Frazier v. Graves
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Opinion
Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 1 of 61
THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION
NICHOLAS FRAZIER PLAINTIFF
v. Case No. 4:20-cv-00434-KGB
SOLOMON GRAVES, et al. DEFENDANTS
ORDER DENYING EMERGENCY MOTION FOR A PRELIMINARY INJUNCTION REGARDING SURGE IN COVID CASES CAUSED BY OMICRON
Before the Court is plaintiffs’ emergency motion for a preliminary injunction requiring
defendants to take certain steps in light of the current surge in COVID cases caused by Omicron,
filed by plaintiffs Darryl Hussey, Price Brown, Wesley Bray, Torris Richardson, Joseph Head, Lee
Owens, Jimmy Little, Roderick Wesley, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred
Nickson, Trinidad Serrato, Robert Stiggers, Victor Williams, and John Doe, individually and on
behalf of all others similarly situated (collectively, “plaintiffs”) (Dkt. No. 185). Separate defendant
Wellpath, LLC (“Wellpath”) filed a response (Dkt. No. 187). Separate defendants Solomon
Graves, Secretary of the Arkansas Department of Corrections (“DOC”); Dexter Payne, Division
of Correction Director, Arkansas Department of Corrections (“ADC”); Benny Magness, Chairman
of Arkansas Board of Corrections (“ABC”); Tyronne Broomfield, Member of ABC; John Felts,
Member of ABC; William “Dubs” Byers, Member of ABC; Whitney Gass, Member of ABC; and
Lee Watson, Secretary of ABC, all in their official capacities (collectively, “State Defendants”)
filed a response (Dkt. No. 188). Plaintiffs filed a reply and a reply declaration with exhibits (Dkt.
Nos. 189; 190). The Court entered a briefing schedule and then conducted a hearing on plaintiffs’
emergency motion (Dkt. Nos. 186, 192, 198). At the conclusion of the hearing, the Court took the
pending motion under advisement. Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 2 of 61
The Court subsequently granted plaintiffs’ motion to supplement the record (Dkt. No. 195).
For reasons set forth in this Order, the Court grants, in part, and denies, in part, State Defendants’
motion to strike the declarations submitted by plaintiffs with their supplement (Dkt. No. 200).
For the following reasons, having considered the entire record before the Court, the Court
denies plaintiffs’ emergency motion for preliminary injunction (Dkt. No. 185).
I. Overview
A. Claims
On April 21, 2020, plaintiffs filed a class action complaint and petition for writ of habeas
corpus (Dkt. No. 1). In their initial complaint, plaintiffs alleged that conditions in ADC facilities
create a serious risk of COVID-19-related infection, disease, and death (Id., ¶¶ 72-89). Plaintiffs
claimed that the spread of COVID-19 in ADC facilities jeopardized the public health of
surrounding communities, especially black communities (Id., ¶¶ 90-97). Plaintiffs asserted that
defendants intentionally failed to adopt and implement adequate policies and procedures to prevent
and mitigate the spread of COVID-19 (Id., ¶¶ 98-126). Plaintiffs asserted three causes of action:
(1) violation of the Eighth Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all
plaintiffs; (2) violation of the Eighth Amendment brought by a petition for writ of habeas corpus
under 28 U.S.C. § 2241 on behalf of the proposed high risk subclass; and (3) violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., on behalf of the proposed
disability subclass (Id., ¶¶ 127-48). Plaintiffs also filed an emergency motion for temporary
restraining order and preliminary injunction on April 21, 2020 (Dkt. No. 2) and a supplemental
motion for temporary restraining order (Dkt. No. 22), both of which defendants opposed (Dkt.
Nos. 36, 42). The Court denied plaintiffs’ motions for temporary restraining order and preliminary
injunction in written Orders (Dkt. Nos. 42, 68).
2 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 3 of 61
Defendants filed a motion to dismiss for failure to state a claim (Dkt. No. 76). Plaintiffs
filed an amended class action complaint (Dkt. No. 84). Separate defendant Wellpath answered the
amended complaint (Dkt. No. 92). State Defendants moved to dismiss the amended complaint
(Dkt. No. 95). Then Wellpath moved to dismiss the amended complaint (Dkt. No. 140). The
Court issued written rulings on the motions to dismiss (Dkt. Nos. 145, 149).
In their amended complaint, plaintiffs assert three causes of action: (1) violation of the
Eighth Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all plaintiffs against all
defendants; (2) a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 based on
violation of the Eighth Amendment on behalf of the high risk subclass against all defendants; and
(3) violation of the ADA, 42 U.S.C. § 12101, et seq., on behalf of the proposed disability subclass
against all defendants (Id., ¶¶ 255-283).
In an Order dated March 31, 2021, the Court granted, in part, and denied, in part, State
Defendants’ motion to dismiss plaintiffs’ amended complaint (Dkt. No. 145). In an Order dated
September 30, 2021, the Court granted, in part, and denied, in part, Wellpath’s motion to dismiss
(Dkt. No. 149). The Court determined that plaintiffs had alleged sufficient facts in their amended
complaint to overcome State Defendants’ assertion of sovereign immunity on plaintiffs’ claims for
declaratory relief, and the Court denied State Defendants’ motion to dismiss plaintiffs’ claims for
declaratory relief (Dkt. No. 145, at 18-20). The Court also concluded that plaintiffs had stated an
Eighth Amendment claim for deliberate indifference, and the Court denied State Defendants’
motion to dismiss plaintiffs’ deliberate indifference claim (Id., at 24-32). The Court granted the
motion to dismiss based on sovereign immunity filed by Jose Romero, M.D., Secretary of the
Arkansas Department of Health, in his official capacity (Id., at 20-24). The Court found that
plaintiffs had alleged sufficient facts in their amended complaint to support an Eighth Amendment
3 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 4 of 61
deliberate indifference claim against Wellpath, and the Court denied Wellpath’s motion to dismiss
on grounds that Wellpath is entitled to immunity under the Arkansas Emergency Services Act and
Executive Orders 20-03 and 20-34 (Dkt. No. 149, at 23). Based on controlling Eighth Circuit
precedent, the Court dismissed plaintiffs’ 28 U.S.C. § 2241 habeas corpus petition against State
Defendants and Wellpath (Dkt. Nos. 145, at 32-35; 149, at 24). The Court found that plaintiffs
and the proposed disability subclass had stated a claim under Title II of the ADA against State
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Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 1 of 61
THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION
NICHOLAS FRAZIER PLAINTIFF
v. Case No. 4:20-cv-00434-KGB
SOLOMON GRAVES, et al. DEFENDANTS
ORDER DENYING EMERGENCY MOTION FOR A PRELIMINARY INJUNCTION REGARDING SURGE IN COVID CASES CAUSED BY OMICRON
Before the Court is plaintiffs’ emergency motion for a preliminary injunction requiring
defendants to take certain steps in light of the current surge in COVID cases caused by Omicron,
filed by plaintiffs Darryl Hussey, Price Brown, Wesley Bray, Torris Richardson, Joseph Head, Lee
Owens, Jimmy Little, Roderick Wesley, Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred
Nickson, Trinidad Serrato, Robert Stiggers, Victor Williams, and John Doe, individually and on
behalf of all others similarly situated (collectively, “plaintiffs”) (Dkt. No. 185). Separate defendant
Wellpath, LLC (“Wellpath”) filed a response (Dkt. No. 187). Separate defendants Solomon
Graves, Secretary of the Arkansas Department of Corrections (“DOC”); Dexter Payne, Division
of Correction Director, Arkansas Department of Corrections (“ADC”); Benny Magness, Chairman
of Arkansas Board of Corrections (“ABC”); Tyronne Broomfield, Member of ABC; John Felts,
Member of ABC; William “Dubs” Byers, Member of ABC; Whitney Gass, Member of ABC; and
Lee Watson, Secretary of ABC, all in their official capacities (collectively, “State Defendants”)
filed a response (Dkt. No. 188). Plaintiffs filed a reply and a reply declaration with exhibits (Dkt.
Nos. 189; 190). The Court entered a briefing schedule and then conducted a hearing on plaintiffs’
emergency motion (Dkt. Nos. 186, 192, 198). At the conclusion of the hearing, the Court took the
pending motion under advisement. Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 2 of 61
The Court subsequently granted plaintiffs’ motion to supplement the record (Dkt. No. 195).
For reasons set forth in this Order, the Court grants, in part, and denies, in part, State Defendants’
motion to strike the declarations submitted by plaintiffs with their supplement (Dkt. No. 200).
For the following reasons, having considered the entire record before the Court, the Court
denies plaintiffs’ emergency motion for preliminary injunction (Dkt. No. 185).
I. Overview
A. Claims
On April 21, 2020, plaintiffs filed a class action complaint and petition for writ of habeas
corpus (Dkt. No. 1). In their initial complaint, plaintiffs alleged that conditions in ADC facilities
create a serious risk of COVID-19-related infection, disease, and death (Id., ¶¶ 72-89). Plaintiffs
claimed that the spread of COVID-19 in ADC facilities jeopardized the public health of
surrounding communities, especially black communities (Id., ¶¶ 90-97). Plaintiffs asserted that
defendants intentionally failed to adopt and implement adequate policies and procedures to prevent
and mitigate the spread of COVID-19 (Id., ¶¶ 98-126). Plaintiffs asserted three causes of action:
(1) violation of the Eighth Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all
plaintiffs; (2) violation of the Eighth Amendment brought by a petition for writ of habeas corpus
under 28 U.S.C. § 2241 on behalf of the proposed high risk subclass; and (3) violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., on behalf of the proposed
disability subclass (Id., ¶¶ 127-48). Plaintiffs also filed an emergency motion for temporary
restraining order and preliminary injunction on April 21, 2020 (Dkt. No. 2) and a supplemental
motion for temporary restraining order (Dkt. No. 22), both of which defendants opposed (Dkt.
Nos. 36, 42). The Court denied plaintiffs’ motions for temporary restraining order and preliminary
injunction in written Orders (Dkt. Nos. 42, 68).
2 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 3 of 61
Defendants filed a motion to dismiss for failure to state a claim (Dkt. No. 76). Plaintiffs
filed an amended class action complaint (Dkt. No. 84). Separate defendant Wellpath answered the
amended complaint (Dkt. No. 92). State Defendants moved to dismiss the amended complaint
(Dkt. No. 95). Then Wellpath moved to dismiss the amended complaint (Dkt. No. 140). The
Court issued written rulings on the motions to dismiss (Dkt. Nos. 145, 149).
In their amended complaint, plaintiffs assert three causes of action: (1) violation of the
Eighth Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all plaintiffs against all
defendants; (2) a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 based on
violation of the Eighth Amendment on behalf of the high risk subclass against all defendants; and
(3) violation of the ADA, 42 U.S.C. § 12101, et seq., on behalf of the proposed disability subclass
against all defendants (Id., ¶¶ 255-283).
In an Order dated March 31, 2021, the Court granted, in part, and denied, in part, State
Defendants’ motion to dismiss plaintiffs’ amended complaint (Dkt. No. 145). In an Order dated
September 30, 2021, the Court granted, in part, and denied, in part, Wellpath’s motion to dismiss
(Dkt. No. 149). The Court determined that plaintiffs had alleged sufficient facts in their amended
complaint to overcome State Defendants’ assertion of sovereign immunity on plaintiffs’ claims for
declaratory relief, and the Court denied State Defendants’ motion to dismiss plaintiffs’ claims for
declaratory relief (Dkt. No. 145, at 18-20). The Court also concluded that plaintiffs had stated an
Eighth Amendment claim for deliberate indifference, and the Court denied State Defendants’
motion to dismiss plaintiffs’ deliberate indifference claim (Id., at 24-32). The Court granted the
motion to dismiss based on sovereign immunity filed by Jose Romero, M.D., Secretary of the
Arkansas Department of Health, in his official capacity (Id., at 20-24). The Court found that
plaintiffs had alleged sufficient facts in their amended complaint to support an Eighth Amendment
3 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 4 of 61
deliberate indifference claim against Wellpath, and the Court denied Wellpath’s motion to dismiss
on grounds that Wellpath is entitled to immunity under the Arkansas Emergency Services Act and
Executive Orders 20-03 and 20-34 (Dkt. No. 149, at 23). Based on controlling Eighth Circuit
precedent, the Court dismissed plaintiffs’ 28 U.S.C. § 2241 habeas corpus petition against State
Defendants and Wellpath (Dkt. Nos. 145, at 32-35; 149, at 24). The Court found that plaintiffs
and the proposed disability subclass had stated a claim under Title II of the ADA against State
Defendants and denied State Defendants’ motion to dismiss plaintiffs’ claim under Title II of the
ADA (Dkt. No. 145, at 33-36). Further, the Court declined to dismiss Wellpath as a party with
respect to plaintiffs’ claims pursuant to Title II of the ADA (Dkt. No. 149, at 30).
State Defendants and Wellpath filed motions for summary judgment on the issue of
exhaustion (Dkt. No. 164, 173). Plaintiffs have pending motions for extension of time to respond
to the pending motion for summary judgment on the issue of exhaustion (Dkt. Nos. 170, 182).
B. Class Allegations
Plaintiffs are individuals incarcerated in facilities operated by the ADC (Dkt. No. 84, ¶¶
18-85). Based on the allegations in their amended complaint, many plaintiffs face a heightened
risk of death or serious injury if exposed to COVID-19 due to a chronic medical condition, a
disability, or both (Id.).
Plaintiffs seek relief on behalf of themselves and a class consisting of people who are
currently incarcerated, or will be in the future, in an ADC detention facility during the duration of
the COVID-19 pandemic (Id., ¶¶ 93-101). Plaintiffs also propose two subclasses: (a) high risk
subclass, defined as:
[P]eople in the custody of an ADC facility aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or
4 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 5 of 61
other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of a stroke; and people with any condition specifically identified by [the Centers for Disease Control and Prevention (“CDC”)], currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19.
and (b) disability subclass, defined as:
[P]eople in custody who suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of contracting, becoming severely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability, with a broad construction of “disability” pursuant to 28 C.F.R. § 35.101, which favors expansive coverage to the maximum extent permitted by the terms of the Americans With Disabilities Act (“ADA”) that does not require extensive analysis.
(Dkt. 84, ¶ 93).
The Court determines that, for reasons unrelated to plaintiffs’ class allegations, plaintiffs
have not demonstrated that they are entitled to the emergency preliminary injunctive relief they
seek in their most recently filed motion. Therefore, the Court denies plaintiffs’ request for a
preliminary injunction and, at this stage of the proceeding, declines to address matters related to
plaintiffs’ class allegations.
II. Supplementing The Preliminary Injunction Record
After the hearing, plaintiffs filed a motion to supplement the record of the preliminary
injunction hearing held on January 11, 2022 (Dkt. No. 193). State Defendants responded in
opposition to the motion to supplement (Dkt. No. 194). The Court ruled by separate Order granting
the motion to supplement and permitting State Defendants and Wellpath to supplement further the
record (Dkt. No. 195).
Plaintiffs filed two declarations, one from plaintiffs’ lawyer Victor Genecin and one from
paralegal George D. Camerlo, and then filed a corrected version of Mr. Genecin’s declaration (Dkt.
5 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 6 of 61
Nos. 196, 197, 199). State Defendants filed a motion to strike plaintiffs’ filed declarations (Dkt.
No. 200), which plaintiffs opposed (Dkt. No. 201). State Defendants then filed a rebuttal
declaration of Secretary Graves (Dkt. No. 202).
The Court grants, in part, and denies, in part, State Defendants’ motion to strike the
declarations submitted by plaintiffs to supplement the preliminary injunction record (Dkt. No.
200). The Court grants the motion to the extent State Defendants seek to strike the declaration of
plaintiffs’ counsel Mr. Genecin (Dkt. Nos. 196, 199). The Court takes notice of the updated
Centers for Disease Control and Prevention (“CDC”) Guidance issued on January 14, 2022 (Dkt.
No. 199, ¶ 3). See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-
masks.html. The Court also takes notice of news that the federal government will distribute 400
million high-quality N95 masks for adults free of charge at thousands of pharmacies and other
locations (Id., ¶ 9). See https://www/washingtonpost.com,/health/2022/01/19/free-n95-masks/.
The Court declines to strike Mr. Camerlo’s declaration (Dkt. No. 197). State Defendants can claim
no surprise or prejudice as a result of Mr. Camerlo’s declaration, and his declaration is in keeping
with the subject matter of the request to supplement. The Court considers plaintiffs’ supplement,
as well as Secretary Graves’ rebuttal declaration (Dkt. Nos. 197, 202).
III. Findings Of Fact1
1 To the extent defendants object to plaintiffs’ affidavits and submissions, the Court overrules the objections. The Court recognizes the circumstances under which plaintiffs submit affidavits unsigned, as explained by plaintiffs and given the current COVID-19 situation. Further, district courts have “discretion to consider evidence in connection with a motion for preliminary injunction, including hearsay evidence, that would otherwise be inadmissible at trial.” Univ. of Tex. v. Camensich, 451 U.S. 390, 395 (1981); Asseo v. Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986); Mullins v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010); Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2949, (3d ed. 2013). 6 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 7 of 61
The Court has considered the entire evidentiary record presented by the parties in reaching
its decision, although citing only specific portions in this Order. The Court makes the following
specific findings of fact:
1. According to Secretary Graves, the DOC is responsible for incarceration to
offenders sentenced to one of its two major operational divisions along with providing community
supervision to individuals on parole or probation (Dkt. No. 198, at 80). The ADC operates what
would traditionally be considered prisons, with 19 currently in operation (Id.).
2. Before Omicron, based on certain research, four of every seven prisoners in
Arkansas had contracted the coronavirus, the second-highest infection rate in the United States
(Dkt. No. 189, at 4 (citing Beth Schwartzapfel, Katie Park and Andrew Demillo, 1 in 5 Prisoners
in the U.S. Has Had COVID-19, THE MARSHALL PROJECT (Dec. 18, 2020, 6:00 AM),
https://www.themarshallproject.org/2020/12/18/1-in-5-prisoners-in-the-u-s-has-had-covid-19.)).
3. Before Omicron, based on certain research, incarcerated people in Arkansas were
more than eight times more likely to contract the coronavirus than the general population of the
state (Dkt. No. 189, at 4 (citing Beth Schwartzapfel, Katie Park and Andrew Demillo, 1 in 5
Prisoners in the U.S. Has Had COVID-19, THE MARSHALL PROJECT (Dec. 18, 2020, 6:00
AM), https://www.themarshallproject.org/2020/12/18/1-in-5-prisoners-in-the-u-s-has-had-covid-
19.)).
4. On January 7, 2022, the DOC reported a total of 240 prison residents and 258 prison
staff as testing positive for COVID-19 and not recovered, with positive inmates at:
- Cummins Unit - East Central Community Correction Center - Ester Unit - McPherson Unit - Mississippi County, Work Release Center - Maximum Security Unit
7 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 8 of 61
- North Central Unit - Northwest Arkansas Community Correction Center - Hawkins Unit - Omega Supervision Sanction Center - Ouachita River Correctional Unit - Pine Bluff Unit - Southwest Arkansas Community Correction Center - Varner Unit
(Dkt. No. 189, at 5 (citing Arkansas Department of Corrections, FACEBOOK (Jan. 7, 2022, 3:00
PM), https:///www.facebook.com/100064889168827/posts/291272116379092/; see also Arkansas
Department of Corrections, COVID-19 Updates, https://doc.arkansas.gov/covid-19-updates/ (last
visited Jan. 10, 2022)).
5. On January 7, 2022, the DOC acknowledged that employees from multiple
locations within the DOC were sick, although the DOC did not report the locations of specific staff
cases of COVID-19 (Dkt. No. 189, at 5).
6. The State of Arkansas publishes information regarding COVID-19 and its impacts
in Arkansas generally. www.healthy.arkansas.gov/programs-services/topics/novel-coronavirus
(last visited Jan. 25, 2022).
7. Homer Venters, M.D., M.S., plaintiffs’ retained expert, is a physician, internist, and
epidemiologist with over a decade of experience in the provision of health services for incarcerated
people (Dkt. No. 185-1, ¶ 4). Since April 2020, he has conducted approximately 35 in-person
inspections of the COVID-19 response in jails, prisons, immigration detention facilities, and
psychiatric hospitals, including as a member of COVID-19 monitoring panels for correctional
systems in Hawaii and Connecticut (Id.). Since 2019, he has worked as a retained corrections
health expert for the U.S. Deparment of Justice and as a court-appointed monitor in both jail and
prison settings (Id.). Since February 2021, he has been a member of the Biden-Harris COVID-19
Health Equity Task Force (Id.).
8 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 9 of 61
8. Dr. Venters conducted inspections of four correctional facilities operated by the
DOC (Dkt. No. 185-1, ¶ 2). He inspected the Cummins Unit on December 14, 2021; the East
Arkansas Regional Unit on December 15, 2021; the Varner Unit on December 16, 2021; and the
Quachita River Correctional Unit on December 17, 2021 (Id.).
9. Although he has not yet submitted his full report (Dkt. No. 185-1, ¶ 3), Dr. Venters
submitted two declarations and offered hearing testimony in support of plaintiffs’ current motion
for preliminary injunction (Dkt. Nos. 185-1; 190).
10. Dr. Venters avers that the DOC and Wellpath exhibit important strengths in their
response to COVID-19 thus far, such as making vaccines available to the incarcerated population;
working to track the timing of second shots and boosters; implementing a system to identify the
vaccination status of incoming incarcerated persons; and quarantining and testing newly admitted
and potentially exposed incarcerated persons (Dkt. No. 185-1, ¶ 12).
11. Dr. Venters is aware that the ADC tracks very carefully inmates’ vaccination status
(Dkt. No. 198, at 62).
12. Secretary Graves testified that about 62% of inmates have received either one
Johnson & Johnson vaccine dose or both doses of the Pfizer or Moderna vaccine (Dkt. No. 198,,
at 94).
13. Secretary Graves testified that, as of the date before the January 11, 2022, hearing,
one-third of individuals vaccinated received a booster (Dkt. No. 198, at 112).
14. Dr. Venters also identifies what he characterizes as “several serious deficiencies
that leave [the DOC and Wellpath] well below the standards” he has observed in other jails and
out of step with what he contends are basic CDC recommendations (Dkt. No. 185-1, ¶ 14).
9 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 10 of 61
15. Generally, according to Dr. Venters these deficiencies relate to detecting new cases
of COVID-19 as people enter the facilities, meaning that new cases of COVID-19 go undetected
for far longer than they should based on correctional standards of care and current CDC Guidance,
and relate to adequate surveillance and care for high-risk persons in quarantine or medical isolation
areas, which is a factor leading to preventable deaths from COVID-19 in correctional facilities
(Dkt. No. 185-1, ¶¶ 15-16). In addition, Dr. Venters cites as a deficiency slowing the spread of
the virus, which includes infection control, social distancing, mask wearing, and steps to help
mitigate the transmission (Dkt. No. 198, at 15).
16. According to Dr. Venters, in DOC facilities “there is little or no daily check of
symptoms among people in quarantine and there does not appear to be any routine testing of
asymptomatic inmates housed outside of the new admission or exposure quarantine settings” (Dkt.
No. 185-1, ¶ 17).
17. Dr. Venters reported that there appears to be no effort to check for symptoms of
COVID-19 among any of the numerous types of inmate work crews (Dkt. No. 185-1, ¶ 23).
18. According to Dr. Venters, while the CDC guidance for correctional facilities does
not recommend daily verbal screening for symptoms of COVID-19 for inmates, the CDC guidance
does recommend daily verbal screening for symptoms of COVID-19 among staff (Dkt. No. 198,
at 59-60). Dr. Venters states that inmate workers should be screened, as well as staff, because the
virus does not care if an individual is a paid worker or an inmate worker (Id.).
19. Dr. Venters reported that the only testing that occurred among the numerous types
of inmate work crews was weekly testing of kitchen workers in some but not all of the facilities
(Dkt. No. 185-1, ¶ 23).
10 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 11 of 61
20. According to Dr. Venters, although the CDC does not recommend that correctional
facilities routinely test asymptomatic individuals, the CDC is clear that testing of asymptomatic
individuals should be considered when the case numbers are very high and when transmission is
sustained (Dkt. No. 198, at 48).
21. Further, Dr. Venters testified that stopping inmates and staff from working outside
of their specific housing area or areas and stopping individuals from going all over the facility is
one of the first measures addressed in the other several dozen facilities that Dr. Venters has been
to because outbreaks generally are driven either by staff or inmate workers who are going all over
the facility (Dkt. No. 198, at 49).
22. Dr. Venters observed that, although defendants maintain that temperature checks
occur, during his inspection he observed only two facilities following the protocol, while people
incarcerated in the other two facilities reported that temperature checks rarely, if ever, occurred
(Dkt. No. 185-1, ¶ 20).
23. Dr. Venters also observed what he termed “little appreciation for the need to
conduct dedicated and higher-level cleaning and disinfecting when a COVID-19 case is detected”
(Dkt. No. 185-1, ¶ 21). Defendants reported to Dr. Venters during the inspections that “their
routine daily cleaning was more than adequate and that the inmates and staff doing this work had
adequate protective equipment and training” (Dkt. No. 185-1, ¶ 21). During his conversations
with inmate porters and staff, Dr. Venters was informed “this is simply untrue,” with no specialized
training or increased Personal Protective Equipment (“PPE”) for individuals asked to clean areas
where active COVID-19 infection has been detected (Id.; see also Dkt. No. 198, at 29).
24. On cross examination, Dr. Venters testified that inmate porters confirmed that most
of the time they have available and accessible the cleaning supplies needed (Dkt. No. 198, at 38).
11 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 12 of 61
25. As for high-risk persons, according to Dr. Venters, the CDC has identified a list of
medical problems and other factors that signify a person may be at high risk of serious illness or
death from COVID-19 infection (Dkt. No. 185-1, ¶ 7). The CDC has updated and revised the list
numerous times (Id.).
26. Dr. Venters states that, although “Wellpath leadership was generally familiar with
the CDC criteria,” Wellpath did not report many active steps to find and protect these patients
(Dkt. No. 185-1, ¶ 18). Dr. Venters opines that, if there is no difference in how high risk patients
and others are monitored in quarantine or medical isolation settings, “[t]his lack of special focus
on high-risk patients is extremely dangerous because staff are likely to soon be overwhelmed with
COVID-19 related work and suffer even more bleak understaffing: under circumstances in which
not everyone can be effectively monitored, it will be absolutely essential for staff to have the ability
to know and follow the patients who are at greatest risk of death.” (Dkt. No. 185-1, ¶ 18).
27. Further, Dr. Venters testified that the CDC guidance has said since the beginning
that the symptoms of individuals in quarantine should be checked every day, and Dr. Venters stated
that, based on what staff reported, it seems as if inmates in quarantine at ADC have their symptoms
checked only on the last day of quarantine (Dkt. No. 198, 21-22).
28. Dr. Venters acknowledged that, during his inspections, he was aware of Wellpath
staff bringing medicines to units but recalls that there was no check of each person’s symptoms as
outlined by the CDC and reported by the health staff (Dkt. No. 198, at 72).
29. Dr. Venters expressed specific concern for inmates who are high risk in quarantine
at ADC because those individuals with serious health problems can deteriorate very quickly in a
setting like that and may not be able to request a sick call or take other affirmative steps required
to seek care (Dkt. No. 198, at 22).
12 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 13 of 61
30. Dr. Venters requested that, for high risk inmates in medical isolation, there should
be lower thresholds for all action steps (Dkt. No. 198, at 22). He gave as an example, if a certain
elevated pulse rate prompts the nursing staff to call a medical provider or to alert someone, that
threshold elevated pulse rate should be lower for high risk inmates in isolation (Id.).
31. Dr. Venters has concerns that Wellpath and the ADC distribute KN95 masks to
inmates who are on chronic care service, according to Wellpath, but that not all inmates who meet
the CDC criteria of being in the high risk group for COVID-19 are included in Wellpath’s chronic
care service (Dkt. No. 198, at 20-21).
32. Recognizing that the CDC guidance for correctional facilities has not been updated
to account for the Omicron variant and recognizing the Omicron variant, Dr. Venters states that
everybody, every inmate and all staff, should have access to KN95 masks right now (Dkt. No. 198,
at 30).
33. Dr. Venters acknowledges that CDC guidance states that PPE and medical supplies
should be prioritized consistent with the healthcare capabilities of each facility (Dkt. No. 198, at
56-57).
34. According to Secretary Graves, Wellpath has not recommended that KN95 masks
be provided to all inmates (Dkt. No. 198, at 83-83).
35. According to Secretary Graves, the Arkansas Department of Health has never
advised ADC that it should consider providing KN95 masks or the equivalent to all inmates (Dkt.
No. 202, ¶ 14).
36. Secretary Graves testified that the ADC does not have enough supply of KN95
masks currently to provide them to all inmates and staff and that, due to supply chain issues, ADC
13 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 14 of 61
has not been able to secure an additional supply despite attempts to do so (Dkt. Nos. 198, at 85-
85; 202, ¶¶ 2-11).
37. Plaintiffs challenge the factual assertion that ADC cannot obtain a sufficient supply
of KN95 masks to issue a sufficient number of masks to each ADC inmate for eight weeks (Dkt.
Nos. 193, 197).
38. Plaintiffs cite the updated CDC guidance regarding masks that provides:
Masks and respirators (i.e., specialized filtering masks such as “N95s”) can provide different levels of protection depending on the type of mask and how they are used. Loosely woven cloth products provide the least protection, layered finely woven products offer more protections, well-fitting disposable surgical masks and KN95s offer even more protection, and well-fitting NIOSH-approved respirators (including N95s) offer the highest level of protection.
See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html.
39. Plaintiffs maintain that “the prison has stopped passing out masks” (Dkt. No. 189-
2, ¶ 4); that masks are not laundered and returned properly (Dkt. No. 189-1, ¶ 4); and that certain
inmates have no masks at all (Dkt. No. 189-3, ¶ 6).
40. Plaintiffs maintain that they have not received even cloth masks in months, which
masks plaintiffs maintain are insufficient and ineffective against Omicron (Dkt. No. 189-2, ¶¶ 3-
4; 189-1, ¶ 4; 189-4, ¶ 5; 189-3, ¶ 6).
41. Plaintiffs maintain that they have not been tested for COVID in “about a year,”
even after making “requests to get tested” (Dkt. No. 189-1, ¶ 5).
42. Dr. Venters opines that defendants should identify inmates who are unvaccinated
and also meet the CDC criteria for being high risk so that defendants can engage with those
individuals one-on-one to try and answer their questions or promote vaccination (Dkt. No. 198, at
32).
14 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 15 of 61
43. With regard to the use of air purifiers at the ADC, Dr. Venters is not aware of any
peer-reviewed data or CDC or Occupational Health and Safety Administration data on whether
such devices reduce the transmission of COVID-19 in real-world congregate settings such as many
of the settings within the ADC (Dkt. No. 198, at 31).
44. The CDC guidance informs inmates and other detained persons of the importance
of reporting symptoms to staff (Dkt. No. 198, at 59).
45. Dr. Venters acknowledges that the CDC guidance for correctional facilities is
guidance only and that correctional and detention facilities can determine in collaboration with
state and local officials whether and how to implement specific COVID-19 management and
testing strategies (Dkt. No. 198, at 69).
46. Dr. Venters observed that each facility he visited had exceedingly high vacancy
rates in security staff ranks, “with three of the facilities’ vacancy rates being 50% or greater and
the fourth’s vacancy rate over 65%,” and a “troublingly high number of health care staff positions”
also unfilled (Dkt. No. 185-1, ¶ 18).
47. According to plaintiffs, prison staff routinely failed to wear masks that covered
their mouth and nose in April 2020 (Dkt. Nos. 3-3, ¶¶ 10, 12; 3-4, ¶ 6; 3-5, ¶¶ 7, 11-13), and
routinely fail to wear masks that cover their mouth and nose in late 2021 and early 2022 (Dkt. Nos.
189-2, ¶ 5; 189-3, ¶ 5; 189-4, ¶ 5; 189-5, ¶¶ 4, 15).
48. Dr. Venters confirmed that, while some mitigation measures touted by defendants
were underway, other measures did not seem to be underway based on his observations during his
inspections (Dkt. No. 198, at 22-23).
49. Dr. Venters also questioned the ADC policy language and practice with respect to
what occurs when a staff member is identified as newly COVID-19 positive (Dkt. No. 198, at 26-
15 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 16 of 61
27). Some language in the ADC policy suggests that the staff member is to contact administrators
or human resources for guidance, which could cause delay and confusion about what the policy
requires (Id.).
50. The record indicates that, after meeting with the Arkansas Department of Health,
the ADC “decided to fully implement the revised CDC quarantine and isolation guidance and
updated its COVID plan on January 4, 2022, to reflect that guidance.” (Dkt. Nos. 188-1, ¶ 20; 188-
1, at 13-18).
51. Secretary Graves testified that, currently if staff test COVID-19 positive, they are
required to follow the recent CDC guidance related to community and essential workers and isolate
for five days and then follow that guidance on return to work, depending on whether the individual
is asymptomatic or symptomatic at the end of the initial five-day period (Dkt. No. 198, at 97-98).
52. State Defendants present record evidence that, under current ADC policy, all
visitors to an ADC unit are rapid tested for COVID-19, their temperatures are checked, and visitors
are screened for symptoms of COVID-19 such as fever, cough, sore throat, or shortness of breath
(Dkt. No. 188-1, ¶¶ 3-4).
53. According to State Defendants, staff take a rapid COVID test once a week, and
visitors are rapid tested before they are allowed entry into the units (Id., ¶ 17).
54. Secretary Graves testified that it is prohibited under Arkansas state law for him to
inquire about the vaccination status of staff (Dkt. No. 198, at 109).
55. That the vaccination status of staff is unknown motivated the ADC, in part, to
implement what Secretary Graves termed a “surveillance testing program” in October 2020 and to
continue to implement that program today (Dkt. No. 198, at 110).
16 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 17 of 61
56. Although plaintiffs present record evidence through the testimony of Dr. Venters
that not all ADC units he inspected adhered to this policy with half of those units not performing
the check at all (Dkt. No. 189-1, ¶ 19), Secretary Graves avers that since the inspections he has
taken steps to confirm that all ADC units are screening visitors and staff for COVID symptoms at
the front doors before allowing entry into ADC’s facilities (Dkt. No. 188-1, ¶ 4; see also Dkt. No.
198, at 82-93).
57. According to State Defendants, all visitors once inside the correctional facility are
required to wear masks (Dkt. No. 188-1, ¶ 17).
58. Secretary Graves avers that the “ADC has implemented a robust system to identify
the vaccination status of inmates and to quarantine all inmates as they are initially received into
ADC custody, prior to transfer to their receiving facility.” (Id., ¶ 5).
59. Further, Secretary Graves confirms that the “ADC has implemented a quarantine
and testing system for COVID-19 that meets current CDC guidelines for newly admitted inmates
and those potentially exposed to COVID-19.” (Id., ¶¶ 6, 21).
60. Secretary Graves outlines the steps taken for isolation, quarantine, and testing of
new inmates, COVID-19 positive inmates, and exposed but asymptomatic inmates (Id., ¶ 21).
61. He also confirms that “ADC continues to use contact tracing to test inmates and
staff who may have been exposed to COVID-19 by others.” (Id., ¶ 26).
62. Secretary Graves also states that, on December 31, 2021, in the “light of increasing
numbers of COVID-positive staff and inmates, [he] implemented a Department-wide restricted
movement plan through January 14, 2022. Until that time, all ADC facilities will operate with
only essential movement in order to slow the spread of the virus within the ADC.” (Id., ¶ 18).
17 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 18 of 61
63. According to Secretary Graves, “[m]ovement within the prisons is limited by
housing area, so that only one housing area at a time is in any particular area, such as the dining
hall or gym.” (Id., ¶ 21).
64. Under the current ADC policy, inmates’ temperatures are to be checked each time
they enter the dining hall, and there are infrared thermometers posted at the entry doors of each
dining hall for that purpose (Dkt. No. 188-1, ¶ 22).
65. Secretary Graves also explains that “[i]nmate kitchen workers are tested weekly for
COVID-19, and staggered schedules and work assignments have been implemented so that if one
crew ends up in quarantine, there is another crew of available kitchen staff available who have not
been exposed to COVID.” (Id., ¶ 23).
66. State Defendants confirm that “ADC continues to encourage various COVID
mitigation strategies, such as social distancing, hand washing, covering coughs, and the
importance of wearing masks” and that “posters and signage are posted throughout ADC’s
facilities, including in the barracks, hallways, dining halls, libraries, and infirmaries, to remind
inmates and staff of the importance of these measures.” (Id., ¶ 25).
67. Moreover, Secretary Graves explains that “ADC has encouraged all staff and
inmates to receive their COVID-19 vaccinations by implementing a special ‘Best Shot’ marketing
campaign with posters and signage posted at every unit.” (Id., ¶ 7). Secretary Graves describes
the efforts ADC has made for staff and inmates with respect to vaccination, including offering free
vaccines, hosting vaccination clinics, providing paid time off for staff, and providing a $50
financial incentive for inmates and other incentives for staff (Id., ¶ 8; see also Dkt. No. 198, at 94-
95).
18 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 19 of 61
68. According to State Defendants, initial doses of vaccines are still being offered, and
“boosters are now being administered at the appropriate time intervals as recommended” by the
Arkansas Department of Health, the CDC, and Wellpath (Dkt. No. 188-1, ¶ 9).
69. Secretary Graves explains that, at “ADC facilities, inmates are provided with two
three-layer cotton cloth face masks. The masks are washed in the laundry every day and are
returned to the inmate in their personal laundry bag.” (Dkt. No. 188-1, ¶ 11).
70. In addition, Secretary Graves avers that consistent with CDC guidelines and
recommendations from Wellpath, “ADC provides KN95 face masks to individuals identified by
[Wellpath] as being medically high risk and also to inmates who are transported off-site.” (Id., ¶
12).
71. Secretary Graves states in his rebuttal declaration that, on January 18, 2021, during
the ADC weekly COVID call with Wellpath, and based on recent updated CDC guidance, it was
decided that inmates in the following job categories will be issued as of January 23 or 24, 2022,2
well-fitting KN95/N95 masks for work duties:
- Farm crews - Laundry attendants - Hall and office porters - Infirmary workers and inmates caregivers - Kitchen workers - Maintenance crews - Commissary workers - Arkansas State Police / Governor’s Mansion / work release details - Any other community-facing work detail
(Dkt. No. 202, ¶¶ 12-13).
2 Secretary Graves’ rebuttal declaration states: “Monday, January 23, 2022.” (Dkt. No. 202, ¶ 13). The Court notes that Sunday is January 23, 2022, and Monday is January 24, 2022. 19 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 20 of 61
72. Secretary Graves confirms that “ADC staff are also provided with a new KN95 face
mask every day.” (Dkt. No. 188-1, ¶ 12).
73. “Masks continue to be required inside all ADC units by order of the Board of
Corrections,” according to Secretary Graves (Id., ¶ 15).
74. Secretary Graves confirms that “[a]ll staff members continue to be required to wear
personal protective equipment during their shifts and are required to monitor their symptoms” and
that any staff who test positive “are immediately removed from work and sent home if they begin
exhibiting symptoms of COVID-19.” (Dkt. No. 188-1, ¶ 24).
75. In addition, Secretary Graves explains that “ADC has installed new air filtration
systems, including ultraviolet light throughout all of its units to improve ventilation and reduce the
risk of air contamination” (Id., ¶ 13).
76. Secretary Graves maintains that “ADC continues to provide inmates with face
masks, hand soap, towels, cleaning supplies (including EPA-registered disinfectants), and hand
sanitizer free of charge. If an inmate runs out of these items or needs replacement items, they need
only request them from any staff member, either in person or in writing.” (Id., ¶ 10).
77. “According to ADC policy, personal protective equipment, including masks,
gloves, face shields, paper gowns, should be worn by anyone cleaning or disinfecting surfaces
after exposure to a sick person or someone who tested positive for COVID-19,” based on Secretary
Graves’ representations (Id., ¶ 16).
78. In other words, if an inmate chooses not to wear his mask or gloves while cleaning
or disinfecting surfaces after exposure to a sick person or someone who tested positive for COVID-
19, that inmate is violating ADC training and policy according to Secretary Graves (Dkt. No. 198,
at 91-92).
20 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 21 of 61
79. Secretary Graves confirms that “PPE is provided to all cleaning staff, including
inmates, free of charge. Inmates who are assigned to clean/disinfect as their work assignment are
trained on the safe use and disposal of chemicals and PPE.” (Dkt. No. 188-1, ¶ 16).
80. Secretary Graves also states that “cleaning staff clean and sanitize all surfaces in
the dining hall after each group,” as the ADC has taken efforts to stagger times and to limit the
number of inmates in the dining hall at any one time (Id., ¶ 25).
81. In the current record before the Court, Secretary Graves confirms that social
distancing measures currently include “staggering inmates on the beds in the barracks so they are
not face-to-face while sleeping, suspension of all in-person visitation and congregational worship
services, and limitation of movement within the facilities to individuals housing units, including
but not limited to meal times.” (Id., ¶ 25). He explains that, at some larger units,” only half of the
barracks is taken to the dining hall at a time to maximize social distancing.” (Id.).
82. In his affidavit, Secretary Graves represents that Wellpath “is now providing
monoclonal antibody treatment for COVID-19 patients.” (Id., ¶ 14).
83. Secretary Graves confirms that those inmates identified as being medically high
risk by Wellpath receive KN95 masks from ADC, along with inmates who are transported off-site
and ADC staff (Id., ¶ 12).
84. High risk inmates are given a two-week supply of KN95 masks every two weeks
by the ADC, at the direction of Wellpath, according to Secretary Graves (Dkt. No. 198, at 112-
13). An ADC officer is told by Wellpath onsite that a specific inmate requires a KN95 mask
supply, and that supply is given to the inmate by the ADC officer (Id.).
21 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 22 of 61
85. Secretary Graves also testified that, under current policy, Wellpath is to monitor
regularly, at least twice daily per his testimony, the health status of inmates in quarantine and is
supposed to log that in the health record (Dkt. No. 198, at 92-93).
86. Given the current situation, on December 31, 2021, Secretary Graves “issued an
email memorandum to all DOC/ADC staff reminding them that, according to our Governor’s
December 30, 2021, press conference, there is a shortage of testing and antibody treatment in our
state, as well as hospital capacity.” (Dkt. No. 188-1, ¶ 19). Therefore, Secretary Graves “asked all
staff to limit their movements over the next few weeks, to stay home if they become ill, to practice
COVID mitigation strategies, and to consider getting vaccinated in order to lessen the impact of
the virus.” (Id.).
87. According to Secretary Graves, all staff “continue to be required to wear personal
protective equipment during their shifts and are required to monitor their symptoms.” (Id., ¶ 24).
He reports that “[a]ny staff that have tested positive are immediately removed from work and sent
home if they begin exhibiting symptoms of COVID-19.” (Id.).
88. Further, Secretary Graves avers that “ADC is currently experiencing severe staffing
shortages for correctional officers.” (Id., ¶ 27). He represents that “[i]t would create a severe
burden on ADC staff, and risk institutional safety and security, for staff to have to interview every
inmate about COVID symptoms before allowing inmates to report to work outside of their housing
area every day.” (Id.).
89. Secretary Graves testified that, based on information from Wellpath, only about
20% of all ADC inmates who have had COVID-19 since Spring 2020 have experienced symptoms
(Dkt. No. 198, at 88).
22 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 23 of 61
90. According to Secretary Graves, “[u]nder ADC policy, inmates should monitor their
own health status and submit sick call requests if they are feeling unwell.” (Dkt. No. 188-1, ¶ 27).
91. Secretary Graves testified that, if an inmate is ill and wishes to see a nurse, if it is a
nonemergent request, it could take up to 72 hours to see a nurse, but if the request is related to
common symptoms related to COVID-19, those requests are responded to within 24 hours (Dkt.
No. 198, at 108-09).
92. Secretary Graves testified that the ADC meets weekly with Wellpath to discuss
comprehensively the ADC response to the COVID-19 pandemic, including discussing current case
counts and the experiences of inmates in those current case counts (Dkt. No. 198, at 88-89).
93. Secretary Graves testified that the ADC refers to Wellpath and the Arkansas
Department of Health because they are the clinicians with medical expertise and training (Dkt. No.
198, at 98-99).
94. Secretary Graves testified that Wellpath and the Arkansas Department of Health
have indicated that the ADC’s COVID-19 response currently is sufficient, but he acknowledges
that it is a moving target and represents that the ADC will strive to hit that target (Dkt. No. 198, at
104)).
95. Defendants maintain that at all times relevant to this lawsuit ADC had a policy
relating to grievances filed by inmates housed in its facilities (Dkt. Nos. 146, ¶ 311; 164). The
version of the policy in effect since December 2, 2019, is AD 19-34.
96. Plaintiffs aver that staff are unavailable to take grievance forms because of staffing
shortages (Dkt. Nos. 189-9, ¶¶ 2-3; 189-7, ¶¶ 5-6; 189-8, ¶¶ 2, 6; 189-10, ¶ 2; 189-6, ¶ 3).
97. Plaintiffs aver that, even when staff are present, staff will refuse to give grievance
forms to plaintiffs (Dkt. Nos. 189-9, ¶ 2; 189-10, ¶ 3; 189-6, ¶ 4); refuse to take or sign plaintiffs’
23 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 24 of 61
completed forms (Dkt. Nos. 189-9, ¶¶ 2-3; 189-10, ¶ 2; 189-8, ¶ 2; 189-6, ¶ 3); and tell other staff
members not to accept grievance forms (Dkt. No. 189-6, ¶ 3).
98. If plaintiffs are able to have staff take and sign their grievance forms, plaintiffs aver
that prison officials retaliate against them for filing grievances (Dkt. Nos. 189-10, ¶ 4; 189-7, ¶ 4;
189-8, ¶ 4; 189-6, ¶ 5); refuse to investigate the claims (Dkt. No. 189-9, ¶ 2); throw the forms away
(Dkt. No. 189-7, ¶ 4); hold onto the forms until plaintiffs cannot advance to the second step in the
grievance process (Dkt. No. 189-9, ¶ 2; 189-8, ¶ 2); or never respond at all (Dkt. No. 189-7, ¶¶ 3,
5).
99. One plaintiff avers that prison officials have informed other inmates that he is a
“snitch” as a result of his participation in the grievance process over COVID-19 (Dkt. No. 189-8,
¶ 5).
100. One plaintiff avers that problems with submitting grievances are at their worst when
trying to file a COVID-related grievance (Dkt. No. 189-6, ¶¶ 5-6).
IV. Standing
Defendants in their most recent filing again assert that plaintiffs lack standing to seek
preliminary injunctive relief (Dkt. No. 188, at 8-9). The Court rejects defendants’ argument on
standing and determines that plaintiffs have standing to seek preliminary injunctive relief.
Defendants maintain that they are taking many of the measures plaintiffs seek. To the
extent plaintiffs seek relief based on the measures defendants are taking, defendants claim
plaintiffs lack standing to seek such relief through a preliminary injunction. Further, to the extent
plaintiffs request additional measures beyond those defendants currently are taking, such a request
would not preserve the status quo, according to defendants, and they claim it is improper injunctive
24 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 25 of 61
relief (Id.). Defendants maintain that directing them to take plaintiffs’ additional measures would
alter the status quo (Id., at 9).
The Court addressed and rejected similar arguments when it examined plaintiffs’ first
motion for preliminary injunction (Dkt. No. 68, at 39-41). Plaintiffs dispute that defendants have
taken the measures plaintiffs seek in their motion for preliminary injunction and, therefore, argue
that they have standing to seek this relief (Dkt. No. 189, at 32-33). Further, the record before the
Court demonstrates that defendants have not taken all measures plaintiffs seek. Therefore,
plaintiffs challenge defendants’ characterization of the “status quo.” Adopting the reasoning set
forth in its prior Order, the Court determines on the record before it at this stage of the proceeding
that plaintiffs have standing to maintain their request for preliminary injunctive relief under these
circumstances.
V. Legal Standard For Awarding Preliminary Injunctive Relief
In the Eighth Circuit, a preliminary injunction “is an extraordinary remedy, and the burden
of establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346 F.3d
841, 844 (8th Cir. 2003) (internal citations omitted). In determining whether to issue a preliminary
injunction, a district court should consider: “(1) the threat of irreparable harm to the movant; (2)
the state of the balance between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public
interest.” Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v.
C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)). The Court examines the Dataphase factors as
applied to plaintiffs’ request for a preliminary injunction. See Dataphase, 640 F.2d at 109. “While
no single factor is determinative, the probability of success factor is the most significant.” Home
Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (citing Barrett v. Claycomb, 705 F.3d
25 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 26 of 61
315, 320 (8th Cir. 2013)) (internal quotations and citation omitted). However, likelihood of
success “is insufficient on its own.” Roudachevski v. All-American Care Ctrs., Inc., 648 F.3d 701,
706 (8th Cir. 2011) (citing Watkins, 846 F.3d at 844). “Even when a plaintiff has a strong claim
on the merits, preliminary injunctive relief is improper absent a showing of a threat of irreparable
harm.” Id. The focus is on “whether the balance of the equities so favors the movant that justice
requires the court to intervene to preserve the status quo until the merits are determined.” Watkins,
346 F.3d at 844.
VI. Analysis
In ruling on plaintiffs’ motion, the Court must consider: (1) plaintiffs’ likelihood of success
on the merits; (2) the threat of irreparable harm; (3) the balance of the equities; and (4) the public
interest. See Dataphase, 640 F.2d at 113. Having conducted this analysis, the Court concludes
that the Dataphase factors weigh in favor of denying plaintiffs’ most recent motion for preliminary
injunction.
In the remaining claims of their amended complaint, plaintiffs bring a civil rights action
claiming Eighth Amendment violations pursuant to 42 U.S.C. § 1983 for all plaintiffs and an ADA
action pursuant to 42 U.S.C. § 12101 for the proposed disability subclass. The Court examines
each remaining claim.
A. Likelihood Of Success: Exhaustion Under The PLRA
Plaintiffs’ Eighth Amendment claims brought pursuant to § 1983 and ADA claims must
adhere to the Prison Litigation Reform Act (“PLRA”). The PLRA states that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Accordingly, plaintiffs’ Eighth
26 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 27 of 61
Amendment claims brought pursuant to § 1983 and ADA claims are governed by the PLRA’s
exhaustion requirement. To determine whether plaintiffs are likely to succeed on these claims, the
Court first examines the issue of exhaustion, which is an affirmative defense defendants have the
burden of pleading and proving.
1. PLRA Legal Standard
On claims covered by the PLRA, prisoner plaintiffs are required to exhaust administrative
remedies before seeking a preliminary injunction, just as they are required to do before seeking
other remedies. See Jones v. Bock, 549 U.S. 199, 211 (2007); Farmer v. Brennan, 511 U.S. 825,
847 (1994). Notably, exhaustion is not a pleading requirement for plaintiffs. See Jones, 549 U.S.
at 212 (citing Fed. R. Civ. P. 8(a), (c)). Instead, “[f]ailure to exhaust is an affirmative defense
under the PLRA; ‘inmates are not required to specially plead or demonstrate exhaustion in their
complaints.’” Minter v. Bartruff, 939 F.3d 925, 928 (8th Cir. 2019) (quoting Jones, 549 U.S. at
216); see also Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (“This Circuit considers the
PLRA’s exhaustion requirement to be an affirmative defense that the defendant has the burden to
plead and to prove.”). A complaint may be subject to dismissal for failure to state a claim if the
allegations, taken as true, show that relief is barred by an applicable affirmative defense. See
Jones, 549 U.S. at 215. Although failure to exhaust is an affirmative defense, the Court must
consider at the preliminary injunction stage whether defendants are likely to succeed in
establishing this defense. See Gonzales v. O Centro Espirita Benificente Uniao de Vegetal, 546
U.S. 418, 428-29 (2006); see also Junior v. Swain, No. 20-11622-C, 2020 WL 2161317, at *6-7
(11th Cir. May 5, 2020).
The PLRA requires inmates: (1) fully and properly to exhaust their administrative
remedies as to each claim in the complaint; and (2) to complete the exhaustion process prior to
27 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 28 of 61
filing an action in federal court. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). “[I]t is the
prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones,
549 U.S. at 218.
“Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross
v. Blake, 136 S. Ct. 1850, 1856 (2016). “[T]he availability of a remedy, according to the Supreme
Court, is about more than just whether an administrative procedure is ‘on the books.’” Townsend
v. Murphy, 898 F.3d 780, 783 (8th Cir. 2018) (quoting Ross, 136 S. Ct. at 1859). “[A]n inmate is
required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain
‘some relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner,
532 U.S. 731, 738 (2001)). A prison administrative procedure or remedy may be “unavailable”
for purposes of the PLRA’s exhaustion requirement when “despite what regulations or guidance
materials may promise[,] it operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; when “an administrative scheme [is] so
opaque that it becomes, practically speaking, incapable of use”; when the remedy is “essentially
‘unknowable’—so that no ordinary prisoner can make sense of what it demands”; or when “prison
administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1859-60. However, when the administrative procedure
grants “authority to take some action in response to a complaint,” that procedure is considered
“available,” even if it cannot provide “the remedial action an inmate demands.” Booth, 532 U.S.
at 736.
The PLRA also provides that “no court shall enter a prisoner release order unless . . . a
court has previously entered an order for less intrusive relief that has failed to remedy the
28 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 29 of 61
deprivation of the Federal right,” and defendants have “had a reasonable amount of time to comply
with the previous court orders.” 18 U.S.C. §§ 3626(a)(3)(A)(i)-(ii).
2. PLRA Exhaustion Analysis
Plaintiffs’ allegations in their amended complaint, if taken as true, do not show that relief
is barred by the affirmative defense of exhaustion (Dkt. No. 84). See Jones, 549 U.S. at 215.
Plaintiffs allege that several, but not all, named plaintiffs filed grievances prior to filing suit (Dkt.
No. 84, ¶¶ 20, 24, 27, 29, 33, 34, 38, 42, 45, 49, 50, 80, 81, 82, 85); the amended complaint is
silent as to whether certain plaintiffs filed grievances at all.
Defendants do assert plaintiffs’ claims subject to the PLRA are barred by exhaustion, have
filed motions for summary judgment not yet ripe on the issue of exhaustion, and have the burden
of establishing this affirmative defense. At this stage of the litigation and on the record before the
Court, there are factual disputes regarding whether and to what extent plaintiffs filed grievances,
exhausted grievances, and the ADC’s administrative remedies were available to plaintiffs. On the
record before the Court, and for the reasons explained in this Order, defendants have not
demonstrated a likelihood of success on this affirmative defense as to all named plaintiffs. For
this reason, the Court will analyze the merits of plaintiffs’ Eighth Amendment claims brought
pursuant to § 1983 and the ADA.
a. ADC Grievance Process
Defendants maintain that at all times relevant to this lawsuit ADC had a policy relating to
grievances filed by inmates housed in its facilities (Dkt. Nos. 146, ¶ 311; 164). The version of the
policy in effect since December 2, 2019, is AD 19-34. AD 19-34 applies to both non-medical and
medical grievances, the exhaustion process is similar for both types of grievances, and the
procedure includes an informal resolution stage and a formal resolution stage. AD 19-34 provides
29 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 30 of 61
detailed procedures for how inmates must grieve their problems and complaints with ADC and
explains the steps inmates must take in order to exhaust their grievance fully. Of relevance here,
AD 19-34 deems release a non-grievable issue. ADC’s inmate grievance policy also accounts for
emergencies and is designed to ensure that ADC staff act quickly to resolve emergencies, defining
an “emergency” as “a problem that, if not immediately addressed, subjects the inmate to a
substantial risk of personal injury or other serious and irreparable harm, such as physical abuse”
(Dkt. No. 164-26, at 2).
b. Analysis Of Plaintiffs’ Grievances
In part, plaintiffs argue that ADC’s grievance procedure does not provide emergency relief
that will protect plaintiffs’ safety and remedy the alleged violation of their rights under the Eighth
Amendment and the ADA. See Ross, 136 S.Ct. at 1859 (directing courts to consider “the facts on
the ground” when evaluating exhaustion issues). Plaintiffs assert that, although “Defendants insist
that Plaintiffs must wait to file a federal lawsuit in these emergency circumstances until an appeal
to the appropriate Chief Deputy/ Deputy/Assistant Director is filed and resolved,” even defendants
admit that process “can take more than two months.” (Dkt. No. 44, at 56). Plaintiffs argue that
this “grievance process for an emergency requiring immediate action is plainly not available if it
would take two months to address.” (Id.).
Plaintiffs also dispute whether the administrative remedies offered by defendants are
“unavailable” or “not capable of use” as interpreted by the Supreme Court. See Ross, 136 S. Ct.
at 1859-60. Plaintiffs aver that staff are unavailable to take grievance forms because of staffing
shortages (Dkt. Nos. 189-9, ¶¶ 2-3; 189-7, ¶¶ 5-6; 189-8, ¶¶ 2, 6; 189-10, ¶ 2; 189-6, ¶ 3). Plaintiffs
aver that, even when staff are present, staff will refuse to give grievance forms to plaintiffs (Dkt.
Nos. 189-9, ¶ 2; 189-10, ¶ 3; 189-6, ¶ 4); refuse to take or sign plaintiffs’ completed forms (Dkt.
30 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 31 of 61
Nos. 189-9, ¶¶ 2-3; 189-10, ¶ 2; 189-8, ¶ 2; 189-6, ¶ 3); and tell other staff members not to accept
grievance forms (Dkt. No. 189-6, ¶ 3). If plaintiffs are able to have staff take and sign their
grievance forms, plaintiffs aver that prison officials will retaliate against them for filing grievances
(Dkt. Nos. 189-10, ¶ 4; 189-7, ¶ 4; 189-8, ¶ 4; 189-6, ¶ 5); refuse to investigate the claims (Dkt.
No. 189-9, ¶ 2); throw the forms away (Dkt. No. 189-7, ¶ 4); hold onto the forms until plaintiffs
cannot advance to the second step in the grievance process (Dkt. Nos. 189-9, ¶ 2; 189-8, ¶ 2); or
never respond at all (Dkt. No. 189-7, ¶¶ 3, 5). One plaintiff avers that prison officials have
informed other inmates that he is a “snitch” (Dkt. No. 189-8, ¶ 5). One plaintiff avers that problems
with submitting grievances are at their worst when trying to file a COVID-related grievance (Dkt.
No. 189-6, ¶¶ 5-6).
The Court concludes that, at least at this stage of the proceeding, there are disputes
regarding whether and to what extent plaintiffs filed grievances, exhausted grievances, and the
ADC’s administrative remedies were available to plaintiffs.
B. Likelihood Of Success: Responsibility Of Defendants
Arguments advanced by State Defendants’ counsel with respect to the responsibility of
State Defendants for the medical care given to inmates in their custody give this Court pause when
compared to testimony presented by Secretary Graves during the January 11, 2022, hearing. The
arguments of counsel are not evidence.
Counsel for State Defendants spent much of the cross examination of Dr. Venters
intimating that the State Defendants have little or no control over or responsibility for issues that
impact the medical response to COVID-19. For example, during the cross examination of Dr.
Venters, counsel for State Defendants repeatedly suggested that the State Defendants do not have
the ability to identify high risk inmates; have no list of high risk inmates; cannot modify nursing
31 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 32 of 61
assessments used by the contracted medical provider Wellpath; and have no input into and can
make no decisions regarding what Wellpath decides in conjunction with the Arkansas Department
of Health about testing protocols that are employed with regard to testing inmates for COVID-19
(Dkt. No. 198, at 33-69). In fact, during argument, counsel for State Defendants argued that the
ADC cannot provide the medical monitoring, one-on-one education, or other medical relief that
plaintiffs’ request because the ADC does not provide the medical or nursing services or the
vaccination services at ADC; those are functions of Wellpath according to counsel for State
Defendants (Dkt. No. 198, at 123).
In contrast, Secretary Graves testified that the ADC meets weekly with Wellpath to discuss
comprehensively the ADC response to the COVID-19 pandemic, including discussing current case
counts and the experiences of inmates in those current case counts (Dkt. No. 198, at 88-89). When
asked directly, Secretary Graves conceded that, if the DOC wishes that Wellpath take additional
action and asks Wellpath to do so, it is expected that Wellpath will follow the DOC direction (Dkt.
No. 198, at 110). Further, Secretary Graves testified that DOC has continued to involve the
Arkansas Department of Health as an independent arbiter to monitor the adequacy of the DOC and
Wellpath response to COVID-19 (Id.).
During his testimony, Secretary Graves acknowledged that he has ultimate responsibility
to see that ADC prisons are run safely (Dkt. No. 198, at 105). Secretary Graves testified that, as
he has done for the entirety of his tenure as Secretary of ADC, he would follow the
recommendation of Wellpath and the Arkansas Department of Health, as they are the trained
practitioners in this area of responding to COVID-19; they are the clinicians with medical expertise
and training (Dkt. No. 198, at 98-99, 105). Secretary Graves testified that Wellpath and the
Arkansas Department of Health have indicated that the ADC’s COVID-19 response currently is
32 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 33 of 61
sufficient, but he acknowledges that it is a moving target and represents that the ADC will strive
to hit that target (Dkt. No. 198, at 104).
C. Likelihood Of Success: Eighth Amendment Claims
Plaintiffs allege that defendants’ failure to provide adequate protection and, if necessary,
medical care in response to the rapid spread of COVID-19, including but not limited to the “new
and highly transmissible variant of COVID-19, Omicron,” constitutes deliberate indifference to
the serious medical needs of incarcerated individuals in violation of the Eighth Amendment (Dkt.
Nos. 84, ¶¶ 255-263; 185, at 1). For the following reasons, although certain aspects of the record
evidence before the Court give it pause, the Court determines on the record evidence as a whole
that plaintiffs have not demonstrated that they are likely to succeed on the merits of their Eighth
Amendment claims at this stage of the proceeding.
1. Deliberate Indifference Standard
“[T]he treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.” Helling, 509 U.S. 25, 31 (1993).
It is “cruel and unusual punishment to hold convicted criminals in unsafe conditions.” Youngberg
v. Romeo, 457 U.S. 307, 315-16 (1982). State officials have a responsibility under the Eighth
Amendment to “provide humane conditions of confinement,” “ensure that inmates receive
adequate food, clothing, shelter, and medical care,” and “‘take reasonable measures to guarantee
the safety of the inmates.’” Farmer, 511 U.S at 832 (quoting Hudson v. Palmer, 468 U.S. 517,
526-57 (1984)). The Eighth Amendment standard for conditions of confinement asks whether
defendants acted with “deliberate indifference.” Davis v. Oregon Cty., 607 F.3d 543, 548 (8th Cir.
2010).
33 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 34 of 61
The Eighth Amendment forbids deliberate indifference to conditions that “pose an
unreasonable risk of serious damage to . . . future health.” Helling, 509 U.S. at 35; see also
DeGidio, 920 F.2d 525, 533 (8th Cir. 1990) (continuing failure by prison officials to institute a
system to prevent the spread of tuberculosis violated the Eighth Amendment); Brown v. Moore,
93 F. Supp. 3d 1032, 1041 (W.D. Ark. 2015) (“Plaintiff need not have contracted the disease for
an actionable [Eighth Amendment] claim to be stated.”). Deliberate indifference has both an
objective and subjective component. See Davis, 607 F.3d at 548. The objective component
considers “whether a substantial risk to the inmate’s safety existed,” and the subjective component
considers “whether the officer had knowledge of the substantial risk to the inmate’s safety but
nevertheless disregarded it.” Id. This “subjective component of deliberate indifference requires
proof that [defendants] ‘actually knew of and recklessly disregarded’ this substantial risk of serious
harm.” Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006) (quoting Pietrafeso v. Lawrence Cty.,
S.D., 452 F.3d 978, 983 (8th Cir. 2006)). “[T]o demonstrate that a defendant actually knew of, but
deliberately disregarded, a serious medical need, the plaintiff must establish a ‘mental state akin
to criminal recklessness: disregarding a known risk to the inmate’s health.’” Barton v. Taber, 908
F.3d 1119, 1124 (8th Cir. 2018) (quoting Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009))
(other citations omitted).
Under controlling precedent, the deliberate indifference standard may be satisfied when
officials respond to an infectious disease “outbreak with a series of negligent and reckless actions.”
DeGidio, 920 F.2d at 533. The Court stresses that these objective and subjective components
should not be “collapsed” into one another and remain separate but related inquiries. See Swain v.
Junior, No. 20-11622-C, 2020 WL 2161317, at *4 (11th Cir. May 5, 2020); see also Marlowe v.
LeBlanc, No. 20-30276, 2020 WL 2043425, at *2-3 (5th Cir. Apr. 27, 2020) (separating the
34 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 35 of 61
“objective” prong of the deliberate indifference test from the “subjective” consideration of whether
defendants’ measures were inadequate).
The district court may consider either the objective or subjective prong first and, if there is
a failure of proof on the first prong the court chooses to consider, it need not proceed to the other
prong. Helling, 509 U.S. at 35. This Court considers the subjective prong first, determines that
plaintiffs are unlikely to succeed on the merits of the subjective prong of their Eighth Amendment
claims, and declines to consider at this stage plaintiffs’ likelihood of succeeding on the objective
prong of the Eighth Amendment.
2. Subjective Prong
As to the subjective prong, plaintiffs acknowledge based on an inspection of four facilities
by plaintiffs’ expert, Dr. Venters, that defendants have exhibited some strengths in responding to
COVID-19 that could help them respond to Omicron, such as making vaccines available to the
incarcerated population; working to track the timing of second shots and boosters; implementing
a system to identify the vaccination status of incoming incarcerated persons; and quarantining and
testing newly admitted and potentially exposed incarcerated persons (Dkt. Nos. 185, at 4; 185-1,
¶ 12). However, plaintiffs also assert that Dr. Venters found several serious deficiencies in
defendants’ COVID-19 response that leave defendants ill-prepared during Omicron’s surge to
detect new cases as people enter the units, to prevent the spread of cases once inside the units, and
to provide adequate surveillance or care for high-risk persons who are exposed to or have COVID-
19 (Dkt. Nos. 185, at 4; 185-1, ¶ 17). Plaintiffs claim that “not all units conduct a symptom check
of people entering the units; there is no higher-level cleaning and disinfecting of sites when a
COVID-19 case is detected; and there is rarely, if ever, a daily symptom check among people in
quarantine or medical isolation settings, including among high-risk people” (Dkt. Nos. 185, at 4;
35 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 36 of 61
185-1, ¶ 17). Further, there is no active attempt to identify and protect the high-risk individuals in
the prison nor any difference in how high-risk individuals are monitored in quarantine or medical
isolation settings (Dkt. Nos. 185, at 4; 185-1, ¶ 18). All parties acknowledge that the vaccine
predominantly administered in Arkansas prisons was the Johnson & Johnson vaccine which,
according to plaintiffs, provides little if any protection against the Omicron variant (Dkt. Nos. 185,
at 4-5; 185-1, ¶ 12). Plaintiffs make an urgent request that incarcerated individuals who received
the Johnson & Johnson vaccine be give the Moderna or Pfizer booster (Dkt. Nos. 185, at 5; 185-
1, ¶ 12).
Plaintiffs seek through this motion for preliminary injunction to have the Court grant the
following relief:
1. When two or more cases have been detected among incarcerated persons or staff in a unit in a fourteen-day (14) period, enhanced measures at the front gate of each unit must be adopted, requiring every person entering the unit to take a rapid test before entry; asking every person entering the unit whether he or she has any COVID-19 symptoms; and using accurate temperature instruments to read the temperature of every person before entry.
2. When two or more cases have been detected among incarcerated persons or staff in a unit in a fourteen-day (14) period, KN95 masks must be provided to all staff and incarcerated people, and wearing them must be mandated.
3. Wellpath’s electronic medical records must be used to identify all high-risk incarcerated persons, and to create and maintain updated lists of these persons. Staff must hold in-person counseling sessions with any individual on the list who is not vaccinated or has not received a booster. At this time, in light of preliminary studies showing that the J&J vaccine provides little—if any – protection against Omicron, the DOC and Wellpath should exclusively provide the Pfizer or Moderna vaccine.
4. The nursing staff must conduct a daily vital signs and symptom check of any high- risk individual housed in a quarantine area.
5. The nursing assessment for patients in quarantine must be modified to include whether the person is high risk and by lowering the threshold to take action steps (e.g., contracting a doctor, transferring to hospital) for high-risk patients.
36 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 37 of 61
6. To help slow the spread of Omicron inside the units, every person who works outside his housing area should be asked about COVID-19 symptoms before the commencement of a shift; a plan should be created and implemented for enhanced cleaning of any site where a person with known COVID-19 worked or lived; the provision of meals should not result in close contact between different housing areas; and sick call requests should be reviewed at the end of each day to ensure expedited response to any one with potential COVID-19- related symptoms.
(Dkt. Nos. 185, at 6-7; 185-1, ¶¶ 25-28). Plaintiffs assert that “[i]t is imperative that Defendants
urgently take the steps that Dr. Venters details in his declaration to stop avoidable illness and death
among the incarcerated population during Omicron’s surge.” (Dkt. No. 185, at 7).
All parties agree that defendants have taken some action in response to COVID-19. State
Defendants maintain that their “response to the COVID-19 pandemic has been proactive,
comprehensive, and meets or exceeds recommendations by the Arkansas Department of Health
and the U.S. Centers for Disease Control and Prevention.” (Dkt. No. 188, at 1). Further, State
Defendants argue that the preliminary relief plaintiffs currently seek is not the relief they seek in
their amended complaint but instead includes a variety of new, additional measures that plaintiffs
never requested in their amended complaint and to which plaintiffs are not entitled by law (Id., at
1-2). Wellpath also argues that, because Dr. Venters and plaintiffs agree that Wellpath and State
Defendants “exhibit important strengths in their response to the COVID-19 thus far,” plaintiffs
cannot meet the high standard to establish a likelihood of success on their Eighth Amendment
deliberate indifference claim (Dkt. No. 187, at 3).
Plaintiffs reply that what they seek in this motion are “basic measures” well within
defendants’ capabilities that “are needed to save the lives of high-risk people.” (Dkt. No. 189, at 2
(quoting Dkt. No. 189-2, ¶ 3)). Plaintiffs also emphasize that Wellpath proffers no facts in support
of its response and only makes a “purely legalistic submission.” (Dkt. No. 189, at 5).
37 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 38 of 61
At this stage of the proceedings, the record evidence suggests that, over time, defendants
have adopted policies and practices in response to COVID-19. To the extent plaintiffs’ argument
is that defendants did not act quickly enough throughout the events leading up to or since the filing
of their complaint in this action, a request for preliminary injunctive relief is moot if the injunctive
relief sought would no longer have any meaning for the party seeking it. See Forbes v. Ark. Educ.
Television Comm. Network Found., 982 F.2d 289, 289 (8th Cir. 1992) (per curiam); McFarlin v.
Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir. 1992). In other words, the Court will
not grant preliminary injunctive relief to direct defendants to put into place policies and practices
the record evidence establishes are already in place.
Plaintiffs challenge whether defendants’ policies and practices are sufficient and whether
defendants have implemented effectively those policies and practices. To the extent plaintiffs fault
defendants for failing to implement effectively the policies and practices put into place, plaintiffs
have sued defendants in their official capacities as policy makers. In general, state actors may not
be sued under § 1983 for an injury inflicted solely by its employees or agents on a respondeat
superior theory of liability. See Monnell v. New York Dep't of Soc. Servs., 436 U.S. 658, 694,
(1978). However, a state actor may be liable for inadequate training or supervision of its
employees “where (1) the . . . training practices [were] inadequate; (2) the [state actor] was
deliberately indifferent to the rights of others in adopting them, such that the ‘failure to train
reflects a deliberate or conscious choice by [the state actor]’; and (3) an alleged deficiency in the .
. . training procedures actually caused the plaintiff's injury.” Andrews v. Fowler, 98 F.3d 1069,
1076 (8th Cir. 1996) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)); see also Parrish
v. Ball, 594 F.3d 993, 997-98 (8th Cir. 2010).
38 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 39 of 61
Even if certain employees or agents received training that was minimal at best, that finding
alone will not satisfy a § 1983 claim for failure to train. City of Canton, 489 U.S. at 390-91.
Instead, to satisfy the standard, a § 1983 plaintiff must demonstrate that in the light of the duties
assigned to specific employees and agents the need “for more or different training is so obvious,
and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers
. . . can reasonably be said to have been deliberately indifferent to the need.” Id. at 390. A § 1983
plaintiff must demonstrate that the state actor “‘had notice that its procedures were inadequate and
likely to result in a violation of constitutional rights.’” Andrews, 98 F.3d at 1076 (quoting Thelma
D. v. Bd. of Educ., 934 F.2d 929, 934 (8th Cir. 1991)).
Having reviewed all of the record evidence before it, at this stage of the litigation, the Court
concludes that plaintiffs have not demonstrated a likelihood of success on the subjective prong of
their Eighth Amendment claims. The Court has considered all arguments raised by the parties in
reaching its determination and addresses specific issues here.
a. Visitors To And Movement Within Facilities
The record indicates that the ADC has taken steps to limit visitors to and movements within
facilities and that steps have been taken in regard to incoming inmates. The record also indicates
that, after meeting with the Arkansas Department of Health, the ADC “decided to fully implement
the revised CDC quarantine and isolation guidance and updated its COVID plan on January 4,
2022, to reflect that guidance.” (Dkt. Nos. 188-1, ¶ 20; 188-1, at 13-18).
In this motion for preliminary injunction, plaintiffs seek to have the Court order the
following with respect to visitors to and movement within facilities:
1. When two or more cases have been detected among incarcerated persons or staff in a unit in a fourteen-day (14) period, enhanced measures at the front gate of each unit must be adopted, requiring every person entering the unit to take a rapid test before entry; asking every person entering the unit whether he or she has any
39 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 40 of 61
COVID-19 symptoms; and using accurate temperature instruments to read the temperature of every person before entry. ...
(Dkt. No. 185, at 5-6).
State Defendants present record evidence that, under current ADC policy, all visitors to an
ADC unit are rapid tested for COVID-19, their temperatures are checked, and visitors are screened
for symptoms of COVID-19 such as fever, cough, sore throat, or shortness of breath (Dkt. No.
188-1, ¶¶ 3-4). Staff take a rapid COVID test once a week, and visitors are rapid tested before
they are allowed entry into the units (Id., ¶ 17). Although plaintiffs present record evidence
through the testimony of Dr. Venters that not all ADC units he inspected adhered to this policy
with half of those units not performing the check at all (Dkt. No. 190, ¶ 19), Secretary Graves
avers that since the inspections he has taken steps to confirm that all ADC units are screening
visitors and staff for COVID symptoms at the front doors before allowing entry into ADC’s
facilities (Dkt. No. 188-1, ¶ 4). All visitors once inside the correctional facility are required to
wear masks (Id., ¶ 17).
Plaintiffs maintain that “[w]eekly testing has no value against Omicron” due to the average
incubation period of 72 hours (Dkt. Nos. 189, at 7; 190, ¶¶ 25-27). Likewise, Dr. Venters explains
that temperature checks do not capture the milder or asymptomatic spread common with Omicron
(Dkt. Nos. 185-1, ¶ 25; 190, ¶ 17). Plaintiffs maintain that testing and brief symptom checks are
what is needed (Dkt. No. 190, ¶ 17). Moreover, Dr. Venters avers that State Defendants use
thermometers that are “extremely inaccurate” and that do not provide valid, accurate readings (Dkt.
Nos. 185-1, ¶ 25; 190, ¶ 17). According to plaintiffs, prison staff routinely failed to wear masks
that covered their mouth and nose in April 2020 (Dkt. Nos. 3-3, ¶¶ 10, 12; 3-4, ¶ 6; 3-5, ¶¶ 7, 11-
40 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 41 of 61
13), and routinely fail to wear masks that cover their mouth and nose in late 2021 and early 2022
(Dkt. Nos. 189-2, ¶ 5; 189-3, ¶ 5; 189-4, ¶ 5; 189-5, ¶¶ 4, 15).
Secretary Graves avers that the “ADC has implemented a robust system to identify the
vaccination status of inmates and to quarantine all inmates as they are initially received into ADC
custody, prior to transfer to their receiving facility.” (Dkt. No. 188-1, ¶ 5). Further, he confirms
that the “ADC has implemented a quarantine and testing system for COVID-19 that meets current
CDC guidelines for newly admitted inmates and those potentially exposed to COVID-19.” (Id., ¶¶
6, 21). He outlines the steps taken for isolation, quarantine, and testing of new inmates, COVID-
19 positive inmates, and exposed but asymptomatic inmates (Id., ¶ 21). He also confirms that
“ADC continues to use contact tracing to test inmates and staff who may have been exposed to
COVID-19 by others.” (Id., ¶ 26).
Plaintiffs in their moving papers agree that defendants have exhibited some strengths in
responding to COVID-19 that could help them respond to Omicron, such as making vaccines
available to the incarcerated population; working to track the timing of second shots and boosters;
implementing a system to identify the vaccination status of incoming incarcerated persons; and
quarantining and testing newly admitted and potentially exposed incarcerated persons (Dkt. No.
185, at 4).
Secretary Graves also states that, on December 31, 2021, in the “light of increasing
numbers of COVID-positive staff and inmates, [he] implemented a Department-wide restricted
movement plan through January 14, 2022. Until that time, all ADC facilities will operate with
only essential movement in order to slow the spread of the virus within the ADC.” (Dkt. No. 188-
1, ¶ 18). “Movement within the prisons is limited by housing area, so that only one housing area
at a time is in any particular area, such as the dining hall or gym.” (Id., ¶ 21).
41 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 42 of 61
Under the current ADC policy, inmates’ temperatures are to be checked each time they
enter the dining hall, and there are infrared thermometers posted at the entry doors of each dining
hall for that purpose (Id., ¶ 22). Secretary Graves also explains that “[i]nmate kitchen workers are
tested weekly for COVID-19, and staggered schedules and work assignments have been
implemented so that if one crew ends up in quarantine, there is another crew of available kitchen
staff available who have not been exposed to COVID.” (Id., ¶ 23).
Plaintiffs dispute whether practices regarding incoming inmates or residents, and the
transfers or movements of inmates or residents, changed or changed sufficiently in response to
COVID-19. Plaintiffs also dispute the sufficiency and implementation of the screening policies
for visitors, staff, and inmates, including inmates assigned to perform certain duties within the
prison. Based on the record evidence at this stage, the Court determines that plaintiffs have not
demonstrated a likelihood of success on their Eighth Amendment claims based on this allegation.
b. Information And Education
By mid-March 2020, the ADC had taken steps to inform inmates, staff, and visitors about
COVID-19 and the topics discussed in the Arkansas Department of Health guidance. Shortly
thereafter, the ADC posted signage throughout its facilities, in both English and Spanish,
informing inmates and staff to wash their hands often with soap and water for at least 20 seconds;
wear facemasks as much as possible; avoid touching their eyes, nose, or mouth without cleaning
their hands first; clean their personal belongings; and keep as much distance between each other
as possible. Defendants have also utilized the Morning Show to provide COVID-19-related
information to ADC inmates. ADC inmates also are permitted to watch Governor Hutchinson’s
briefings on COVID-19.
42 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 43 of 61
In their current papers, State Defendants confirm that “ADC continues to encourage
various COVID mitigation strategies, such as social distancing, hand washing, covering coughs,
and the importance of wearing masks” and that “posters and signage are posted throughout ADC’s
facilities, including in the barracks, hallways, dining halls, libraries, and infirmaries, to remind
inmates and staff of the importance of these measures.” (Dkt. No. 188-1, ¶ 25).
Moreover, Secretary Graves explains that “ADC has encouraged all staff and inmates to
receive their COVID-19 vaccinations by implementing a special ‘Best Shot’ marketing campaign
with posters and signage posted at every unit.” (Id., ¶ 7). Secretary Graves describes the efforts
ADC has made for staff and inmates with respect to vaccination, including offering free vaccines,
hosting vaccination clinics, providing paid time off for staff, and providing a $50 financial
incentive for inmates and other incentives for staff (Id., ¶ 8). Initial doses of vaccines are still
being offered, and “boosters are now being administered at the appropriate time intervals as
recommended” by the Arkansas Department of Health, the Centers for Disease Control and
Prevention, and Wellpath, according to Secretary Graves (Id., ¶ 9).
Among the relief they seek, plaintiffs specifically request:
...
3. Wellpath’s electronic medical records must be used to identify all high-risk incarcerated persons, and to create and maintain updated lists of these persons. Staff must hold in-person counseling sessions with any individual on the list who is not vaccinated or has not received a booster. At this time, in light of preliminary studies showing that the J&J vaccine provides little—if any – protection against Omicron, the DOC and Wellpath should exclusively provide the Pfizer or Moderna vaccine.
(Dkt. No. 185, at 6).
43 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 44 of 61
On the current record before the Court, the Court is not inclined to order defendants to take
such action. There is evidence in the record that Wellpath has identified high risk inmates, based
on criteria identified by Wellpath and the medical histories of inmates, for distribution by ADC of
KN95 masks to these inmates. There is evidence in the record of DOC and ADC efforts to
vaccinate inmates and staff and of the percentage of inmates who have received the vaccine and
booster to date. Further, the CDC guidance informs inmates and other detained persons of the
importance of reporting symptoms to staff (Dkt. No. 198, at 59). According to Secretary Graves,
“[u]nder ADC policy, inmates should monitor their own health status and submit sick call requests
if they are feeling unwell.” (Dkt. No. 188-1, ¶ 27). Secretary Graves testified that, if an inmate is
ill and wishes to see a nurse, if it is a nonemergent request, it could take up to 72 hours to see a
nurse, but if the request is related to common symptoms related to COVID-19, those requests are
responded to within 24 hours (Dkt. No. 198, at 108-09).
Even if the evidence in the record casts doubt on whether these policies are followed all of
the time in every facility, there remains evidence that these expectations and policies are in place.
While plaintiffs may disclaim the effectiveness and question the implementation and enforcement
of these measures, plaintiffs do not deny that these measures have been taken, and the Court
determines plaintiffs have not demonstrated a likelihood of success on their Eighth Amendment
claims based on this allegation.
c. Personal Protective Equipment
At the initial preliminary injunction hearing, Director Payne testified that defendants began
distributing cloth masks to ADC inmates in March 2020—prior to the first positive COVID-19
test at Cummins—and that well over 40,000 cloth masks have been distributed, leaving each ADC
44 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 45 of 61
inmate housed in general population with two cloth masks. The ADC intended at that time to
create a total of 80,000 cloth masks.
Now, plaintiffs seek the following relief specific to masks:
2. When two or more cases have been detected among incarcerated persons or staff in a unit in a fourteen-day (14) period, KN95 masks must be provided to all staff and incarcerated people, and wearing them must be mandated. ...
Secretary Graves explains that, currently at “ADC facilities, inmates are provided with two
three-layer cotton cloth face masks. The masks are washed in the laundry every day and are
returned to the inmate in their personal laundry bag.” (Dkt. No. 188-1, ¶ 11). In addition, Secretary
Graves avers that, consistent with CDC guidelines and recommendations from Wellpath, “ADC
provides KN95 face masks to individuals identified by [Wellpath] as being medically high risk
and also to inmates who are transported off-site.” (Id., ¶ 12). Secretary Graves confirms that “ADC
staff are also provided with a new KN95 face mask every day.” (Id., ¶ 12).
In his rebuttal declaration, Secretary Graves states that, on January 18, 2021, during the
ADC weekly COVID call with Wellpath, and based on recent updated CDC guidance, it was
decided that inmates in the following job categories will be issued as of January 23 or 24, 2022,
- Farm crews - Laundry attendants - Hall and office porters - Infirmary workers and inmate caregivers - Kitchen workers - Maintenance crews - Commissary workers - Arkansas State Police / Governor’s Mansion / work release details - Any other community-facing work detail
45 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 46 of 61
“Masks continue to be required inside all ADC units by order of the Board of Corrections,”
according to Secretary Graves (Dkt. No. 188-1, ¶ 15). Secretary Graves confirms that “[a]ll staff
members continue to be required to wear personal protective equipment during their shifts and are
required to monitor their symptoms” and that any staff who test positive “are immediately removed
from work and sent home if they being exhibiting symptoms of COVID-19.” (Id., ¶ 24).
In addition, Secretary Graves explains that “ADC has installed new air filtration systems,
including ultraviolet light throughout all of its units to improve ventilation and reduce the risk of
air contamination” (Id., ¶ 13). The Court acknowledges that Dr. Venters questioned the efficacy
and demonstrated there is in the record no peer-reviewed data or CDC or Occupational Health and
Safety Administration data on whether such devices reduce the transmission of COVID-19 in real-
world congregate settings such as many of the settings within the ADC (Dkt. No. 198, at 31).
It is unclear at this stage of the litigation whether defendants provide masks to inmates in
restricted housing. Previously, defendants did not; defendants explained this action early in the
pandemic by claiming that these inmates do not come into contact with other inmates, have limited
exposure to staff, and therefore are not issued masks as a result. Plaintiffs disputed how frequently
inmates in restricted housing interact with others.
There is record evidence that ADC staff are directed to wear masks and gloves when
interacting with inmates, including those in restricted housing, and ADC staff and inmates have
been told best practices for wearing masks. Defendants do not dispute that compliance with ADC
staff wearing masks has been an issue. Previously, the Court explained that record evidence
indicated that, on April 9, 2020, a doctor reported at the COVID-19 Pandemic Physicians’ Group
meeting that UAMS had a problem with prisoners being brought for evaluation with guards who
46 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 47 of 61
were refusing to wear their masks. It also gives the Court pause that, on April 21, 2020, Director
Payne sent an email to ADC Wardens, ADC Deputy Wardens, and others directing that officers
transporting inmates to outside hospitals wear their masks at all times and specifically stated,
“Hospitals are not wanting to treat our inmates because our staff are not following the guidelines
that we are sending out.” (Dkt. No. 57-8).
Plaintiffs present new record evidence of reports of staff failing to wear masks when
interacting with inmates; that such evidence persists in the current record is cause for concern.
According to plaintiffs, prison staff routinely failed to wear masks that covered their mouth and
nose in April 2020 (Dkt. Nos. 3-3, ¶¶ 10, 12; 3-4, ¶ 6; 3-5, ¶¶ 7, 11-13), and routinely failed to
wear masks that cover their mouth and nose in late 2021 and early 2022 (Dkt. Nos. 189-2, ¶ 5;
189-3, ¶ 5; 189-4, ¶ 5; 189-5, ¶¶ 4, 15).
Director Payne previously testified that remedial measures exist for staff who disregard
COVID-19 directives, ranging from corrective counseling to termination. He also explained that,
after an issue was reported to defendants regarding staff members not wearing masks, those staff
members received corrective counseling. Secretary Graves does not address these remedial
measures or their continued use.
Inmates have the ability to report anonymously staff or other inmates for failing to comply
with health and safety procedures by anonymously submitting a request for interview form,
according to defendants. There is record evidence, and numerous allegations by plaintiffs, that
inmates are reluctant to make such complaints.
Furthermore, there is current record evidence that “the prison has stopped passing out
masks” (Dkt. No. 189-2, ¶ 4); that masks are not laundered and returned properly (Dkt. No. 189-
1, ¶ 4); and that certain inmates have no masks at all (Dkt. No. 189-3, ¶ 6). Plaintiffs maintain that
47 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 48 of 61
they have not received even cloth masks in months, which masks plaintiffs maintain are
insufficient and ineffective against Omicron (Dkt. Nos. 189-2, ¶¶ 3-4; 189-1, ¶ 4; 189-4, ¶ 5; 189-
3, ¶ 6). Plaintiffs maintain that they have not been tested for COVID in “about a year,” even after
making “requests to get tested” (Dkt. No. 189-1, ¶ 5).
Although there is evidence in the record that gives the Court pause, on the record as a
whole, the Court determines plaintiffs have not demonstrated a likelihood of succeeding on the
subjective prong of their Eighth Amendment claims against the named defendants based on these
allegations.
d. Cleaning And Disinfecting
Plaintiffs seek specific relief directing defendants to create and implement a plan for
enhanced cleaning of any site where a person with known COVID-19 worked or lived (Dkt. No.
185, at 6-7). Defendants maintain that ADC has ordered enhanced cleaning and disinfecting of its
units, including barracks and the residential areas, showers, bathrooms, and recreational areas in
barrack, as well as hallways, the chow hall, the gym and other areas; there is record evidence to
support that such orders have been given. Although plaintiffs dispute that enhanced cleaning and
disinfecting are occurring, they do not challenge specifically the orders given by ADC.
Secretary Graves maintains that “ADC continues to provide inmates with face masks, hand
soap, towels, cleaning supplies (including EPA-registered disinfectants), and hand sanitizer free
of charge. If an inmate runs out of these items or needs preplacement items, they need only request
them from any staff member, either in person or in writing.” (Dkt. No. 188-1, ¶ 10). Plaintiffs
previously asserted that defendants were not using any “EPA-registered disinfectants effective
against the virus that causes COVID-19,” in ADC facilities (Dkt. No. 65, at 19). State Defendants
contested the issue. Plaintiffs at this stage have not raised this issue again.
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“According to ADC policy, personal protective equipment, including masks, gloves, face
shields, paper gowns, should be worn by anyone cleaning or disinfecting surfaces after exposure
to a sick person or someone who tested positive for COVID-19,” based on Secretary Graves’
representations (Dkt. No. 188-1, ¶ 16). He confirms that “PPE is provided to all cleaning staff,
including inmates, free of charge. Inmates who are assigned to clean/disinfect as their work
assignment are trained on the safe use and disposal of chemicals and PPE.” (Id.). Secretary Graves
also states that “cleaning staff clean and sanitize all surfaces in the dining hall after each group,”
as the ADC has taken efforts to stagger times and limit the number of inmates in the dining hall at
any one time (Id., ¶ 25).
Plaintiffs maintain that cleaning materials “are in short supply” and run out before reaching
the floor of certain plaintiffs, despite State Defendants claims to the contrary (Dkt. Nos. 189-3, ¶
8; 189-5, ¶¶ 11-14). Dr. Venters also observed what he termed “little appreciation for the need to
conduct dedicated and higher-level cleaning and disinfecting when a COVID-19 case is detected”
(Dkt. No. 185-1, ¶ 21). Defendants reported to Dr. Venters during the inspections that “their
routine daily cleaning was more than adequate and that the inmates and staff doing this work had
adequate protective equipment and training” (Dkt. No. 185-1, ¶ 21). During his conversations
with inmate porters and staff, Dr. Venters was informed “this is simply untrue,” with no specialized
training or increased PPE for individuals asked to clean areas where active COVID-19 infection
has been detected (Id.).
On the record as a whole, the Court determines plaintiffs have not demonstrated a
likelihood of succeeding on the subjective prong of their Eighth Amendment claims against the
named defendants based on these allegations.
e. Social Distancing
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Plaintiffs request that “the provision of meals should not result in close contact between
different housing areas. . .” (Dkt. No. 185, at 6). As to social distancing, the CDC guidelines
themselves acknowledge that social distancing “[s]trategies will need to be tailored to the
individual space in the facility and the needs of the population and staff,” and that “[n]ot all
strategies will be feasible in all facilities.” (Dkt. No. 36-9, at 11). The record evidence in May
2020 showed that defendants heeded the following CDC recommendations: “[s]tagger meals”;
“[s]uspend group programs where participants are likely to be in closer contact than they are in
their housing environment”; and “[a]rrange bunks so that individuals sleep head to foot to increase
the distance between them” (Id.). Defendants have suspended visitation at various points during
the pandemic, and incoming inmates are housed separately from existing inmates for an isolation
period. The record evidence was that, in May 2020, only one barracks went to the chow hall or
used the hallways at a time, and Director Payne testified that Cummins used non-living quarters
such as the school, library, and visitation area to provide temporary housing (Dkt. No. 63, at 128,
210).
In the current record before the Court, Secretary Graves confirms that “ADC continues to
encourage various COVID mitigation strategies, such as social distancing, hand washing, covering
coughs, and the importance of wearing masks, and posters and signage are posted through ADC’s
facilities, including in the barracks, hallways, dining halls, libraries, and infirmaries, to remind
inmates and staff of the importance of these measures.” (Dkt. No. 188-1, ¶ 25). He states that
social distancing measures currently include “staggering inmates on the beds in the barracks so
they are not face-to-face while sleeping, suspension of all in-person visitation and congregational
worship services, and limitation of movement within the facilities to individuals housing units,
including but not limited to meal times.” (Id.; see also Dkt. No. 198, at 92, 95-96). He explains
50 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 51 of 61
that, at some larger units,” only half of the barracks is taken to the dining hall at a time to maximize
social distancing.” (Dkt. No. 188-1, ¶ 25).
Plaintiffs dispute that social distancing efforts as described by defendants are always
undertaken (Dkt. Nos. 189-1, ¶¶ 6-7; 189-5, ¶¶ 23-26).
On the record as a whole, the Court determines plaintiffs have not demonstrated a
likelihood of succeeding on the subjective prong of their Eighth Amendment claims against the
f. Medical Care
Plaintiffs also challenge the testing and medical care inmates receive in regard to COVID-
19. Generally, to prevail on an Eighth Amendment claim for deprivation of medical care, an
inmate must show that the prison official was deliberately indifferent to the inmate’s serious
medical needs. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). This requires a two-part
showing that: (1) the inmate suffered from an objectively serious medical need, and (2) the prison
official knew of the need yet deliberately disregarded it. Id.; see also Farmer, 511 U.S. at 837;
Estelle v. Gamble, 429 U.S. 97, 105 (1976).
The law defines a serious medical need as “one that has been diagnosed by a physician as
requiring treatment, or one that is so obvious that even a layperson would easily recognize the
necessity for a doctor’s attention.” Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)
(citation omitted). A medical need that would be obvious to a layperson makes verifying medical
evidence unnecessary. Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004). An obvious risk
of harm justifies an inference that a prison official subjectively disregarded a substantial risk of
serious harm to the inmate. Lenz v. Wade, 490 F.3d 991, 995 (8th Cir. 2007). Whether an inmate’s
condition is a serious medical need and whether an official was deliberately indifferent to the
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inmate’s serious medical need are questions of fact. Coleman, 114 F.3d at 785; see also Schaub
v. VonWald, 638 F.3d 905, 914–15 (8th Cir. 2011).
Plaintiffs have sued the contracted provider for medical care at the ADC, Wellpath, and
State Defendants in their official capacities as policy makers. While a policy maker or supervisor’s
general responsibility for supervising operations of a prison is insufficient to establish personal
involvement giving rise to liability under § 1983, Ouzts v. Cummins, 825 F.2d 1276, 1277 (8th Cir.
1987), individuals personally involved in decisions regarding treatment and care become
responsible for seeing that the inmate is adequately cared for once his needs are brought to the
individual’s attention, see Schaub, 638 F.3d at 918; Langford v. Norris, 614 F.3d 445, 460 (8th
Cir. 2010) (noting that even though defendant prison supervisor was “not a medical doctor and
does not personally treat inmates’ medical needs, . . . [t]here is no doubt that [defendant] has a
constitutional duty to see that prisoners in his charge who need medical care receive it.”); see also
West v. Atkins, 487 U.S. 42, 56 (1988) (“Contracting out prison medical care does not relieve the
State of its constitutional duty to provide adequate medical treatment to those in its custody.”).
The Court recognizes the well-established proposition that, although prison officials are not
doctors, when personally confronted with the serious medical needs of a prisoner, prison officials
cannot be deliberately indifferent to those needs by inaction. Schaub, 638 F.3d at 918 n.6.
The Court also is mindful that, in DeGidio v. Pung, when confronted with § 1983 claims
over the tuberculosis epidemic, the district court observed:
No one claims ultimate responsibility for the many supervisory functions within the health services unit. The passing of blame and responsibility between the Department of Health, the administrative director of health services, and the staff physicians has been discussed at length earlier. Each person describes his or her role narrowly, and disclaims ultimate responsibility for directing the effort at controlling tuberculosis. Plaintiffs have shown through the great weight of the evidence that this failure of coordination persists and is a reason why Stillwater's response to the tuberculosis epidemic lagged.
52 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 53 of 61
704 F. Supp. 922, 957 (D. Minn. 1989), aff'd, 920 F.2d 525 (8th Cir. 1990). The Court has these
precedents in mind when reviewing the record evidence before it at this stage of the proceeding.
Now, with respect to medical care, plaintiffs seek to have the Court order the following:
3. Wellpath’s electronic medical records must be used to identify all high-risk incarcerated persons, and to create and maintain updated lists of these persons. Staff must hold in-person counseling sessions with any individual on the list who is not vaccinated or has not received a booster. At this time, in light of preliminary studies showing that the J&J vaccine provides little—if any – protection against Omicron, the DOC and Wellpath should exclusively provide the Pfizer or Moderna vaccine.
4. The nursing staff must conduct a daily vital signs and symptom check of any high- risk individual housed in a quarantine area.
5. The nursing assessment for patients in quarantine must be modified to include whether the person is high risk and by lowering the threshold to take action steps (e.g., contacting a doctor, transferring to hospital) for high-risk patients.
6. To help slow the spread of Omicron inside the units, every person who works outside his housing area should be asked about COVID-19 symptoms before the commencement of a shift; a plan should be created and implemented for enhanced cleaning of any site where a person with known COVID-19 worked or lived; the provision of meals should not result in close contact between different housing areas; and sick call requests should be reviewed at the end of each day to ensure expedited response to any one with potential COVID-19-related symptoms.
(Dkt. No. 185, at 6-7). Record evidence suggesting inmates with claimed symptoms of COVID-19 being denied
care and testing, record evidence suggesting a lack of follow-up evaluation or care for those with
symptoms or reported COVID-positive cases, and record evidence suggesting inmates with
claimed symptoms of COVID-19 being too weak to care for themselves or to seek medical care
for themselves with no aid from prison staff or medical staff gave the Court pause when it
evaluated plaintiffs’ initial motion for preliminary injunction. However, the Court determined that
it was unclear from this record how frequently those events have occurred, if at all; whether the
53 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 54 of 61
events gave rise to medical grievances related to COVID-19 testing and treatment; and where the
inmates were housed when certain of these claimed events occurred—barracks, restricted housing,
infirmaries, or isolated COVID-19 treatment units. The Court acknowledges that some current
record evidence suggests these problems persist.
Although we are still addressing COVID-19, much has changed since May 2020. In his
affidavit, Secretary Graves explains the efforts undertaken to vaccinate and boost staff and inmates
and to incentivize those individuals to make the decision to vaccinate fully (Dkt. No. 188-1, ¶¶ 7-
9). He also represents that Wellpath “is now providing monoclonal antibody treatment for
COVID-19 patients.” (Id., ¶ 14). In addition, Secretary Graves confirms that those inmates
identified as being medically high risk by Wellpath receive KN95 masks from ADC, along with
inmates who are transported off-site and ADC staff (Id., ¶ 12). Secretary Graves states in his
rebuttal declaration that, on January 18, 2021, during the ADC weekly COVID call with Wellpath,
and based on recent updated CDC guidance, it was decided that inmates in certain job categories
be issued well-fitting KN95/N95 masks for work duties (Dkt. No. 202, ¶¶ 12-13).
The Court acknowledges that Dr. Venters testified that the CDC guidance has said since
the beginning that the symptoms of individuals in quarantine should be checked every day, and
Dr. Venters stated that, based on what staff reported, it seems as if inmates in quarantine at ADC
have their symptoms checked only on the last day of quarantine (Dkt. No. 198, at 21-22). Dr.
Venters acknowledged that, during his inspections, he was aware of Wellpath staff bringing
medicines to units but recalls that there was no check of each person’s symptoms as outlined by
the CDC and reported by the health staff (Dkt. No. 198, at 72). Dr. Venters expressed specific
concern for inmates who are high risk in quarantine at ADC because those individuals with serious
health problems can deteriorate very quickly in a setting like that and may not be able to request a
54 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 55 of 61
sick call or take other affirmative steps required to seek care (Dkt. No. 198, at 22). Further, Dr.
Venters requested that, for high risk inmates in medical isolation, there should be lower thresholds
for all action steps (Dkt. No. 198, at 22). He gave as an example, if a certain elevated pulse rate
prompts the nursing staff to call a medical provider or to alert someone, that threshold elevated
pulse rate should be lower for high risk inmates in isolation (Id.).
Wellpath argues that the preliminary relief sought by plaintiffs in their current motion
“impermissibly inserts the Court into the management of prisons and the healthcare of all inmates
based solely on recommendations by Plaintiff’s expert physician, which have not been adopted by
the Centers for Disease Control [and] Prevention or the Arkansas Department of Health.” (Dkt.
No. 187, at 5-6). According to Secretary Graves, “[u]nder ADC policy, inmates should monitor
their own health status and submit sick call requests if they are feeling unwell.” (Dkt. No. 188-1,
¶ 27). Secretary Graves testified that, if an inmate is ill and wishes to see a nurse, if it is a
nonemergent request, it could take up to 72 hours to see a nurse, but if the request is related to
common symptoms related to COVID-19, those requests are responded to within 24 hours (Dkt.
Secretary Graves also testified that, based on information from Wellpath, only about 20%
of all ADC inmates who have had COVID-19 since Spring 2020 have experienced symptoms (Dkt.
No. 198, at 88). Secretary Graves confirmed that, under current policy, Wellpath is to monitor
regularly, at least twice daily per his testimony, the health status of inmates in quarantine and is
supposed to log that in the health record (Dkt. No. 198, at 92).
There is record evidence that casts doubt on whether these policies are followed all of the
time in every facility, but there remains evidence that these expectations and policies are in place.
While plaintiffs may disclaim the effectiveness and question the implementation and enforcement
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of these measures, the Court determines plaintiffs have not demonstrated a likelihood of success
on their Eighth Amendment claims based on this allegation.
g. Staffing During COVID-19
Based on record evidence, the ADC has implemented wide-spread testing and symptom
checks of its staff (Dkt. No. 188-1, ¶ 17). Masks are required inside all ADC units by order of the
Board of Corrections (Id., ¶ 18). ADC staff are provided with a new KN95 face mask every day
(Id., ¶ 12). ADC has encouraged and incentivized staff to receive vaccinations and boosters (Id.,
¶¶ 7-9).
At the preliminary injunction hearing in 2020, plaintiffs’ expert witness was critical of the
practice of bringing COVID-19 positive but asymptomatic staff to work with COVID-19 positive
inmates, under certain conditions. The Arkansas Department of Health issued guidance with
respect to this staffing issue on April 13, 2020 (Dkt. No. 36-19). Director Payne testified to this
circumstance. All parties acknowledged at that time that certain COVID-19 positive,
asymptomatic staff had been reporting to work. Plaintiffs also reported in April and May 2020
apparent staffing shortages with an impact in facility operations, including the feeding of inmates
even those in quarantine. Plaintiffs submitted an expert opinion with respect to COVID-19
positive staff reporting to work but that may not have accounted for the specific circumstances
alleged in this case.
Given the current situation, on December 31, 2021, Secretary Graves “issued an email
memorandum to all DOC/ADC staff reminding them that, according to our Governor’s December
30, 2021, press conference, there is a shortage of testing and antibody treatment in our state, as
well as hospital capacity.” (Dkt. No. 188-1, ¶ 19). Therefore, Secretary Graves “asked all staff to
limit their movements over the next few weeks, to stay home if they become ill, to practice COVID
56 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 57 of 61
mitigation strategies, and to consider getting vaccinated in order to lessen the impact of the virus.”
(Id.).
According to Secretary Graves, all staff “continue to be required to wear personal
protective equipment during their shifts and are required to monitor their symptoms.” (Id., ¶ 24).
He reports that “[a]ny staff that have tested positive are immediately removed from work and sent
Further, Secretary Graves avers that “ADC is currently experiencing severe staffing
shortages for correctional officers.” (Id., ¶ 27). He represents that “[i]t would create a severe
burden on ADC staff, and risk institutional safety and security, for staff to have to interview every
inmate about COVID symptoms before allowing inmates to report to work outside of their housing
area every day.” (Id.). He offers that inmates are responsible under ADC policy for monitoring
their own health and symptoms (Id.). Plaintiffs present no record evidence to rebut this assertion.
At this stage of the litigation, on the limited record before it, the Court determines plaintiffs
have not demonstrated a likelihood of success on their Eighth Amendment claims based on this
allegation.
D. Likelihood Of Success: Title II ADA Claims
Plaintiffs claim that defendants have intentionally discriminated against named plaintiffs
and members of the proposed disability subclass by denying them reasonable accommodations
that have been recommended by the CDC and are necessary to protect them from COVID-19 (Dkt.
No. 84, ¶¶ 267-283). In their amended complaint, plaintiffs assert that reasonable accommodations
necessary to protect incarcerated individuals with disabilities include, but are not limited to: access
to alcohol-based sanitizer; provision of cleaning supplies, including products containing bleach,
adequate to clean individuals’ housing areas; provision of PPE; access to antibacterial hand soap
57 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 58 of 61
and towels to enable individuals to wash their hands as necessary; implementation of social
distancing measures in all locations where incarcerated people are required to congregate; and
release or transfer to home confinement if social distancing is not practicable (Id., ¶ 271). In their
amended complaint, plaintiffs claim that defendants have violated the ADA by failing to provide
plaintiffs in the disability subclass with reasonable accommodations that would allow them to
access safely their facilities, programs, and activities (Id., ¶¶ 275-283).
1. Legal Standard For Title II ADA Claims
The ADA prohibits public entities, including state prisons, from discriminating on the basis
of disability. See, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To assert a claim
under Title II of the ADA, plaintiffs must show that: (1) each plaintiff is a “qualified individual
with a disability”; (2) defendants denied plaintiffs “the benefits of the services, programs, or
activities of a public entity”; and (3) plaintiffs were discriminated against “by reason of” their
disabilities. See 42 U.S.C. § 12132; see also Folkerts v. City of Waverly, 707 F.3d 975, 983 (8th
Cir. 2013). A “qualified individual with a disability” means an individual “with a disability who,
with or without reasonable modifications . . . , meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities provided by a public entity.” See
42 U.S.C. § 12131(2). The Eighth Circuit construes broadly the “services, programs, or activities”
language in the ADA to encompass “anything a public entity does.” Bahl v. Cty. of Ramsey, 695
F.3d 778, 787 (8th Cir. 2012) (citations omitted). State actors may rely on the “reasonable
assessments” of their own professionals in determining whether an individual is qualified for
services and programs and whether “reasonable modifications” are available to prevent
discrimination. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (citing 28 C.F.R.
§§ 35.130(b)(7), (d)). Plaintiffs need not plead exclusion from participation in or denial of benefits
58 Case 4:20-cv-00434-KGB Document 203 Filed 01/28/22 Page 59 of 61
offered to state a claim under Title II of the ADA. See, e.g., Loye v. Cty. of Dakota, 625 F.3d 494,
496 (8th Cir. 2010) (“[W]e construe Title II of the ADA as requiring that qualified persons with
disabilities receive ‘meaningful access’ to a public entity’s services, not merely ‘limited
participation.’”).
The regulations implementing Title II of the ADA require that a public entity “make
reasonable modifications in policies, practices, or procedures when the modifications are necessary
to avoid discrimination on the basis of disability, unless the public entity can demonstrate that
making the modifications would fundamentally alter the nature of the service, program, or
activity.” 28 C.F.R. § 35.130(b)(7)(i). This is considered an affirmative defense to an ADA Title
II claim; the ADA regulations explicitly provide that the entity must demonstrate that making the
modification would fundamentally alter the subject program. 28 C.F.R. § 35.130(b)(7). For this
affirmative defense, the entity may demonstrate that the requested action “would result in a
fundamental alteration in the nature of a service, program, or activity or in undue financial and
administrative burdens.” 28 C.F.R. § 35.150(a)(3). The Eighth Circuit has noted that whether a
requested accommodation is reasonable or imposes an undue burden on defendants should be
considered in the light of “the heightened security concerns of a prison.” Randolph v. Rodgers,
170 F.3d 850, 859 (8th Cir. 1999) (examining Title II ADA claim against prison). Generally, ADA
plaintiffs are entitled to reasonable accommodations, which may not always be plaintiffs’ preferred
or ideal accommodations. See Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (8th Cir.
2011); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 484 (8th Cir. 2007).
Plaintiffs may prove unlawful discrimination under Title II by offering evidence of
disparate treatment based on disability or by showing that a facially-neutral policy has the “effect
of discriminating against the disabled or the severely disabled.” DeBord v. Bd. of Educ., 126 F.3d
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1102, 1105 (8th Cir. 1997). In regard to an ADA failure-to-accommodate claim, ““the
‘discrimination’ is framed in terms of the failure to fulfill an affirmative duty—the failure to
reasonably accommodate the disabled individual’s limitations . . . . The known disability triggers
the duty to reasonably accommodate and, if the [defendant] fails to fulfill that duty, [the Court]
do[es] not care if he was motivated by the disability.” Peebles v. Potter, 354 F.3d 761, 767 (8th
Cir. 2004) (internal citation omitted); see also Sak v. City of Aurelia, 832 F. Supp. 2d 1026, 1040
(N.D. Ia. 2011) (failure to accommodate is an independent basis for liability under the ADA, but
accommodation is only required when necessary to avoid discrimination on the basis of disability,
and accommodation must be reasonable) (citing 28 C.F.R. § 35.130(b)(7)). Though a plaintiff
seeking compensatory money damages under Title II must show intentional discrimination on the
basis of disability, a plaintiff seeking prospective injunctive relief is not required to make this
showing. See Meagley v. City of Little Rock, 639 F.3d 384, 388-89 (8th Cir. 2011).
2. Analysis Of Title II ADA Claims
On this record, and at this stage of the litigation, the Court concludes that plaintiffs have
failed to demonstrate a likelihood of success on their claims under Title II of the ADA.
Wellpath argues that plaintiffs have not identified or offered any evidence to show that
they are in fact disabled or that Wellpath denied their alleged requests for reasonable
accommodations because of their disabilities (Dkt. No. 187, at 4).
Assuming arguendo that named plaintiffs and proposed members of the disability subclass
are qualified individuals with a disability, and there is some dispute in the record evidence at this
stage with respect to that point, the Court concludes that plaintiffs are not likely to succeed on their
claim that defendants’ action or inaction in combatting the COVID-19 risk in ADC facilities has
had the effect of denying plaintiffs in the disability subclass “the benefits of the services, programs,
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or activities” within the ADC “by reason of” those plaintiffs’ disabilities. See 42 U.S.C. § 12132.
The Court has examined plaintiffs’ claimed deficiencies in defendants’ response to the COVID-
19 risk when examining plaintiffs’ Eighth Amendment claims and determined plaintiffs have not
demonstrated a likelihood of success on those claims. The Court acknowledges that the standard
applied to evaluate Title II ADA claims and Eighth Amendment claims may differ, see United
States v. Georgia, 546 U.S. 151 (2006), but the Court does not see which reasonable
accommodations have been denied for plaintiffs in the proposed disability subclass. Further, on
the record currently before it, to the extent plaintiffs requested and were denied reasonable
accommodations, the Court is unconvinced that defendants denied those requests because of
plaintiffs’ alleged disabilities.
E. Threat Of Irreparable Harm, Balance Of The Equities, And Public Interest
Because the Court concludes that plaintiffs are unlikely to succeed on the merits of their
Eighth Amendment and Title II ADA claims, the Court declines to address at this time the
remaining Dataphase factors – the threat of irreparable harm, the balance of the equities, and the
public interest.
VII. Conclusion
For the above reasons, the Court denies plaintiffs’ motion for emergency preliminary
injunction (Dkt. No. 185). The Court also grants, in part, and denies, in part, State Defendants’
motion to strike the declarations submitted by plaintiffs to supplement the preliminary injunction
record (Dkt. No. 200).
It is so ordered this 28th day of January, 2022.
_________________________________ Kristine G. Baker United States District Judge
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Cite This Page — Counsel Stack
Frazier v. Graves, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frazier-v-graves-ared-2022.