454 F.Supp.3d 1087
D. Colo.2020Background:
- Plaintiff Edward Nellson, an inmate at USP Florence, filed a class-action complaint and sought a temporary restraining order (TRO) / preliminary injunction alleging USP Florence failed to screen, test, isolate inmates, and prevent infected staff from working during the COVID-19 pandemic.
- Defendants (BOP and USP Florence) described a nationwide multiphase Action Plan and a local implementation including a 14-day cell lockdown, screening and quarantine of new inmates, screening of staff, designated isolation/quarantine units, testing per CDC guidance, daily medical checks, PPE and sanitation protocols.
- Plaintiff moved for a TRO on March 31, 2020; defendants filed a declaration from the Health Services Administrator outlining specific measures taken at USP Florence.
- At the time of the order the BOP website reported no COVID-19 cases at USP Florence; defendants asserted they had implemented the relief Nellson sought.
- The court denied the TRO, holding Nellson failed to exhaust administrative remedies under the PLRA and, alternatively, that defendants had already implemented the requested measures so Nellson could not show likely irreparable harm.
- The court granted plaintiff leave to file a surreply and docketed it.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Must Nellson exhaust administrative remedies under the PLRA before seeking a TRO? | PLRA exhaustion should be excused given imminent COVID-19 risk and delay in grievances would be harmful. | PLRA requires mandatory exhaustion; BOP grievance procedures (including emergency procedure) are available. | Held: Exhaustion required; Nellson did not allege he used the administrative process or emergency grievance. |
| 2. Is the emergency / "dead-end" exception to exhaustion applicable? | The grievance process would be a "dead end" or too slow (90 days) and therefore unavailable in an imminent emergency. | An emergency grievance procedure exists (28 C.F.R. § 542.18) that requires Warden response within three days; plaintiff didn’t allege it was unavailable or a dead end. | Held: Exception not applicable; plaintiff did not show the administrative process was unavailable. |
| 3. Does the record show likely irreparable harm requiring a TRO? | Immediate injunctive relief is necessary because USP Florence is not implementing screening/testing/quarantine/exclusion measures adequately. | Defendants have implemented the specific screening, testing, quarantine, and exclusion measures plaintiff seeks; thus no additional injunctive relief is necessary. | Held: No likely irreparable harm because defendants have implemented the requested measures; TRO denied on that basis as well. |
| 4. Is plaintiff likely to succeed on the Eighth Amendment deliberate indifference claim? | Failure to provide N95 masks, inability to socially distance in some areas, and alleged soap shortages show deliberate indifference. | Defendants follow CDC guidance (cloth masks for non-medical staff), provide soap and PPE, and have sanitation and distancing measures; allegations do not show deliberate indifference. | Held: Unlikely to succeed—defendants’ measures defeat a showing of subjective deliberate indifference. |
Key Cases Cited
- Ross v. Blake, 136 S. Ct. 1850 (2016) (PLRA requires mandatory exhaustion; defines when administrative remedies are "unavailable").
- Jones v. Bock, 549 U.S. 199 (2007) (exhaustion under PLRA is mandatory).
- Booth v. Churner, 532 U.S. 731 (2001) (availability focuses on possibility of some relief through grievance process).
- Little v. Jones, 607 F.3d 1245 (10th Cir. 2010) (exhaustion required before injunctive relief for prison conditions).
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction; irreparable harm required).
- Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000) (Eighth Amendment deliberate indifference standard: objective and subjective components).
- Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005) (heightened scrutiny for injunctions that alter the status quo or are mandatory).
- Fletcher v. Menard Correctional Ctr., 623 F.3d 1171 (7th Cir. 2010) (discusses imminent-danger exception and emergency grievance procedures).
- Farmer v. Brennan, 511 U.S. 825 (1994) (courts may require prisoners to use adequate prison procedures before awarding injunctive relief).