[]" . . . . They kept everything in the closet. If you didn't catch the news, you were in the blind." 1so The next day, the corrections officer and a few of her colleagues wore masks that they purchased to work, but when they entered the prison, they were instructed to remove the masks. 1s1
20 I. DOC began to manufacture masks for inmates, but manufacturing was performed
14s See id. 146 See Stitt, Virus Spreads Through Inmate Populations and Staff, supra note I08. 147 See Minta, supra note 140. 148 See Stitt, Virus Spreads Through Inmate Populations and Staff, supra note I08. 149 See Minta, supra note 140. iso See Aviv, supra note 123. isi See id.
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at Cummins Unit, the epicenter of the DOC COVID-19 outbreak. One incarcerated person at Cummins Unit was required to sew masks for days while he had a fever and chills and did not stop until he was taken to the infirmary with a temperature of I04 degrees. 152
202. Moreover, the masks produced by the prison are poorly made and likely ineffective. The masks are made of the same material as prison bedsheets, which were very thin seemed to offer little protection against COVID-19. 153 When the incarcerated people attempted to make thicker masks for themselves, DOC staffthreatened to write them up for contraband and send them to the Hole. One corrections officer reported that her prison-manufactured mask kept falling off her face, and she sucked the material into her mouth whenever she talked. 154 This same corrections officer noticed wardens and deputy wardens secretly wearing their own masks from home underneath the state-issued masks. 155
203. Defendants began testing DOC staff for COVID-19 in early April 2020, but they did not track how many or which oftheir staffhad tested positive. In response to a reporter's query, a DOC spokesperson said that the department knew of 17 employees who tested positive, but did not know "a precise number because some employees used other providers for tests". 156
204. Both incarcerated people and corrections staff at Cummins Unit soon began falling sick. 157 Around the start of April 2020, Plaintiff Hussey stopped getting out of bed. Mr. Hussey lived in an open barracks with cots that were stationed three feet apart and bolted to the floor. 158 On April 9, 2020, Mr. Hussey passed out and was tested for COVID-19. When the test results
152 See id. 153 See Minta, supra note 140. 154 See Aviv, supra note 123. 155 Jd. 156 See Minta, supra note 140. 157 See id. 158 See Aviv, supra note 123.
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came back positive, "Hussey was taken to the Hole in a wheelchair." 159 After Mr. Hussey left the barracks, another inmate stripped his COVID-infused sheets from the bed and walked to the nursing station to request a boil bag so he could separate the sheets from the rest of the wash. "[T]he nurse there, Shirley Lubin Wilson, told him, 'Get the r*k away from my window.' In a federal civil-rights lawsuit last year, Wilson was accused of wrapping a telephone cord around an inmate's neck while a second nurse blocked the surveillance camera."160
205. The same day, a different incarcerated person went to the infirmary and said that he was experiencing COVID-19 symptoms.161 The man informed medical staffthat he had a "real bad case of diarrhea" and that he was unable to taste or smell anything; he was given two Tylenol and sent back to his barracks. 162 He was not tested for COVID-19.
206. On April 11, 2020, following Mr. Hussey's positive test, Cummins Unit tested the rest of Mr. Hussey's barracks. Four nurses tested the remaining 46 men in the barracks without changing their gloves between tests. 163 The next morning, corrections officers showed up at the barracks door and began shouting out names. They led the named men away without telling them whether they were positive or negative. A few hours later, the corrections officers brought them all back because all but three members of the barracks had tested positive.164 A nearby barracks was also tested, and a sergeant later informed the men "Y'all are negative."165 The men were not. When one ofthem noticed that he had lost his smell, he asked his cousin to call the prison's central
159 Id. 160 Id. 161 See Minta, supra note 140. 162 See id. 163 See Aviv, supra note 123. 164 See Minta, supra note 140. 165 See Aviv, supra note 123.
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office and find out the results of his test. 166 He had tested positive. 167 Many of the others had too. 207. On April 12, 2020---the same day that the men in Mr. Hussey's barracks learned
that they had tested positive--Govemor Hutchinson dismissed calls for broader testing at Cummins Unit, stating that he was hopeful that the outbreak had already been contained. 168 The same day, DOC staff tested a random sample of incarcerated people in other barracks to see whether the virus was, in fact, contained. 169 The results showed that the virus had spread throughout the prison. The corrections staff responded by locking down the barracks and, purportedly, separating those who tested positive from those who had tested negative. 170
208. But some incarcerated people, like Demarco Raynor, were never moved at all regardless of test results. 171 As Mr. Raynor told a reporter, "I'm looking at a guy who tested negative right next to a guy who tested positive."172 The men on both sides of Mr. Raynor later shared their results with the New Yorker and substantiated Mr. Raynor's statement.
209. Another incarcerated person reported that he was tested and then left in a barracks with sick individuals for two days. 173 By the time that his results had come back negative, he was running a fever and feeling weak. Prison staff transferred him to a COVID-negative barracks without asking him how he was feeling, taking his temperature, or telling him where he was going. 174 He later tested positive.175 Incarcerated people who tested negative for COVID-19 were
166 See id. 167 See id. 168 See Minta, supra note 140. 169 See id. 170 See id. 171 See Aviv, supra note 123. 1n See Stitt, Virus Spreads Through Inmate Populations and Staff, supra note 108. 113 ld. 174 See id. 175 See id.
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moved to various places, including an abandoned school, the prison's law library, and temporary holding cells.176 People who were moved to these locations report that they did not have access to grievance forms or phones and needed to bathe with a hose. 177 Some were forced to resort to urinating and defecating on the floor, then physically picking up their feces and putting it in the hall, using a small trap door in the bolted door to the room. 178
210. When incarcerated people began testing positive, the prison eventually halted some jobs like the "hoe squad." But others continued, even for individuals who had tested positive and could further spread the virus. One man who worked as a picket man sorting and folding laundry told The Nation that he had to keep working despite testing positive. 179 '"I been working throughout the quarantine, I pretty much don't have a choice,' he said. 'Ifl don't work, they'll tum around and write a disciplinary. "'180
211. Defendants' approach to COVID-positive corrections staff also likely played a role in Cummins Unit outbreak and resulting deaths. On April 15, 2020, one person incarcerated in Cummins Unit noticed a corrections officer who had come in looking unwell. "We could look at her and tell that she was sick," he said. "She was all around the barracks, coughing, making rounds." 181 The same day, Defendants decided that staff who had tested positive could return to work if their facilities-like Cummins Unit-were understaffed. 182
212. Another incarcerated person heard a staff member say, "All ofus got it, but they're
176 See id. 177 See id. 178 See Stitt, Virus Spreads Through Inmate Population and Staff, supra note 108. 179 See Minta, supra note 140. 180 Id. 181 See id. 182 See id.
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telling us to work anyway if we're not showing symptoms." 183 Still another incarcerated person reported asking an officer who had come to his COVID-positive barracks whether she had the virus, and she replied that she had not been tested. 184 "'Our newspaper says you must be positive for corona if you're working our barracks,' [the incarcerated person] told her. He said that she responded sarcastically, 'Well, they say your beds are six feet apart, too."' 185
213. One corrections officer observed that the DOC's policy did not make sense because "all the guards were passing through the same entrance, checkpoints, and hallways." 186 DOC defended its policy and told Mother Jones that its rules are based on a CDC guidance for "critical infrastructure workers." 187 But the CDC guidance was limited to asymptomatic workers with "'potential exposure to COVID-19"'-not those who had themselves tested positive for COVID19_ 188
214. "[W]hen asked about the Arkansas policy, a CDC spokesperson did not condone it."189 "'CDC guidelines state that if staff test positive, they should self-isolate at home until they have met the CDC criteria for release from isolation in consultation with their physician,' CDC spokesperson Bert Kelly told Mother Jones." Contrary to the DOC policy, the CDC recommends that asymptomatic individuals who test positive should stay home for at least ten days after their
183 See Samantha Michaels, Arkansas Told Corrections Officials to Keep Working Even If They're Infected With COVID-19, Mother Jones (June 2, 2020), https://www.motherjones.com/ crime-justice/2020/06/arkansas-told-corrections-officers-to-keep-working-even-if-theyreinfected-with-covid-19/.
184 See id. 185 See Aviv, supra note 123. 186 Id. 187 Michaels, supra note 183. 188 See id. (quoting CDC, Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safetypractices.html). 189 Id.
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positive test result, or until they have tested negative twice in a row. 190 215. As the virus spread from barracks to barracks in Cummins Unit, its deadly effects
were exacerbated by the deliberately indifferent medical attention given to people who tested positive for COVID-19. One incarcerated person stated that no nurses visited his barracks, which was filled with COVID-positive men, for three weeks after they were tested. 191 The same person also put in a sick call citing COVID symptoms; he did not hear back from a nurse for four days. 192
216. One night, a different incarcerated person told a corrections officer that he was struggling to breathe. The man looked ready to faint, and his eyes were bloodshot. The officer asked a sergeant to escort the inmate to the infirmary, but the sergeant refused and told her '"Tell him to go get on that kiosk'-a computer touched by dozens of inmates each day-so that he could fill out a request to visit the infirmary ...." 193 She eventually signaled a medical emergency over the prison radio system, and a nurse arrived with a wheelchair. But the infirmary was full so the nurse deposited him in a holding cell with no bed, no toilet, and no running water. 194 As the officer explained, "A lot of times [staff] forget the inmates are there .... They'll stay there for hourshours."195 Once the man was taken away, the officer was reprimanded by a sergeant, who told her that the man could have stayed on his bed. "That's how they look at it: 'Tell him to sleep it off."'196
217. Defendants knew about the gross inadequacies of their COVID-19 containment, mitigation, and medical treatment in Cummins Unit. Their deliberate indifference likely cost 29year-old Derick Coley his life. On April 15, 2020, a Wellpath nurse examined Mr. Coley. She
190 See id. 191 See Stitt, The Death ofDerick Coley, supra note 118. 192 See id. 193 See Aviv, supra note 123. 194 See id. 19s Id. 196 Id.
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noted that he was too weak to walk and that his blood-oxygen level was 90, a figure that typically indicated a patient should be hospitalized.197 Rather than send Mr. Coley to the hospital, DOC staff sent him to the Hole.198 He remained in the Hole for 17 days, and medical staff never recorded his vitals again. 199
218. As time passed, the men in the neighboring cells became increasingly worried about Mr. Coley's wellbeing. They repeatedly told corrections staffthat Mr. Coley could not breathe and needed to go to the infirmary, but the corrections officers just walked by.200
219. Cecilia Tate, the mother of Mr. Coley's eight-year-old daughter and his emergency contact, made repeated efforts to reach him at the prison. "I just kept calling, they just kept saying he had no more symptoms."201 A prison nurse told Ms. Tate that Mr. Coley had tested positive for COVID-19 but that his fever had gone down and he was doing fine. 202 Meanwhile, family members of other men incarcerated with Mr. Coley were calling her to report that Mr. Coley was seriously ill.203 Those men had also been unsuccessfully asking nurses to check on Mr. Coley as he grew weaker.204
220. Another incarcerated person who had been housed in the Hole observed that Mr. Coley's treatment was unsurprising. "Listen, these people are supposed to come every thirty minutes, but they weren't making any rounds. They might come every four hours, but they wouldn't even turn their heads unless you were calling their names."205 "It makes perfect sense
197 See id. 198 See id. 199 See id. 200 See id. 201 See Stitt, The Death ofDerick Coley, supra note 118. 202 See id. 203 See id. 204 See id. 205 See Aviv, supra note 123.
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that Coley was back there dying and no one ever noticed."206 221. After two and a half weeks in the Hole, officers finally paid Mr. Coley a visit-but
only because they needed to move a new person into his cell.207 The officers told Mr. Coley that he needed to return to general population, but when he tried to stand up, he collapsed on the floor.208 He was still lying on the floor, lips pale and struggling to breathe, when a nurse arrived to take him to the infirmary. Several men watched through their cell windows as Mr. Coley was wheeled away, unresponsive and with his wrists handcuffed.209
222. Mr. Coley's final medical care was provided by licensed practical nurses-nurses who are expected to assist registered nurses-while the prison's sole doctor (whose medical license had been revoked) advised them by telephone.210 "Coley was given chest compressions by the nurses, one of whom had been involved in the incident in which an inmate was allegedly choked with a telephone cord."211 The coroner's report states that Mr. Coley was '"worked on and then passed away."'212
223. DOC officially said ''that it did not consider [Mr.] Coley's death to be COVIDrelated."213
224. Not all of the sickest inmates at Cummins Unit were placed in the Hole like Mr. Coley. Some were also placed in the visitation room, which had been turned into a makeshift hospital even though it had no showers or phones.214 One incarcerated person died there, sitting in
206 Id. 207 See id. 208 See id. 209 See id. 210 See Stitt, The Death ofDerick Coley, supra note 118. 211 See Aviv, supra note 123. 212 See id. 213 See Stitt, The Death ofDerick Coley, supra note 118. 214 See Aviv, supra note 123.
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his wheelchair.215 On another occasion, prison staffmoved a man who had tested negative into the visitation room.216 He tried repeatedly to give officers his paperwork showing his negative test results, but they refused to look at it.217
225. As the outbreak spread through the prison, prison staff stopped fulfilling even basic responsibilities. Some stopped coming to work altogether.218 The officers who did come to work rarely made security rounds and delivered meals sporadically, often on carts used to transport trash or laundry.219 One corrections officer told an incarcerated person that he should not expect to get his grievance signed by a sergeant-as required by DOC regulations-because he had seen grievances discarded in a bathroom trash can.220
226. During the last weekend of April 2020, men in one barracks threw a television through a window. When a corrections officer arrived to investigate the disturbance, the men began shouting to her that their sick calls were going unanswered, and that people who tested positive were being mixed in with those who had tested negative.221
227. On May 2, 2020, an officer refused to sign a grievance about the prison's failure to feed people in the prison, which drove a few men to break into the officers' control booth and open the doors on their hallway.222 An hour later, a team of corrections officers showed up in riot gear ''with a cart of weapons from the prison's armory."223 In the midst of a respiratory pandemic, they fired tear gas into the barracks, causing one incarcerated person to have a seizure. "'He just laid
215 See id. 216 See id. 217 See id. 218 See id. 219 See id. 220 See id. 221 See id. 222 See id. 223 See id.
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on the ground, twitching,' ... an inmate in the barracks, said. 'He almost suffocated."'224 228. Smoke and tear gas drifted into an adjacent barracks, where every individual had
tested positive for COVID-19.225 Darrell Jones, who was in the COVID-positive barracks, realized that he needed to shut off the ceiling fan in the barracks. "'It was pulling the smoke in from the hallway.... People sounded like they were choking to death. ' 226" The switch for the fan was just outside the barracks doorway, and as Mr. Jones stepped through the door to tum off the switch, a guard shot him in the face with a rubber bullet.227 Hours passed before guards took him to the infirmary. "They left him in a puddle of his own blood," according to a witness.228 He was later taken to a hospital in Little Rock.
229. Following the incident, Defendant Payne acknowledged that there had been a "minor disturbance" at the prison.229 When asked ifthere were any injuries, he answered, "No."230
230. Mr. Jones still cannot see out of his left eye and suffers from migraines ifhe keeps it open for more than 20 minutes.231 He filled out a sick call in early May 2020, but had not received an appointment with a specialist as of mid-June 2020.232 He now spends all day in bed with his eyes shut to stave off migraines.233
231. On May 16, 2020, Defendant Payne spoke at the Governor's press conference to announce that Cummins Unit had only 12 positive cases.234 The rest were "considered to be
224 See id. 225 See id. 226 See id. 227 See id. 228 See Minta, supra note 140. 229 See Aviv, supra note 123. 230 See id. 231 See Aviv, supra note 123. 232 See id. 233 See id. 234 See id.
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recovered."235 Despite his claim, DOC has admitted that it never retested people incarcerated at Cummins Unit.
232. As one person incarcerated at Cummins Unit wrote in a letter to the Governor, "Watching a press conference witnessing your saying almost 900 people have recovered at Cummins Unit and then I walk by a guy that can't get out ofthe bed makes me question my sanity level. " 236 VII. Viral Outbreaks of COVID-19 in More DOC Facilities
233. When Plaintiffs sought emergency relief from this Court after filing their initial Complaint, they argued that COVID-19 outbreaks were likely to spread to facilities other than Cummins Unit and would continue to spread to the COVID-negative individuals incarcerated in Cummins.237 Defendants' response was: "That makes no sense."238 In the Defendants' view, their "containment and mitigation strategies" protected against this possibility239 and the fact that Cummins Unit was the only facility beset with a COVID outbreak in the early stages of the pandemic suggested that Plaintiffs' requested actions were unnecessary to stave off the spread of the virus.240
234. Shortly thereafter, a major COVID-19 outbreak occurred at the Randall L. Williams Correctional Facility. At least 286 incarcerated individuals tested positive and one died.
235 See id. 236 See Aviv, supra note 123. 237 See Doc. No. 36 at 62-63, 70. 238 Id. at 70. 239 See id. at 62-63. 240 See id. at 72.
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235. Since the outbreak at Randall L. Williams, individuals have tested positive at several DOC facilities .241 The outbreak at EARU was particularly large, with approximately 650 individuals testing positive and at least two dying.242 The Ouachita River Correctional Unit, which
~
houses many of the OOC's most vulnerable inmates, now has at least 1,162 positive tests for COVID-19.243 The Wrightsville Unit has recorded 81 positive tests, and the Northwest Arkansas Work Release Center has registered 41 positives.244 The Grimes Unit has five positives.245
236. On June 25, 2020, a prison spokeswoman confirmed that Cummins Unit, already the site ofone ofthe largest COVID-19 outbreaks in the country, recently recorded 30 new positive cases. They currently report 41 positive cases at the facility. The renewed spread of COVID-19 in Cummins Unit may well relate to the facility's decision to mix quarantined barracks with nonquarantined barracks, and to continue to permit corrections staffto wear masks hapha7.ardly or not at all.
237. In addition to the facilities with incarcerated people who have tested positive, other facilities employ staff members who have tested positive, including the Texarkana Regional Correction Center, Varner Unit, Barbara Ester Unit, and McPherson Unit. In total, 185 DOC employees have tested positive, as have seven Wellpath employees.
241 The Central Arkansas Community Corrections Center also had an outbreak in April that led to at least 63 inmates and 27 staff members testing positive. One staff member died.
242 Ninette Sosa, A Closer Look: COVID-19 continues to impact Arkansas prisons and staff, WREG Memphis (July I, 2020), https://wreg.com/news/a-closer-look-covid-19-continuesto-im pact-arkansas-state-prisons-stafl7.
243 See id. 244 See COVID-19 update: HS County cases lead the state, The Sentinel Record (Jul. 11, 2020), https://www.hotsr.com/news/2020/jul/l l/covid-19-update-hs-county-cases-leadthe-state/ 245 See id.
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VIII. Named Plaintiffs and Pu.tative Class Members Are Subject to Retaliation and/or Intimidation Regarding the Deficiencies of COVID-19 Mitigation and Medical Treatment in DOC Facilities. 238. By allowing retaliation and intimidation to occur unabated, Defendants have
fostered a hostile environment in which Named Plaintiffs and putative class members are afraid to seek remedies and recourse for deficiencies in Defendants' handling of the COVID-19 pandemic through DOC's internal processes, the media, and/or outside legal assistance. These instances of retaliation and intimidation are not limited to any specific facility but are part ofa pervasive culture embedded throughout DOC facilities across the State ofArkansas. These instances prevent Named Plaintiffs and putative class members from receiving the appropriate supplies and/or medical services to prevent contraction ofCOVID-19 and/or the development of serious illness or death.
239. After the original complaint was filed in this case, DOC staffand/or Wellpath began withholding medication for some Named Plaintiffs. Marvin Kent's Omeprazole has been withheld multiple times since the complaint was filed in this case. On June 23, 2020, he submitted a grievance stating that Nurse A. Jones refused to provide his medication and that he was afraid Nurse A. Jones would retaliate against him for filing the grievance. Due to his medical conditions, Mr. Kent experiences significant pain and discomfort when he misses just one day ofOmeprazole.
240. On May 4, 2020, Nicholas Frazier was examined by a Wellpath nurse practitioner working for DOC, who he believes is named Ms. Bland. The visit was a chronic care visit for Mr. Frazier's asthma. The Wellpath nurse took Mr. Frazier's blood pressure and temperature but did not listen to his lungs, despite his complaint ofchest tightness, and denied Mr. Frazier's request for an inhaler. The nurse stated that because Mr. Frazier refused have blood drawn for bloodwork, he could not get a life-saving inhaler for his asthma. Mr. Frazier's bloodwork helps monitor his Hepatitis and is unrelated to his asthma. Mr. Frazier has always been compliant with his bloodwork
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in the past but refused having his blood drawn one time because he did not believe sufficient precautionary measures were in place to ensure a sterile environment for the blood to be drawn during the pandemic. Mr. Frazier asked the nurse for her name. She refused to provide her name and stated, "You know my name."
24 l. Mr. Frazier completed a written request to seek medical assistance regarding his asthmatic symptoms. Several days later, he received a response stating that he needed to utilize a sick call. The written request that Mr. Frazier completed was a sick call form. He is in solitary confinement and does not have access to a kiosk to complete the sick call form electronically.
242. Many people incarcerated in DOC facilities will not write grievances about COVID-19 due to fears of retaliation. Others have experienced intimidation and/or retaliation in response to their grievances. On April 18, 2020, Captain Mulliguin sent Michael Kouri back to his barracks to get his own pen to sign the response to a grievance about Defendants' deficiencies in preventing and mitigating the spread of the COVID-19 virus and protecting his health and safety. Captain Mulliguin confiscated Mr. Kouri's pen as contraband after he signed the grievance. Mr. Kouri had a hobby craft card that allowed him to have that pen.
243. Joseph "Dallas" Head has experienced retaliation and intimidation for submitting grievances many times. He has been cursed at and threatened for writing grievances. He has also witnessed staff withholding necessities, such as socks, in retaliation for grievances.
244. On April 1, 2020, Mr. Head asked Sergeant Penister to sign off on a grievance. About three hours later, Mr. Head was called to the office of Max Unit Captain John Spears. Captain Spears threatened him with loss of class, loss ofjob, and a drug test. Captain Spears told Mr. Head that the prison was making him crazy and that he must be on methamphetamines and threw the grievance at Mr. Head. Captain Spears refused to acknowledge the "Problem Solver"
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procedure or sign the grievance. Mr. Head placed the grievance in the box for step 2 and never saw it again.
245. After filing grievances regarding COVID-19 measures and issues with his legal mail, Aaron Elrod received two cardinal violations. One violation was for reporting a story with "racial material" while giving the world news report as assigned. The other violation was for taking a document from the law library even though he received permission to take the document to his hearing as evidence. The later violation was eventually overturned by the Warden, but Mr. Elrod had already been denied parole due to the cardinal violations.
246. Jimmy Little has submitted several grievances since the COVID-19 pandemic began. He has a collapsed lung, emphysema, and Crohn' s disease. He fears he will not survive if he contracts COVID-19. On May 19, 2020, Mr. Little submitted an Inmate Request Form regarding incarcerated people who tested positive for COVID-19 being moved to his barrack. The response he received stated that "it's not a good practice to talk other inmates [sic] business." Mr. Little perceived this to be a threat intended to intimidate him from continuing to write grievances.
247. Jimmy Little is currently incarcerated at Randall L. Williams Correctional Facility. His TE date is August I, 2020. He is also included on the list of incarcerated people approved by the Parole Board and Director Payne for early release under Modified Emergency Powers. https://adc.arkansas.gov/images/uploads/Special_EPA_Approvals_060120.pdf. When Mr. Little went before the Parole Board, however, he was given a one-year denial. Mr. Little has no current major disciplinaries. In fact, he only received one major disciplinary in 2012 for refusal of assignment. Mr. Little believes that the one-year denial is retaliation for writing grievances and sharing information with counsel about Defendants' actions and inactions related to the COVID-
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19 pandemic. 248. Marvin Kent's TE date is July 30, 2020. Mr. Kent went before the Parole Board on
May 26, 2020. Approximately 10 minutes after his phone hearing, Mr. Kent was called back from his barrack to the phone. He spoke with a commissioner who asked him ifhe would be willing to drop this lawsuit if the Parole Board granted him parole. Mr. Kent was ultimately denied parole. Because he was asked about the lawsuit by a commissioner as part of his parole hearing, he believes that his participation in this lawsuit was considered by the Parole Board when deciding whether he should be granted parole. Mr. Kent submitted a reconsideration letter addressing the inappropriateness of being asked about the lawsuit as part of his parole hearing.
249. Plaintiffs have not been allowed confidential phone calls with their attorneys. ORCU unit calls are made from the barracks. Although the calls are not supposed to be monitored, several attorney calls have been disconnected for suspected third party calling. Most scheduled legal calls at other units have been made from a Captain's or another high-ranking officer's office. Several plaintiffs have reported feeling uncomfortable and/or intimidated talking to their attorneys in the presence of correctional officers.
250. During Marvin Kent's last two scheduled legal calls, the warden put the entire unit on lock down. During these lock downs, correctional officers shake down all the barracks and no one is allowed to leave their barrack. Mr. Kent has to walk down the hallway past every barracks to get the Captain's office for his legal call. The other incarcerated individuals can see that he is out during lockdown as he walks past the hallway windows. This sends a message to other incarcerated persons that he is getting a special privilege while they are being searched on lockdown. Mr. Kent believes that he is being set up to being viewed with suspicion by others incarcerated in his facility.
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251. The media has also encountered fears of retaliation when speaking to people incarcerated in DOC facilities. In her three-part series on the coronavirus outbreak in Arkansas prisons, Anna Stitt reported, "We talked with half a dozen prisoners in barracks throughout Cummins for this story. All but one asked to be kept anonymous. They said they feared retaliation for raising concerns about the outbreak."246 In Molly Minta's article for the Nation, she stated, "Through phone interviews and letters sent in March, April, and May, a dozen prisoners at Cummins gave firsthand accounts of the outbreak. (Most asked that their real names not be published out of fear of being punished; unless otherwise noted, prisoners' names are pseudonyms.)"247 In her New Yorker article, Rachel Aviv stated, "Some of the men I spoke with were afraid to use their names; they thought that they would be put in the Hole, or sent to the Hoe Squad, as punishment. When I asked Raynor why he chose to go on the record, he told me, 'I want the men in here to know that someone they know was willing to sacrifice themselves for them."'248
252. DeMarco Raynor, who has been quoted in multiple media stories, has suffered from retaliation since speaking to reporters. Correctional officers have been hostile towards him, openly bringing up his contact with the media. On July 5, 2020, he was aggressively approached by Captain Johnson, Sergeant Goforth, and Sergeant Gardner. They searched his person and property, throwing things around his cell. No contraband was found. (Lieutenant Powell, Sergeant Hadley, and Sergeant Lewis were also present, but were not aggressive or hostile. Sergeant Mouser was present and made sarcastic remarks but was not hostile.)
253. On July 7, 2020, Mr. Raynor's belongings were ransacked again by five ranking officers at 1:30 a.m. and then again around 1 p.m. Although he was searched three times within 48
246 Stitt, Virus Spreads Through Inmate Populations and Staff, supra note 108. 247 See Minta, supra note 140. 248 See Aviv, supra note 123.
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hours, no contraband was found. Thes~ searches were kept off the record and were indicative of targeted harassment.
254. After Austin Mitchell and his family spoke to the media and to this Court regarding the outbreak at CACCC, residents in quarantine lost phone and other privileges, and their time in an over-crowded quarantined wing was extended without explanation. Named Plaintiffs Arron Elrod and Cedrick Sims have fears of retaliation due to their participation in this lawsuit.
CAUSES OF ACTION COUNT ONE
Violation of the Eighth Amendment
(42 u.s.c. § 1983)
All Plaintiffs/Petitioners versus All Defendants/Respondents 255. Plaintiffs/Petitioners incorporate by reference all allegations contained in the preceding paragraphs as if set forth fully herein. 256. The Eighth Amendment to the Constitution of the United States, as incorporated through the Fourteenth Amendment, provides that individuals who are incarcerated following a conviction have the right to be free from cruel and unusual punishment. That right entails, among other things, Defendants/Respondents' obligation to protect incarcerated individuals from a substantial risk of serious harm to their health and safety. See generally Farmer v. Brennan, 511 U.S. 825 (1994). 257. Defendants/Respondents' failure to provide adequate protection and, if necessary, medical care in response to the rapid spread of a highly infectious deadly virus constitutes deliberate indifference to the serious medical needs of incarcerated individuals in violation of the Eighth Amendment. 258. Plaintiffs/Petitioners, and the proposed Class they represent, are at a substantial risk of serious harm to their health and safety due to the spread of COVID-19 in DOC facilities.
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259. Defendants/Respondents have acted with deliberate indifference to the risks posed by COVID-19 to Plaintiffs/Petitioners.
260. Defendants/Respondents knew, and know, of the obvious and well-established risks to Plaintiffs/Petitioners caused by COVID-19.
261. Defendants/Respondents have failed to act with reasonable care to mitigate the risk posed by COVID-19.
262. As a result of Defendants/Respondents' actions, Plaintiffs/Petitioners and members of the proposed Class are suffering irreparable injury.
263. At all times, Defendants/Respondents acted under color of state law. COUNT TWO
Petition for Writ of Habeas Corpus Violation of the Eighth Amendment
(28 u.s.c. § 2241)
High Risk Subclass versus All Defendants 264. Plaintiffs/Petitioners repeat and re-allege the preceding paragraphs as if set forth herein. 265. 28 U.S.C. § 224l(c)(3) permits this Court to order the release of incarcerated individuals like Plaintiffs/Petitioners who are being held "in violation of the Constitution or laws ... ofthe United States." See also Preiser v. Rodriguez, 411 U.S. 475,484 (1973) ("It is clear, not only from the language of§§ 224l(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function ofthe writ is to secure release from illegal custody."). 266. Defendants/Respondents are currently holding Plaintiffs/Petitioners in custody in violation of the Eighth Amendment. Given the highly contagious nature of COVID-19 and the deadly and debilitating threat that it poses to members of the High Risk Subclass,
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Defendants/Respondents cannot currently mitigate the risks to members ofthe High Risk Subclass sufficiently to satisfy the Eighth Amendment by any means short of release from custody.
COUNT THREE Violation of the Americans with Disabilities Act
(42 U.S.C. § 12101 et seq.) Disability Subclass versus All Defendants 267. Plaintiffs/Petitioners repeat and re-allege the preceding paragraphs as if set forth herein. 268. Members of the Disability Subclass have a physical impairment that substantially limits one or more of their major life activities. 269. Members ofthe Disability Subclass are qualified individuals with a disability under the meaning of both the ADA and the Rehabilitation Act. 270. Defendants/Respondents intentionally discriminate against members of the Disability Subclass by denying them reasonable accommodations that have been recommended by the CDC and are necessary to protect them from COVID-19. 271. Reasonable accommodations necessary to protect incarcerated individuals with disabilities include, but are not limited to: a. Access to alcohol-based sanitizer; b. Provision of cleaning supplies, including products containing bleach, adequate to clean individuals' housing areas; c. Provision of PPE; d. Access to antibacterial hand soap and towels to enable individuals to wash their hands as necessary; e. Implementation of social distancing measures in all locations where incarcerated people are required to congregate; and
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[

Release or transfer to home confinement if social distancing is not

practicable, or the facilities cannot otherwise eliminate the substantial risk of serious harm.

272. The failure to provide these accommodations constitutes illegal discrimination

under the ADA and entitles Plaintiffs/Petitioners to injunctive and declaratory relie[

273. Members of the Disability Subclass, including without limitation certain Named

Plaintiffs/Petitioners, request cleaning supplies, PPE, early release, and/or the ability to socially

distance themselves because their individual disabilities significantly increase the risk of COVID-

19 infection, serious illness, and/or death. These requests for items and/or services constitute a

request for accommodations under the ADA, regardless of whether the specific terms

"accommodation," "Americans With Disabilities Act," or "ADA" were referenced, because they

are requests due to a disability and because these items and/or services are expressly not provided

to all people who are incarcerated.

274. Defendants/Respondents know that members of the Disability Subclass are

qualified individuals with a disability. Defendants/Respondents know that members of the

Disability Subclass are in especially acute need of access to accommodations during the COVID-

19 pandemic, including without limitation hand sanitizer and the other items identified above, yet

it has denied, and continues to deny, these reasonable accommodations to members of the

Disability Subclass.

275. Title II of the ADA requires Defendants/Respondents to make its services,

programs, and activities accessible to people with disabilities. Under Title II of the ADA, "no

qualified individual with a disability shall, by reason of such disability, . . . be denied the benefits

ofthe services, programs, or activities of a public entity, or be subjected to discrimination by such

entity." 42 U.S.C. § 12132. If members of the Disability Subclass are unable to access those

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services, programs, and activities by reason of their disabilities, the ADA requires Defendants/Respondents to provide accommodations to make those services, programs, and activities accessible.
276. DOC is a public entity covered by Title II ofthe ADA. 42 U.S.C. § 12131. 277. "A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability ...." 28 C.F.R. § 35.130(b)(7). 278. For purposes of the ADA, medical treatment and safe conditions of confinement are programs or services that DOC facilities provide to Plaintiffs/Petitioners. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) ("Modern prisons provide inmates with many recreational 'activities,' medical 'services,' and educational and vocational 'programs,' all of which at least theoretically 'benefit' the prisoners (and any of which disabled prisoners could be 'excluded from participation in').") 279. In addition, DOC facilities are replete with programs and activities provided by Defendants/Respondents. There are myriad number of individual "programs" within the facility. Some of these programs are necessary for an individual to achieve an early release. Without the opportunity to participate in these programs safely, without threat to their lives, the members of the Disability Subclass are not afforded an equal opportunity to achieve that early release. 280. Members of the Disability Subclass are given the choice between their health and safety and the net benefit of the programs provided by Defendants/Respondents. Members of the Disability Subclass are at a significantly higher risk of contracting COVID-19, as well as experiencing complications and dying from COVID-19-related illnesses. Offering mere participation-unaccommodated, unmitigated, and unsafe-to the Disability Subclass who are at
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greater risk is discrimination on the basis of disability. 281. The accommodations requested by members of the Disability Subclass, including
without limitation certain Named Plaintiffs/Petitioners, were reasonable but were nevertheless denied. Requiring members of the Disability Subclass to choose between Defendants/Respondents' services, programs, and activities on one hand, and a heightened risk of substantial harm or death when compared with their peers without a disability on the other, is not a meaningful opportunity for participation.
282. "A public entity, in providing any aid, benefit, or service, may not, ... on the basis of disability, ... [d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service." 28 C.F.R. § 35.130(b)(l)(i). When the risk of participation is a greater likelihood ofdeath, failing to accommodate an individual with a disability constructively denies that individual the meaningful opportunity to participate or benefit from the public entity's services, programs, or activities.
283. "A public entity, in providing any aid, benefit, or service, may not ... , on the basis of disability ... , [a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others." 28 C.F.R. § 35.130(b)(l)(ii). Requiring members ofthe Disability Subclass to experience a heightened risk of death when compared to their peers without a disability, due only to Defendants/Respondents' failure to accommodate their disabilities, constitutes discrimination, which is duly prohibited by the ADA. 42 U.S.C.A. § 12132 ("[N]o qualified individual with a disability shall, by reason of such disability, ... be subjected to discrimination by any such entity.").
PRAYER FOR RELIEF WHEREFORE, Plaintiffs/Petitioners and proposed Class members respectfully request
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that this Court: a. Certify the proposed Class and Subclasses; b. Enter an order declaring that Defendants/Respondents' policies and
practices regarding COVID-19 violate the Eighth Amendment to the United States Constitution;
c. Enter an order declaring that the Defendants/Respondents have violated the ADA by failing to reasonably accommodate incarcerated individuals with disabilities;
d. Enter a permanent injunction and/or writs of habeas corpus requiring Defendants/Respondents to immediately release members of the High Risk Subclass and Disability Subclass or transfer them to home confinement;
e. Appoint a special master or an expert under Federal Rule of Evidence 706 to make recommendations to the Court regarding:
i. A comprehensive plan to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished;
ii. The number of incarcerated people that each Arkansas Department ofCorrections facility can house in order to ensure adequate spacing of six feet or more between incarcerated people, to the maximum extent possible, so that social distancing can be accomplished;
iii. The identification of people in the custody of the Arkansas Department of Corrections (a) who are older than 50 years old; (b) who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19; and/or (c) who are at increased risk ofcontracting,
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becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability, and who should be released from their facility or transferred to home confinement due to their age, serious underlying medical condition(s), and/or disability, in a manner that is consistent with public safety. f. Enter a temporary restraining order, preliminary injunction, permanent injunction, and/or writs of habeas corpus requiring that Defendants/Respondents:
i. Ensure that each incarcerated individual receives EPA-registered disinfectants that are effective against COVID-19 infection, without costs;
11. Ensure that all incarcerated individuals have access to hand sanitizer containing at least 60% alcohol in specific locations or under the appropriate supervision of IX)C staff;
iii. Clean and disinfect frequently touched surfaces, including but not limited to doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones, at least three times a day with EPA-registered disinfectants that are effective against the virus that causes COVID-19, as appropriate for the surface;
iv. Conduct immediate testing for anyone displaying known symptoms of COVID-19 or upon request;
v. Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 are properly quarantined in a non-punitive setting, with continued access to showers, toilets, soap, warm water, recreation, mental health services, hot meals during appropriate times, reading materials,
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commissary, phone and video visitation with loved ones, communication with

counsel, and personal property;

vi. Prohibit Arkansas Department of Corrections employees from

entering Arkansas Department of Corrections facilities if they test positive for

COVID-19 and/or exhibit symptoms of having contracted COVID-19;

vii. Substantially comply with CDC guidance in all other respects,

unless Defendants identify a specific reason why circumstances in one or more

Arkansas Department of Corrections facilities render such substantial compliance

unreasonable; and

viii. Permit any Court-appointed special master or expert to freely visit

Arkansas Department of Corrections facilities without advanced notice; to freely

access relevant records maintained by the Arkansas Department of Corrections,

including medical records of persons in custody provided the person whose

medical records are accessed authorizes such access and inspection; and to freely

contact, call, visit, and/or interview any person in the custody of the Arkansas

Department of Correction facility within 24-hour notice; and

g. Retain jurisdiction over this case until Defendants/Respondents have fully

complied with the orders of this Court, and there is a reasonable assurance that they will

continue to comply in the future, absent continuing jurisdiction;

h. Issue an order granting reasonable attorneys' fees and costs pursuant to 42

U.S.C. §§ 1988 and 12205; and

1.

Grant any further relief that this Court deems necessary.

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Case 4:20-cv-00434-KGB Document 84 Filed 07/13/20 Page 94 of 95

Dated: July 13, 2020

Respectfully submitted,
k By: ILl:ib. f.AHAil/
Samuel Spital* Jin Hee Lee* Natasha Merle* Omavi Shukur (Arkansas Bar No. 2016067) Patricia Okonta* NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200
Christopher Kemmitt* Ajmel Quereshi* NAACP Legal Defense and Educational Fund, Inc. 700 14th Street NW, Suite 600 Washington, DC 20005 (202) 216-5573
George H. Kendall* Jenay Nurse* Corrine Irish* Squire Patton Boggs (US) LLP 1211 Avenue ofthe Americas, 26th Floor New York, NY 10036 (212) 872-9800
Laura Fernandez* 127 Wall Street New Haven, CT 06511 (203) 432-1779
Cristy Park Disability Rights Arkansas 400 West Capitol Ave, Suite 1200 Little Rock, AR 7220 I (501)296-1775
Sarah Everett Arkansas Civil Liberties Union Foundation, Inc. 904 W. 2nd Street, Suite One Little Rock, AR 72202
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Case 4:20-cv-00434-KGB Document 84 Filed 07/13/20 Page 95 of 95
(501) 374-2660
*Admitted pro hac vice
Attorneysfor Plaintifft and the Putative Class
95

 
 Case 4:20-cv-00434-KGB Document 96 Filed 08/18/20 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

v.

CASE NO. 4:20-CV-00434-KGB-JJV

SOLOMON GRAVES,1 et al.

PLAINTIFFS DEFENDANTS

BRIEF IN SUPPORT OF THE STATE DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

INTRODUCTION Plaintiffs are murderers, rapists, armed robbers, arsonists, and repeat violent offenders. Most have a history of assaulting fellow inmates and staff and absconding from supervised release. And all are security risks. Yet under the guise of challenging the Arkansas Department of Corrections’s response to the COVID-19 pandemic, they ask this Court to order their release or to impose requirements that will put their fellow inmates, prison staff, and society at great risk. Plaintiffs fail to state a claim for multiple reasons. Their request for declaratory relief is retrospective and barred by sovereign immunity. Their claims against Governor Hutchinson, Dr. Romero, and Director Bradshaw are barred by sovereign immunity because they have no connection to the policies and practices Plaintiffs challenge. Their Eighth Amendment claim is merely a litany of disagreements with the State Defendants’ COVID-19 policies and practices that falls short of stating a cognizable claim of deliberate indifference against the DOC officials they have named in this lawsuit. Their Americans with Disabilities Act claim, as this Court has already

1 Wendy Kelley recently retired, and Solomon Graves was recently appointed to replace her as Secretary of Corrections. Secretary Graves is automatically substituted as a party for Secretary Kelley pursuant to Fed. R. Civ. P. 25(d). Under that rule, “[l]ater proceedings should be in the substituted party’s name[.]” Fed. R. Civ. P. 25(d).

Case 4:20-cv-00434-KGB Document 96 Filed 08/18/20 Page 2 of 43
held, fails to seek any reasonable accommodation that the State Defendants do not already provide, and seeks accommodations that Plaintiffs never requested from any of the State Defendants before bringing suit. And their request for temporary release to home confinement is a condition-ofconfinement claim that is not cognizable in habeas. Plaintiffs’ 95-page amended complaint— while replete with detailed factual allegations against unidentified “Defendants” or “DOC staff” (or staff they actually identified by name but chose not to sue)—fails to cure the fatal deficiencies outlined in the State Defendants’ motion to dismiss the original complaint. This Court should dismiss Plaintiffs’ lawsuit with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs Nicholas Frazier, Alvin Hampton, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Harold “Scott” Otwell, Trinidad Serrato, Robert Stiggers, Victor Williams, Price Brown, Torris Richardson, Roderick Wesley, Charles Czarnetzki, Darryl Hussey, Lee Owens, Joseph “Dallas” Head, Wesley “Grant” Bray, Jimmy Little, and two unidentified John Does are inmates housed at seven of 20 state prison facilities operated by the Arkansas Division of Correction (“ADC”). DE 84 at 9-30 ¶¶ 18-85. The ADC is one of several corrections agencies now under the umbrella of the Arkansas Department of Corrections (“DOC”), now led by Secretary Solomon Graves. See supra n.1. Plaintiffs Aaron Elrod and Cedric Sims are residents of the Central Arkansas Community Correction Center (“CAC”), operated by the Arkansas Division of Community Correction (“ACC”), a separate agency under the DOC umbrella that operates residential treatment centers. DE 84 at 20-22 ¶¶ 52-57. Plaintiff Stiggers is a first-degree murderer who, for no apparent reason, shot a longtime friend and his passenger after asking them for a ride. See Stiggers v. State, 2014 Ark. 184, at 1-2, 433 S.W.3d 252, 254-55.
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Plaintiff Neeley is a former youth minister who pled guilty to sexually assaulting a series of teenage girls in his congregation. See DE 68 at 8 ¶ 29; Former youth minister guilty of sexual assault in Howard, Pope counties, Nashville News Leader, Sept. 24, 2015, available at https://www.swarkansasnews.com/2015/09/former-youth-minister-pleads-guilty-to-sexualassault-4-more-charges-pending-in-pope-county/.
Plaintiff Frazier is serving a 10-year prison sentence for commercial burglary, manufacture, delivery, and possession of controlled substances, criminal mischief, possession of drug paraphernalia, and theft of property, DE 36-21, and is housed in the Varner Super Maximum Security Unit, ADC’s most secure housing facility for inmates who have shown they cannot be safely housed in other units. DE 84 at 12 ¶ 28.
Plaintiff Hampton is serving a five-year sentence for assaulting the director of a Salvation Army office and then assaulting and threatening to murder the police officer who arrested him. DE 36-25.
Plaintiff Kent, who was recently in restrictive housing at Varner’s Super Maximum Unit, DE 84 at 13 ¶ 30, is a habitual offender serving an 18-year sentence for first-degree battery and endangering the welfare of a minor. DE 36-26.
Plaintiff Kouri, who is also known as Michael Mercouri, is serving a 10-year sentence for the armed robbery of his former supervisor at an Aaron’s furniture store. See Mercouri v. State, 2016 Ark. 37, at 1-2, 480 S.W.3d 864, 865.
Plaintiff Otwell is serving a 15-year sentence for attempting to set an Arkansas Game and Fish Commission agent’s car on fire, in apparent retaliation for the Commission’s investigating him, and then tampering with the jury in his subsequent trial for arson. See DE 36-33; Caitlan Butler, Man sentenced to prison for attempted truck arson, jury tampering, El Dorado News, May
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2, 2019, available at https://www.eldoradonews.com/news/2019/may/02/man-sentenced-prisonattempted-truck-arson-jury-ta/.
Plaintiff Serrato is currently in prison on a felon-in-possession-of-a-handgun conviction, after a lifetime of theft and controlled substances convictions. See DE 36-34.
Plaintiff Williams is in prison for manslaughter, a charge to which he pled guilty after being charged with murder in a double homicide that had gone unsolved for seven years. See DE 36 at 25.
Plaintiff Nickson is in prison for murdering his 73-year-old neighbor, 26 years after strangling his roommate to death and then setting their apartment on fire. See DE 36-31; Hot Springs Man Admits to Neighbor’s 2013 Murder, KARK, Aug. 30, 2016, available at https://www.kark.com/news/local-news/hot-springs-man-admits-to-neighbors-2013murder/541904923/; John Kass & Fred Marc Biddle, Roommate Seized in School Adviser’s Death, Chicago Tribune, May 22, 1987, available at https://www.chicagotribune.com/news/ct-xpm1987-05-22-8702070942-story.html.
These plaintiffs filed this putative class action on April 21, 2020, naming 11 separate Defendants and alleging that their collective response to the COVID-19 pandemic violates the Eighth Amendment to the United States Constitution and Title II of the Americans with Disabilities Act. DE 1 at 42-45 ¶¶ 127-148. More particularly, Plaintiffs alleged that two subclasses of inmates, including a “high-risk subclass” and a “disability subclass,” were at a heightened risk of harm from the virus. They sought a myriad of injunctive and declaratory relief, including release from incarceration for inmates within those two subclasses, along with federalcourt micromanagement of the ADC’s comprehensive response to the COVID-19 pandemic. DE
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1 at 15-16 ¶ 41. Defendants accepted service on April 22, 2020, DE 4, 7, making their responsive pleading due June 22, 2020. See Fed. R. Civ. P. 12(a)(1)(ii).
On the same day that they filed their complaint, Plaintiffs filed an emergency motion for a temporary restraining order and preliminary injunction. DE 2. That motion requested the same relief sought in the complaint. On April 27, 2020, Plaintiffs filed a supplemental motion for a temporary restraining order. DE 22. In that motion, Plaintiffs sought a subset of the relief requested in their original motion, omitting their request for release and the appointment of a special master. This Court denied Plaintiffs’ TRO motion on May 4, 2020, holding Plaintiffs had not yet shown a likelihood of success on any of their claims. DE 42. It held a hearing on Plaintiffs’ PI motion on May 7, 2020. It denied that motion on May 19, 2020 in a comprehensive, 73-page order, again holding that Plaintiffs had failed to show a likelihood of success on any of their claims. DE 68.
On June 4, 2020, the Court denied the Defendants’ motion to stay discovery pending a final resolution of their forthcoming motion to dismiss. DE 74. That same day, the Court entered an Initial Scheduling Order with a proposed trial date of April 5, 2021. DE 75. On June 22, 2020, Defendants timely filed a motion to dismiss for failure to state any claim upon which relief can be granted. DE 76. Plaintiffs requested and received an extension of time to respond to that motion on the ground that they would be filing an amended complaint superseding the original. DE 83.
On July 13, 2020, Plaintiffs filed an Amended Class Action Complaint and Petition for a Writ of Habeas Corpus. DE 84. They were joined in this action by a number of new plaintiffs.
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Case 4:20-cv-00434-KGB Document 96 Filed 08/18/20 Page 6 of 43
Plaintiff Sims is a resident ACC’s CAC and claims he experienced symptoms of, and tested
positive for, COVID-19 several months ago. DE 84 at 21 ¶¶ 54-55. Plaintiff Elrod resided at CAC
when the Amended Complaint was filed, DE 84 at 20 ¶ 52, but he has since been released.2
Plaintiff Brown is a habitual offender with 18 years left on his sentences for breaking and
entering, aggravated assault, possession of a firearm, battery, and failure to appear. In the last five
years, Plaintiff Brown has received multiple major guilty disciplinary violations, including
violations for battery, provoking or agitating a fight, possession/manufacture of contraband, and
aggravated battery.3
Plaintiff Richardson is a habitual offender with multiple drug possession, delivery, and
firearm convictions. He has an astounding 28 major disciplinary convictions in the last five years,
including convictions for possession/manufacture of contraband, battery, trafficking and trading,
unexcused absences, and lying to a staff member.4 He is currently in restrictive housing due to his
disciplinary status. DE 84 at 23 ¶ 60.
2 See https://vinelink.vineapps.com/search/persons;limit=20;offset=0;showPhotos=false;isPartialSearc h=false;siteRefId=ARSWVINE;personFirstName=aaron;personLastName=elrod (last accessed Aug. 15, 2020).
3 See https://apps.ark.org/inmate_info/search.php?dcnum=090004&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=brown&firstname=price&sex=b&a getype=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.159389063 7.13&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D%28 referral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
4 See https://apps.ark.org/inmate_info/search.php?dcnum=145883&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=richardson&firstname=torris&sex= b&agetype=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.159389 0637.13&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D
6

Case 4:20-cv-00434-KGB Document 96 Filed 08/18/20 Page 7 of 43
Plaintiff Wesley is currently serving a 50-year sentence he received as a habitual offender
for aggravated robbery. He has received two major disciplinary violations for being under the
influence while incarcerated and received another major disciplinary for failure to obey an order.5
Plaintiff Czarnetzki was incarcerated at the Tucker unit when he joined in this lawsuit (see
DE 84 at 24 ¶ 63), but he has since been paroled.6
Plaintiff Hussey is serving a life sentence at Cummins for first-degree murder. He received
a major disciplinary violation in January 2020 for sexual activity.7
Plaintiff Owens is serving a 101-year sentence as a habitual offender for
manufacture/delivery/possession of a controlled substance. He has previous convictions for theft
of property, theft by receiving, and manufacture/delivery/possession of a controlled substance. He
%28referral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
5 See https://apps.ark.org/inmate_info/search.php?dcnum=117359&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=wesley&firstname=roderick&sex=b &agetype=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.1593890 637.13&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D% 28referral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
6 See https://vinelink.vineapps.com/search/persons;limit=20;offset=0;showPhotos=false;isPartialSearc h=false;siteRefId=ARSWVINE;personFirstName=Charles;personLastName=Czarnetzki (last accessed Aug. 18, 2020).
7 See https://apps.ark.org/inmate_info/search.php?dcnum=109842&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=hussey&firstname=darryl&sex=b& agetype=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.15938906 37.13&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D%2 8referral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
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Case 4:20-cv-00434-KGB Document 96 Filed 08/18/20 Page 8 of 43
has received seven major disciplinary violations in the last three years, including multiple
violations for possession/manufacture of contraband, failure to obey/refusing a direct order,
insolence to a staff member, and threat(s) to inflict injury.8
Plaintiff Head is a habitual offender serving a 10-year sentence for residential burglary,
aggravated robbery, and knowingly distributing controlled substances. He has prior convictions
for residential burglary and theft of property. While incarcerated, Head has received multiple
major disciplinary violations for unauthorized communication, lying to a staff member, and
unauthorized use of state property/supplies.9
Plaintiff Bray is a habitual offender currently serving 20 years for possession of
methamphetamine/cocaine with the purpose to deliver. He has multiple prior convictions for
residential burglary and theft of property. In just the last year or so, he has received three major
disciplinary violations, including one for threat(s) to inflict injury.10
8 See https://apps.ark.org/inmate_info/search.php?dcnum=101589&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=owens&firstname=lee&sex=b&age type=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.1593890637.1 3&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D%28ref erral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
9 See https://apps.ark.org/inmate_info/search.php?dcnum=553097&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=head&firstname=joseph&sex=b&a getype=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.159389063 7.13&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D%28 referral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
10 See https://apps.ark.org/inmate_info/search.php?dcnum=552858&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=bray&firstname=wesley&sex=b&a getype=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.159389063
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Case 4:20-cv-00434-KGB Document 96 Filed 08/18/20 Page 9 of 43
Plaintiff Little is currently serving a four-year sentence for possession of drug
paraphernalia meth/cocaine. He has a long history of convictions for various drug-related offenses.11
The Amended Complaint also adds two new defendants to the case, Arkansas Secretary of Health Dr. Jose Romero12 and Wellpath, LLC, the contracted medical provider for the DOC. DE
84.
The Amended Complaint asserts the same three causes of action that Plaintiffs raised in
the original complaint: (1) an Eighth Amendment claim by all Plaintiffs against all Defendants
based on their alleged deliberate indifference to the Plaintiffs’ serious medical needs; (2) Petition
for a Writ of Habeas Corpus on behalf of the “high risk subclass,” and (3) a claim pursuant to Title
II of the Americans with Disabilities Act (“ADA”) by the “disability subclass” against all
Defendants. DE 84 at 85-90, ¶¶ 256-283. Plaintiffs continue to seek broad declaratory and
injunctive relief along with federal court control and oversight over the DOC’s response to the
COVID-19 pandemic. DE 84 at 90-93.
7.13&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D%28 referral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
11 See https://apps.ark.org/inmate_info/search.php?dcnum=122430&token=45f2deb46a0da77e1be676d c052db3f7f8000905995ac4d48a95ed356c5dfb28&lastname=little&firstname=jimmy&sex=b&a getype=1&disclaimer=1&__utma=149258854.548621310.1570550933.1591799624.159389063 7.13&__utmz=149258854.1593890637.13.11.utmcsr%3Dsos.arkansas.gov%7Cutmccn%3D%28 referral%29%7Cutmcmd%3Dreferral%7Cutmcct%3D%2Frulesregulations&PHPSESSID=1e4133f071e1d45200b90ff15517b045 (last accessed Aug. 15, 2020).
12 Dr. Nathaniel Smith, who was named as a new defendant in the Amended Complaint, has been succeeded by Dr. Jose Romero. Dr. Romero is automatically substituted as a party for Dr. Smith pursuant to Fed. R. Civ. P. 25(d).
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STANDARD OF REVIEW Rule 8 of the Federal Rules of Civil Procedure states that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may raise, as a defense, a plaintiff’s “failure to state a claim upon which relief can be granted” by motion. When analyzing a Rule 12(b)(6) motion, the complaint’s factual allegations are accepted as true and viewed in the light most favorable to the plaintiff. Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999) (citing Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999)). “At a minimum, however, a complaint must contain facts to state a claim as a matter of law and must not be merely conclusory in its allegations.” Id. (quoting Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. An “important mechanism for weeding out meritless claims [is a] motion to dismiss for failure to state a claim.” Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2471 (2014). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 50). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and
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conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557); see also Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 934 (8th Cir. 2012) (“A gallimaufry of labels, [legal] conclusions, formulaic recitations, naked assertions and the like will not pass muster.”) (citing Twombly, 550 U.S. at 555-57).
In evaluating a motion to dismiss, a district court should employ a two-pronged approach. First, the court should identify and set aside “pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Second, the court should assume the veracity of the plaintiff’s “well-pleaded factual allegations . . . and then determine whether they plausibly give rise to an entitlement for relief.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If the factual allegations “do not permit the court to infer more than the mere possibility of misconduct,” then the complaint fails to show a plausible claim for relief.” Id. (citing Fed. R. Civ. P. 8(a)(2)).
The court should dismiss a complaint if the plaintiff has failed to “nudge[] [his] claims” of unlawful conduct “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. In other words, “if the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” then the complaint fails to “show[] that the pleader is entitled to relief” under Rule 8(a)(2) and must be dismissed. Iqbal, 556 U.S. at 679. Likewise, a court should dismiss when, based on the plaintiff’s own allegations, he has no cognizable claims. “[D]ismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises
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and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
ARGUMENT I. The State Defendants are immune from Plaintiffs’ claims for declaratory relief.
“The Eleventh Amendment establishes a general prohibition of suits in federal court by a citizen of a state against his state or an officer or agency of that state.” 281 Care Comm. v. Aronson, 638 F.3d 621, 632 (8th Cir. 2011). But under the limited exception to that rule identified in Ex parte Young, a citizen of a state may sue state officials where he “alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). That exception, however, obviously “does not permit judgments against state officers declaring that they violated federal law in the past,” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993), or what the Eighth Circuit has recently termed “retrospective declaratory relief.” Justice Network, Inc. v. Craighead Cty., 931 F.3d 753, 764 (8th Cir. 2019). That means that in order to satisfy the Ex parte Young exception, a request for declaratory relief must seek to “define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability for a past act.” Id.
Plaintiffs’ amended complaint seeks an order “declaring that Defendants/Respondents’ policies and practices regarding COVID-19 violate the Eighth Amendment to the United States Constitution,” and an order “declaring that Defendants/Respondents have violated the ADA by failing to reasonably accommodate incarcerated individuals with disabilities[.]” DE 84 at 91 (Prayer for Relief) (emphasis added). That is, Plaintiffs seek a declaration that the State Defendants’ past policies and practices are unlawful.
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The fact that those policies might continue—though, as this Court has already found, the State Defendants’ COVID-19 policies and practices have continuously evolved—is not enough to make Plaintiffs’ request prospective. In Justice Network, for example, a private probation services provider sought a declaration that two state court judges’ probation-service debt-forgiveness program violated the Contracts and Takings Clauses. 931 F.3d at 758, 762-63. The judges had implemented that program before the provider sued, but the program continued thereafter and was still in effect when the Eighth Circuit rendered its decision. Id. at 758. But because the program had been initially implemented in the past, the Eighth Circuit found that the provider’s request for a declaratory judgment was “retrospective” and sought to “invalidate the [judges’ past] actions.” Id. at 764. As a result, the Eighth Circuit held that the provider was “not entitled to such relief under § 1983.” Id.
So too here; Plaintiffs do not seek a declaratory judgment “in anticipation of some future conduct,” id., but rather request a declaration that policies and practices the State Defendants adopted in the past are unlawful. They expressly seek a declaration that the State Defendants were deliberately indifferent to the Plaintiffs’ serious medical needs in the past. They likewise seek a declaration that the State Defendants violated Title II of the ADA in the past by failing to provide reasonable accommodations for their alleged disabilities. Because retrospective declaratory relief is plainly barred by the Eleventh Amendment, the Court should dismiss Plaintiffs’ requests for such relief in Counts I and III of their amended complaint on the ground of sovereign immunity.
II. Governor Hutchinson and Dr. Romero have sovereign immunity from all of Plaintiffs’ claims.
Governor Hutchinson and Dr. Romero also enjoy immunity from all of Plaintiffs’ requests for relief because they have no role in enforcing the policies and practices that Plaintiffs challenge.
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Indeed, another judge of this Court has recently so held in a COVID-19-related prisoners’ suit. See Schuler v. Hutchinson, No. 2:20-cv-97, 2020 WL 3104668, at *1 (E.D. Ark. June 11, 2020) (“The Governor and Attorney General are not proper defendants.”) (citing Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 956-58 (8th Cir. 2015)).
Under Ex parte Young, a “state official is amenable to suit to enjoin the enforcement of an unconstitutional state [policy] only if the officer has ‘some connection with the enforcement of the act.’” Dig. Recognition Network, 803 F.3d at 960 (quoting Ex parte Young, 209 U.S. 123, 157 (1908)); see also Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017) (requiring “some connection to the enforcement of the challenged laws”). “Without that connection, the officer would be sued merely ‘as a representative of the state’ in an impermissible attempt ‘to make the state a party.’” Dig. Recognition Network, 803 F.3d at 960 (quoting Ex parte Young, 209 U.S. at 157).
Plaintiffs do not allege that Governor Hutchinson or Dr. Romero have any direct role in enforcing the policies and practices they challenge. They allege instead that under Arkansas’s Constitution, the Governor “has the ultimate authority for ensuring that all [state] agencies . . . function in compliance with state and federal law.” DE 84 at 31 ¶ 90. And they allege that he “has the power to release people incarcerated in DOC correctional facilities.” Id. As to Dr. Romero, Plaintiffs maintain he is responsible here because he “is the executive head of the ADH and is responsible for the provision of public health guidance and directives to the State” and has “the authority to issue guidance to DOC regarding how to address the COVID-19 pandemic.” DE 84 at 31-32 ¶ 91. These allegations do not suffice to make out the requisite connection between these defendants and the policies Plaintiffs challenge.
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First, as to Governor Hutchinson’s general-enforcement authority under the Arkansas Constitution, it is well-settled that “a governor’s general-enforcement authority is ‘some connection’ [only] if that authority gives the governor methods of enforcement.” Church v. Missouri, 913 F.3d 736, 749 (8th Cir. 2019). Plaintiffs cite no enforcement method; they only cite the Governor’s enforcement authority itself. But neither “a broad duty to uphold state law,” id. (quoting Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 517 (5th Cir. 2017)), nor “general supervisory power over the persons responsible for enforcing the challenged provision will . . . subject an official to suit.” Id. (quoting L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)). Indeed, the Eighth Circuit has specifically held that “the executive authority of the [Arkansas] governor” under the Arkansas Constitution is not the sort of connection to challenged state law or policy that Ex parte Young requires. Dig. Recognition Network, 803 F.3d at 960 (citing Ark. Const. art VI, §§ 2, 7).
Second, as for the Governor’s “power to release people incarcerated in DOC correctional facilities,” DE 84 at 31 ¶ 90, the Governor does have the power to grant “[e]xecutive clemency,” Ark. Const. art. VI, sec. 18, but that power has no connection to the policies and practices Plaintiffs challenge or the relief Plaintiffs seek. As this Court has noted, “Plaintiffs represent that they ‘do not seek unconditional release’ but instead seek measures such as transferring vulnerable plaintiffs ‘to their homes to self-isolate, while still in ADC custody . . . until the emergency abates.’” DE 68 at 42-43 (quoting DE 3 at 56). But the Governor’s clemency power is a power to pardon inmates or commute their sentences. See Ark. Code Ann. §§ 16-93-204, 16-93-207. It is not a power to micromanage the conditions of inmates’ sentences; that power is reserved to the DOC officials Plaintiffs have sued. Indeed, even in habeas proceedings that do seek unconditional release, governors are never sued as respondents because an order compelling a governor to exercise his
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discretionary pardon or commutation power is not a permissible remedy in habeas proceedings. See Pennington v. Norris, 257 F.3d 857, 858 n.2 (8th Cir. 2001) (declining to address possible procedural defects in a prisoner’s “statutory executive clemency and/or commutation of sentence claim, because that claim is not cognizable in federal habeas proceedings in any event”). The Governor’s discretionary pardon and commutation power has no connection to Plaintiffs’ requests for temporary transfer to home confinement or modifications of prison conditions. Thus, this power does not subject him to suit in this case.
Third, Dr. Romero’s authority to control the State’s sanitary and quarantine measures for dealing with infectious diseases, including the authority to issue guidance to the DOC regarding how to address the COVID-19 pandemic, does not subject him to liability in this case. See Dig. Recognition Network, 803 F.3d at 960 (citing Ark. Const. art VI, §§ 2, 7). On Plaintiffs’ own allegations, other defendants are responsible for the adoption and enforcement of the policies and practices they challenge, and there is nothing in the amended complaint to support a conclusion that Dr. Romero is capable of providing any of the injunctive relief they seek. Thus, he is not a proper defendant in this case.
As shown, all of Plaintiffs’ claims against Governor Hutchinson and Dr. Romero fail as a matter of law because they lack the requisite connection to the enforcement of the policies and practices at issue in this case and are not in a position to provide any of the requested injunctive relief. For these additional reasons, all of Plaintiffs’ claims against Governor Hutchinson and Dr. Romero are barred by sovereign immunity.
III. ACC Director Bradshaw has sovereign immunity from Plaintiffs’ claims. Plaintiffs sue Jerry Bradshaw, Director of the Arkansas Division of Community Correction
(“ACC”), a state agency that manages several minimum-security residential treatment facilities 16

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housing low-risk offenders. DE 84 at 31 ¶ 89. Plaintiffs do not allege that Director Bradshaw adopted the policies at issue or that his action or inaction has harmed them in any way. Indeed, Plaintiffs do not even mention Director Bradshaw outside of the paragraph of their complaint listing him as a party. Nor could most of them. All but two of the Plaintiffs are inmates housed in prisons operated by the ADC. See DE 84 at 9-29 ¶¶ 18, 25, 28, 30, 32, 35, 37, 39, 43, 46, 51, 58, 59, 61, 63, 66, 71, 74, 75, 78, 84. Plaintiffs do not allege that Director Bradshaw has any supervisory authority over Arkansas’s prisons, and as a matter of law, he does not. See Ark. Code Ann. § 12-27-126 (detailing powers of the Director of the Division of Community Correction). Because Director Bradshaw has nothing whatsoever to do with the conditions of Plaintiffs’ prisons, Plaintiffs fail to state a claim against Director Bradshaw, and he has sovereign immunity from the claims asserted against him by all of the ADC Plaintiffs.
While Plaintiff Elrod claims to reside at ACC’s CAC in Little Rock, DE 84 at 20 ¶ 52, public information indicates that he has already been released from ACC custody. See supra n.2. This leaves Plaintiff Sims, a 30-year-old man who purportedly suffers from high blood pressure and had COVID-19 several months ago while a resident at CAC, DE 84 at 21 ¶¶ 54-57, as the only named Plaintiff who could even potentially have a claim against Director Bradshaw. But because Plaintiff Sims has not stated any facts against Director Bradshaw that would give rise to any plausible claim, the Court should find that Plaintiff Sims’s claims must be dismissed, as well. Plaintiff Sims’s claims against Director Bradshaw also fail as a matter of law for the other reasons explained herein.
IV. Plaintiffs fail to state an Eighth Amendment claim. Plaintiffs assert that the State Defendants’ COVID-19 policies and practices amount to
deliberate indifference to the risks posed by COVID-19, in violation of the Eighth Amendment. 17

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Yet Plaintiffs’ own allegations belie that claim. Rather than allege reckless indifference to the risks of COVID-19, Plaintiffs merely allege that the State Defendants’ responses aren’t what Plaintiffs would do. Plaintiffs’ disagreement with the State Defendants’ measures, whether reasonable or not, is not enough to state a deliberate indifference claim.
As this Court has already explained, “[d]eliberate indifference has both an objective and a subjective component.” DE 68 at 53. As relevant here, the “subjective component of deliberate indifference requires proof that defendants actually knew of and recklessly disregarded [a] substantial risk of serious harm” to these Plaintiffs. Id. (alteration omitted) (internal quotation marks omitted) (quoting Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006)). And “[i]n order to demonstrate that a defendant actually knew of, but deliberately disregarded, a serious medical need, the plaintiff must establish a mental state akin to criminal recklessness: disregarding a known risk to the inmate’s health.” Id. (internal quotation marks omitted) (quoting Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009)). “Deliberate indifference . . . demands more than negligent misconduct.” Olson v. Bloomberg, 339 F.3d 730, 736 (8th Cir. 2003). “Deliberate indifference must be measured by the official’s knowledge at the time in question, not by ‘hindsight’s perfect vision.’” Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011) (quoting Lenz v. Wade, 490 F.3d 991, 995 (8th Cir. 2007)).
The Court may consider either the objective or subjective prong first and, if there is a failure of proof on the first prong the Court chooses to consider, it need not proceed to the other prong. Helling v. McKinney, 509 U.S. 24, 35 (1993). Here, Plaintiffs have not plausibly alleged either prong necessary to proceed with their deliberate indifference claim against any of the State Defendants. For purposes of this motion, the State Defendants will address the subjective prong
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of the deliberate indifference analysis. By so doing, they do not concede Plaintiffs have plausibly alleged facts sufficient to satisfy the objective inquiry.
In order to state a cognizable deliberate indifference claim against each of the State Defendants, Plaintiffs must allege facts demonstrating that each Defendant had “actual knowledge of the risk of harm, followed by deliberate inaction amounting to callousness.” Clarke v. Taylor, No. 2:13-CV-26, 2014 WL 4854585, at *5 (E.D. Ark. Sept. 29, 2014) (quoting Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir. 1998)). In other words, a plaintiff “must demonstrate the [defendant] deliberately disregarded” the plaintiff’s risk. Letterman v. Does, 789 F.3d 856, 862 (8th Cir. 2015). One way to demonstrate this is to allege “a total deprivation of care”; another way is to allege “[g]rossly incompetent or inadequate care.” Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (quoting Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990)). But “more than negligence, more even than gross negligence,” and certainly more than “mere disagreement with treatment decisions” is required. Id. (quoting Alberson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006)). Rather, what a plaintiff must allege at the pleading stage is that prison officials “knew that their conduct was inappropriate in light of [the plaintiff’s] risk.” Washington v. Denney, 900 F.3d 549, 559 (8th Cir. 2018) (emphasis added) (quoting Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009)). And though “the obvious inadequacy of [an official’s] response to a risk may support an inference that the officer recognized [its] inappropriateness . . . [i]t does not follow, however, that an unreasonable response—i.e., a negligent response—is sufficient to establish liability.” Krout, 583 F.3d at 567.
In light of that standard, the Eighth Circuit’s and other courts’ approach to suits alleging deliberate indifference to the risk of infection with a communicable disease like COVID-19 is a simple one. Plaintiffs who allege at the pleading stage, and prove at the merits stage, that a prison
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did little to nothing to combat the spread of a known communicable disease will prevail. But Plaintiffs who sue prisons that do have policies or procedures in effect to combat the spread of a communicable disease will lose. In light of the judicially recognizable facts available to the Court, Plaintiffs’ amended complaint clearly falls in the latter category, so the Court should dismiss Plaintiffs’ Eighth Amendment claim.
In DeGidio v. Pung, a prison allowed tuberculosis to spread unabated to hundreds of prisoners over four years. 920 F.3d 525, 529-31 (8th Cir. 1990). Though the first case of tuberculosis was diagnosed in 1982 (in a test conducted on an inmate seven months after he first showed symptoms), and more cases followed after that, the prison did not undertake prison-wide testing until 1986—the same year it finally got around to issuing a written protocol for tuberculosis testing and control. See id. Indeed, no one was even responsible for supervising health services at the prison during the four-year outbreak period. Id. at 529. Given these facts, the Eighth Circuit had little difficulty finding deliberate indifference.
Sixteen years later in Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006), the Eighth Circuit confronted a very different case of alleged deliberate indifference to the risk of tuberculosis infection. The prisoner in that case offered adequate evidence to survive summary judgment that while in prison, he was exposed to “inmates with active TB cases in a manner that created an unreasonable risk of serious harm to his health.” Id. at 345. But he failed to show deliberate indifference because the officials he sued had issued policies that “specifically acknowledged the risk [of TB infection] and promulgated detailed procedures for the diagnosis, segregation, and treatment of . . . inmates infected with active cases of TB.” Id. Thus, those officials “did not disregard the risk of tuberculosis infection.” Id.
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Those principles should resolve this case on the allegations in Plaintiffs’ amended complaint and the judicially noticeable facts in the public record. Where a prison system has taken and continues to take measures—informed by guidance from the Arkansas Department of Health, the U.S. CDC, and contracted medical professionals—to abate and control the spread of the virus, it will be virtually impossible to prove that prison officials “subjectively believe the measures they are taking are inadequate.” Valentine v. Collier, 956 F.3d 797, 802–03 (5th Cir. 2020). And where prison officials “are trying, very hard, to protect inmates against the virus and to treat those who have contracted it,” “[t]he record simply [will] not support any suggestion that [d]efendants have turned the kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern’ for the inmates’ welfare.” Plata v. Newsom, — F. Supp. 3d —, 2020 WL 1908776, at *9 (N.D. Cal. Apr. 17, 2020) (quoting Money v. Pritzker, — F. Supp. 3d —, 2020 WL 1820660, at *18 (N.D. Ill. Apr. 10, 2020)).
That language perfectly describes this case. The public record shows that the State Defendants have worked very hard to educate inmates on how to protect against the risk of the coronavirus, to prevent COVID-19 from entering ADC units and, once it did, worked very hard to contain the outbreak and treat and isolate those inmates who have contracted it. The State Defendants walled off the units to the symptomatic and to the outside world. The ADC manufactured tens of thousands of masks and provided them to inmates and staff. The public record shows increased efforts to cleanse high-touch surfaces with hospital-grade disinfectant. ADC and ACC have tested thousands of individuals, inmates and staff alike, and have isolated those prisoners and residents who tested positive and the staff who serve them from those prisoners and residents who have not. These actions describe only a fraction of the DOC’s comprehensive and immediate response to the threat posed by COVID-19. On the judicially noticeable public
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record, this is simply not a case where corrections officials have deliberately disregarded a known risk, much less acted in a fashion that Plaintiffs could ever prove the State Defendants subjectively knew was inappropriate in light of known risks to these Plaintiffs’ health. Plaintiffs, therefore, have not plausibly alleged an Eighth Amendment violation, and the Court should dismiss their Eighth Amendment claims against each of the State Defendants.
Plaintiffs’ allegations—particularly in light of judicially noticeable public records this Court discussed in denying Plaintiffs’ preliminary-injunction motion—do not state a plausible claim of deliberate indifference. Plaintiffs first allege that “Defendants failed to adequately plan to prevent or mitigate the spread of COVID-19 in DOC facilities” and, specifically, to “develop contingency plans for reduced workforces due to staff absences” as recommended by CDC Guidance. DE 84 at 54 ¶ 158. But an alleged failure to develop a contingency plan for staff shortages in the event of a pandemic that did not yet exist cannot, as a matter of law, constitute deliberate indifference to the known risk of harm from that pandemic. Moreover, Plaintiffs themselves allege—and this Court has found on the basis of judicially noticeable public records— that the ADC has addressed staff shortages since the onset of the pandemic by allowing, in the event of a critical staffing shortage, asymptomatic staff who have tested positive to return to work on the condition that they only work with positive-tested inmates. DE 84 at 60 ¶ 176; DE 68 at 38 (citing DE 36-19 (Arkansas Department of Health guidance)). The Court should find no deliberate indifference as a matter of law in adopting a critical staffing policy endorsed by the State health department.
Next, Plaintiffs allege that the State Defendants’ “failure to implement” various policies and procedures constitutes deliberate indifference in violation of the Eighth Amendment. DE 84 at 54-63 ¶¶ 161-186. As this Court has already held, see DE 68 at 55-56, the fact that there may
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have been some variations from Defendants’ policies and practices does not show deliberate indifference—especially not on the part of the officials at the very top of the Department of Corrections and its Divisions that Plaintiffs have sued. This is because state actors generally may not be sued under § 1983 for an injury inflicted solely by their employees or agents on a respondeat superior theory of liability. DE 68 at 55 (citing Monnell v. New York Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). The Eighth Circuit has explained, however, that “a supervising official who had no direct participation in an alleged constitutional violation [can be] sued for failure to train or supervise the offending actor[.]” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). The supervisor is only liable, however, if the plaintiff alleges and “proves that the supervisor (1) received notice of a pattern of unconstitutional acts committed by a subordinate, and (2) was deliberately indifferent to or authorized those acts.” Id. To that end, Plaintiffs make some conclusory allegations in their amended complaint regarding the State Defendants’ alleged failure “to properly supervise and train corrections staff to carry out effective prevention practices and ensure appropriate medical treatment.” DE 84 at 5 ¶ 8.
To survive a motion to dismiss, Plaintiffs must allege sufficient facts to show that, “in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the deprivation of constitutional rights, that the policymakers of the [DOC] can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). To state a § 1983 claim for inadequate training or supervision, Plaintiffs must allege facts to plausibly establish each of the following elements: (1) each Defendant’s training practices were inadequate; (2) each Defendant was deliberately indifferent to the rights of others in adopting those training practices, such that the failure to train reflects a deliberate or conscious choice by that Defendant; and (3) that the alleged
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deficiency in the training procedures actually caused the Plaintiffs’ injuries. B.A.B., Jr. v. Bd. of Educ., 698 F.3d 1037, 1040 (8th Cir. 2012) (quoting Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010)). As the U.S. Supreme Court has explained, it is only when all three elements are proven that “the failure to provide proper training may fairly be said to represent a policy for which [state actors are] responsible, and for which [they] may be held liable if it actually causes injury.” Harris, 489 U.S. at 390.
In resolving the issue of a policymaker’s liability, “the focus must be on the adequacy of the training program in relation to the tasks the particular officers must perform,” because the fact that “a particular officer may be unsatisfactorily trained” or that “an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct” “says little about the training program or the legal basis for holding the [policymaker] liable.” Id. at 390-91. This is because an “otherwise sound program has occasionally been negligently administered” “[a]nd plainly, adequately trained officers occasionally make mistakes[.]” Id. at 391; see also Brossart v. Janke, 859 F.3d 616, 627-28 (8th Cir. 2017) (affirming summary judgment to a sheriff on a failure-to-train claim arising out of a deputy’s alleged use of excessive force in tasing the plaintiffs to effectuate their arrests when it was undisputed that the supervisor had never received any prior complaints regarding the subordinate’s taser use).
These principles as applied here warrant dismissal of Plaintiffs’ new § 1983 claim for failure to train and supervise “corrections staff.” In their amended complaint, Plaintiffs attempt to state a supervisory liability claim against the State Defendants by alleging that, despite the State Defendants’ being on notice of “problems with implementation” of DOC’s COVID-related policies and procedures, “Defendants have not sufficiently supervised and/or trained DOC staff[.]”
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DE 84 at 63 ¶ 186. While the Plaintiffs’ amended complaint contains conclusory allegations about the Defendants’ alleged notice of “problems” with staff’s implementation of various COVID-19 policies and practices at some DOC facilities—ranging from the proper use of PPE, heightened cleaning and disinfection practices, social distancing and quarantine measures, and their response to suspected and confirmed cases of COVID-19—these allegations, lodged against all 13 defendants as a group and without any specifics about what any individual defendant allegedly did wrong, fail to state a cognizable Eighth Amendment claim based on the failure to train or supervise.
The amended complaint is devoid of any facts demonstrating that each Defendant was responsible for the implementation of inadequate training practices with relation to the specific staff they complain about in their complaint, such as correctional officers, sanitation workers, food service workers, and medical staff. Plaintiffs likewise state no facts showing that each Defendant was on notice of a pattern and practice of unconstitutional conduct by any particular staff member, let alone widespread constitutional violations at any facility or throughout any agency. Nor do they allege sufficient facts to show that, in light of the specific duties assigned to the staff members at issue, the need for more or different training was so obvious, and the inadequacy was so likely to result in the deprivation of constitutional rights, that the State Defendants can reasonably be said to have been deliberately indifferent to the need. Finally, and critically, Plaintiffs fail to state any facts supporting a conclusion that any deficiency in the State Defendants’ training procedures actually caused the Plaintiffs’ alleged injuries. Their injuries, if any, are speculative. They could have been caused just as easily by other inmates’ or staff’s negligent failures to follow the policies and practices the Defendants put in place. As the Supreme Court explained in Harris, neither negligent administration of a policy, nor mistakes by officers in implementing a policy, are sufficient to impose supervisory liability on the State Defendants.
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In addition to their supervisory claims, Plaintiffs continue to allege in their amended complaint that the State Defendants were deliberately indifferent to the serious risk of harm posed by COVID-19 in specific ways. For example, they continue to complain about insufficient COVID-19-related signage, despite an abundance of COVID-19-related, inmate-facing signage in the record, see DE 36-12–17. Plaintiffs may protest that this signage cannot be considered at the motion-to-dismiss stage and that the Court must indulge the counterfactual fantasy that it does not exist, thereby keeping their claims on temporary life support until summary judgment, but a “district court may take judicial notice of public records and may thus consider them on a motion to dismiss.” Stahl v. USDA, 327 F.3d 697, 700 (8th Cir. 2003).
Plaintiffs also vaguely allege that “Defendants have not implemented the heightened hygienic, cleaning, and disinfecting practices called for by the CDC Guidance,” DE 84 at 56 ¶ 164, and have “not followed the CDC’s recommendation that staff clean shared surfaces several times a day.” Id. at 57 ¶ 166. As an initial matter, the State Defendants note that CDC guidance does not have the force and effect of law, so it cannot form the basis of an Eighth Amendment deliberate indifference claim as a matter of law. See Krigbaum, 808 F.3d at 340 (explaining that a deliberate indifference claim must be based on an underlying constitutional violation). In addition, the only facts Plaintiffs allege in support of these conclusory allegations are conditions observed by three inmates at a few of ADC’s twenty units and by one resident at one ACC facility. Id. at 56-57 ¶¶ 165-166. But absent allegations of an actual unconstitutional policy on Defendants’ part—which Plaintiffs do not make—these allegations of isolated unit-level implementation failures do not state a claim of deliberate indifference on Defendants’ part.
And as the Court is now aware, DOC and ADC officials have given orders to ADC units to engage in heightened cleaning, see DE 68 at 29 (citing 17 documents in the record documenting
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those orders), and Plaintiffs “do not challenge [those] orders.” DE 68 at 59. Plaintiffs themselves, for example, filed an ADC memo directing sanitizer to be “continuously used daily” to “disinfect frequently touched surface[s].” DE 57-7. Similarly, as this Court observed in its order denying the Plaintiffs’ request for a preliminary injunction, ACC Deputy Director of Residential Services James Banks testified at the preliminary injunction hearing that ACC units have implemented enhanced cleaning measures, and cleaning products, hospital-grade disinfectants, and alcoholbased hand sanitizer are available for all residents’ use. See DE 68 at 32. Thus, even if the Constitution required the DOC to adopt the CDC’s guidance—and it does not—the judicially noticeable public record shows that the State Defendants have, in fact, done so where practicable. Plaintiffs cannot defeat dismissal by denying the existence of orders to increase cleaning that they admit have been issued, as evidenced by a slew of judicially noticeable public records, some of which they themselves offered as evidence in support of their claims. The only allegations on which they can rely where cleaning is concerned, then, are their scattered unit-level allegations of implementation failures. But those sorts of conclusory allegations, again, do not suffice to state a claim against the officials they have named in this lawsuit.
Plaintiffs continue to allege that Defendants’ social-distancing measures have been inadequate, particularly with respect to the space between inmates’ beds. See DE 84 at 57-59 ¶¶ 168-172. This Court has already held that given the flexibility of CDC guidance on the subject, a mere failure to space inmates’ beds six feet apart does not violate the Eighth Amendment. See DE 68 at 61 (citing DE 36-9 at 11). Plaintiffs also allege inadequate spacing at meals. But as this Court has found on the basis of a large array of judicially noticeable public records, Defendants have ordered staggered meal times and required spaced seating at meals. See DE 68 at 30. What remains, like so many of Plaintiffs’ allegations, is an allegation of unit-level shortcomings in
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implementation, unaccompanied by any plausible allegations that Defendants have deliberately failed to train or supervise the unit-level officials responsible for those shortcomings, or that this failure to train or supervise is what actually caused the Plaintiffs’ alleged injuries.
Plaintiffs also make allegations about several isolated incidents where symptomatic inmates were not given masks, tested for COVID-19, or treated. DE 84 at 59-60 ¶¶ 173-175. As this Court has already held when Plaintiffs put on further evidence of the sorts of incidents alleged in their amended complaint, such isolated failures do not show that these Defendants have been deliberately indifferent to the Plaintiffs’ serious medical needs. DE 68 at 63-64. Rather, Plaintiffs must allege that the State Defendants have a policy of indifference to symptomatic inmates’ needs or that the State Defendants have been deliberately indifferent in their supervision of separate defendant Wellpath, LLC. Plaintiffs make no allegations of that kind.
Plaintiffs further allege that the State Defendants have not adequately isolated COVID-19positive staff. DE 84 at 60 ¶ 176. This Court has already addressed the ADC’s practice of permitting positive staff to work with positive inmates and concluded it does not constitute subjective deliberate indifference given that it was adopted on the advice of judicially noticeable expert guidance from the Arkansas Department of Health. DE 68 at 65. Obviously, the ADC Defendants cannot exhibit a mental state akin to criminal recklessness by following the advice of medical experts.
Finally, Plaintiffs complain that the State Defendants have shown deliberate indifference to COVID-19 by failing to adequately handle incarcerated people and corrections staff who test positive or have had close contact with people known to have tested positive for COVID-19. DE 84 at 60-62 ¶¶ 178-182. Plaintiffs maintain that Defendants have departed from CDC guidance in various ways, such as by not requiring a 14-day quarantine for all ADC staff who have had close
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contact with a COVID-19-positive person and by failing to “close off the areas used by [any] person who has contracted COVID-19.” DE 84 at 61 ¶¶ 178-179. These allegations, even if true, fail to support Plaintiffs’ Eighth Amendment claim as a matter of law.
Again, alleged departures from CDC guidance cannot, as a matter of law, support an Eighth Amendment deliberate indifference claim. Moreover, the law is well established that matters of state prison administration and management are afforded significant deference by federal courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 94 (2006); Turner v. Safley, 482 U.S. 78, 85 (1987); Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973); see also South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614 (2020) (Mem.) (denying preliminary injunctive relief to a church related to the COVID-19 pandemic, explaining “the politically accountable officials of the States” have “especially broad” latitude when they “act in areas fraught with medical and scientific uncertainties” and make policy decisions to protect “[t]he safety and the health of the people”). Federal courts do not sit in supervision of state prison operations, which are matters of acute interest to the states. Meachum v. Fano, 427 U.S. 215, 229 (1976).
Moreover, while the CDC’s guidance does make many recommendations, it also acknowledges that all of its recommendations “may need to be adapted based on individual facilities’ physical space” and for other reasons. DE 36-9 at 1 (emphasis in original). For example, the DOC could reasonably conclude that a 14-day quarantine for COVID-negative, asymptomatic staff based solely on their contact with a positive individual is not feasible during a period of critical staff shortages, and that closing off all the areas used by any positive inmate is not practicable in open-barracks facilities. Thus, this Court should conclude that Plaintiffs’ allegations—even accepted as true at this stage of the proceedings—do not state a plausible claim for violation of the Eighth Amendment. There are no credible allegations that any of the State
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Defendants have been knowingly and deliberately indifferent to the risk of harm posed to these Plaintiffs by the COVID-19 pandemic.
As shown, Plaintiffs have not stated facts to support any of the elements of an Eighth Amendment claim based on the failure to train or supervise corrections staff, nor have they stated facts to support a plausible deliberate indifference claim based on the various COVID-related policies and practices they challenge in Count I of their amended complaint. Because the State Defendants are not liable under the Eighth Amendment as a matter of law, the Court should dismiss Count I of Plaintiffs’ amended complaint with prejudice.
V. Plaintiffs fail to state an ADA claim. Plaintiffs also assert a claim against all of the State Defendants under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Plaintiffs allege that the State Defendants have intentionally discriminated against members of the “disability subclass” “by denying them reasonable accommodations that have been recommended by the CDC and are necessary to protect them from COVID-19.” DE 84 at 87 ¶ 270. The “reasonable accommodations” they ask the Court to order the DOC to provide include: (1) access to alcoholbased hand sanitizer; (2) provision of cleaning supplies, including products containing bleach, adequate to clean individuals’ housing areas; (3) provision of PPE; (4) access to antibacterial hand soap and towels for hand washing; (5) implementation of social distancing measures “in all locations where incarcerated people are required to congregate”; and (6) release from prison or transfer to home confinement “if social distancing is not practicable, or the facilities cannot
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otherwise eliminate the substantial risk of serious harm.” DE 84 at 87-88 ¶ 271. The ADA does not require these accommodations, especially where Plaintiffs did not request them before suing.
Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II regulations require public entities, including prisons, to “make reasonable modifications in policies . . . when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity” at issue. 28 C.F.R. § 35.130(b)(7)(i); see also Pa. Dep’t. of Corr. v. Yeskey, 524 U.S. 206 (1998) (holding that prisons are entities subject to Title II). The Supreme Court has explained that states may generally rely on the “reasonable assessments” of their own professionals in determining whether an individual is qualified for services and programs and whether “reasonable modifications” are available to prevent discrimination. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (citing 28 C.F.R. 35.130(b)(7) and (d)). As this Court observed in its order denying Plaintiffs’ request for a preliminary injunction on their ADA claim, ADA plaintiffs are entitled to “reasonable” accommodations, which may not always be their preferred or ideal accommodations. DE 68 at 68 (citing Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (8th Cir. 2011); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007)).
While the failure to make reasonable accommodations to disabled inmates is a form of prohibited discrimination under Title II of the ADA, “such discrimination occurs [only] if a covered entity does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified [person] with a disability, unless such covered entity can
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demonstrate that the accommodation would impose an undue hardship on the operation of its business.” Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004) (emphasis added) (cleaned up). A public entity need not modify its policies under Title II if doing so “would create undue financial and administrative burdens.” Davis v. Francis Howell Sch. Dist., 138 F.3d 754, 756-57 (8th Cir. 1998). Finally, and particularly important in the context of the state prison system, a “public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.” 28 C.F.R. § 35.130(h). The Eighth Circuit has noted that whether a requested accommodation is reasonable or imposes an undue burden on defendants should be considered in the light of “the heightened security concerns of a prison.” Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999).
As a matter of law, Plaintiffs are not entitled to the accommodations they seek under the ADA for three reasons. First, Plaintiffs do not allege that they requested these accommodations from the State Defendants—or that the State Defendants even knew about their alleged disabilities or their need for additional or different measures under Title II of the ADA—before they filed this lawsuit. That is fatal to their claims as a matter of law because a person “seeking a reasonable accommodation must request such an accommodation.” Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 (8th Cir. 2001); see also Peebles, 354 F.3d at 767 (explaining that the duty to reasonably accommodate is only triggered if a defendant knows about the plaintiff’s disability); Wallin v. Minn. Dept. of Corr., 153 F.3d 681, 689 (8th Cir. 1998) (holding in ADA suit against employer that “it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed”).
Second, as this Court has already held, none of the accommodations Plaintiffs seek are “reasonable accommodations [that] have been denied for plaintiffs.” DE 68 at 70. Alcohol-based
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sanitizer is, under the CDC’s guidance, merely a secondary option to handwashing, and one that prisons may opt to deny for security reasons. See id. at 60 (citing CDC guidance). Under Olmstead and the federal regulations interpreting the ADA, the Court owes deference to ADC’s judgment that providing alcohol-based sanitizer in state prisons would be unsafe. The same is true of bleach, which the CDC’s guidance does not even conditionally recommend providing to inmates. On the other hand, the Court has already found, based on judicially noticeable public records, that inmates are being provided soap. See DE 68 at 30 (citing DE 50-14). There is nothing even in the CDC guidance that requires inmates to be provided with antibacterial hand soap, which would be ineffective to protect inmates from the coronavirus, or additional PPE beyond what the DOC has already provided.
Third, as this Court has already held, it cannot grant release under the ADA. See DE 68 at 51 (holding that “the PLRA prevents this Court from granting temporary release or transferring to home confinement members of the proposed disability subclass who bring Title II ADA claims seeking such relief”). That is because the PLRA, which governs ADA suits, provides that only a three-judge court may enter a prisoner release order outside a habeas proceeding, and that even a three-judge court may only do so after the entry of a prior order granting less intrusive relief on the same claim that has failed to remedy the deprivation of a federal right. See id. (citing 18 U.S.C. 3626(a)(3)(A)(i), (a)(3)(B), (g)(4)). No three-judge court has been empaneled, and as this Court previously held, it “has entered no such previous order.” Id. So “regardless of the merits of plaintiffs’ claims” for release under the ADA, this Court must dismiss their ADA claim insofar as it seeks release. Id.
For each of these reasons, the Court should dismiss Count III of Plaintiffs’ amended complaint with prejudice.
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VI. Plaintiffs’ condition-of-confinement claims are not cognizable in habeas. Plaintiffs’ habeas claim (Count II) challenges their conditions of confinement. They argue that, due to temporary conditions that they allege exist in DOC facilities on account of COVID19, a putative subclass of medically vulnerable plaintiffs have an Eighth Amendment right to be transferred from prisons or residential correctional facilities to home confinement. See DE 84 at 86 ¶ 266. That claim encounters an insurmountable obstacle at the starting gate: In the Eighth Circuit, “a habeas petition is not a proper remedy for a condition-of-confinement claim.” Holt v. Kelley, No. 5:18-cv-00264, 2019 WL 3928633, at *1 (E.D. Ark. Aug. 18, 2019) (Baker, J.) (citing Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014)). In Spencer v. Haynes, the Eighth Circuit held that if a prisoner’s “constitutional claim relates to the conditions of his confinement . . . a habeas petition is not the proper claim to remedy his alleged injury.” 774 F.3d at 470. And that is how this Court understood Spencer in Holt. See Holt, 2019 WL 3928633, at *1-2 (reading Spencer as “holding that a habeas petition is not a proper remedy for a condition-of-confinement claim,” and “declin[ing] Mr. Holt’s invitation to distinguish or decline to follow . . . Spencer”). Plaintiffs’ claim “relates to the conditions of their confinement,” “as distinct from the fact or length of the confinement.” Spencer, 774 F.3d at 470 (quoting Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979)). Plaintiffs do not challenge the validity of their sentences, nor their length; their claim has nothing to do with the legality of their sentences as imposed. It only attacks living conditions in DOC facilities as currently affected by COVID19. As such, they cannot bring that claim in a habeas proceeding. Moreover, the relief that Plaintiffs seek is not cognizable in habeas. In Kruger v. Erickson, 77 F.3d 1071 (8th Cir. 1996), the Eighth Circuit held that “[i]f the prisoner is not challenging the validity of his conviction or the length of his detention, then a writ of habeas corpus is not the
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proper remedy . . . [and] the district court lacks the power or subject matter jurisdiction to issue the writ.” Id. at 1073. The Eighth Circuit reaffirmed that rule in Spencer and held that habeas relief was unavailable in that case because Spencer did “not challenge his conviction, nor . . . seek a remedy that would result in an earlier release.” Spencer, 774 F.3d at 469. Plaintiffs do not “challenge [their] conviction[s].” Id. Nor do they seek a writ that would reduce “the length of their state custody.” Kruger, 77 F.3d at 1073. Rather, under Plaintiffs’ proposed remedy they would “still [be] in ADC custody,” DE 3 at 56, just in a different location: their homes. During that “temporary medical furlough” to “home confinement,” id. at 36, 45, they would continue to serve their sentences, whose length Plaintiffs do not attack.
At the preliminary-injunction stage, Plaintiffs maintained that their claim is not a conditionof-confinement claim. Instead, they argued their request is tantamount to a request for early release because a temporary transfer to home confinement would amount to “a quantum change in the level of custody.” DE 44 at 66 n.17. But even if an order granting home confinement were permissible relief in habeas, Plaintiffs still could not bring that claim because they do not assert that their sentences are unlawful; they only claim that the present health-and-safety conditions of their confinement have made their imprisonment temporarily unlawful.
Moreover, courts have overwhelmingly rejected Plaintiffs’ construction of their claim. Plaintiffs have identified over twenty cases which they say hold COVID-19-based requests for release from prison to less restrictive confinement are cognizable in habeas. See DE 44 at 67 n.18 and accompanying text. Of these, Plaintiffs focus on just two that say a COVID-19-based request for release from prison is not a condition-of-confinement claim. See DE 44 at 65-66 (citing Wilson v. Williams, — F. Supp. 3d —, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020), vacated on other grounds, — F.3d —, 2020 WL 3056217 (6th Cir. June 9, 2020); Malam v. Adduci, — F. Supp. 3d
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—, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020)); see also DE 54 at 2 (citing Wilson v. Williams,
No. 20-3447 (6th Cir. May 4, 2020) (denying stay of Wilson)). The focus on these cases is not
accidental. Virtually every other case granting habeas relief on such claims has said they are
condition-of-confinement claims and can be heard in habeas because local circuit precedent has
condoned condition-of-confinement habeas petitions. The following are examples, culled from
cases Plaintiffs themselves cite in supposed support of their argument that their claims are not
condition-of-confinement claims and can be heard in habeas:
 “Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. Accordingly, we find that Petitioners have appropriately invoked this court's jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.” Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020) (citations omitted).
 Federal courts . . . have seemingly condoned challenges to conditions of confinement raised through a habeas petition. Accordingly, I find the caselaw indicates that an immigration detainee may raise a conditions of confinement claim in his § 2241.” Leandro R. P. v. Decker, No. CV 203853, 2020 WL 1899791, at *4 (D.N.J. Apr. 17, 2020) (alterations omitted) (citations omitted) (internal quotation marks omitted).
 “An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate's ‘transfer while seriously ill’ where that transfer posed a risk of fatal heart failure).” Basank v. Decker, No. 20 CIV. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020).
 “Courts are divided on whether section 2241 provides a vehicle for challenging (and a remedy for addressing) allegedly unconstitutional conditions of confinement. This Court need not resolve these difficult questions at this junction because the Second Circuit ‘has long interpreted section 2241 as applying to challenges to ... prison conditions,’ Thompson v. 36

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Choinski, 525 F.3d 205, 209 (2d Cir. 2008)[.]” Jones v. Wolf, No. 20-CV361, 2020 WL 1643857, at *14 (W.D.N.Y. Apr. 2, 2020) (footnote omitted) (alteration omitted).
On the other hand, courts in Circuits like the Eighth that bar condition-of-confinement
claims from being heard in habeas overwhelmingly conclude that claims like Plaintiffs’ are
condition-of-confinement claims and therefore cannot be heard in habeas. For example:
 “Although Plaintiffs are requesting immediate release, they are not challenging the legality or duration of their detention. At the core of their argument, they contend that the conditions of their detention at Otero are inadequate to protect them from exposure to COVID-19 . . . Accordingly, the Court finds that Plaintiffs are challenging the conditions of their detention, as opposed to its fact or duration, which is not appropriate under 28 U.S.C. § 2241.” Barco v. Price, —F. Supp. 3d —, 2020 WL 2099890, at *6 (D.N.M. May 1, 2020).
 “[Petitioner] seeks release on the basis of his ‘Living Conditions’ at Terminal Island. Petitioner's allegations sound in civil rights, not in habeas. Although Petitioner requests relief in the form of release from prison, which is within the ambit of a writ of habeas corpus, Petitioner's claims challenge the conditions of his confinement and are properly the subject of a civil rights complaint, despite the relief he seeks.” Bolden v. Ponce, No. 220CV03870JFWMAA, 2020 WL 2097751, at *2 (C.D. Cal. May 1, 2020) (alteration omitted) (citations omitted) (internal quotation marks omitted).
 “Drakos does not challenge the fact or duration of his confinement. While he requests injunctive relief ordering his release, his attack is on the conditions of his confinement, not on the fact that he was ordered detained before trial. Therefore, the relief Drakos seeks is not available in habeas corpus.” Drakos v. Gonzalez, No. H-20-1505, 2020 WL 2110409, at *1 (S.D. Tex. May 1, 2020) (citations omitted).
Despite the abundance of authority holding that claims like Plaintiffs’ are condition-of-
confinement claims, only cognizable in habeas if condition-of-confinement claims are, Plaintiffs
insist all these courts are wrong. They rest that argument almost entirely on an Ohio district court
decision in Wilson v. Williams, No. 4:20-cv-794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020),
which Justice Sotomayor subsequently stayed and the Sixth Circuit subsequently vacated. That
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decision is singularly unpersuasive and rests on an approach to condition-of-confinement claims that the Eighth Circuit explicitly rejected in Spencer.
In that case, the district court ordered that the Bureau of Prisons grant inmates in a federal prison with a severe COVID-19 outbreak one of either compassionate release, release to home confinement, or transfer to another BOP facility. Wilson, 2020 WL 1940882, at *10-11. According to the district court, all of these remedies, including transfer to a different prison, were available in habeas because in the Sixth Circuit, habeas petitioners could not only challenge “the fact or duration of confinement,” but “also . . . the execution or manner in which the sentence is served.” Id. at *5 (internal quotation marks omitted) (quoting United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2002)).
On appeal, the Sixth Circuit took a somewhat different view.13 It held the prisoners’ request for transfer to safer prisons merely sought “an improvement of prison conditions” and “could not be brought under § 2241.” Wilson, 2020 WL 3056217, at *5, *6. It concluded, however, that a claim seeking release to home confinement on the basis of conditions of confinement should be “construed” as though it were not a conditions claim. Id. at *5. As it put it, “[o]ur precedent supports the conclusion that where a petitioner claims that no set of conditions
13 Prior to the Sixth Circuit vacating the district court’s injunction, the government twice sought a stay in the Supreme Court. On the first occasion, the district court modified its order while the government’s stay application regarding the original order was pending. See Williams v. Wilson, — S. Ct. —, 2020 WL 2644305, at *1 (U.S. May 26, 2020). “Particularly in light of that procedural posture, the Court decline[d] to stay the [original] preliminary injunction without prejudice to the Government seeking a new stay.” Id. Justices Thomas, Alito and Gorsuch, however, would have granted a stay, the intervening order notwithstanding. Id. The government then sought a new stay. This time Justice Sotomayor, the Sixth Circuit’s Circuit Justice, granted a stay on her own. Williams v. Wilson, — S. Ct. —, 2020 WL 2988458 (U.S. June 4, 2020). Notably, both of the government’s stay applications relied heavily on the argument that the relief the district court granted was non-cognizable in habeas.
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would be constitutionally sufficient”—thus challenging conditions—“the claim should be construed as challenging the fact or extent, rather than the conditions, of the confinement.” Id. (citing Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011)). For reasons left unexplained, it understood the prisoners’ request for release to home confinement to make such a claim—only to vacate the district court’s grant of that relief on the merits for reasons closely paralleling this Court’s denial of injunctive relief. See id. at *8-11.
Besides the Supreme Court’s strong hint that it would stay Wilson in an appropriate procedural posture, and Justice Sotomayor’s stay, Wilson is unpersuasive for two reasons. First, it is inconsistent with the Sixth Circuit’s own stated approach to habeas and condition-ofconfinement claims; second, the Eighth Circuit has, in any event, rejected that approach. The Sixth Circuit reasoned that the prisoners’ claims in Wilson were attacks on their sentences themselves because they asserted that all possible conditions of those sentences were unconstitutional— relying on a lethal-injection case holding that where a prisoner claimed there was no “acceptable . . . procedure” for lethal injection, the claim was cognizable in habeas because it would “render his death sentence effectively invalid.” Adams, 644 F.3d at 483. That, however, was not what the prisoners in Wilson were claiming.
Rather, the prisoners in Wilson sought to temporarily serve the balances of their sentences at home; by definition, then, they claimed that there were conditions under which their sentences could be administered constitutionally. The same is true of Plaintiffs’ claims, which both acknowledge that they can be constitutionally confined at home, and that they can be confined in prison once “the emergency abates.” DE 68 at 43 (quoting DE 3 at 56). Far from resembling a challenge to the very sentence of death by lethal injection, Plaintiffs’ claim is more like a claim that due to a temporary health condition, lethal injection must be postponed or administered by a
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different procedure until the condition subsides. No court would entertain that sort of claim in habeas. C.f. Bucklew v. Precythe, 139 S. Ct. 1112 (2019) (entertaining a lethal-injection claim based on a more permanent medical condition under Section 1983).
Second, the Eighth Circuit rejected the Sixth Circuit’s approach to conditions claims in Spencer. In Adams, the Sixth Circuit said that Eighth Amendment challenges to the conditions of a sentence transform into challenges to the “fact” of sentence if they assert that a sentence would be unconstitutional under any set of conditions. Likewise, Plaintiffs reason that their claim is not a conditions claim because it claims no set of prison conditions could be safe enough for certain inmates. In Spencer, however, the Eighth Circuit specifically addressed Adams and rejected it. There, it acknowledged “a split ha[d] arisen amongst our sister circuits” in permitting conditionof-confinement claims in habeas. Spencer, 774 F.3d at 470. “Notwithstanding” that split, it wrote it was “bound” by Kruger to reject the view of those circuits that allowed condition-ofconfinement habeas petitions. In cataloguing the split, the Spencer court wrote that “the Sixth Circuit firmly stand[s] in the camp of allowing conditions-of-confinement claims to be brought in the habeas corpus context.” Id. at 470 n.6 (emphasis added). Spencer’s only authority for that statement was Adams—which on the Sixth Circuit’s and Plaintiffs’ theory, only permitted a challenge to the fact of sentence. Id. Thus, the Eighth Circuit necessarily rejected Adams’s distinction of condition claims that effectively attack a sentence itself, deeming those claims condition-of-confinement claims too. As Wilson is based entirely (albeit unpersuasively) on the Sixth Circuit’s hybrid approach to conditions claims in Adams that the Eighth Circuit rejected in Spencer, the Eighth Circuit would necessarily reject Wilson.
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VII. Plaintiffs’ habeas claim is barred for non-exhaustion. Even if Plaintiffs had brought their habeas claim in a circuit where condition-ofconfinement claims were cognizable in habeas, their claim would be barred for failure to exhaust. Plaintiffs style their habeas claim as one under 28 U.S.C. § 2241. DE 1 at 43 ¶ 137. But in the Eighth Circuit, “[28 U.S.C.] § 2254 is the only means by which ‘a person in custody pursuant to the judgment of a State court’ may raise challenges to the validity of his conviction or sentence or to the execution of his sentence.” Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (en banc) (emphasis added) (citing Crouch v. Norris, 251 F.3d 720, 722-23 (8th Cir. 2001)). Indeed, Singleton specifically rejected a state prisoner’s argument that his habeas “claim [wa]s properly before the court under authority of § 2241,” id. at 1022, as did Crouch. See 251 F.3d at 722 (“According to Crouch, his proposed petition is properly classified as a habeas action under 28 U.S.C. § 2241 . . . We disagree.”). Because in the Eighth Circuit, prisoners in custody pursuant to state-court judgments can only seek habeas relief under Section 2254, “[t]he petition at bar must . . . be construed as one pursuant to 28 U.S.C. § 2254.” Jones v. Norris, No. 5:09CV00353, 2010 WL 346440, at *5 (E.D. Ark. Jan. 25, 2010) (Moody, J.); see also Murphy v. Bradly, No. 1:19cv00091, 2019 WL 5777712, at *1 n.1 (E.D. Ark. Sept. 20, 2019) (Volpe, J.), report and recommendation adopted, 2019 WL 5755886 (E.D. Ark. Nov. 5, 2019) (Miller, J.) (“constru[ing]” habeas petition that “purport[ed] to be pursuant to 28 U.S.C. § 2241 . . . as being pursuant to § 2254” because “where a habeas petitioner is in custody pursuant to a state court judgment, she ‘can only obtain habeas relief through § 2254, no matter how [her] pleadings are styled.’” (quoting Crouch, 251 F.3d at 723). As a Section 2254 petition, however, Plaintiffs’ would-be habeas petition hits an insurmountable roadblock: Section 2254’s prohibition against granting relief “unless it appears
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that . . . the applicant has exhausted the remedies available in the courts of the State”—which the “applicant shall not be deemed to have [done], within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. §§ 2254(b)(1)(A), 2254(c). Plaintiffs do not allege that they have pursued any state-court remedy. To the contrary, their briefing concedes they did not. See DE 44 at 64-65.
Plaintiffs may raise their deliberate-indifference claims in state court under Section 1983 and the Arkansas Civil Rights Act (“ACRA”), Ark. Code Ann. § 16-123-105, which this Court has interpreted as providing identical protections to Section 1983. See Hess v. Ables, No. 5:11-cv249, 2012 WL 3882184, at *14 (E.D. Ark. Sept. 6, 2012) (Baker, J.), aff’d, 714 F.3d 1048, 1054 (8th Cir. 2013) (upholding this Court’s analysis). Indeed, the Arkansas Supreme Court has decided deliberate-indifference claims under both Section 1983 and the ACRA. See, e.g., Early v. Crockett, 2014 Ark. 278, 436 S.W.3d 141.
Plaintiffs may contend that their claim for release is only cognizable in habeas, not Section 1983. But, as discussed above, many courts disagree, and so might the Arkansas courts. Therefore, whatever conclusion this Court reaches on that question, it must dismiss for non-exhaustion. For “[i]f a federal court is unsure whether a claim would be rejected by the state courts, the habeas proceeding should be dismissed without prejudice or stayed until the claim is fairly presented to them.” Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995) (emphasis added). Here the Court can be, at best, unsure whether Arkansas courts would reject Plaintiffs’ potential Section 1983 and ACRA claims out of hand.
CONCLUSION For all of the forgoing reasons, the Court should grant the State Defendants’ motion to dismiss Plaintiffs’ amended complaint with prejudice.
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Respectfully submitted, LESLIE RUTLEDGE
Arkansas Attorney General NICHOLAS J. BRONNI (2016097)
Arkansas Solicitor General VINCENT M. WAGNER (2019071)
Deputy Solicitor General ASHER STEINBERG (2019058)
Assistant Solicitor General JENNIFER L. MERRITT (2002148)
Senior Assistant Attorney General JERRY GARNER (2014134)
Assistant Attorney General OFFICE OF THE ARKANSAS
ATTORNEY GENERAL 323 Center St., Suite 200 Little Rock, AR 72201 Tel.: (501) 682-1319 Fax: (501) 682-2591 Email: Jennifer.Merritt@ArkansasAG.gov
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 Case 4:20-cv-00434-KGB Document 119 Filed 12/28/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, et al.

PLAINTIFF

v.

Case No. 4:20-cv-00434 KGB

SOLOMON GRAVES, et al.

DEFENDANTS

ORDER

Before the Court is the parties’ joint stipulation of dismissal of Jerry Bradshaw from this

action without prejudice (Dkt. No. 118). The parties further stipulate to dismissal without

prejudice of all claims by plaintiffs Nicholas Frazier, Harold S. Otwell, and Cedric Sims. The

stipulation accords with the terms of Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

For good cause shown, the Court adopts the stipulation of dismissal. Jerry Bradshaw is

dismissed from this action without prejudice. Further, all claims by plaintiffs Nicholas Frazier,

Harold S. Otwell, and Cedric Sims are dismissed without prejudice.

It is so ordered this 28th day of December, 2020.

________________________________ Kristine G. Baker United States District Judge

 
 Case 4:20-cv-00434-KGB Document 140 Filed 02/04/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

NICHOLAS FRAZIER, ET AL. v. WENDY KELLEY, ET AL.

PLAINTIFFS Case No. 4:20-cv-00434-KGB
DEFENDANTS

MOTION TO DISMISS PLAINTIFFS’ CLASS ACTION COMPLAINT AS TO WELLPATH
Comes now Separate Defendant, Wellpath, LLC, (herein “Defendant”), by and through its counsel, Hardin, Jesson & Terry, PLC, and for its Motion to Dismiss Plaintiffs’ Class Action Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Local Rule 7.2, states:
1. Plaintiffs are individuals incarcerated at Arkansas Department of Correction (“DOC”) facilities. Separate Defendant Wellpath, LLC provides healthcare services to inmates in DOC facilities.
2. Plaintiffs’ Class Action Complaint asserts three causes of action: (1) a cruel and unusual punishment claim under the Eighth Amendment alleging deliberate indifference to a serious medical need; (2) a habeas corpus claim under the Eighth Amendment; and (3) an Americans with Disabilities (ADA) claim alleging failure to make reasonable accommodations in regards to provision of supplies and social distancing measures.
3. Plaintiffs’ Complaint against Wellpath fails to state a claim upon which relief can be granted and should be dismissed as a matter of law.
4. Wellpath is entitled to immunity pursuant to the Arkansas Emergency Services Act (Ark. Code Ann. § 12-75-101 et seq.) and Executive Orders 20-03 and 20-34. Wellpath is an

Case 4:20-cv-00434-KGB Document 140 Filed 02/04/21 Page 2 of 3
“Emergency Responder” and the actions that form the basis of Plaintiffs’ claims were taken “in the course of providing COVID-19 related emergency management functions during this public health emergency.” See Executive Order 20-34, attached hereto as Exhibit A and incorporated herein by reference.
5. Wellpath is not a proper party to Plaintiffs Eighth Amendment habeas corpus claim or Plaintiffs’ ADA claim. Wellpath is not a state agent and does not have custody over Plaintiffs, which are requirements for a proper habeas corpus claim. Similarly, Wellpath is not a “covered entity” as to Plaintiffs’ claim for violation of the ADA.
6. Based upon the foregoing, Plaintiffs claims against Wellpath, LLC should be dismissed.
7. A Brief in Support is being filed with this Motion and is incorporated herein by reference.
WHEREFORE, Separate Defendant Wellpath, LLC prays that its Motion to Dismiss be granted, Plaintiffs’ claims against it be dismissed and for all other just and proper relief to which it may be entitled.
Respectfully submitted, By: Kynda Almefty
Arkansas Bar No. 2004197 HARDIN, JESSON & TERRY, PLC 1401 West Capitol Avenue, Suite 190 Little Rock, Arkansas 72201 Phone: (501) 850-0015 E-mail: kalmefty@hardinlaw.com Attorneys for Wellpath, LLC

Case 4:20-cv-00434-KGB Document 140 Filed 02/04/21 Page 3 of 3
CERTIFICATE OF SERVICE I, Kynda Almefty, one of the attorneys for the Separate Defendant Wellpath, LLC herein, do hereby certify that a true and correct copy of the above and foregoing pleading was filed electronically with the clerk through the CM/ECF system on February 4, 2021, which will electronically notify all counsel of record.