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Sotomayor Blasts Conservative Colleagues for Leaving Elderly COVID-19 Patients to Die with No Recourse

U.S. Supreme Court Justice Sonia Sotomayor penned a hard-charging dissent in an opinion related to an order which allowed a Texas prison for the elderly to continue placing lives in danger by not instituting coronavirus (COVID-19) safety procedures. At least 20 inmates have died so far.

“In September, the district court entered a permanent injunction requiring prison officials to implement basic safety procedures,” Sotomayor wrote in the dissent joined by Justice Elena Kagan. “The Fifth Circuit, however, stayed the injunction pending appeal. Now, two inmates, 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.”

Justice Samuel Alito received the application to vacate the appellate court’s stay. An unknown number of Alito’s conservative colleagues denied the request–effectively leaving the elderly COVID-19 patients with no legal recourse as the similarly conservative Fifth Circuit works its way through the case.

Stylized as Valentine v. Collier, the underlying case concerns the Wallace Pack Unit, a “geriatric prison in southeast Texas that has been ravaged by COVID–19″ and is considered a “tinderbox” for the disease due to the dormitory-style bunking system and “because the vast majority of its inmates are at least 65 years old, and many suffer from chronic health conditions and disabilities.”

The petitioners in the case originally filed grievances that remained pending and effectively ignored by prison authorities for over two months during the initial COVID-19 outbreak.

“Given the speed at which the contagion spread, the 160- day grievance process offered no realistic prospect of relief,” Sotomayor noted. “In just 116 days, nearly 500 inmates contracted COVID–19, leading to 74 hospitalizations and 19 deaths. At least one inmate, Alvin Norris, died before the prison took any steps in response to his grievance. Both Valentine and another inmate, Gary Butaud, contracted COVID–19 while their grievances remained pending.”

Sotomayor also detailed a bevy of additional failures and lackadaisical attitudes expressed by the prison toward its charges:

Prison staff, for example, regularly failed to wear masks, as documented in the prison’s own educational video about COVID–19. The prison’s communal showers were not cleaned between uses by different dorms, and disabled inmates had to sit shoulder to shoulder on benches while waiting for a disability-accessible shower to become available. Inmates were responsible for cleaning the dorms during the outbreak, with no additional staffing, training, or cleaning supplies. This requirement was especially difficult for Harold Dove, who is wheelchair-bound, legally blind, and paralyzed on the right side of his body. 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. One of the wardens later testified that he was not concerned about assigning cleaning duties to disabled inmates because a disabled inmate “’could put a broom against his neck and push it with a wheelchair.’”

Valentine and King asked for the bare minimum in regard to those repeat failings by officials–which were never once disputed.

A district court ruled in their favor in July of this year, ordering the Pack Unit to implement minimum safety protocols, including “regular cleaning of common surfaces,” “unrestricted access to hand soap,” “wearing of [personal protective equipment (PPE)] among [prison] staff,” as well as “weekly testing, contact tracing, and quarantining inmates who are awaiting test results,” Sotomayor noted–many of which are already mandated by the Lone Star State but were going unheeded by the officials in charge of the lockup.

Texas Department of Criminal Justice Executive Director Bryan Collier and Pack Unit prison officials appealed–saying they would be “irreparably harmed” if the prison was forced to comply with the court-ordered safety regime. The Fifth Circuit agreed and granted the stay of the lower court’s order.

“The Fifth Circuit erred as a matter of law when it disregarded [the] findings [of] the District Court,” Sotomayor determined. “Contrary to the Fifth Circuit’s analysis, consideration of ‘the real-world workings of prison grievance systems’ is central to assessing whether a process makes administrative remedies available. When this suit was filed, the Pack Unit’s process plainly did not.”

The progressive justice continued to criticize the Fifth Circuit:

The Fifth Circuit’s evaluation of the merits of the inmates’ claims was also demonstrably wrong. To prove an Eighth Amendment claim for unconstitutional prison conditions, an inmate must show that he was exposed to an objective risk of serious harm and that prison officials subjectively acted with deliberate indifference to inmate health or safety. Deliberate indifference is a “state of mind” equivalent to “recklessly disregarding” a known and substantial risk. Prison officials thus may not “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering.”

Here, the dangers of COVID–19 to these especially vulnerable inmates were undisputed and, indeed, “indisputable.” The District Court first found that respondents were subjectively aware of those risks because they were obvious. Then, weighing the evidence and “competing narratives” presented by the parties at trial, the court concluded that the officials’ conduct, communications, and omissions reflected deliberate indifference.

Sotomayor also reserved some of her ire for the Texas officials who neglected the people under their care in the first place–in service of her attack on the Fifth Circuit’s efforts to “substitute” and prize their “own view of the facts” over the district court.

“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,” the justice noted. “Yet inmates who had contracted COVID–19 testified that, following the 14-day period, they were ‘neither medically examined by a doctor [n]or retested for COVID–19 before re-turning to negative dorms.’ 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. Nonetheless, Beal was transferred to a dorm for uninfected inmates after the minimum quarantine period ended, despite his continuing symptoms.”

According to Sotomayor and Kagan, the Fifth Circuit deliberately and improperly elevated the testimony of Texas and Pack Unit officials “while disregarding the critical flaws” the district court already identified and determined were an instance of “subjective deliberate indifference.”

The actual facts of the case, the two justices contend, do not shore up the defendants’ position whatsoever–exactly the opposite.

“The people incarcerated in the Pack Unit are some of our most vulnerable citizens,” Sotomayor concluded. “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 essential 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.”

[image via Leigh Vogel/Getty Images]

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