By Michelle Casady

Law360 (March 29, 2021, 10:21 PM EDT) -- Though a Fifth Circuit panel agreed to undo a ruling requiring COVID-19 containment measures for geriatric Texas prisoners, the judges clashed over the majority's decision to credit the lower court judge with saving "countless lives" through his actions.

A three-judge panel on Friday reversed a permanent injunction that U.S. District Judge Keith P. Ellison had entered in favor of Laddy Curtis Valentine and others housed at the Wallace Pack Unit in Grimes County. The injunction required that prisoners have unrestricted access to hand soap and towels, that cleaning supplies and gloves be made available, that more stringent cleaning procedures be implemented and that a contact tracing plan be put into place, among other things.  

Two of the judges on the panel said Judge Ellison's handling of the case had likely prompted prison officials to improve their response to the coronavirus pandemic. But Circuit Judge Andrew S. Oldham wrote a concurrence criticizing his colleagues for even broaching the subject, hinting that he found the district court's handling of the case to be problematic. 

The majority noted that prison officials' response to the coronavirus pandemic was "far from perfect," but declined to find that Texas Department of Criminal Justice Executive Director Bryan Collier or Pack Unit Warden Robert Herrera had acted with "deliberate indifference" to the needs of the inmates in violation of the Eighth Amendment.

"We are firmly convinced that this litigation generally and the district court's careful management and expedited handling of the case played a role in motivating the prison officials into action and saved countless lives," the majority wrote, noting that prison officials had updated and adapted plans and protocols numerous times during the 12 months the litigation had been ongoing.

"Injunctive relief is forward looking, and given the defendants' response, including actions taken on the eve of and during trial, the permanent injunction is not warranted," the Fifth Circuit held.

In his concurrence, Judge Oldham wrote that he'd rather the court had said nothing about Judge Ellison's management of the case.

"We have identified at least some of the district court's legal errors, and we've ended the case. That should be that," he wrote. "But if we're going to include dicta, it should be accurate. And it is not true that the district court 'saved countless lives.'"

"If something needs to be said about the course of this litigation — and again, I would have preferred to leave it unsaid — it's not laudatory," he wrote.

Brandon W. Duke of Winston & Strawn LLP, who represents Valentine, told Law360 on Monday that the legal team representing the inmates is "disappointed in the results" of the Fifth Circuit's ruling.

"But we agreed with the majority's statement that effectively said that this litigation and the court's management of the litigation saved a number of lives," he said. "The ultimate goal was to try to protect and save lives, so it was appreciated that the court recognized that despite not ruling in our favor."

The Fifth Circuit's Friday ruling was the next step after the court had stayed the permanent injunction in October, holding that the inmates had improperly bypassed grievance procedures outlined by the Prison Litigation Reform Act, which they were required to exhaust before bringing suit.

The lawsuit was initiated in March 2020 by Valentine and his fellow Pack Unit inmate Richard Elvin King, who accused the Texas Department of Criminal Justice of failing to implement measures to prevent the spread of the coronavirus to the prison's most vulnerable inmates.

The Pack Unit is home to about 1,200 inmates, including more than 800 who are over the age of 65, and many of whom have serious chronic health conditions and disabilities, according to court documents.

TDCJ appealed a preliminary injunction that required it to create a regular cleaning plan in April, pending an appeal. Then the elderly prisoners asked the U.S. Supreme Court to reinstate Judge Ellison's order in May, but the high court declined to do so.

Justice Sonia Sotomayor and the late Justice Ruth Bader Ginsburg expressed their concern for the prisoners and recognized that "the stakes could not be higher" in the high court's order.

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

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

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

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

Counsel for the state did not return a message seeking comment Monday.

Circuit Judges W. Eugene Davis, Carl E. Stewart and Andrew S. Oldham sat on the panel for the Fifth Circuit.

Valentine is represented by John R. Keville, Brandon W. Duke, Basheer Youseff Ghorayeb, Robert L. Green, Corinne Stone Hockman and Denise U. Scofield of Winston & Strawn LLP; Aaron J. Curtis of Weil Gotshal & Manges LLP and Jeff S. Edwards of Edwards Law.

Texas is represented by Deputy Solicitor General Matthew Hamilton Frederick of the Texas Office of the Solicitor General.

The case is Laddy Curtis Valentine et al. v. Bryan Collier et al., case number 20-20525, in the U.S. Court of Appeals for the Fifth Circuit.

--Additional reporting by Melissa Angell. Editing by Regan Estes.

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