### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 20

- 20207

LADDY CURTIS VALENTINE; RICHARD ELVIN KING

,

Plaintiffs

- Appellees,

v.

BRYAN COLLIER; ROBERT HERRERA; TEXAS DEPARTMENT OF

CRIMINAL JUSTICE

,

Defendants

- Appellants.

Appeal from the United States District Court

for the Southern District of Texas

Before JONES

, HIGGINSON

, and OLDHAM

, Circuit Judges.

PER CURIAM :

This case implicates the State of Texas’s response to COVID

- 19. On April

16, 2020, the United States District Court for the Southern District of Texas

issued a reticulated preliminary injunction against the executive director of

the Texas prison system and the warden of one of its prisons

. The injunction

regulates in minute detail the cleaning intervals for common areas, the types

of bleach

- based disinfectants the prison must use, the alcohol content of hand

sanitizer that inmates must receive, mask requirements for inmates, an d

inmates’ access to tissues (amongst many other things). The district court

admitted that its injunction “goes beyond” the recommendations of the Centers United States Court of Appeals

Fifth Circuit 

### FILED

April 22, 2020

Lyle W. Cayce

Clerk Case: 20-20207 Document: 00515392232 Page: 1 Date Filed: 04/22/2020No. 20

- 20207

2 for Disease Control and Prevention. But in the district court’s view, anything

less than this injunct ion

— including, presumably, the CDC guidelines

—

violates the Eighth Amendment. Pursuant to Federal Rule of Appellate

Procedure 8, we stay the injunction pending appeal.

I.

As with every other part of the country, our Nation’s correctional

facilities have no t escaped the reach of COVID

- 19

. To mitigate the spread of

the virus

, the Texas Department of Criminal Justice (“TDCJ”) has adopted and

implemented several rounds of measures guided by ever

- changing CDC

recommendations. Plaintiffs are two inmates at the TDCJ Wallace Pack Unit

(“Pack Unit”), a prison for the elderly and the infirm

. They say TDCJ’s

measures don’t go far enough.

On March 30, 2020, Plaintiffs filed a class action lawsuit on behalf of

disabled and high

- risk Pack Unit inmates against TDCJ, its executive director,

and the warden of the Pack Unit. The complaint alleges violations of the Eighth

Amendment’s prohibition against cruel and unusual punishment, and of the

Americans with Disabilities Act. In addition, Plaintiffs sought a prelimi nary

injunction.

After considering Defendants’ written evidence and Plaintiffs’ live

witness testimony, the district court granted that injunction, finding it likely

that Plaintiffs could prove an Eighth Amendment violation. The district court

enjoined T DCJ to:

• “Provide Plaintiffs and the class members with unrestricted access to

hand soap and disposable hand towels to facilitate handwashing.”

• “Provide Plaintiffs and the class members with access to hand sanitizer

that contains at least 60% alcohol in the housing areas, cafeteria, clinic,

commissary line, pill line, and laundry exchange.” Case: 20-20207 Document: 00515392232 Page: 2 Date Filed: 04/22/2020No. 20

- 20207

3 • “Provide Plaintiffs and the class members with access to tissues, or if

tissues are not available, additional toilet paper above their normal

allotment.”

• “Provide cleanin g supplies for each housing area, including bleach

based cleaning agents and CDC

- recommended disinfectants in

sufficient quantities to facilitate frequent cleaning, including in

quantities sufficient for each inmate to clean and disinfect the floor and

all surfaces of his own housing cubicle, and provide new gloves and

masks for each inmate during each time they are cleaning or

performing janitorial services.”

• “Provide all inmates and staff members with masks. If TDCJ chooses to

provide inmates with cotton masks, such masks must be laundered

regularly.”

• “Require common surfaces in housing areas, bathrooms, and the dining

hall to be cleaned every thirty minutes from 7 a.m. to 10 p.m. with

bleach

- based cleaning agents, including table tops, telephones, door

ha ndles, and restroom fixtures.”

• “Increase regular cleaning and disinfecting of all common areas and

surfaces, including common

- use items such as television controls,

books, and gym and sports equipment.”

• “Institute a prohibition on new prisoners entering th e Pack Unit for the

duration of the pandemic. In the alternative, test all new prisoners

entering the Pack Unit for COVID

- 19 or place all new prisoners in

quarantine for 14 days if no COVID

- 19 tests are available.”

• “Limit transportation of Pack Unit inmate s out of the prison to

transportation involving immediately necessary medical appointments

and release from custody.”

• “For transportation necessary for prisoners to receive medical

treatment or be released, CDC

- recommended social distancing

requirements sh ould be strictly enforced in TDCJ buses and vans.”

• “Post signage and information in common areas that provides: (i)

general updates and information about the COVID

- 19 pandemic; (ii)

information on how inmates can protect themselves from contracting

COVID

- 1 9 ; and (iii) instructions on how to properly wash hands.

Among other locations, all signage must be posted in every housing

area and above every sink.” Case: 20-20207 Document: 00515392232 Page: 3 Date Filed: 04/22/2020No. 20

- 20207

4 • “Educate inmates on the COVID

- 19 pandemic by providing information

about the COVID

- 19 pandemic, COVID

- 1 9 symptoms, COVID

- 19

transmission, and how to protect oneself from COVID

- 19. A TDCJ staff

person must give an oral presentation or show an educational video

with the above

- listed information to all inmates, and give all inmates

an opportunity to ask questi ons. Inmates should be provided physical

handouts containing COVID

- 19 educational information, such as the

CDC’s ‘Share Facts About COVID

- 19’ fact sheet already in TDCJ’s

possession.”

• “TDCJ must also orally inform all inmates that co

- pays for medical

treat ment are suspended for the duration of the pandemic, and

encourage all inmates to seek treatment if they are feeling ill.”

• “TDCJ must, within three (3) days, provide the Plaintiffs and the Court

with a detailed plan to test all Pack Unit inmates for COVID

- 19,

prioritizing those who are members of Dorm A and of vulnerable

populations that are the most at

- risk for serious illness or death from

exposure to COVID

- 19. For any inmates who test positive, TDCJ shall

provide a plan to quarantine them while minimizin g their exposure to

inmates who test negative. TDCJ must also provide a plan for testing

all staff who will continue to enter the Pack Unit, and for any staff that

test positive, provide a plan for minimizing inmates’ exposure to staff

who have tested posi tive.”

P relim. Inj. Order at 2

– 4 [hereinafter PI Order]

.

In its memorandum opinion explaining this injunction

, the district court

acknowledged that “many of the measures ordered in the preliminary

injunction largely overlap with TDCJ’s COVID

- 19 policy requirements and

recommendations .” D. Ct. Op. at 23. Yet the court believed the injunction

necessary “to promote compliance” with TDCJ’s policy, as well as CDC

guidelines. Id. at 24. Some of the conduct required of Defendants under the

injunction goes even further than CDC guidelines

. But the district court found

that compliance with those guidelines alone could be constitutionally

insufficient. Id. at 25

– 26

. Case: 20-20207 Document: 00515392232 Page: 4 Date Filed: 04/22/2020No. 20

- 20207

5 The district court stayed its preliminary injunction until April 22, 2020,

at 5 p.m. Defendants timely appealed and sought a stay of the preliminary

injunction pending appeal.

I I

.

When considering a stay, “a court considers four factors: (1) whether the

stay applicant has made a strong showing that he is likely to succeed on the

merits; (2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties

interested in the proceeding; and (4) where the public interest lies.” Nken v.

Holder

, 556 U.S. 418, 426 (2009) (quotation omitted). The first two factors are

the most critical. Barber v. Bryant

, 833 F.3d 510, 511 (5th Cir. 2016).

A.

We start with TDCJ’s likelihood of success on appeal. In a constitutional

claim alleging deliberate indifference to the conditions of a prisoner’s

confinement, the plaintiff must satisfy both the “subjective and objective

requirements” of the Eighth Amendm ent inquiry. Farmer v. Brennan

, 511 U.S.

825, 846 (1994). To satisfy the objective requirement, the plaintiff must show

an “objectively intolerable risk of harm.” Ibid. To satisfy the subjective

requirement, the plaintiff must show that the defendant: “(1) was ‘aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exists’; (2) subjectively ‘dr[e]w the inference’ that the risk existed; and

(3) disregarded the risk.” Cleveland v. Bell

, 938 F.3d 672

, 676 (5th Cir. 2019)

(quoting Farmer

, 511 U.S. at 837). The “incidence of disease s or infections,

standing alone,” do not “imply unconstitutional confinement conditions, since

any densely populated residence may be subject to outbreaks.” Shepherd v.

Dallas Cty

. , 591 F.3d 445, 454 (5th Cir. 2009). Instead, the plaintiff must show

a denial of “basic human needs.” I bi d. “Deliberate indifference is an extremely Case: 20-20207 Document: 00515392232 Page: 5 Date Filed: 04/22/2020No. 20

- 20207

6 high standard to meet.” Cadena v. El Paso Cty.

, 946 F.3d 717, 728 (5th Cir.

2020).

TDCJ is likely to prevail on the merits of its appeal. That’s for two

reasons: (1) a fter accounting for the protective measures TDCJ has taken, the

P laintiffs have not shown a “substantial risk of serious harm” that amounts to

“cruel and unusual punishment ” ; and (2) the district court committed legal

error in its application of Farmer v. Brennan

.

1.

First, the harm analysis. There is no doubt that infectious diseases

generally and COVID

- 19 specifically can pose a risk of serious or fatal harm to

prison inmates. TDCJ acknowledges that fact. And it submitted evidence to

the district court of the protective measures it has taken as a result. 1 Those

protective measures include many of the things the district court ordered

—

including “access to soap, tissues, gloves, masks, regular cleaning, signage and

education, quarantine of new prisoners, and social distancing during

transport.” D. Ct. Op. at 24. The legal question is whether the Eighth

Amendment requires TDCJ to do more to mitigate the risk of harm.

The district court said yes. It acknowledged the numerous protections

TDCJ provided

, but it wanted to see “extra measures

, ” such as providing

alcohol

- based sanitizer and additional paper products. D. Ct. Op. at 26

. The

district court further acknowledged that the “extra measures” it required “go [ ]

beyond TDCJ and CDC policies.” Id. at 25. Plaintiffs have cited no precedent

1 Th e district court made much of the fact that TDCJ did not present “live testimony”

at the preliminary

- injunction hearing. It’s unclear to us why that matters. It long has been

true that parties can present evidence at the preliminary

- injunction stage with d eclarations

or affidavits. See, e.g.

, Sierra Club, Lone Star Chapter v. FDIC , 992 F.2d 545, 551 (5th Cir.

1993). And, of course, it’s the P laintiffs’ burden to prove their entitlement to an injunction,

not the D efendants’ burden to prove the opposite. Case: 20-20207 Document: 00515392232 Page: 6 Date Filed: 04/22/2020No. 20

- 20207

7 holding that the CDC ’s recommendations are insufficient to satisfy the Eighth

Amendment

.

TDCJ also is likely to succeed on appeal insofar as the district court

enjoined the State to follow its own laws and procedures. I n Pennhurst State

Sch ool & Hosp ital v. Halderman

, 465 U.S. 89 (1984), a plaintiff class brought

suit under inter alia the Eighth Amendment and state law to challenge the

conditions at a state facility for people with mental disabilities. See id. at 92.

The Supreme Court held that the Eleventh Amendment prohibits federal

courts from enjoining state facilities to follow state law. See id. at 103

– 23.

Here, however, the district court acknowledged that its injunction “largely

overlap[ped] with TDCJ’s COVID

- 19 policy requirements and

recommendations.” D. Ct. Op. at 23. In the district court’s view, this was a

virtue not a vice because its inj unction would “promote compliance” with

TDCJ’s own policies. Id. at 24. Pennhurst plainly prohibits such an injunction.

2.

Second, e ven assuming that there is a substantial risk of serious harm,

the P laintiffs lack evidence of the D efendants’ subjective deliberate

indifference to that risk. In Farmer v. Brennan

, the Supreme Court held that

deliberate indifference requires the defendant to have a subjective “state of

mind more blameworthy than negligence,” Farmer

, 511 U.S. at 835, akin to

crimin al recklessness, id. at 839

– 40

. The district court misapplied this

standard. It appeared to think that the question was “whether [the

D efendants] reasonably abate[d] the risk” of infection, D. Ct. Op. at 20, or

stated differently, “whether and how [TDCJ’s] policy is being administered,”

id. at 23.

The district court thus collapsed the objective and subjective components

of the Eighth Amendment inquiry established in Farmer

, treating inadequate Case: 20-20207 Document: 00515392232 Page: 7 Date Filed: 04/22/2020No. 20

- 20207

8 measures as dispositive of the D efendants’ mental state. Such an approach

resembles the standard for civil negligence, which Farmer explicitly rejected.

Though the district court cited the D efendants’ general awareness of the

dangers posed by COVID

- 19

, it cited no evidence that they subjectively believe

the measures they are taking are inadequate. To the contrary, the evidence

shows that TDCJ 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. See Dkt. 36

- 7 (declaration of TDCJ H ealth Services

D irector); Dkt. 36 at 13

– 20 (compiling evidence of protective measures taken

by TDCJ). Although the district court might do things differently, mere

“disagreement” with TDCJ’s medical decisions does not establish deliberate

indifference. Cadena

, 946 F.3d at 729.

B.

TDCJ also has shown that it will be irreparably injured absent a stay.

See Nken

, 556 U.S. at 434. W hen the State is seeking to stay a preliminary

injunction

, it’s generally enough to say “ ‘[a]ny time a State is enjoined by a

court from effectuating statutes enacted by representatives of its people, it

suffers a form of irreparable injury. ’ ” Maryland v. King

, 133 S. Ct. 1, 3 (2012)

(Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal

. v. Orrin

W. Fox Co

., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The Texas

Legislature assigned the pre rogatives of prison policy to TDCJ. See, e.g.

, T EX

.

G OV ’ T C ODE ch. 501. The district court’s injunction prevents the State from

effectuating the Legislature’s choice and hence imposes irreparable injury.

Moreover, t he Supreme Court has repeatedly warned that “it 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. ’ ” Woodford v. Ngo

, 548 U.S. 81, 94 (2006) Case: 20-20207 Document: 00515392232 Page: 8 Date Filed: 04/22/2020No. 20

- 20207

9 (quoting Preiser v. Rodriguez

, 411 U.S. 475, 491

– 92 (1973)); see a lso Missouri

v. Jenkins

, 495 U.S. 33, 51 (1990)

. Yet the district court in this case imposed a

number of immediate demands on TDCJ. Among these is a plan within three

days to test all Pack Unit inmates for COVID

- 19, as well a s a new plan to

quarantine those who test positive, distribute physical handouts with COVID

19 information to the inmates, clean common surfaces every thirty minutes for

fifteen hours each and every day, and to provide masks to all inmates and staff

members. As we’ve said before about such intrusive orders, this one creates

“an administrative nightmare” for TDCJ “to comply with the district court’s

quotas and deadlines.” Ruiz v. Estelle

, 650 F.2d 555, 571 (5th Cir. Unit A June

1981). “[T]he burden upon TDC [ J] in terms of t ime, expense, and

administrative red tape is too great” while it must respond in other ways to the

crisis. Ibid

.

The harm to TDCJ is particularly acute because the district court’s order

interferes with the rapidly changing and flexible system

- wide approach that

TDCJ has used to respond to the pandemic so far. The TDCJ’s Director of

Health Services explained this statewide approach in her declaration

. See Dkt.

36

- 7. The Director worked with a team of medical directors to develop Policy

B

- 14.52 in response to COVID

- 19

. Id. at 2. TDCJ first implemented that policy

on March 20, 2020. It was designed “to adhere to guidance issued” by the CDC.

Ibid

. And the policy was then disseminated to staff, placed in the “Correctional

Managed Heal th Care Infection Control Policy Manual [,] and posted on the

TDCJ website.” Id. at 3. But just three days later, the CDC updated its

guidance

, so TDCJ implemented a revised policy on March 27, 2020. Id. at 4.

More changes came again on April 2, 2020, and again TDCJ disseminated and

implemented the updated policy. Ibid

. And on April 15, 2020, TDCJ

disseminated and began implementation of yet another policy

. Id. at 4

– 5. Case: 20-20207 Document: 00515392232 Page: 9 Date Filed: 04/22/2020No. 20

- 20207

10 TDCJ’s ability to continue to adjust its po licies is significantly hampered by

the preliminary injunction, which locks in place a set of policies for a crisis that

defies fixed approaches. See, e.g.

, Jacobson v. Massachusetts

, 197 U.S. 11, 28

–

29 (1905); In re Abbott

, No. 20

- 50264, 2020 WL 1685929, at *1 2 (5th Cir. 2020)

(describing COVID

- 19 as a “massive and rapidly

- escalating threat”). And it

prevents TDCJ from responding to the COVID

- 19 threat without a permission

slip from the district court. That constitutes irreparable harm.

C.

The remaining two factors of the stay standard are the balance of the

harms and the public interest. See Nken

, 556 U.S. at 426. Both weigh in favor

of staying the district court’s injunction. There is no doubt that COVID

- 19

poses risks of harm to all Ameri cans, including those in the Pack Unit. But the

question is whether P laintiffs have shown that they will suffer irreparable

injuries even after accounting for the protective measures in TDCJ Policy B

14.52. Neither the P laintiffs nor the district court suggest the evidence satisfies

that standard. And “[b]ecause the State is the appealing party, its interest and

harm merge with that of the public.” Veasey v. Abbott

, 870 F.3d 387, 391 (5th

Cir. 2017) (citing Nken

, 556 U.S. at 435). Therefore, TDCJ h as satisfied all four

requirements of the stay standard.

II I.

Plaintiffs also face several obstacles to relief under the Prison Litigation

Reform Act (“PLRA”). Two bear emphasis at this stage : exhaustion and

narrowness.

A.

First, exhaustion. The PLRA requires inmates to exhaust “ such

administrative remedies as are available ” before filing suit in federal court to

challenge prison conditions. 42 U.S.C. § 1997e(a). This exhaustion obligation Case: 20-20207 Document: 00515392232 Page: 10 Date Filed: 04/22/2020No. 20

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11 is mandatory

— there are no “futility or other [judicially c reated] exceptions [ to

the] statutory exhaustion requirements

. . . .” Booth v. Churner

, 532 U.S. 731,

741 n.6 (2001). So long as the State’s administrative procedure grants

“authority to take some action in response to a complaint,” that procedure is

cons idered “available,” even if it cannot provide “the remedial action an inmate

demands .” Id. at 73 6 (emphasis added); see also id. at 739 (“Congress meant to

require procedural exhaustion regardless of the fit between a prisoner’s prayer

for relief and the administrative remedies possible.”).

By contrast, a remedy is not “available”

— and exhaustion is not

required

— when:

1. The procedure “operates as a simple dead end” because “the relevant

administrative procedure lacks authority to provide any relief,” or

“administrative officials have apparent authority, but decline ever to

exercise it.”

2. The “administrative scheme [is] so opaque that

. . . no reasonable

prisoner can use them.”

3. Or when “ p rison administrators thwart inmates from taking

advantage of a grievance process through machination,

misrepresentation, or intimidation.”

Ross v. Blake

, 136 S. Ct. 1850, 1859

– 60 (2016) (quotation omitted).

Under these standards, P laintiffs’ suit appears premature. All parties

agree that the TDCJ administrative process is open for P laintiffs’ use. And

P laintiffs do not argue that TDCJ is incapable of providing some (albeit

inadequate) relief. Nor do they contend that TDCJ always “de cline[s] to

exercise” its authority, id. at 1859, that the scheme is unworkably opaque, or

that administrators thwart use of the system, see id. at 1859

– 60. Therefore,

according to the standards the Supreme Court has given us

, TDCJ’s grievance

procedure is “available,” and P laintiffs were required to exhaust

.

The district court disagreed. It considered the TDCJ process too lengthy

to provide timely relief, and therefore incapable of use and unavailable under Case: 20-20207 Document: 00515392232 Page: 11 Date Filed: 04/22/2020No. 20

- 20207

12 the special circumstances of the COVID

- 19 crisis

. See D. Ct. Op. at 16. Other

inmates have tried this argument before. In Blake v. Ross

, 787 F.3d 693 (4th

Cir. 2015)

, the court of appeals held that true exhaustion was not required

when the inmate had “exhausted his remedies in a substantive sense by

affording corrections officials time and opportunity to address complaints

internally.” Id. at 698 (quoting Macias v. Zenk

, 495 F.3d 37, 43 (2d Cir. 2007))

.

T he Supreme Court rejected this “special circumstances” exception “as

inconsistent with the PLRA.” Ross

, 136 S. Ct. at 1855. In so holding, the Court

noted that the precursor to today’s § 1997e(a) “would require exhaustion only

if a State pr ovided ‘plain, speedy, and effective’ remedies

. . . . ” Id. at 1858

(quoting § 7(a), 94 Stat. 352 (1980)). By enacting the PLRA (which removed

that proviso), Congress rejected this “weak exhaustion provision” in favor of an

“invigorated” and absolute “exha ustion provision. ” Ibid. (quotation omitted). In

the Supreme Court’s view, reading a “special circumstances” exception into the

PLRA would undo the PLRA and “resurrect” its predecessor. Ibid.

The district court’s understanding of the exhaustion requirement

similarly revivifies the rejected portions of the old regime. The crux of the

court’s concern is that TDCJ has not acted speedily enough. But that was an

exception to exhaustion under the old § 1997e(a), not the current one.

Moreover, the district court held that TDCJ’s procedure would be unduly

lengthy if TDCJ were to use the full time allotted for a response to the

grievance under s tate law. See D. Ct. Op. at 17. But the district court never

found that TDCJ would take the full time if given the chance. The holding that

the TDCJ process “presents no ‘possibility of some relief, ’ ” id. at 17

– 18

(citing Ross

, 136 S. Ct. at 1859), is therefore unsupported by the evidence.

Nor are we persuaded by the district court’s reliance on Fletcher v.

Menard Corr ectional C ente r

, 623 F.3d 1171 (7th Cir. 2010). In that case, Judge Case: 20-20207 Document: 00515392232 Page: 12 Date Filed: 04/22/2020No. 20

- 20207

13 Posner hypothesized that administrative remedies might “offer no possible

relief in time to prevent

. . . imminent danger from becoming an actual

harm.” Fletcher

, 623 F.3d at 1174. But, in that hypothetical, the State

procedure could “offer no possible relie f ” because State law prohibited a

response to the grievance until two weeks after it was filed

— rendering the

procedure of no use to an inmate threatened with death in 24

hours. Ibid. (emphasis added). In those circumstances, of course the procedure

is unavailable

— “it lacks authority to provide any relief,” Ross

, 136 S. Ct. at

1859, because as a matter of law it cannot respond quickly enough. We need

not confront Judge Posner’s hypothetical because TDCJ faces no legal bar to

offering timely relief

. TDCJ is empowered to act on a grievance any time up

to

— not after

, as in Fletcher

— the statutory limit. Relief by T DCJ therefore

remains possible (and the procedure available), even if TDCJ has not acted as

swiftly as P laintiffs would like. 2

B.

Finally, it appears that the district court’s injunction goes well beyond

the limits of what the PLRA would allow even if the P laintiffs had properly

exhausted their claims. The PLRA mandates that “[p]reliminary injunctive

relief must be narrowly drawn, extend no further than necessary to correct the

harm the court finds requires preliminary relief, and be the least intrusive

means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). And the PLRA

says courts “shall give substantial weight to any adverse impact on public

safety or the operation of a criminal justice system caused by the preliminary

2 Nor is the possibility of TDCJ action speculative. As noted above in Part II.B,

Defendants offered uncontroverted testimony from the D irector of TDCJ Health Services that

TDCJ adopted an infection control policy as early as March 20, 2020. Dkt. 36

- 7 at 3. TDCJ’s

medical directors have updated the policy periodically in response to ever

- evolving CDC

guidelines and other input. Id. at 4. Case: 20-20207 Document: 00515392232 Page: 13 Date Filed: 04/22/2020No. 20

- 20207

14 relief and shall respect the principles of comity set out in paragraph (1)(B) in

tailoring any preliminary relief. ” Ibid.

The district court’s order recited these propositions, see PI Order at 1

– 2,

but the injunction’s substance contravenes them. This is a class

- action

injunction that applies to all inmates

— disabled and non

- disabled alike

— in the

Pack Unit. And i t’s hard to see how an injunction that prescribes both a prison

wide testing regime and a cleaning schedule down to the half

- hour interval is

“narrowly drawn” or the “least intrusive means” available. See id. at 3

– 4. So

too with the requirement that every sing le sink have a sign over it with

COVID

- 19 information

. See id. at 3

. Th e se may be salutary health measures.

But that level of micromanagement

, enforced upon threat of contempt, does

not reflect the principles of comity commanded by the PLRA

.

* * *

For the foregoing reasons, TDCJ’s motion to stay the preliminary

injunction pending appeal is GRANTED. The appeal is EXPEDITED to the

next available argument calendar. Case: 20-20207 Document: 00515392232 Page: 14 Date Filed: 04/22/2020No. 20

- 20207

15 STEPHEN A. HIGGINSON, Circuit Judge, concurring in the judgment:

I agree that Appellants have demonstrated a substantial likelihood of

success on their claim that Appellees failed to exhaust prison remedies prior

to seeking relief in federal court. Appelle es did not submit any grievance

request to prison authorities before filing this lawsuit, and I am not aware of

any case, nor do Appellees or the district court cite one, in which a prisoner has

been deemed compliant with the Prison Litigation Reform Act ( PLRA) when

there has been no attempt to file a grievance prior to suit in federal court. 1

I write separately, however, to emphasize two points as governments,

state and federal, respond to the COVID

- 19 crisis, which presents enormous

and imminent health r isks for prisoners and correctional officers alike.

First, the instant stay order does not foreclose the possibility that, upon

expedited consideration, our court may nonetheless conclude that a remedy

using 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. If these plaintiffs

— geriatric

prisoners, many of whom are medically compromised

— have no opportunit y to

expedite systemic medical emergency grievances, our court might hold that

prison administrative remedies “operate[] as a simple dead end” giving prison

officials apparent authority though they decline to exercise it. See Ross v.

Blake , 136 S. Ct. 1850 , 1859 (2016). 2 However, here it is undisputed that the

1 Cf. United State of America v. Vigna , No. S1 16

- CR

- 786

- 3 (NSR), 2020 WL 1900495,

at *5 (S.D.N.Y. Apr. 17, 2020) (noting t hat the court is not aware of any case where an

inmate’s failure to exhaust has been excused without the inmate “at least submitting a

request [to the prison] . . . prior to, or in conjunction with, his or her application to the court”).

2 See also Fletch er v. Menard Corr. Ctr. , 623 F.3d 1171, 1174 (7th Cir. 2010) ; Nellson

v. Barnhart , No. 20

- CV

- 00756

- PAB, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020)

(discussing importance of an imminent

- danger exception while also noting that the Supreme

Court clarifie d that “total and immediate relief is not the standard for exhaustion, ‘the Case: 20-20207 Document: 00515392232 Page: 15 Date Filed: 04/22/2020No. 20

- 20207

16 plaintiffs sought relief in federal district court prior to filing any grievance, and

Appellees cite no PLRA exhaustion caselaw supporting a not “available”

determination ex ante.

Second, our reasoni ng on PLRA’s exhaustion requirement does not

foreclose federal prisoners from seeking relief under the First Step Act’s

provisions for compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). Though

that statute contains its own administrative exhaustion r equirement, several

courts have concluded that this requirement is not absolute and that it can be

waived by the government or by the court, therefore justifying an exception in

the unique circumstances of the COVID

- 19 pandemic. See, e.g.

, United States

v. Russo , No. 16

- cr

- 441 (LJL), 2020 WL 1862294, at *4

– 5 (S.D.N.Y. Apr. 14,

2020) (holding that, “[d]espite the mandatory nature of [the statute’s]

exhaustion requirement,” the exhaustion bar is “not jurisdictional” and can

therefore be waived); United States v. Smith , No. 12 Cr. 133 (JFK), 2020 WL

1849748, at *2

– 3 (S.D.N.Y. Apr. 13, 2020) (citing cases); see also Vigna , 2020

WL 1900495, at *5

– 6 (identifying the difficulties of the First Step Act

exhaustion question while ultimately deferring a ruling until th e petitioner

exhausted his remedies); but see United States v. Raia

, -- F.3d

-- , No. 20

- 1033,

2020 WL 1647922, at *2 (3d Cir. Apr. 2, 2020); United States v. Clark , No. 17

-

85

- SDD

- RLB, 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020). 3

possibility of some relief’ is”). Cf. Muhammad v. Mayfield , 933 F.3d 993, 1000 (8th Cir. 2019)

(identifying the examples in Ross as “ at least three” of the circumstances where the

administrative process may be “unavailable” (emphasis added)); Williams v. Corr. Officer

Priatno , 829 F.3d 118, 123 n.2 (2d Cir. 2016) (“We note that the three circumstances discussed

in Ross do not appear to be exhaustive . . . .”).

3 I note that , unlike the PLRA, S ection 3582 does not limit the exhaustion requirement to “available” remedies. See

18 U.S.C. § 3582(c)(1)(A) (authorizing a motion for a sentence reduction “after the defendant has fully exhausted

all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or

the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility”). The

“availability” caveat

— PLRA’s “built

- in exception to the exhaustion requirement,” Ross , 136 S. Ct. at 1855

— arguably presents a stronger basis from which to conclude that Appellan ts were not required to exhaust their

remedies here. Case: 20-20207 Document: 00515392232 Page: 16 Date Filed: 04/22/2020No. 20

- 20207

17 Because Appellants are substantially likely to succeed on their argument

that statutory exhaustion of administrative remedies was not even sought

prior to filing this lawsuit, I would not reach the merits of Appellees’ ADA and

42 U.S.C. § 1983 claims. Whereas thos e claims face high legal hurdles, 4 they

also are intensely fact

- based. 5 The district court assessed lay and expert

testimony before making extensive and careful findings of fact showing that

mitigation deficiencies still exist. D. Ct. Op. at 7

– 14. However , given the

TDCJ’s systemic and ongoing responses to fast

- changing guidance, I would

reserve for the merits panel the complex question of whether and which of

these deficiencies amount to a cognizable violation.

4 See Gobert v. Caldwell , 463 F.3d 339, 349 (5th Cir. 2006) (holding that “deliberate

indifference exists wholly independent of an optimal standard of care”); see also Alexander v.

Choate , 469 U.S. 287, 301 (1985) (holding that an accommodation is reasonable under the

ADA if it provides “meaningful access to the benefit[s] that the [prison] offers”); Love v.

Westville Corr. Ctr. , 103 F.3d 558, 561 (7th Cir. 1996) (holding that in the prison context, it

is appropriate to consider “[s]ecurity concerns, safety concerns, and administrative

exigencies”) ; cf. Garza v. City of Donna , 922 F.3d 626, 636

– 37 (5th Cir. 2019) (holding that a

deliberate indifference claim does not “require[] proof that officials subject ively intend that

the harm occur” (emphasis added)).

5 See, e.g.

, Banks v. Booth , No. 1:20

- cv

- 00849 (D.D.C. Apr

. 19, 2020) (order granting

temporary restraining order in COVID

- 19 prison context ) ; cf. Fraher v. Heyne

, No. 1:10

- cv

00951

- MJS (PC), 2011 WL 5240441, *2 (E.D. Cal. Oct. 31, 2011) ( prisoner with preexisting

heart condition who was refused a swine flu test could state a claim for violation of

constitutional rights )

. Case: 20-20207 Document: 00515392232 Page: 17 Date Filed: 04/22/2020