2 justices dissent over Supreme Court’s refusal to restore COVID-19 safety steps at 'tinderbox' prison
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The U.S. Supreme Court on Monday denied a request by two older inmates at a Texas geriatric prison to reinstate a judge’s order requiring COVID-19 safety measures.
In a dissent, Justice Sonia Sotomayor said the prison, the Wallace Pack Unit in southeast Texas, is a “tinderbox” for COVID-19, and the older inmates housed there are some of the most vulnerable to the virus in the country. Her opinion was joined by Justice Elena Kagan.
More than 40% of the inmate population at the unit have tested positive for the virus, and 20 have died.
“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,” Sotomayor wrote.
Sotomayor had dissented in the same case in May, when the Supreme Court refused to reinstate a preliminary injunction requiring cleaning measures at the prison. At that time, Justice Ruth Bader Ginsburg had joined her dissent. Since then, U.S. District Judge Keith Ellison of the Southern District of Texas held a trial and issued a permanent injunction requiring the safety measures. Ginsburg died Sept. 18.
The 5th U.S. Circuit Court of Appeals at Louisiana had stayed Ellison’s permanent injunction pending appeal, reasoning that prison officials were likely to succeed on appeal because the inmates who sued did not first use the prison’s internal grievance procedure.
Sotomayor said the grievance procedure is so lengthy that it offered no realistic prospect of relief. Ellison had found at trial that prison officials didn’t comply with basic public health protocols. Prison officials regularly failed to wear masks, communal showers were not cleaned between uses by different dorms, and disabled prisoners had to sit shoulder to shoulder on benches while waiting for a disability-accessible shower. Inmates had to clean their own dorms with no additional staffing, training or cleaning supplies.
Cleaning was especially difficult for one inmate who was 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,” Sotomayor wrote. “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.’ ”
Ellison’s order had required regular cleaning of common surfaces, unrestricted access to hand soap, wearing of personal protective equipment by staff members, weekly testing, contact tracing, and quarantining of inmates waiting for test results.
“If the injunction’s safety measures are not implemented and maintained,” Sotomayor wrote, “this ‘relentless pandemic may again engulf the pack unit.”