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                  Cite as: 590 U. S. ____ (2020)            1

                   SOTOMAYOR
                  Statement of, J., concurring
                                SOTOMAYOR   , J.

SUPREME COURT OF THE UNITED STATES
    LADDY CURTIS VALENTINE, ET AL. v. BRYAN
     COLLIER, EXECUTIVE DIRECTOR, TEXAS
          DEPARTMENT OF CRIMINAL
                JUSTICE, ET AL.
             ON APPLICATION TO VACATE STAY
              No. 19A1034.   Decided May 14, 2020

  The application to vacate stay presented to JUSTICE
ALITO and by him referred to the Court is denied.
  Statement of JUSTICE SOTOMAYOR, with whom JUSTICE
GINSBURG joins, respecting the denial of application to va-
cate stay.
  In this lawsuit, inmates in a Texas geriatric prison allege
that their facility failed to protect them from the dangers of
Covid–19. The District Court heard unrebutted testimony
about the imminent dangers faced by the inmates, some of
whom have already died. It also heard testimony about the
facility’s lackluster efforts to keep the illness from spread-
ing and held that the facility’s inexplicable failures
amounted to deliberate indifference for its elderly inmates
in violation of the Eighth Amendment. On that basis, it
issued an injunction requiring the prison to follow an exten-
sive protocol, including frequent cleaning and increased ed-
ucation efforts. 

(SD Tex., Apr. 16, 2020).
The Court of Appeals for the Fifth Circuit stayed that in-
junction pending appeal, and the inmates now seek to va-
cate that stay in this Court. 

(2020) (per cu-
riam).
  Notably, where the Court is asked to undo a stay issued
below, the bar is high. Among other things, applicants
must show that the lower court was “ ‘demonstrably wrong
in its application of accepted standards in deciding to issue
the stay.’ ” Western Airlines, Inc. v. Teamsters, 

                  VALENTINE v. COLLIER

                   Statement of SOTOMAYOR, J.

1301, 1305 (1987) (O’Connor, J., in chambers). The Fifth
Circuit ruled, among other things, that the prison was
substantially likely to succeed on its claim that the inmates
failed to exhaust their remedies as required by the Prison
Litigation and Reform Act of 1995 (PLRA), 

.
§1997e(a). Under the circumstances of this case, where
the inmates filed a lawsuit before filing any grievance with
the prison itself, it is hard to conclude that the Fifth Circuit
was demonstrably wrong on this preliminary procedural
holding.
   I write separately to highlight the disturbing allegations
presented below. Further, where plaintiffs demonstrate
that a prison grievance system cannot or will not respond
to an inmate’s complaint, they could well satisfy an excep-
tion to the PLRA’s exhaustion requirement. Finally, while
States and prisons retain discretion in how they respond to
health emergencies, federal courts do have an obligation to
ensure that prisons are not deliberately indifferent in the
face of danger and death.
                               I
   The facility at issue (the Pack Unit) houses about 1,200
inmates, more than 800 of whom are 65 or older. As the
District Court found, the risk of Covid–19 spreading in the
Pack Unit is particularly high. The facility is a dormitory-
style prison, with each inmate separated only by a short,
cubicle-style half-wall. When the District Court issued its
ruling, Covid–19 had already begun to spread in the facil-
ity. On April 11, 2020, one inmate, Leonard Clerkly, was
transferred to the hospital because of difficulty breathing,
a symptom the hospital linked to Covid–19. He was pro-
nounced dead mere hours later.
   Before and after Clerkly’s death, prison administrators
began implementing policies to control the spread of Covid–
19. For instance, the prison placed all inmates on a precau-
                  Cite as: 590 U. S. ____ (2020)              3

                   Statement of SOTOMAYOR, J.

tionary lockdown and began taking some inmates’ temper-
atures twice a day. It also established a policy of providing
inmates with cloth masks to be changed daily and in-
structed inmates to request additional soap at no cost. But
the District Court found that the facility inexplicably failed
to comply with some of its self-declared policies.
    The District Court heard unrefuted testimony that, de-
spite the prison’s claim of enhanced cleaning measures, its
cleaning protocol in practice remained virtually the same.
The facility neither increased the number of inmate janitors
nor ensured that the existing janitors did their jobs safely
and effectively. One janitor testified that, just as before the
pandemic, the cleaning solution provided to the cleaning
crews was frequently depleted by midafternoon, only half-
way through a shift. Each day he received only one pair of
gloves to share with his co-janitor, an arrangement medical
experts described as tantamount to no gloves at all. 

, *5–*6, *10 (SD Tex., Apr. 20, 2020).
    The facility’s failures to comply with its own safety proto-
col became even clearer after Clerkly’s death. Prison poli-
cies required that any inmate showing signs of Covid–19 be
“ ‘triaged’ ” and “ ‘placed in medical isolation’ ” and that all
areas used by the symptomatic inmate be thoroughly disin-
fected.

Yet even though Clerkly had difficulty
breathing and died only a few hours after being transported
to the hospital, the prison “made no representations” to the
District Court that “they identified Mr. Clerkly as sympto-
matic, evaluated him for potential COVID-19 infection, or
isolated or treated him for COVID-19 at any point before
his transport to the hospital on the day of his death.”

prison “did not implement further precaution-
ary measures until three days after Mr. Clerkly’s death.”

while the prison waited for a posi-
tive Covid–19 test that seemed certain to come, “countless
inmates were knowingly exposed to a serious substantial
risk of harm.”

COLLIER

                      Statement of SOTOMAYOR, J.

                              II
   Having heard testimony from several witnesses from the
Pack Unit and from prison experts who declared the Pack
Unit practices “woefully inadequate,” the District Court
held that applicants were likely to succeed on their Eighth
Amendment claim.

The court noted the “obvi-
ous” risk of Covid–19 to the older men in the Pack Unit and
reasoned that the prison’s failure to take basic steps, many
of which were required by its own policies, evinced deliber-
ate indifference.

The District Court then or-
dered the prison to mitigate the harm to inmates, including
through some measures recommended by an expert witness
who had managed prisons himself.

*9–*12;

.
   Despite the District Court’s detailed, careful findings,
based on live testimony and the court’s own visit to the Pack
Unit, the Fifth Circuit stayed the injunction. The Fifth Cir-
cuit noted that the prison had submitted evidence of “the
protective measures it ha[d] taken as a result” of the Covid–
19 pandemic, and so the question was simply whether the
Eighth Amendment required the prison “to do more.” 956
F. 3d, at ___ – ___.1 But in crediting the prison’s assur-
ances, the Fifth Circuit did not address all of the District
Court’s factual findings that the prison had inexplicably
discarded its own rules and, in doing so, evinced deliberate
indifference to the medical needs of its inmates.2 See
——————
  1 One member of the Fifth Circuit panel concurred in judgment. See

956 F. 3d, at ___ (opinion of Higginson, J.). The concurrence reasoned
that the inmates were unlikely to prevail on exhaustion, but noted that
a merits panel could find on a full record that an exception to the PLRA’s
exhaustion requirement applied. The concurrence also argued that the
motions panel should not have addressed the merits of the inmates’ “in-
tensely fact-based” claims in light of the District Court’s “extensive and
careful findings of fact that mitigation deficiencies still exist” in the
prison. Id., at ___.
  2 The Fifth Circuit also faulted the District Court for imposing stand-

ards higher than those recommended by the Centers for Disease Control
                      Cite as: 590 U. S. ____ (2020)                      5

                       Statement of SOTOMAYOR, J.

Farmer v. Brennan, 

, 842 (1994) (noting that
deliberate indifference is a question of fact often made out
by “inference from circumstantial evidence”). The Fifth Cir-
cuit may have acted outside its authority in refusing to de-
fer to those factual findings. See Anderson v. Bessemer City,

, 573 (1985). Similarly, while the Fifth Circuit
faulted the District Court for issuing an admittedly exact-
ing injunction, that injunction too was rooted in equally de-
tailed factfinding regarding the prison’s failure to live up to
its promises.
   Also concerning was some of the Fifth Circuit’s language
regarding exhaustion. This Court has made clear that the
PLRA requires exhaustion only of “available” judicial rem-
edies. Ross v. Blake, 578 U. S. ___, ___ (2016) (slip op., at
8). “[T]he ordinary meaning of the word ‘available’ is ‘capa-
ble of use for the accomplishment of a purpose.’ ”

marks omitted). Thus, when a
grievance procedure is a “dead end”—when “the facts on the
ground” indicate that the grievance procedure provides no
possibility of relief—the procedures may well be “unavaila-
ble.” Id., at ___ (slip op., at 9).
   The Fifth Circuit seemed to reject the possibility that
grievance procedures could ever be a “dead end” even if they
could not provide relief before an inmate faced a serious risk
of death. But if a plaintiff has established that the prison
grievance procedures at issue are utterly incapable of re-
sponding to a rapidly spreading pandemic like Covid–19,
——————
and Prevention (CDC). But as the District Court noted, the CDC Guide-
lines themselves caution that they “may need to be adapted based on
individual facilities’ physical space, staffing, population, operations, and
other resources and conditions.” 

, *12 (internal quota-
tion marks omitted). Given the particular vulnerabilities of the inmates
in the Pack Unit, even counsel for the prison admitted that steps beyond
those prescribed by the CDC may be necessary.

the
District Court found that the prison was regularly failing to comply with
standards far below what the CDC suggests. Much of its injunction tar-
geted that behavior.
6                  VALENTINE v. COLLIER

                   Statement of SOTOMAYOR, J.

the procedures may be “unavailable” to meet the plaintiff’s
purposes, much in the way they would be if prison officials
ignored the grievances entirely.

it is
difficult to tell whether the prison’s system fits in that nar-
row category, as applicants did not attempt to avail them-
selves of the grievance process before filing suit. But I cau-
tion that in these unprecedented circumstances, where an
inmate faces an imminent risk of harm that the grievance
process cannot or does not answer, the PLRA’s textual ex-
ception could open the courthouse doors where they would
otherwise stay closed.
                              III
   While I disagree with much of the Fifth Circuit’s analysis
at this preliminary juncture, the court required reports
every 10 days on the status of the inmates in the prison’s
care. I expect that it and other courts will be vigilant in
protecting the constitutional rights of those like applicants.
As the circumstances of this case make clear, the stakes
could not be higher. Just a few nights ago, respondents re-
vealed that “numerous inmates and staff members” at the
Pack Unit “are now COVID-19 positive and the vast major-
ity of those tested positive within the past two weeks.”
Supp. Brief Regarding Emergency Application 1.
   Nothing in this Court’s order, of course, prevents the
Fifth Circuit from amending its stay. Nor does anything in
our order prevent applicants from seeking new relief in the
District Court, as appropriate, based on changed circum-
stances. Finally, administrative convenience must be bal-
anced against the risk of danger presented by emergency
situations. The prison, for example, has failed to explain
why it could not simply decrease dorm density, despite hav-
ing an empty unit at its disposal.
   It has long been said that a society’s worth can be judged
by taking stock of its prisons. That is all the truer in this
pandemic, where inmates everywhere have been rendered
                Cite as: 590 U. S. ____ (2020)          7

                 Statement of SOTOMAYOR, J.

vulnerable and often powerless to protect themselves from
harm. May we hope that our country’s facilities serve as
models rather than cautionary tales.