Federal appeals court stops earlier order, says Texas doesn't have to give inmates hand sanitizer or face masks for now

A federal appeals court has halted a lower court’s order for the Texas Department of Criminal Justice to provide hand sanitizer and face masks for inmates at a geriatric prison during the pandemic.

On Wednesday, the 5th U.S. Circuit Court of Appeals temporarily blocked U.S. District Judge Keith Ellison’s order while it reviews the case. The appellate judges said the prison agency was likely to win the appeal in part because it was already making efforts to contain the virus inside its lockups before legal intervention.

Older inmates at the Pack Unit sued the prison department in late March over its handling of the new coronavirus, arguing that its pandemic policies were inadequate and how they were being enacted at the unit was worse. This month, one inmate at the prison died hours after being taken to the hospital for difficulty breathing and was found to have the virus after his death.

Last week, Ellison handed down a lengthy list of orders for TDCJ to follow to provide better care for the vulnerable inmates at the Pack Unit as the coronavirus spreads in lockups. Nearly 600 Texas prisoners, of about 900 reported to have been tested, have tested positive for the virus, according to TDCJ reports. At least five prisoners and two correctional officers have died, likely from COVID-19, the respiratory disease caused by the virus.

Along with hand sanitizer and face masks, Ellison ruled that the prison should provide inmates tissues or at least more toilet paper (they get one roll a week), enough cleaning supplies for frequent cleaning, and more gloves and masks for inmates who work as janitors.

“Defendants know they are working with an extremely high-risk population. Their lack of willingness to take extra measures, including measures as basic as providing hand sanitizer and extra toilet paper, to protect them reflects a deliberate indifference toward their vulnerability,” Ellison wrote.

He also ordered TDCJ to come up with a plan to test all inmates at the Pack Unit. TDCJ spokesperson Jeremy Desel said Tuesday that the department has tested a large group of potentially exposed, but not symptomatic, inmates only once — and it was at the prison where the lawsuit is ongoing. Fifty-four people who lived in the same dorm as the Pack inmate who died were tested last week, and all tests came back negative, he said.

The three appellate judges who issued the temporary ruling Thursday indicated that Ellison’s order was too far-reaching, noting that it gave great detail on cleaning practices to follow and went beyond prison guidance from the Centers for Disease Control and Prevention.

“It’s hard to see how an injunction that prescribes both a prison-wide testing regime and a cleaning schedule down to the half-hour interval is ‘narrowly drawn’ or the ‘least intrusive means’ available,” they wrote.

They said that because TDCJ has taken protective measures, like restricting activities where there has been exposure, the inmates have not shown that TDCJ has put them at an unconstitutional risk of danger. The court’s order is temporary, and it said it will speed up its appeal review and place it on the next available calendar for arguments.

Much of what is in Ellison’s ruling is also already in TDCJ’s policies, the judges wrote, like unrestricted access to soap, regular cleanings and quarantining new prisoners. TDCJ has recently stopped accepting new inmates from county jails and restricted transportation among prisons except for medical reasons. (Many inmates who tested positive at one prison have since been moved to another.)

“The evidence shows that TDCJ has taken and continues to take measures — informed by guidance from the CDC and medical professionals — to abate and control the spread of the virus,” the appellate judges wrote. “... Although the district court might do things differently, mere ‘disagreement’ with TDCJ’s medical decisions does not establish deliberate indifference.”

At a court hearing last week, however, the two plaintiffs, inmates at the Pack Unit, said the policies often aren’t implemented. One inmate, a janitor, said he and another janitor get one pair of gloves between them for a 12-hour shift and the cleaning supplies they are given quickly run out during the day. Ellison, who has wrangled with TDCJ before, also expressed concern that many protective measures were implemented only after the lawsuit was filed, he said, and even still they are not always followed at the unit.

After the appeals court ruling, Texas Attorney General Ken Paxton issued a statement thanking the judges for the ruling. He said Ellison's order limited the state's ability to respond to the pandemic.

"TDCJ has already diligently implemented measures to prevent the spread of COVID-19, and our medical professionals and those suffering from this health crisis are in desperate need of personal protective equipment, supplies and testing kits,” Paxton said.

Ellison said the required face masks for inmates could be cotton masks. Texas prisoners are manufacturing cloth masks and, according to the inmates' attorneys, hand sanitizer during the pandemic.