SAINT LOUIS
UNIVERSITY

SCHOOL OF LAW
SAINT LOUIS UNIVERSITY SCHOOL OF LAW

Legal Studies Research Paper Series
No. 2021-07

COVID-19, Courts, and the 'Realities of Prison Administration.' Part II:
The Realities of Litigation

Chad Flanders
Saint Louis University School of Law

Saint Louis U. Legal Studies Research Paper Series

Electronic copy available at: https://ssrn.com/abstract=3793884

COVID-19, COURTS, AND THE “REALITIES OF PRISON ADMINISTRATION.”
PART II: THE REALITIES OF LITIGATION
Chad Flanders*
Abstract
Lawsuits challenging prisons and jails for not doing enough to stop the
spread of COVID-19 among inmates have faced mixed results in the
courts: wins at the district court level are almost always followed by losses
(in the form of stays of any orders to improve conditions) at the appeals
court level or at the Supreme Court. This short article tries to explain why
this is happening, and makes three comparisons between how district courts
and appeals courts have analyzed these lawsuits. First, district courts and
appeals courts tend to emphasize different facts in their decisions. District
courts focus more on the severity of COVID-19 and the heightened risk of
its spread in correctional facilities; appeals courts tend to emphasize more
the enormous managerial problems correctional officials face in the day-today running of prisons during a rampant and hard-to-control
pandemic. Second, when it comes to the constitutional test of whether
correctional officials have shown “deliberate indifference” to the spread of
COVID-19 in prisons and jails, district courts look more at the objective
harm suffered by inmates, where appeals courts fix on the lack of subjective
culpability on the part of correctional officials. Finally, and most
fundamentally, district courts seem to work with a picture that prioritizes
the constitutional standards for prisons and jails—about which judges are
the experts—while appeals courts frame their opinions with an eye to the
expertise of those who have the job of running prisons and jails and
deferring to them. The article concludes by positing that real reform at the
level of prison management is more likely to come from the legislative and
executive branches than as the result of court orders.
Introduction
COVID-19 has ravaged the United States, and almost nowhere else has
this been felt more acutely than in the nation’s prisons and jails. 1 One retired
*

Thanks to Fred Rottnek to conversations and guidance, and to Preethi Raja for excellent
and timely research assistance.
1
See generally National Commission on COVID-19 and Criminal Justice, Covid-19 and
the US Criminal Justice System: Evidence for Public Health Measures to Reduce Risk,
October 2020. For an excellent overview, to which I am much indebted, see Sharon

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2
corrections official characterized the situation in prisons as like the one facing
the passengers in a cruise ship, as the perfect “petri dish” for the spread of the
disease. 2 Indeed, the situation seemed far worse for those in jails and prisons
compared to those stuck on cruise ships, especially during the early days of
the pandemic. Those incarcerated in crowded prisons and jails could not
social distance at all, could not get adequate protective equipment, and were
not furnished with hygiene products; officials in prison also could not, or did
not, follow the recommended guidelines for preventing the spread of
COVID-19. Worse, jails and prisons are not self-contained, and staff,
administrators and released inmates can easily end up spreading COVID-19
into the general population. 3
The outbreak of COVID-19 in prisons and jails is not all that surprising.
Conditions in jails and prisons have always been bad: they were filthy,
crowded places before the pandemic, and they were that way after the
pandemic as well. If anything, COVID-19 put a spotlight on the ongoing
outrage that is the American penal system. 4 But some were hopeful at least
that this time, the response might be different: that government officials and
the general population would see the need to act quickly to prevent prisons
and jails from becoming “super-spreaders.”
This paper focuses on one means that various parties have used to try to
improve prison and jail conditions in the wake of the COVID-19 pandemic
and to force change when it was not immediately forthcoming: class-action

Dolovich, Mass Incarceration, Meet COVID-19, The University of Chicago Law Review
Online (Nov. 16, 2020). https://lawreviewblog.uchicago.edu/2020/11/16/covid-dolovich/
(hereinafter Dolovich, Mass Incarceration); Roni Caryn Rabin, Prisons Are Covid-19
Hotbeds. When Should Inmates Get the Vaccine? N.Y. TIMES (Dec. 2, 2020)
https://www.nytimes.com/2020/11/30/health/coronavirus-vaccine-prisons.html. (“People
held in confinement are uniquely vulnerable to the virus.”).
2
Chris Francescani and Luke Barr, Fearing outbreaks and riots, nation’s prison and jail
wardens scramble to respond to coronavirus threat, ABC News (March 19, 2020), available
at
https://abcnews.go.com/Health/fearing-outbreaks-riots-nations-prison-jail-wardensscramble/story?id=69676840.
3
Flanders, Treat Prisoners with Dignity, PITTSBURGH POST-GAZETTE (April 7, 2020,
11:00 PM). https://www.post-gazette.com/opinion/2020/04/08/Treat-prisoners-withdignity/stories/202004080032; Maney v. Brown, 464 F. Supp. 3d 1191, 1199 (D. Or. 2020)
(“Prisons are more dangerous than other congregate settings, like cruise ships, because they
are not closed systems, and “staff and visitors travel from the facilities back to their
home”).
4
See Flanders, Do Prisoners Have a Right to Soap? NULR OF NOTE (June 24, 2020)

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3
litigation.5 While some prosecutors6 and other government officials have
(admirably) taken proactive measures to reduce the risk of a COVID-19
outbreak within jail and prison walls, not all of them have, and some of those
efforts have been halting and half-hearted. Accordingly, lawsuits have been
filed to force the change that has not been coming, or coming only
grudgingly, from correctional institutions. 7 Those suits ask that prisoners be
released, or transferred to safer prisons; they ask that inmates be socially
distanced, be given soap, and that prison officials themselves follow the CDC
(Center for Disease Control) guidelines; they have asked that facilities should
be cleaned, and that they should stay clean. 8 The lawsuits have been based,
when possible, on visits to the prisons by various experts, who interview
inmates, guards, and wardens. Behind these suits is the constitutional
requirement that conditions in prisons cannot amount to “cruel and unusual
punishment.”
Even though we are in the early phases of the COVID-19 litigation, we
can discern a familiar pattern to the litigation: plaintiffs will win victories in
the form of injunctive relief at the district level, but then, almost
automatically, the appeals court (including the Supreme Court, in some cases)
will stay that injunction, putting a pause on any change the prison would have
to make. This pattern has asserted itself again and again, with some variation,
across the country.9 Nor can this difference be chalked up to district courts
getting it right and appeals courts getting it wrong or vice versa. The gap
between them is more complicated, and it requires looking at the dialogue
between the district courts and appeals courts across three levels.
The first level simply deals with the facts themselves, and which ones to
emphasize, and how—at least as an initial matter—important any set of facts
is. How appeals courts and district courts see the facts are the subject of Part
5
See, e.g., Margo Schlanger, Special Collection COVID-19 Coronavirus, CIVIL RIGHTS
LITIGATION CLEARINGHOUSE (database tracking of all COVID-19 class-action litigation) at
https://clearinghouse.net/results.php?searchSpecialCollection=62
6
Chad Flanders & Stephen Galoob, Progressive Prosecution in a Pandemic, 110 J.
CRIMINAL L. & CRIMINOLOGY 685 (2020).
7
See, State Advocacy News: Reform Responses to COVID-19, THE SENTENCING
PROJECT (Apr. 6, 2020) at https://www.sentencingproject.org/news/state-advocacy-newsreform-responses-covid-19/
8
See, e.g., Swain v. Junior, 958 F.3d 1081, 1086 (11th Cir. 2020) (“Among other
deficiencies, the class action complaint alleged that the inmates … did not have enough soap
or towels to wash their hands properly, waited days for medical attention, were ‘denied basic
hygienic supplies’ like laundry detergent and cleaning materials, and were forced to sleep
only two feet apart.”).
9
Dolovich, Mass Incarceration (summarizing the recent course of prison class-action
litigation involving COVID-19 related complaints).

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4
I of the paper. District courts and courts of appeals seem to agree on many
of the most basic facts about COVID-19, but not on all, and even on the facts
they agree on they will differ on why those facts matter.
This gets us to the second level or the level of legal argument, where at
least some of the difference in emphasis matters. It is the legal arguments
where, perhaps most obviously, the district courts and the courts of appeals
get their different impressions of the facts—they are looking for different
things because their understanding of the law primes them to look in different
places. The district courts seem to focus most of their attention on the risks
of prisoners’ getting sick and dying of COVID-19. But the appeals courts,
by contrast, seem more impressed with the difficulties of prison
administration. Their differing understandings of what the law requires leads
them to find some facts more salient than others. I take up the legal analysis
of the facts of COVID-19 in prisons and jails in Part II of the paper.
But at a higher level still we can see differences between the district and
appeals courts—at the level almost of philosophy. The philosophy informs
the courts’ view of the law even if it is not fully articulated, so the legal
arguments will in some way, if only implicitly, be part of a larger
philosophical argument about the nature of prisons and jails and their
relationship to the judicial system. It is at this level that we might fully
appreciate the differences that exist between the district courts and the courts
of appeals. In Part III, I try to articulate those contrasting philosophies.
I.
All district courts begin their decisions on COVID-19 in prison with the
simple fact of the enormous and unprecedented nature of the COVID-19
pandemic, even when the facts acknowledged are depressingly familiar.10
From the beginning, the district courts and the appeals court diverge because
the enormity of the pandemic cuts in at least two ways: one way emphasizes
the lethality of the virus, the other its unpredictability. One way focuses on
the deaths and the illness that we know have happened and will happen; the
other focuses instead on how much we don’t know, how unprepared we were,
and how many contingencies there are in dealing with COVID-19.
Start with the fact that the COVID-19 pandemic is indeed serious, and
how this basic fact gets refracted in district court opinions regarding prison
conditions. For the COVID-19 virus, as we have come to understand its
10

See, e.g., Mays v. Dart, 974 F.3d 810, 814 (7th Cir. 2020).

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5
nature, presents a special danger because it is transmitted so easily. We can
get it simply by being in groups of people and breathing their air. 11
Accordingly, we should take measures to distance ourselves from people, and
when we cannot do this entirely, we have to wear masks or other protective
equipment, wash our hands, and keep our spaces clean.
But all of this, the district courts almost universally go on to explain, is
made all the worse when trying to control the spread of the virus in
correctional institutions. 12 In the best of times, prisons and jails are not clean,
have mold and dirt, insects and rats. They are also overcrowded, with
prisoners sharing rooms meant to house far fewer people. These are
conditions where COVID-19 can flourish. Prisons and jails, in short, were
never good at providing reasonably hygienic conditions for their inmates, and
COVID-19 seemed to hit them exactly where they were most vulnerable. 13
A final fact that district courts emphasize are the types of people that
prisons house. Many of them are elderly. Many of them have medical issues,
either ones that they had before entering prison, or ones acquired after being
housed in a prison. And this, as we all now know, makes things even more
deadly when it comes to COVID-19.14 Relatedly, medical care in jails and
prisons tends to be less than ideal—this is a condition of prisons, that then
worsens by a prison population that have a higher need for care, even in the
best of times.
But do appeals courts disagree with any of the above, when they rule
against the district courts? They do not deny that the possibility of an
outbreak in prison is real, and that prisons house vulnerable populations who
not only may be more likely to get sick; they are also more likely to die.
Appeals courts, no less than district courts, will start their rulings with what
can seem to be almost boilerplate about the pandemic, and its seriousness.
But from there, the emphasis will shift, in two notable ways.
The first is that where district courts will emphasize how serious and
indeed overwhelming the COVID-19 crisis is, the appeals courts will instead
focus on how unpredictable, how changing the nature of the pandemic is. 15
11

See, e.g., Ahlman v. Barnes, 445 F. Supp. 3d 671, 679. (C.D. Cal. 2020).
Id. (COVID-19 is “particularly dangerous in jails and prisons”).
13
Dolovich, Mass Incarceration (“Carceral institutions are simply not conducive to
limiting the spread of a highly contagious airborne virus.”).
14
Ahlman, 445 F. Supp. at 679 (C.D. Cal. 2020) (“COVID-19 is particularly dangerous
to people who are older or have certain health conditions and disabilities, including diabetes,
lung disease, heart disease, and compromised immune systems.”)
15
Swain, 958 F.3d at 1090 (emphasizing need of prison officials to act “with dispatch”
12

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6
This relates to the second shift of emphasis: whereas the district courts
highlighted how prisons and jails were in many ways uniquely suited to the
easy spread of COVID-19, appeals courts will hit at something else about
prisons, viz., how hard they are to manage, how under-resourced they are,
how difficult it is to deal with large numbers of people and relatedly, how
little courts know about what to do in these situations. 16 Appeals courts will
emphasize the need for “flexibility” in how prisons respond to the virus. 17
The phrase “perfect storm” has been used more than once by appeals courts
to describe the spread of COVID-19 in penal institutions. 18 Appeals courts,
more than district courts, are impressed with just how hard it is to deal with
COVID-19, for everyone of course, but for prisons and jails especially. 19
II.
The different ways district courts and appeals courts can be attributed to
looking at things from different points of view. To put it crudely, but mostly
accurately, the district courts are looking at things from the point of view of
the inmate, particularly the inmate who has high susceptibility to COVID-19
and even dying from it. From this point of view, the real problem is that this
prisoner could get sick, and possibly die, from COVID-19. Appellate courts,
by contrast, are looking at things from the perspective of prison
administration, and the people who are charged with the challenging day-today management of the prison. From this point of view, what COVID-19
represents is not in the first instance a medical problem—as it is for those
who are incarcerated—but a problem of prison administration, and a very
so they can “respond to this unprecedented pandemic” and “rapidly evolving circumstances”)
16
District courts note this point as well, but almost always qualify it. See, e.g., Mays v.
Dart, 453 F. Supp. 3d 1074, 1083–84 (N.D. Ill. 2020) (“Operating the Jail, even under normal
circumstances, is a very challenging task that occupies a large, full-time staff of
policymakers, subject matter experts, and front-line correctional officers, medical and mental
health workers, counselors, and others. And these are not normal circumstances.”). But see
id. (“This does not mean, however, that constitutional protections fall by the wayside.”). The
appeals court in Mays nonetheless faulted the district court for not taking the job of the
corrections officials seriously enough. See Mays, 974, F.3d at 810 (district court did not
discuss “in a meaningful way” the considerable deference owed to prison officials).
17
Swain v. Junior, 961 F.3d 1276, 1293 (11th Cir. 2020) (“Perhaps especially in the
prison context, government officials have a keen interest in maintaining the necessary
flexibility to react quickly in response to new information about the virus.”).
18
Id. at 1289 (“We simply cannot conclude that, when faced with a perfect storm of a
contagious virus and the space constraints inherent in a correctional facility, the defendants
here acted unreasonably by ‘doing their best.’”); Valentine v. Collier, 978 F.3d 154, 158
(5th Cir. 2020).
19
See, e.g., Swain, 961 F.3d at 1280 (“[P]rison officials are faced with the unenviable
(and often thankless) task of maintaining institutional order and security while
simultaneously taking proper care of the individuals in their custody.”).

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7
difficult one at that.
This difference in perspective is formed by two things. The first is that
district court judges are required to collect and look closely at the testimony
provided by the plaintiffs about prison conditions and about health risks; they
will hear also from medical experts on the dangers of not taking effective
steps to combat the spread of COVID-19. This will take place over days. 20
The judge will also hear from prison officials, but for obvious reasons, this
testimony may be less engaging and will invariably be self-serving. Overall,
district court judges may be more impressed by the magnitude and the
urgency of the problem of COVID-19 rather than the inability of prison
administrators to deal with it. Or rather, they may be impressed by the
urgency of the problem even more because prison administrators have not
been able to get an effective handle on it. The second and more elaborate
reason for the difference in perspective is how district courts and appellate
courts interpret the relevant legal standards, a point which will require much
more elaboration.
A.
The challenges brought by plaintiffs against correctional facilities raise
any number of legal challenges, but the main one—the one which seems to
pull all the other claims under it—is that COVID-19 in prisons and jails, and
the lack of an adequate administrative response, amounts to cruel and unusual
punishment, in violation of the Constitution. The legal analysis of whether
prison conditions amount to cruel and unusual punishment consists of two
steps. The first step is that the prison conditions be objectively unreasonable,
that is, objectively bad. And at this step there is little disagreement between
district courts and appellate courts; indeed, the defendants usually concede
the point. 21 They all agree that COVID-19 is serious, represents a huge risk
to prison populations, and is especially risky to vulnerable populations who
are incarcerated. This should not be too surprising. After all, it is true. 22

20

For an example of this, but not in the context of COVID-19, see Atkins v. Parker,
972 F.3d 734, 739 (6th Cir. 2020) (explaining that it was appealing to the district court’s
factual findings as the “district court presided over a four-day bench trial in this case (and
we have not).”
21
See, e.g., Valentine v. Collier, 455 F. Supp. 3d 308, 321–22 (S.D. Tex. 2020)
(“Defendants do not dispute that COVID-19 poses a substantial risk of serious harm to
Plaintiffs.”); Swain, 961 F.3d at 1285 (test requires proof of objective harm but “defendants
seem to agree—wisely, we think—that the risk of COVID-19 satisfies this requirement.”).
22
See, e.g. Money v. Pritzker, 453 F. Supp. 3d 1103, 1131 (N.D. Ill. 2020) (“[N]obody
contests the serious risk that COVID-19 poses to all inmates and prison staff.”).

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8
The second step is subjective, now meaning that the prison
administrators, or those who had the power to do something about those
objectively bad conditions, responded to them with “deliberate
indifference.”23 Although much ink has been spilled (and more ink will be
spilled, below) on the nature of deliberate indifference, what deliberate
indifference means in the context of COVID-19 is the disagreement in almost
every lawsuit that has been brought. District courts will primarily find
deliberate indifference; they will then be quickly reversed by appeals courts,
who say that the district courts have misapplied or misunderstood what
“deliberate indifference” means. But what is “deliberate indifference”?
To begin with, deliberate indifference standard is not one of simple
negligence, even criminal negligence. It is not the fact that corrections
officials failed to act in the way a reasonable correctional official would.
They must do worse than that. They must have acted in a way that showed
they consciously disregarded the nature of the problem: that they were aware
of their actions, and aware it was not enough.24 Put this way, it becomes
clearer how the deliberate indifference standard is not objective, but
subjective. It is more about the attitude that correctional officials take toward
the problem than whether they live up to a given standard.25 And when we
see the test for deliberate indifference this way, it is a game changer, at least
in the hands of the appeals courts.26 It means that the standard is not about
meeting any goal, or living up to any set of guidelines, or even following
through on your own advice. It is a matter, more generally, of whether you
have looked at the problem, understood what the problem involves, and done
basically nothing.27
Thus, when district courts look at rising deaths and infections as showing
23
Farmer v. Brennan, 511 U.S. 825, 830 (1994) (“In a suit such as petitioner's, insofar
as it seeks injunctive relief to prevent a substantial risk of serious injury from ripening into
actual harm, ‘the subjective factor, deliberate indifference, should be determined in light of
the prison authorities' current attitudes and conduct,’ their attitudes and conduct at the time
the suit is brought and persisting thereafter”) (emphasis added; citations omitted).
24
“Deliberate indifference is the conscious or reckless disregard of the consequences of
one's acts or omissions. It entails something more than negligence but is satisfied by
something less than acts or omission for the very purpose of causing harm or with knowledge
that harm will result.” Gantt v. City of Los Angeles, 717 F.3d 702, 708 (9th Cir. 2013).
25
Valentine, 978 F.3d at 163. (“But the Eighth Amendment inquiry concerns TDCJ's
state of mind, not the scope of the injury.”)
26
For a historical overview of the importance of this point, see Sharon, Dolovich, Eighth
Amendment Prison Conditions, in THE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE
OF PUNISHMENT , 148-154 (Meghan J. Ryan & William W. Berry III, eds., 2020).
27
E.g., Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (deliberate indifference
requires a showing “approaching total unconcern for the prisoner's welfare.”).

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9
“deliberate indifference,” the appeals courts will repeatedly say this is
missing the point. They are right about this—at least to an extent. It certainly
would be a problem if a district court took it as per se evidence of deliberate
indifference if a prison or jail was not able to decrease or even eliminate the
spread of infections of deaths due to COVID-19.28 The constitutional test
does not require certain results; it requires a certain attitude towards those
results, viz., one that is not deliberately indifferent to them. 29 Appeals courts
are right about this in another, and more ordinary way: sometimes, even when
we are trying our hardest, the spread of COVID-19 can outpace our best
efforts. We should not hold prison administrators to a standard higher than
everyone else.
And it would also be a problem if a district court saw the failure to follow
CDC guidelines to the letter as per se evidence of deliberate indifference. 30
The CDC guidelines, however wise, do not dictate what is cruel and unusual.
Only the Constitution can do that. Failing to live up to some objective
standard—of results, or of conduct—cannot by itself show deliberate
indifference. Maybe the prison and jail administrators were trying, but the
disease was just moving too fast. Such things happen even outside of the
correctional context, and it does not automatically mean that those trying to
deal with the problem were deliberately indifferent to it. We cannot, as one
appeals court put it, let the failure to live up to some objective metrics to mean
that the prison or jail was subjectively indifferent and “collapse” the
distinction between objective and subjective. 31
28

As the Fifth Circuit accused the district court of doing. Swain, 958 F.3d at 1089.
(“The district court treated the increase in COVID-19 infections as proof that the
defendants deliberately disregarded an intolerable risk. In doing so, it likely violated the
admonition that resultant harm does not establish a liable state of mind”); see also Swain,
961 F.3d at 1287. (“First, and most obviously, the district court erred in relying on the
increased rate of infection.”).
29
Valentine v. Collier, No. 4:20-CV-1115, 2020 WL 5797881, at *29 (S.D. Tex. Sept.
29, 2020) (noting that the fact of increased deaths does not mean officials were deliberately
indifferent).
30
See, e.g., Ahlman, 445 F. Supp. 3d at 691 (“An institution that is aware of the CDC
Guidelines and able to implement them but fails to do so demonstrates that it is unwilling to
do what it can to abate the risk of the spread of infection. In other words, failure to comply
demonstrates deliberate indifference toward the health and safety of the inmates”); Wilson v.
Williams, 455 F. Supp. 3d 467, 478–79 (N.D. Ohio, 2020) (“Elkton has altogether failed to
separate its inmates at least six feet apart, despite clear CDC guidance for some time that
such measures are necessary to stop the spread and save lives.”).
31
Swain, 958 F.3d at 1089 (”In conducting its deliberate indifference inquiry, the
district court incorrectly collapsed the subjective and objective components.“); Valentine v.
Collier, 956 F.3d 797, 802 (5th Cir. 2020) (“[T]he district court thus collapsed the
objective and subjective components of the Eighth Amendment inquiry established in
Farmer, treating inadequate measures as dispositive of the Defendants’ mental state.”).

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10
B.
If district courts repeatedly risk conflating the subjective and the
objective, there is a risk on the other side, too: that the appeals courts will
dispense with any kind of standard at all. When the appeals courts look to
see whether prison officials and administrators have been deliberately
indifferent to the problem of the spread of COVD-19, they are mainly looking
to see whether they have basically ignored the problem. If they have done
anything, whether they have done enough, this will probably suffice. They
are doing their “best,” as more than one appeals courts will explain. 32
However, one gets the impression again and again that just throwing anything
at COVID-19 is sufficient, because it shows that the officials are not willfully
ignoring the problem they have in front of them. 33 They are doing something,
and this fact means that they are not reckless: they are not turning to look at
the problem that COVID-19 presents and then simply walking away. 34 In
one case, it was considered damning to the plaintiffs’ side that one of the
plaintiffs’ attorneys conceded that the jail was trying their “very, very best.”35
But it is almost certain, too, that the something that they are doing is not
enough in most every case, even if they are trying very hard—again, we need
only look at the metrics. We can look at the rising case counts and deaths; we
can look at the various CDC recommendations and the prison’s ability to
comply; and we can look at the promises that the officials themselves have
made and have not lived up to, or simply never did that much to meet.
Appeals courts can also agree that most officials could have done more.36
But none of this ultimately matters, because deliberate indifference is not
simply about living up or down to a standard, it is about whether you are
doing something or nothing at all, whether you are at least not disregarding
32
See, e.g., Swain, 961 F.3d at 1288 (“First, with respect to social distancing in
particular, as the court-commissioned expert report summarized, the defendants ‘d[id] their
best.’”).
33
Ahlman v. Barnes, No. 20-55568, 2020 WL 3547960, at *9 (9th Cir. June 17, 2020)
(Nelson, J., concurring in part and dissenting in part) (“W]here a prison took steps to
mitigate the risk of infection by increasing internal safety procedures, it could not have
consciously ‘disregarded the risk’ to inmate health and safety, even if the measures
sometimes fall short of the CDC guidelines.”).
34
Wilson, 961 F.3d at 843. (“[A]n official will likely not be found to be deliberately
indifferent if they took some action, even if that action was inadequate.”)
35
Marlowe v. LeBlanc, 810 F. App'x 302, 305 (5th Cir. 2020) (“Plaintiffs' own counsel
conceded at the April 7 evidentiary hearing that “everyone here is trying their very, very best
to make sure that nobody gets sick at [RCC].”).
36
Valentine, 978 F.3d at 158. (“As judges, our conscribed role is not to assess whether
prison officials could have done more to contain the virus—no doubt they could have.”)

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11
the problem and instead addressing it, however imperfectly and however
ineffectively. 37 The key thing is that they are not ignoring it. 38 What would
be decisive evidence, on this view, would be an admission that the
administrators themselves believed that what they were doing was not
enough. 39 But that never happens.
The point being made (if only implicitly) by the district courts is that we
do not need officials to admit they believe that what they are doing is not
enough when their actions show that. We can infer from what they are not
doing—compared to what they could be doing—that they are being reckless,
given their awareness of the magnitude of the problem. 40 Doing something
is just not the same as being reasonable.41
In other words, to make the officials’ awareness of the problem
paramount, and have it be enough that they are aware of the problem and are
doing something—anything—is to make the subjective part of the test
swallow up the deliberate indifference test entirely. 42 It must still be possible
to have it be the case that officials are 1) aware of the problem, 2) do
something about it, 3) but those same officials are also aware that what they
are doing is nowhere near enough. 43 This, for the district courts, could allow
37

Wilson, 961 F.3d at 844. (“In contrast, here the BOP has not turned a blind eye or deaf
ear to a known problem that would indicate such a lack of concern for petitioners’ welfare.”)
38
Valentine, 978 F.3d at 164. (‘Here, even recognizing that COVID-19 poses a greater
risk than tuberculosis, any argument that TDCJ ‘evince[d] a wanton disregard for any serious
medical needs is dispelled by the affirmative steps it took to contain the virus.”).
39
Valentine, 956 F.3d at 802. (“Though the district court cited the Defendants’ general
awareness of the dangers posed by COVID-19, it cited no evidence that they subjectively
believe the measures they are taking are inadequate.”); Marlowe v. LeBlanc, 810 F. App'x at
305 (“Even assuming that Plaintiffs' testimony somehow satisfies Farmer’s objective
requirement, the district court cited no evidence establishing that Defendants subjectively
believed that the measures they were (and continue) taking were inadequate.”); Swain, 958
F.3d at 1089 (“ While perhaps impossible for the defendants to implement social distancing
measures effectively in all situations at Metro West's current population level, the district
court cited no evidence to establish that the defendants subjectively believed the measures
they were taking were inadequate”).
40
Valentine v. Collier, No. 20A70, 2020 WL 6704453, at *4 (U.S. Nov. 16, 2020)
(Sotomayor, J., dissenting) (“But merely taking affirmative steps is not sufficient when
officials know that those steps are sorely inadequate and leave inmates exposed to
substantial risks.”).
41
Id. (“To be sure, the ‘Eighth Amendment does not mandate perfect implementation,’
but it also does not set a bar so low that any response by officials will satisfy it. Given the
evidence in the record, there is no basis to overturn the District Court's finding of deliberate
indifference.”) (citation omitted).
42
Valentine, 2020 WL 5797881, at *30. (“Designing a policy and implementing some
of the measures therein does not automatically satisfy Defendants’ constitutional obligations,
especially in the face of an unprecedented public health crisis.”)
43
As Justice Sotomayor commented in her opinion on the Valentine case:

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12
an inference of deliberate indifference: officials are taking steps, sure, but
those are steps that they know are not enough to adequately deal with the
problem. A district court is surely within its rights, moreover, to disbelieve
the self-serving testimony of a prison warden who says that they are “doing
all they can” or “doing their very best.”
The problem is that the appeals courts seem to end with the fact that
prisons and jails have done something, and that itself pretty much shows that
they cannot be “indifferent” to the problem. This goes too far too quickly.
Taking some measures to aid prisoners, as Michael Dorf has spelled out, does
not rule out that one is still deliberately indifferent.44 In fact, what district
courts seem to be doing a lot of the time is making an inference to
recklessness from the fact that administrators know how bad the problem is
and are doing something but are not doing what they know they need to do
to solve the problem. 45
So why do appeals courts reverse district courts on precisely this point?
Here, finally, we get to the legal wrinkle that drives many, if not these cases,
which is that the usual order of deference—the idea that higher courts should
defer to lower courts especially when it comes to factual determinations 46—

The District Court found that respondents “were well aware of the shortcomings” in
their response “and nevertheless chose to stay the course, even after a number of inmates
died.” Respondent Collier even admitted that prison officials “‘were not doing everything
[they] should have been.... Thin[g]s like restricting, isolating, PPE access, cleaning
supplies.’” To be sure, the “Eighth Amendment does not mandate perfect implementation,”
but it also does not set a bar so low that any response by officials will satisfy it. Given the
evidence in the record, there is no basis to overturn the District Court's finding of deliberate
indifference.
Valentine, 2020 WL 6704453, at *4 (Sotomayor, J., dissenting) (citations omitted).
44
Michael Dorf, Deliberate Indifference, DORF ON LAW (August 10, 2020),
http://www.dorfonlaw.org/2020/08/deliberate-indifference.html
45
Ahlman, 445 F. Supp. 3d at 691. (“It is not enough for Defendants to nominally
comply with some portions of the Guidelines sometimes so that they can claim “we are
testing” and “we are providing soap”—they must fully and consistently comply so that the
compliance is an effective tool to abate the spread of infection.”). Note that what the district
courts are finding is recklessness, and not what Sharon Dolovich calls “constructive
knowledge.” See Dolovich, Eighth Amendment Prison Conditions, in THE EIGHTH
AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUNISHMENT 142 (Meghan J. Ryan &
William W. Berry III, eds., 2020).
46
See, e.g., Wilson, 961 F.3d at 837. (stating that abuse of discretion “is a highly
deferential standard, and the ‘district court's determination will be disturbed only if the
district court relied upon clearly erroneous findings of fact, improperly applied the governing
law, or used an erroneous legal standard.’”) (citations omitted).

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13
just does not exist in the COVID-19 prison cases. 47 In fact, it gets flipped.48
It is as if the appeals courts just decide to skip a level when looking at the
facts, going past what the district court said and focusing instead on the
correctional officials’ representations of the truth.49 They get the benefit of
the doubt, and appeals courts willingly give them that benefit. 50 Appeals
courts take prison officials at their word when they say that they are doing
their best and trying their hardest and not ignoring the problem. District
courts and their determinations are no longer treated with the deference they
almost uniformly get in any other factual dispute that is appealed. 51 District
courts are not deferred to in their factual finding that we can infer a mental
state (recklessness) from the circumstances. 52 Moreover, this deference
cannot simply be chalked up to legal errors that the district courts have made.
Rather, the deference here goes deeper, because it is not just part of a legal
framework. It derives from a larger understanding of the place of prisons in
the legal universe, and the relationship of courts to prison.
But before analyzing that relationship, we should emphasize once more
how consequential the deferential stance of appeals courts is toward prison
administration and administrators, especially if it is the case, as one district
court noted that “[no] bright line divides a reasonable response from one that
is deliberately indifferent in violation of the Eighth Amendment.”53 For when
we have evidence of policies announced and then not followed through on,
lies by prison officials, text and emails that show the officials are more
worried about appearing good to the court than stopping the spread of
47

Or if the appeals court does defer, the Supreme Court acts as a backstop. Compare
Ahlman, 2020 WL 3547960, at *4. (finding that “Defendants have fallen far short of making
a strong showing that the findings here were clearly erroneous”) with Barnes v. Ahlman, 140
S. Ct. 2620, 207 L. Ed. 2d 1150 (2020) (granting stay of district court opinion).
48
See the excellent discussion of this phenomena (to which I am indebted) in Dolovitch,
Forms of Deference in Prison Law, 24 Fed.Sent.R. 245, 254-55 (2012).
49
Valentine, 2020 WL 6704453, at *4. (Sotomayor, J., dissenting) (“Rather than
contending with these facts, the Fifth Circuit sidestepped the clear-error standard by claiming
that its review was not “fact-specific.” But the Fifth Circuit's analysis makes clear that it
substituted its own view of the facts for that of the District Court.”) (citation omitted).
50
Thus, “in the absence of substantial evidence in the record to indicate that the officials
have exaggerated their response to these considerations, courts should ordinarily defer to
their expert judgment in such matters.” Bell, 441 U.S. at 548, 99 S.Ct. 1861 (quoting Pell v.
Procunier, 417 U.S. 817, 827 (1974)).
51
Cameron v. Bouchard, 815 F. App'x 978, 988 (6th Cir. 2020) (Cole, J., dissenting)
(“It is not generally the role of an appellate court to resolve the discrepancies in the parties’
factual accounts; that is the district court's job. We also do not re-weigh the evidence.”).
52
For a good discussion of this point see Dolovich, Mass Incarceration, using examples
from many of the cases discussed supra.
53
Plata v. Newsom, 445 F. Supp. 3d 557, 568 (N.D. Cal. 2020

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14
COVID-19, we can make one of two inferences. 54 We can infer from these
inconsistences, deceptions, and falsehoods to an awareness of the problem
and a recklessness as to following through to take measures to solving the
problem. 55 Or we can overlook them, and credit the officials for what they
say they are trying to do, rather than what they do, and try to explain away
some of their more glaring contradictions. Either conclusion is, in theory,
compatible with the law and the facts. The appeals court is not wrong in
holding that a showing of deliberate indifference is indeed hard to make. 56
But neither are district courts wrong in making the legal finding that the
seriousness of the problem plus the failure to take it seriously enough permits
an inference of deliberate indifference. What tips the balance for the appeals
courts is a theory of (extreme) deference to prison officials rather than district
courts and that is what needs to be teased out.
III.
I have been contrasting the perspective many district courts have taken
on COVID-19 litigation with that taken by appeals courts. District courts
have been relatively pro-plaintiff. They have ordered prison administrators
to do more in trying to stop the spread of COVID-19. Appeals courts have
instead (mostly) sided with those administrators, and stayed injunctions that
have required them to do more. But in trying to tease out two contrasting
visions of courts and prisons, we should caution that such a simple district
court/appeals court dichotomy will no longer do—if it ever did. The two
“worldviews,” if we can call them that, are pitched at the level of philosophy.
They do not belong to one level or court or another, or even to the court
system contrasted with the executive or the legislative branches. They are—
as the clumsy term “worldview” suggests—ways of looking at the world, and
the place of courts and prisons in it. The point here is try to take the 100,000foot view, something we have been slowly building up to. What are the
54

See especially Valentine, 2020 WL 5797881, at *4. (section on “credibility of
defendants” listing failures to disclose COVID-19 test results to the court, dissembling to
the court about the accuracy of the numbers, and the prison’s practice of making changes
only right before hearings and in response to them); see also id. (citing instances where the
prison misrepresented facts to the court); Cameron v. Bouchard, 815 F. App'x 978, 986
(6th Cir. 2020) (plaintiffs alleging that jail only adopted preventative measures in response
to litigation and then discontinued them after a court-ordered inspection).
55
Cameron v. Bouchard, 462 F. Supp. 3d 746, 776–77 (E.D. Mich.), on reconsideration,
No. CV 20-10949, 2020 WL 2615740 (E.D. Mich. May 22, 2020), and vacated, 815 F. App'x
978 (6th Cir. 2020) (concerns about credibility of defendants who had “not been inside the
housing areas for weeks before the evidentiary hearing”).
56
Swain, 961 F.3d at 1285 (“As applied in the prison context, the deliberateindifference standard sets an appropriately high bar.”)

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15
philosophies within which a certain view of the facts make sense, and a
certain legal framework seems most justified?
The pro-inmate outlook. One of the more philosophically loaded
passages in the prisoners’ rights context is the one from DeShaney v.
Winnebago, from which one can glean much of the pro-prisoner outlook.57
When incarcerated, prisoners enter into a position of dependence on the
government. As a consequence, the state has a positive obligation to give
them what they need because absent the government, they have no way to get
it: they are behind bars, separated from the market, and separated from the
charity of others.58 If government does not house them, feed them, and care
for them, they cannot live, let alone stay healthy. 59 As the government
continues to incarcerate people in prisons and jails, the government therefore
has affirmative responsibilities, responsibilities it would not have if it did not
incarcerate at all. The situation is especially precarious when inmates are
confined within the facility’s walls, unable to evade an infectious disease.60
Spelling out the government’s affirmative obligations to those whom it
incarcerates—but one that seems especially salient in the context of COVID19—is one half of the pro-prisoner picture.
The other half is where the courts come in. Their job is to make sure that
the government meets these obligations consistent with the requirements of
the Constitution.61 Now, those constitutional requirements may not be very
demanding. At the limit, they only require that the government not treat those
whom it incarcerates in a cruel and unusual manner. But those constraints
57

DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989) (“[W]the
State by the affirmative exercise of its power so restrains an individual's liberty that it renders
him unable to care for himself, and at the same time fails to provide for his basic human
needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the
substantive limits on state action set by the Eighth Amendment and the Due Process
Clause.”).
58
Swain, 961 F.3d at 1295 (citations omitted) (“Because incarceration “strip[s]
[detainees] of virtually every means of self-protection and foreclose[s] their access to outside
aid,” the Constitution imposes affirmative obligations on jail officials ….’”).
59
Valentine v. Collier, 140 S.Ct. 1598, 1601 (2020) (statement of Sotomayor, J.) (“[I]n
this pandemic, where inmates everywhere have been rendered vulnerable and often
powerless to protect themselves from harm”).
60
Wilson, 961 F.3d at 845. (“[P]risoners have been placed in a deadly predicament:
prevented by the fact of their confinement from taking recommended precautions, they are
left exceptionally exposed to a deadly virus. This reality is particularly concerning for
medically vulnerable inmates like those in the subclass.”)
61
Mays, 453 F. Supp. 3d at 1084. (“Government officials in our country are bound by
constitutional requirements even when they are dealing with difficult and unfamiliar
challenges to public health and safety.”).

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16
are not nothing. 62 They drive the government’s responsibility to give
prisoners what they need to live—to protect their health and their well-being.
And courts, because they are the institutions that look after people’s rights,
are uniquely situated to interpret those rights, to spell out what the
government has to do to make it so prisons are not cruel and unusual. 63 The
Government has a higher stake in intervening and has to give, not stay away,
in order to meet its Constitutional obligations. 64 Courts are there to spell out
what, and how much, governments have to give.65 That is where courts excel,
that is where they are experts. Against this backdrop, arguments about lack
of resources or judicial meddling, simply pale. 66
The pro-administrator outlook. But we can now consider another
contrasting view, one which starts by emphasizing the culpability of the
persons who are incarcerated, and the fact that they are being punished.
Punishment is best viewed not in terms of the responsibility of the
government officials to provide, but of those who are being punished to suffer
some deprivations. Understandably, individuals suffering from those
deprivations do not like it, and prisoner administrators must deal with that
62

“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit
inhumane ones, and ... ‘the treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.’ ” Farmer, 511
U.S. at 832. (citations omitted).
63
Brown v. Plata, 563 U.S. 493, 511 (2011) (while “[c]ourts must be sensitive to the ...
need for deference to experienced and expert prison administrators,” they “may not allow
constitutional violations to continue simply because a remedy would involve intrusion into
the realm of prison administration.”).
64
The distinction was noted by Judge Ellison in a footnote to his decision in Valentine:
Critically, Plaintiffs claim not that the State is infringing upon their constitutional rights to
combat a public health emergency, but rather that the State is infringing upon their
constitutional rights precisely because it is not reasonably combatting a public health
emergency within Pack Unit. Thus, Plaintiffs’ constitutional rights remain protected under
the Eighth Amendment's deliberate indifference standard.
Valentine, 455 F. Supp. 3d at 328.
65
Valentine, 2020 WL 5797881, at *37. (“The injunction may be seen as micromanagement of the state's conduct, or a burden to the government's budget, or as assuming
a responsibility that should be left for the legislature. Against all that is the simple proposition
that we must not treat with deliberate indifference those whom we have chosen to imprison”).
66
Wilson, 961 F.3d at 849. (Cole, J., dissenting) (“And even if compliance with the order
detracts from other functions, there is no higher and better use of BOP resources than to
fulfill its legal and moral obligation to care for the lives of those in its custody.”); Valentine,
2020 WL 5797881, at *37. (“The injunction may be seen as micro-management of the state's
conduct, or a burden to the government's budget, or as assuming a responsibility that should
be left for the legislature. Against all that is the simple proposition that we must not treat
with deliberate indifference those whom we have chosen to imprison..”).

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17
dissatisfaction. And perhaps more to the point, the regulation of prisoners is
not regulation of people who have won awards for being good; they are being
punished for violation of certain laws and are further marginalized for not
following the rules. They are in prison to be separated from society, to be
rehabilitated, and even to suffer and reflect on what they have done. It is hard
work to deal with the variety of problems trying to house large numbers of
law-disobeying people in one place, whatever the various reasons and
explanations those who find themselves incarcerated may have for being
there. This position animates, as well, arguments against the release of
prisoners as a remedy for overcrowding: it is bad enough dealing with
inmates inside prison; outside of prison, it’s even worse.67 It is why the
prisoner administrators’ task is so often described as “unenviable.”68
So even in the best of times, prisons are going to be an administrative
nightmare. This is a foundational point for the pro-administrator outlook, and
just as DeShaney was the key text for the pro-prisoner view, Procunier v.
Martinez provides the basis for the opposite point of view. 69 Courts cannot
simply dictate detailed prison procedures from above, as if there were
obvious rules—even Constitutional rules—that we could spell out. Courts
are at such a remove from what goes on in prisons, they can hardly sit in
expert judgement on what prisons ought to be doing. Courts, as appeals
courts are wont to say, are not equipped to dabble in the minutia of prison
administration.70 To be sure, there may be extreme cases, but they are marked
by being extreme. In the run of the mill cases, where there are prisoner
complaints that things are not going as they should, courts should stay out,
and defer to what the prison administrators are saying. It is especially a

67

Wilson, 961 F.3d at 845. (noting legitimate public safety issues with prisoner release).
Swain, 961 F.3d at 1280; Spain v. Procunier, 600 F.2d 189, 193 (CA9 1979)
(Kennedy, J.) (prison administrators have the “unenviable task of keeping dangerous men
in safe custody under humane conditions”).
69
Procunier v. Martinez, 416 U.S. 396, 404–05 (1974) (“[T]he problems of prisons in
America are complex and intractable, and, more to the point, they are not readily susceptible
of resolution by decree. Most require expertise, comprehensive planning, and the
commitment of resources, all of which are peculiarly within the province of the legislative
and executive branches of government. … [C]ourts are ill equipped to deal with the
increasingly urgent problems of prison administration and reform. Judicial recognition of
that fact reflects no more than a healthy sense of realism.”). See also the important discussion
of this passage in Sharon Dolovitch, Forms of Deference in Prison Law, 24 Fed.Sent.R. 245,
253 (2012).
70
Ahlman, 2020 WL 3547960, at *12. (Nelson, J., dissenting) (“Casting aside this
admonition, the district court's injunction wades into the minutia of prison operations, going
so far as to dictate the amount of hand soap and number of paper towels available to each
prisoner. In effect, the district court seizes the role of prison management ....”).
68

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18
problem when courts try to micromanage a problem that is rapidly evolving.71
Prisons are no place for Constitutional idealism, and “hamstringing” the
people on the ground who know better.72 Here, the worry is giving prison
administrators the power to say what the Eighth Amendment means (as it is
on the pro-prisoner view); rather the worry is that shifting power from “public
officials” to the “district court” in deciding how prisons should be run is a
recipe for disaster.73 Courts should not be, nor aspire to be, “superwardens.”74 It is this deference to the prison administrator’s administrative
expertise that does not so much trump the constitutional claims of prisoners—
although it arguably does just that—but to inform how a court should look at
them.
Conclusion
Prison administrators, appeals courts will say, should not be blamed for
failing to do the “impossible” in combatting COVID-19.75 By this, they mean
at least partly much of what I have been emphasizing throughout this paper:
that running prisons is very hard, even in the best of times, and prison
administrators should be given some leeway in how they manage a rapidly
emerging and changing crisis like COVID-19. But in another sense, the
courts are meant to be taken much more literally. If prisons do not have the
resources to follow CDC guidelines, or if there are legal barriers to doing so,
then it simply cannot be deliberate indifference to fail to do the “impossible.”
With resource limitations, this may not strictly speaking be correct.76 And
71

Valentine, 956 at 803. (“The harm to TDCJ is particularly acute because the district
court's order interferes with the rapidly changing and flexible system-wide approach that
TDCJ has used to respond to the pandemic so far.”).
72
Swain, 958 F.3d at 1090 (“The injunction hamstrings MDCR officials with years of
experience running correctional facilities, and the elected officials they report to, from acting
with dispatch to respond to this unprecedented pandemic. They cannot respond to the rapidly
evolving circumstances on the ground without first seeking “a permission slip from the
district court.”) (citation omitted).
73
Swain, 958 F.3d at 1090 (“In large measure, the injunction transfers the power to
administer the Metro West facility in the midst of the pandemic from public officials to the
district court.”).
74
Id.
75
See, e.g., Swain, 961 F.3d at 1287 (“Failing to do the ‘impossible’ doesn't evince
indifference, let alone deliberate indifference.”).
76
Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 201 (8th Cir. 1974) (“Lack of
funds is not an acceptable excuse for unconstitutional conditions of incarceration. An
immediate answer, if the state cannot otherwise resolve the problem of overcrowding, will
be to transfer or release some inmates.”); Harris v. Thigpen, 941 F.2d 1495, 1509 (11th
Cir. 1991) (stating that “a lack of funds allocated to prisons by the state legislature ... will
not excuse the failure of correctional systems to maintain a certain minimum level of
medical service necessary to avoid the imposition of cruel and unusual punishment”).

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19
even with legal barriers, there is a colorable argument that administrators
should not be able to appeal to state and federal laws as to what is or is not
“possible” in order to continue to run and operate prisons that are cruel and
unusual. 77
But at the same time, what counts as legally impossible is a function of
what the Courts of Appeals say is legally impossible. And this applies to
prison release as much as to other measures designed to reduce the spread of
COVID-19 in prisons and jails. If appeals courts signal that some things are
just too hard for prisons and jails to do, and that they will usually credit the
testimony of prison officials over the judgments of district courts, then the
appeals courts are actively shaping what is legally possible and not possible.78
Indirectly, they will be setting the standard for what counts as being
indifferent in the face of pandemic, because if the standard becomes doing
something, then most every prison and jail will meet that standard. The
boundaries of the legal imagination—what is possible and what is
impossible—are set by the appeals courts and ultimately by the Supreme
Court, which has consistently taken the side of prison administrators, when
the appeals courts do not.79 District courts will eventually learn to internalize
these standards, and stop issuing orders that they know will be stayed, or
reversed. 80
What we may see, reflecting back on the response to the COVID-19
pandemic is that the positive action started from other places than the courts,
and that prisons and jails that wanted to drag their feet, could. Policymakers
and executive branch officials were the drivers in combatting COVID-19, not
77

See Swain, 961 F.3d at 1298 (11th Cir. 2020) (Martin, J., dissenting) (“If contrary
state law obligations precluded finding deliberate indifference, federal courts would be
powerless to enjoin unconstitutional prison conditions wherever state legislatures act to
withhold prison officials’ authority to remedy them. But this cannot be the rule.”).
78
See Dolovich, Mass Incarceration (“In case after case, appeals courts granted stays
of district court orders on grounds strongly suggesting a general lack of sympathy with
plaintiffs’ arguments.”)
79
See the excellent discussion of this in Brandon Garrett, The Supreme Court’s COVID
Cases Show That One Part of the Constitution Gets Extra Special Attention, SLATE (Dec.
17, 2020, 11:37 AM), https://slate.com/news-and-politics/2020/12/supreme-court-covidcases-elevated-religion-constitution.html.
80
A good example of this is the recent district court decision in Bevins v. Kauffman, 2021
WL 322168, at *5 (M.D. Pa. Feb. 1, 2021):
While the Court understands Plaintiff's legitimate concerns regarding the COVID-19
pandemic, it agrees with the numerous courts throughout the nation that have
concluded that similar allegations do not support a plausible inference that officials
have demonstrated deliberate indifferent to inmates’ Eighth Amendment rights.

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20
lawyers and district court injunctions.81 Of course, not all lawsuits have been
unsuccessful. And some lawsuits, even if ultimately beaten back, may have
prompted at least short-term change. 82 Even failed lawsuits can be useful in
generating publicity and gathering information. 83 Those things can lead to
changes as well, if only indirectly. But as the latest round of COVID-19
lawsuits have shown again, prison litigation is hard, and winning is even
harder.

81

See, e.g., JOHN WITT, AMERICAN CONTAGIONS 125 (2020).
See, e.g., Valentine, 455 at 323. (noting that some measures in response to COVID19 “were not implemented under after the commencement of this lawsuit, and some were not
adopted until the day before this Court's evidentiary hearing.”).
83
Although the lawsuits may obviously encourage prisons and jails to be less
forthcoming with information, for fear of liability. See, e.g., Barnes v. Ahlman, 140 S. Ct.
2620, 2622, 207 L. Ed. 2d 1150 (2020) (Sotomayor, J., dissenting). (“Notably, the Jail has
since resisted respondents’ attempts to verify the Jail's compliance with the District Court's
preliminary injunction.”).
82

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