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Law360 (April 2, 2020, 8:06 PM EDT) -- A federal judge in Texas on Thursday encouraged the state to work quickly toward a resolution of Texas prisoners' request for increased access to sanitizers and social-distancing measures amid the coronavirus pandemic.
During a telephone hearing, U.S. District Judge Keith Ellison said he realized "timing is of the essence" in resolving the putative class action lawsuit filed in Houston federal court on Monday by Wallace Pack Unit inmates Laddy Curtis Valentine, 69, and Richard Elvin King, 73.
Judge Ellison noted that retired U.S. District Judge Kevin Duffy died of the virus Wednesday and expressed concern that the population density of the prison system could contribute to the spread of the virus.
"It's a life and death matter," he said. "I'm absolutely persuaded of that."
But he said two things were keeping him from ruling on the motion for a temporary restraining order: the Texas Department of Criminal Justice filed a motion Thursday seeking to move the case out of Judge Ellison's court, and the "fact intensive" nature of the lawsuit's claims and requested relief.
"The worst thing we can do is make a ruling that sets a bad precedent for the way this case is going to proceed," he said. "For now, I'm not ready to issue an order."
TDCJ's motion takes issue with the fact the case was originally before U.S. District Judge Kenneth Hoyt but was transferred to Judge Ellison's court by mutual agreement of the judges after it was deemed "related" to another lawsuit involving the Pack Unit that Judge Ellison presided over.
TDCJ argues that "related" lawsuit — which ended in a settlement in favor of geriatric Pack Unit inmates who alleged exposure to extreme heat violated their constitutional rights — has nothing to do with the COVID-19 pandemic.
"To maintain the integrity and fulfill the purposes of the court's random assignment system, this case should be transferred back to Judge Hoyt or reassigned randomly," TDCJ argued.
Counsel for Valentine and King told Judge Ellison during Thursday's hearing they would respond to that motion on Friday.
Judge Ellison asked the parties during the hearing if there was "room for agreement" on the compassionate release of certain types of inmate, perhaps those who had completed most of their sentences, were nonviolent offenders, and were otherwise at an increased risk for catching the virus.
Assistant Attorney General Christin Vasquez, who represents TDCJ, said it was her understanding that "TDCJ doesn't have authorization to release inmates."
"That hasn't been pled by plaintiffs, and that certainly hasn't been discussed [by the parties]," she said.
Among the relief requested in the lawsuit is "unrestricted access" to both antibacterial soap and disposable hand towels, as well as hand sanitizer and cleaning supplies. It also requests an order requiring hourly cleaning of all common areas and shared surfaces, a prohibition on new prisoners being brought in without testing, and the implementation of "strict social-distancing measures."
To achieve the six feet of distance between inmates, the lawsuit suggests using areas like the gym to accommodate temporary housing. The lawsuit notes that the rate of infection for inmates at Rikers Island in New York is 87 times higher than the overall U.S. rate.
"Rikers is not an anomaly — it is the canary in the coal mine," the suit alleges. "If TDCJ's inadequate response continues, there is a risk that COVID-19 will spread unhindered through its facilities, which will inflict particularly serious harm on plaintiffs."
Valentine and the other plaintiffs are represented by John R. Keville, Denise Scofield, Michael T. Murphy, Brandon W. Duke, Benjamin D. Williams, Robert L. Green and Corinne Stone Hockman of Winston & Strawn LLP and Jeffrey S. Edwards, Scott Medlock, Michael Singley and David James of The Edwards Law Firm.
The Texas Department of Criminal Justice is represented by Christin Cobe Vasquez and Jeffrey E. Farrell of the Texas Attorney General's Office.
The case is Laddy Curtis Valentin v. Bryan Collier et al., case number 4:20-cv-01115, in the U.S. District Court for the Southern District of Texas, Houston Division.
--Editing by Orlando Lorenzo.
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