Appeals court tosses order that required face masks, hand sanitizer for inmates at geriatric Texas prison

Prison staff and inmates move through the Darrington Unit's main hallway on Wednesday, July 12, 2017. Jolie McCullough/The Texas Tribune

The U.S 5th Circuit Court of Appeals tossed a lower court’s temporary ruling Friday that ordered Texas officials to enact a slew of policy changes at a geriatric prison, including providing inmates hand sanitizer and cloth face masks to slow the spread of coronavirus. The appeals judges noted that many of the district judge’s orders had already been met by the Texas Department of Criminal Justice.

The lawsuit claimed inmates were not adequately protected from the coronavirus at the Pack Unit near Navasota, where 166 inmates actively had the coronavirus on Thursday, according to data from TDCJ. At least five have died from the virus, a state’s attorney said during a hearing in front of the appeals court judges last week.

Judge Eugene Davis said he “reluctantly” concurred with Friday’s ruling since conditions at the prison have changed since the lawsuit was filed in March. But he emphasized the inability to practice social distancing in a prison.

“Holding these elderly, ill inmates jammed together in their dormitories, unable to socially distance as the virus continues to rapidly spread, is nothing short of a human tragedy,” Davis wrote.

In late March, two inmates at the prison sued the department over its handling of the pandemic, arguing its policies were "woefully inadequate" to protect sick, older inmates. The agencies' actual practices, they said, were even worse and violated the constitutional protection against cruel and unusual punishment. They asked for more protective gear, cleaning supplies and social distancing.

In April, U.S. District Judge Keith Ellison agreed with the inmates, and he ordered TDCJ to enact the policy changes that included providing hand sanitizer and face masks and testing all inmates for the virus. Though many of the demands, like providing masks and mass testing, have since been enacted by the department, TDCJ appealed.

One of the state's main arguments against the lower court's ruling was that the order restricted the agency's ability to adapt to the constantly shifting situation of a virus that health officials are still trying to understand. Inmates countered, and the district judge agreed, that court intervention was needed to protect them from the prison's apparent "deliberate indifference" to inmates' risk.

Texas Attorney General Ken Paxton applauded the appeals court ruling Friday, saying in a statement that the district court's order reflected "outdated guidance" from the Centers for Disease Control and Prevention. He has previously criticized Ellison's ruling, saying it decided "felons deserve personal protective equipment over frontline warriors."

“The TDCJ has already gone above and beyond in its efforts to protect inmates from COVID-19, and prison officials need flexibility, not immovable requirements based on yesterday’s knowledge,” he said Friday.

The inmates' attorneys said they were encouraged that the appeals court allowed the case to move on to trial, sending the case back to Ellison, who has set a jury trial for July 13.

"We hope TDCJ will now agree to reasonable additional measures to address the hundreds of inmates who have become COVID-19 positive and provide the Constitutional protections that all are entitled to," said attorney John Keville and Brandon Duke in a statement. "If not, we trust a trial will result in a permanent injunction protecting everyone at the Pack Unit."