Cite as: 592 U. S. ____ (2020) 1
Statement
SOTOMAYORof, S
J., , J.
dissenting
OTOMAYOR
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A70
_________________
LADDY CURTIS VALENTINE, ET AL. v. BRYAN
COLLIER, EXECUTIVE DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL
JUSTICE, ET AL.
ON APPLICATION TO VACATE STAY
[November 16, 2020]
The application to vacate stay presented to JUSTICE
ALITO and by him referred to the Court is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,
dissenting from the denial of application to vacate stay.
I write again about the Wallace Pack Unit (Pack Unit), a
geriatric prison in southeast Texas that has been ravaged
by COVID–19. See Valentine v. Collier, 590 U. S. ___ (2020)
(statement respecting denial of application to vacate stay).
The Pack Unit is a “ ‘tinderbox’ ” for COVID–19, not only be-
cause it is a dormitory-style facility, “making social distanc-
ing in the living quarters impossible,” but also because the
vast majority of its inmates are at least 65 years old, and
many suffer from chronic health conditions and disabilities.
Valentine v. Collier, 455 F. Supp. 3d 308, 322, 325 (SD Tex.
2020). These inmates are some of the most vulnerable in
the country to the current pandemic.
COVID–19 was first detected in the Pack Unit in April
2020, after one inmate, Leonard Clerkly, contracted the vi-
rus and died. Id., at 312. Since then, over 500 inmates have
tested positive (more than 40% of the inmate population),
and 19 more have died. See 2020 WL 5797881, *7, *29 (SD
Tex., Sept. 29, 2020). The Pack Unit’s 20 deaths account
for 12% of all confirmed and presumed deaths from
2 VALENTINE v. COLLIER
SOTOMAYOR, J., dissenting
COVID–19 in the entire Texas Department of Criminal
Justice (TDCJ) prison system. See Tex. Dept. of Criminal
Justice, COVID–19 Dashboard,
https://www.tdcj.texas.gov/covid-19/mac_dashboard.html.
In July, the District Court held a weeks-long trial that
revealed rampant failures by the prison to protect its in-
mates from COVID–19. In September, the District Court
entered a permanent injunction requiring prison officials to
implement basic safety procedures. The Fifth Circuit, how-
ever, stayed the injunction pending appeal. Now, two in-
mates, Laddy Valentine and Richard King, ask this Court
to vacate the stay. Because they have met their burden to
justify such relief, I would grant the application.
I
Valentine and King are 69 and 73 years old, respectively.
2020 WL 5797881, *2. Already in a high-risk category due
to their ages, both suffer from multiple health conditions
that increase the likelihood of serious illness and death
from COVID–19, including diabetes, hypertension, and kid-
ney disease. Ibid. Earlier this year, Valentine and King
sued the senior warden of the Pack Unit (Robert Herrera),
the executive director of the TDCJ (Bryan Collier), and the
TDCJ on behalf of a class of fellow inmates, alleging that
prison officials were violating the inmates’ Eighth Amend-
ment rights by failing to protect them adequately from
COVID–19. 1
Following an 18-day trial, the District Court made de-
tailed findings of fact about the officials’ “consistent non-
compliance with basic public health protocols” and failure
“to take obvious precautionary public health measures
upon which all medical professionals would agree.” Id., at
——————
1 The inmates also raised claims under the Americans with Disabilities
Act (ADA). Because the Eighth Amendment claims provide a sufficient
basis to grant the requested relief, I do not address the ADA claims.
Cite as: 592 U. S. ____ (2020) 3
SOTOMAYOR, J., dissenting
*32. The District Court’s findings covered the gamut of es-
sential precautions, including social distancing, mask wear-
ing, proper cleaning and sanitization, testing, quarantin-
ing, and contact tracing. Prison staff, for example,
regularly failed to wear masks, as documented in the
prison’s own educational video about COVID–19. Id., at
*16. The prison’s communal showers were not cleaned be-
tween uses by different dorms, and disabled inmates had to
sit shoulder to shoulder on benches while waiting for a dis-
ability-accessible shower to become available. Id., at *10,
*15. Inmates were responsible for cleaning the dorms dur-
ing the outbreak, with no additional staffing, training, or
cleaning supplies. Id., at *13. This requirement was espe-
cially difficult for Harold Dove, who is wheelchair-bound,
legally blind, and paralyzed on the right side of his body.
Id., at *14. He and others repeatedly notified the prison
that he was physically unable to clean his assigned dorm,
but officials continued to assign him cleaning duties for
months, at the height of the outbreak. Ibid. One of the
wardens later testified that he was not concerned about as-
signing cleaning duties to disabled inmates because a disa-
bled inmate “ ‘could put a broom against his neck and push
it with a wheelchair.’ ” Ibid.
Based on the extensive trial record, the District Court en-
tered a permanent injunction requiring the prison to estab-
lish and implement minimum safety protocols. These in-
clude “regular cleaning of common surfaces,” “unrestricted
access to hand soap,” “wearing of [personal protective
equipment (PPE)] among TDCJ staff,” weekly testing, con-
tact tracing, and quarantining inmates who are awaiting
test results. Id., at *37–*38. Some of these procedures are
already required by statewide policy. See Electronic Case
Filing in No. 4:20–cv–1115, Doc. 94–4 (SD Tex., May 13,
2020) (ECF).
The Fifth Circuit stayed the injunction pending appeal,
concluding that respondents were likely to prevail because
4 VALENTINE v. COLLIER
SOTOMAYOR, J., dissenting
the inmates failed, before filing suit, to seek relief through
the prison’s internal grievance process, as required by the
Prison Litigation Reform Act (PLRA). See 978 F. 3d 154,
162 (CA5 2020). In the Fifth Circuit’s view, it was “irrele-
vant” if that grievance process was “ineffective” or “ ‘oper-
ated too slowly’ ” in light of the ongoing outbreak. Ibid. The
court also concluded, notwithstanding the District Court’s
finding of systematic “shortcomings” at the Pack Unit, that
the inmates’ claims would likely fail on the merits because
the prison’s “actions were reasonable.” Id., at 163–164. Fi-
nally, the Fifth Circuit determined that, absent a stay, the
injunction would irreparably harm prison officials by inter-
fering with their ability to manage the Pack Unit, and that
the public interest favored a stay. Id., at 165–166. This
application followed.
II
The bar for vacating a stay is high. Among other things,
the decision at issue must be “demonstrably wrong.” West-
ern Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987)
(O’Connor, J., in chambers). When this Court ruled on the
prior application in this case, challenging the Fifth Circuit’s
stay of the preliminary injunction, the limited evidentiary
record made it difficult to conclude that this stringent
standard was met. Now, with the benefit of the District
Court’s detailed factfinding, no such difficulty remains.
The Fifth Circuit demonstrably erred with respect to both
the threshold issue of exhaustion under the PLRA and the
merits of the inmates’ Eighth Amendment claims.
A
Under the PLRA, inmates seeking to bring federal claims
concerning prison conditions must first exhaust “available”
administrative remedies. 42 U. S. C. §1997e(a). In Ross v.
Blake, 578 U. S. 632 (2016), this Court held that remedies
are not available, and thus exhaustion is not required,
Cite as: 592 U. S. ____ (2020) 5
SOTOMAYOR, J., dissenting
when “an administrative procedure . . . operates as a simple
dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id., at 643. In
other words, even if an internal process is “officially on the
books,” it is not “ ‘available’ ” if, as a practical matter, it “is
not capable of use to obtain relief.” Ibid.
That was the case here, as the District Court found. 2020
WL 5797881, *28. The prison’s grievance process is
lengthy, beginning with mandatory informal dispute reso-
lution and followed by up to 160 days of formal review. Id.,
at *22. Remarkably, when this suit was filed, “COVID-
related grievances were not treated differently from other
types of grievances,” despite inmates’ attempts to designate
them as emergencies. Ibid. Both Valentine and King filed
grievances that remained pending for over two months dur-
ing the outbreak. Id., at *27. By respondent Collier’s own
admission, the prison’s policy “ ‘did not give adequate atten-
tion to the COVID–19 issue.’ ” 2020 WL 3491999, *6 (SD
Tex., June 27, 2020).
Given the speed at which the contagion spread, the 160-
day grievance process offered no realistic prospect of relief.
In just 116 days, nearly 500 inmates contracted COVID–19,
leading to 74 hospitalizations and 19 deaths. 2020 WL
5797881, *7. At least one inmate, Alvin Norris, died before
the prison took any steps in response to his grievance. Id.,
at *28. Both Valentine and another inmate, Gary Butaud,
contracted COVID–19 while their grievances remained
pending. Id., at *23.
The Fifth Circuit erred as a matter of law when it disre-
garded these findings by the District Court. The Fifth Cir-
cuit seized on language in Ross rejecting a judicially created
exception to exhaustion for “ ‘special circumstances,’ ” and
concluded that “special circumstances—even threats posed
by global pandemics—do not matter.” 978 F. 3d, at 161 (cit-
ing 578 U. S., at 639). But the special-circumstances excep-
tion rejected in Ross applied when inmates failed to exhaust
6 VALENTINE v. COLLIER
SOTOMAYOR, J., dissenting
available remedies. See 578 U. S., at 637. In rejecting such
an exception, this Court nonetheless recognized that the
PLRA “contains its own, textual exception to mandatory ex-
haustion” that applies when remedies are not “available.”
Id., at 642. Contrary to the Fifth Circuit’s analysis, consid-
eration of “the real-world workings of prison grievance sys-
tems” is central to assessing whether a process makes ad-
ministrative remedies available. Id., at 643. When this suit
was filed, the Pack Unit’s process plainly did not. As the
District Court put it, the PLRA “cannot be understood as
prohibiting judicial relief while inmates are dying.” 2020
WL 5797881, *37, n. 13.
B
The Fifth Circuit’s evaluation of the merits of the in-
mates’ claims was also demonstrably wrong. To prove an
Eighth Amendment claim for unconstitutional prison con-
ditions, an inmate must show that he was exposed to an
objective risk of serious harm and that prison officials sub-
jectively acted with deliberate indifference to inmate health
or safety. Farmer v. Brennan, 511 U. S. 825, 834 (1994).
Deliberate indifference is a “state of mind” equivalent to
“recklessly disregarding” a known and substantial risk. Id.,
at 835–836. Prison officials thus may not “ignore a condi-
tion of confinement that is sure or very likely to cause seri-
ous illness and needless suffering.” Helling v. McKinney,
509 U. S. 25, 33 (1993).
Here, the dangers of COVID–19 to these especially vul-
nerable inmates were undisputed and, indeed, “indisputa-
ble.” 2020 WL 5797881, *30. The District Court first found
that respondents were subjectively aware of those risks be-
cause they were obvious. Ibid. (citing Farmer, 511 U. S., at
842). Then, weighing the evidence and “competing narra-
tives” presented by the parties at trial, the court concluded
that the officials’ conduct, communications, and omissions
reflected deliberate indifference. 2020 WL 5797881,*30–
Cite as: 592 U. S. ____ (2020) 7
SOTOMAYOR, J., dissenting
*31.
Each of these factual findings must be reviewed deferen-
tially under the clear-error standard. See Glossip v. Gross,
576 U. S. 863, 881 (2015); Ball v. LeBlanc, 792 F. 3d 584,
592 (CA5 2015). “Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Anderson v. Bessemer City, 470 U. S.
564, 574 (1985). “If the district court’s account of the evi-
dence is plausible in light of the record viewed in its en-
tirety, the court of appeals may not reverse it even though
convinced that . . . it would have weighed the evidence dif-
ferently.” Id., at 573–574.
Here, the District Court’s assessment of the evidence was
not only permissible, but fully supported. The district court
cited specific evidence that respondents knew not only of
the dangers of COVID–19, but also of the dangers specifi-
cally created by their inadequate response to the outbreak.
For example, respondent Collier received a text message on
April 26, 2020, informing him of the dangers of the prison’s
policy of removing infected inmates from quarantine after
14 days, without confirming a negative test first: “FYI One
of our first positives is still testing positive and shedding
virus at 21 days. The state[’s] 14 day isolation with no re-
testing is questionable at best.” 2020 WL 5797881, *20. Yet
inmates who had contracted COVID–19 testified that, fol-
lowing the 14-day period, they were “neither medically ex-
amined by a doctor [n]or retested for COVID–19 before re-
turning to negative dorms.” Ibid. One inmate, Roger Beal,
informed medical and security staff that he should not be
transferred after his 14-day period ended because he was
still symptomatic; he even filed a formal grievance warning
that he posed a risk to other inmates. Ibid. Nonetheless,
Beal was transferred to a dorm for uninfected inmates after
the minimum quarantine period ended, despite his contin-
uing symptoms. Ibid.
Rather than contending with these facts, the Fifth Circuit
8 VALENTINE v. COLLIER
SOTOMAYOR, J., dissenting
sidestepped the clear-error standard by claiming that its re-
view was not “fact-specific.” 978 F. 3d, at 165. But the Fifth
Circuit’s analysis makes clear that it substituted its own
view of the facts for that of the District Court. For instance,
in highlighting the prison’s policy requiring masks and so-
cial distancing, the Fifth Circuit chose to ignore the District
Court’s express finding that “staff non-compliance with re-
gard to wearing PPE and social distancing were regular,
daily features of life in the Pack Unit.” 2020 WL 5797881,
*32. Similarly, the Fifth Circuit gave special weight to the
prison’s testing efforts, while disregarding the critical flaws
identified by the District Court. To start, no mass testing
occurred until about a month after the prison’s first casu-
alty. Ibid. Even then, inmates had to wait one to two weeks
to get their results, which, according to the prison’s own ex-
perts, was “simply too long to effectively contain the spread
of the virus.” Id., at *33. Respondents knew of tests with
shorter turnaround times but never explored the possibility
of using them. Ibid. Perhaps most troublingly, the prison
continued to house inmates diagnosed with COVID–19 to-
gether with inmates who tested negative—a failure that re-
spondents obscured by “misrepresent[ing] certain facts” to
the District Court. Id., at *6, *20. In short, far from “dis-
pell[ing]” an inference of deliberate indifference, the
prison’s actions highlighted by the Fifth Circuit only con-
firm it. See 978 F. 3d, at 164.
At bottom, the Fifth Circuit rejected the District Court’s
careful analysis of subjective deliberate indifference based
on the Fifth Circuit’s view that respondents took reasonable
“affirmative steps” to respond to the virus. Ibid. But
merely taking affirmative steps is not sufficient when offi-
cials know that those steps are sorely inadequate and leave
inmates exposed to substantial risks. That was the case
here: The District Court found that respondents “were well
aware of the shortcomings” in their response “and never-
Cite as: 592 U. S. ____ (2020) 9
SOTOMAYOR, J., dissenting
theless chose to stay the course, even after a number of in-
mates died.” 2020 WL 5797881, *32. Respondent Collier
even admitted that prison officials “ ‘were not doing every-
thing [they] should have been. . . . Thin[g]s like restricting,
isolating, PPE access, cleaning supplies.’ ” Id., at *21. To
be sure, the “Eighth Amendment does not mandate perfect
implementation,” 978 F. 3d, at 165, but it also does not set
a bar so low that any response by officials will satisfy it.
Given the evidence in the record, there is no basis
to overturn the District Court’s finding of deliberate
indifference.
III
The Fifth Circuit’s decision creates a risk of serious and
irreparable harm to the inmates that far outweighs any risk
of harm to respondents. See Western Airlines, 480 U. S., at
1305. The Fifth Circuit concluded that “a stay will not sub-
stantially harm” the inmates because the number of posi-
tive cases in the Pack Unit “has been drastically reduced.”
978 F. 3d, at 166. It is true that, after a months-long out-
break that claimed 20 lives and infected over 40% of the
Pack Unit’s inmate population, the number of active posi-
tive cases has fallen. But the threat of a second outbreak is
“ongoing.” 2020 WL 5797881, *35. On the same day that
respondents represented to this Court that active cases had
reached zero, the prison reported three active cases among
prison employees and one among inmates. See Reply Brief
2.
As the last outbreak demonstrated, COVID–19 can over-
take a prison in a matter of weeks. On May 9, the Pack
Unit reported 8 positive cases; in less than three weeks,
there were over 200 cases, 5 deaths, and 12 hospitaliza-
tions. See 2020 WL 5797881,*7. Oral argument before the
Fifth Circuit is weeks away, with a decision on the merits
even further. If the injunction’s safety measures are not
implemented and maintained, this “relentless pandemic”
10 VALENTINE v. COLLIER
SOTOMAYOR, J., dissenting
may again engulf the Pack Unit. Id., at *36.
On the other hand, respondents make only a generalized
claim that the injunction interferes with their ability to
manage the Pack Unit. They fail to explain how any par-
ticular measure does so. See Brief in Opposition 27–29. 2
The permanent injunction imposes only basic safety
measures using reasonable, flexible terms, such as the “reg-
ular cleaning of common surfaces with bleach-based clean-
ing agents,” the “wearing of PPE among TDCJ staff,”
“weekly testing,” and “contact tracing.” Id., at *37–*38. Re-
spondents have admitted that some of these measures are
“medically necessary” and required by statewide policy, and
they claim that they have voluntarily implemented nearly
all of them. 3 Id., at *16, *19, *36; Brief in Opposition 28.
——————
2 In addressing the merits of the inmates’ ADA claims, respondents
argue that they cannot comply with the permanent injunction’s require-
ment that mobility-impaired inmates be given access to hand sanitizer.
See 2020 WL 5797881, *37. Hand sanitizer is an essential alternative to
handwashing for these inmates because “[i]n traveling to and from the
sink to wash their hands with soap and water, wheelchair-bound in-
mates must touch the tires of their wheelchairs, which may track dirt,
urine, fecal matter, or germs from the floor.” Id., at *12. Respondents
claim that hand sanitizer cannot be safely provided to these inmates be-
cause of the risk of “ ‘misuse.’ ” Brief in Opposition 26. But “TDCJ did
not perform an analysis to determine whether hand sanitizer could be
provided to wheelchair-bound inmates at Pack Unit.” 2020 WL 5797881,
*12. At least one other TDCJ facility has found a safe way for inmates
to handle hand sanitizer, even requiring them to rebottle it for use by
TDCJ staff. Id., at *13. Respondent Collier himself stated, “[I]f we need
to [provide hand sanitizer to inmates] we know we can figure it out.”
Ibid. Respondents simply chose not to.
3 Respondents’ claim of compliance with the injunction underscores
how feasible and modest its measures are. Their claim does not, how-
ever, make the injunction unnecessary. See Brief in Opposition 28. Like
the District Court, I do “not have confidence that, without an injunction
in place, TDCJ will continue to carry out policies that are appropriate to
safeguard inmates’ health and safety.” 2020 WL 5797881, *35. They
previously claimed that they had substantially complied with the terms
of the preliminary injunction, only for the truth to be exposed at trial.
See 960 F. 3d 707 (CA5 2020) (per curiam). If respondents truly intend
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SOTOMAYOR, J., dissenting
Respondents also presented no evidence of “budgetary or fi-
nancial concerns” with the measures required by the in-
junction. 2020 WL 5797881, *36. They therefore fail to
demonstrate that they will suffer any harm from the injunc-
tion. If circumstances change and respondents are able to
show that a modification of the injunction is warranted, the
District Court has offered to hear any such motion on 24
hours’ notice. See ECF Doc. 422, p. 2.
* * *
The people incarcerated in the Pack Unit are some of our
most vulnerable citizens. They face severe risks of serious
illness and death from COVID–19, but are unable to take
even the most basic precautions against the virus on their
own. If the prison fails to enforce social distancing and
mask wearing, perform regular testing, and take other es-
sential steps, the inmates can do nothing but wait for the
virus to take its toll. Twenty lives have been lost already.
I fear the stay will lead to further, needless suffering.
Importantly, nothing in the Court’s decision today pre-
vents Valentine and King from returning to this Court if it
becomes clear that the risks they face as a result of respond-
ents’ conduct are even graver than they already appear. Be-
cause I would not force them to wait until it may be too late,
I respectfully dissent.
——————
to remain in compliance with the permanent injunction, it is unclear why
they are fighting so hard to overturn it.