Appellate Judges

Oldham’s Jailhouse Rant against the Oldies

LIT suggests Judge Andy Oldham needs to take his Air Miles and travel to the Pack Unit and lay eyeballs on the federal prison unit for himself and have a chat with the inmates and the wardens. After all, this young judge is going to be judging inmates lives for a lifetime.


LIT suggests Judge Andy Oldham needs to take his Air Miles and travel to the Pack Unit and lay eyeballs on the federal prison unit itself  – preferably in the seething summer heat (as this unit was subject to lawsuits about it’s lack of air-conditioning) and have a chat with the inmates and the staff and wardens. After all, this young judge is going to be deciding inmates fates for a lifetime. p.s. We’re especially glad he didn’t follow into his parents career path – as a doctor, it’s clear and obvious that would not have been a good fit for a career.

MAR 30, 2021

Andrew S. Oldham, Circuit Judge, concurring in the judgment:

“The Constitution charges federal judges with deciding cases and controversies, not with running state prisons.”

Lewis v. Casey, 518 U.S. 353, 364 (1996) (Thomas, J., concurring).

For that reason, the majority is plainly correct to reverse and render judgment for the State.

I wish we could have left it there.

The majority opinion nonetheless says:

“We are firmly convinced that this litigation generally and the district court’s careful management and expedited handling of the case played a role in motivating the prison officials into action and saved countless lives.” Ante, at 22.

I would have preferred to say nothing about the district court’s management of the litigation.

We have identified at least some of the district court’s legal errors, and we’ve ended the case. That should be that.

But if we’re going to include dicta, it should be accurate. And it is not true that the district court “saved countless lives.” Contra ante, at 22. This is the fourth time we’ve seen this case. And it’s the fourth time our court has granted relief against the district court. We stayed its preliminary injunction; we reversed its preliminary injunction; we stayed its permanent injunction; now we reverse its permanent injunction. All told, in the year that this case has been pending, the district court’s remedial orders have been in effect for less than three weeks. And without the district court’s intervention, there are currently four COVID cases in the Pack Unit. Four. That is certainly a credit to the State and its prison system. But how can it be a credit to the district court’s repeatedly stayed-and-reversed orders?

If something needs to be said about the course of this litigation—and again, I would have preferred to leave it unsaid—it’s not laudatory.

This case harkens back to the institutional-reform litigation of yesteryear—back before the Prison Litigation Reform Act (“PLRA”), when federal supervision of state prisons was normal.

It’s not normal today.

Rather, as this case has illustrated all four times it has been before us, this sort of federal-court intervention is unlawful.

And it imposes grave federalism costs that should be avoided not celebrated.


Federal judges decide “Cases” and “Controversies.” U.S. Const. art. III, § 1.

We listen to the plaintiff and the defendant; we apply the law; and then we enter a judgment. That judgment is the thing that embodies our judicial power.

See Acadian Diagnostic Lab’ys, L.L.C. v. Quality Toxicology, L.L.C., 965 F.3d 404, 414 (5th Cir. 2020) (“The judicial power vested by Article   III   is   the   power   to   render   dispositive   judgments.”   (quotation omitted)).

That judgment is the thing that alters the parties’ legal relationship.

See Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973) (“Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court[.]” (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803)).

And that judgment is the thing that ends the case or controversy.

Structural injunctions are, in many ways, the opposite of judgments.

That’s because the federal judge who issues a structural injunction exercises all sorts of wide-ranging power—virtually none of it judicial—without entering a judgment.

Indeed, the whole point of the structural injunction is to do things other than adjudicating cases or controversies—like superintending a state prison. And it’s much easier to superintend a state prison if the district court can assert its power in perpetuity, through continuing jurisdiction, without entering a judgment that would end the case.

Thus the purpose of the structural injunction:

is to alter broad social conditions by reforming the internal structural relationships of government agencies or public institutions. Instrumentally, it operates through the forward- looking, mandatory injunction but assumes a relatively intrusive form, a more or less detailed order whose prescriptions displace significant areas of defendants’ discretion. It relies upon a rather fluid, group-oriented party structure and often demands an active, administrative role for the judge. It usually finds its justification in the more open- ended constitutional provisions, such as the equal protection or due process clauses. Its issuance often precipitates an extremely protracted process typically including judicial wheedling, spasmodic negotiation, and bureaucratic resistance.

Peter H. Schuck, Suing Government: Citizen Remedies for Official Wrongs 151 (1983).

The district court’s highly reticulated, 17-point management plan for the Pack Unit is a perfect example. See ante, at 4–5. And it bears zero resemblance to a judgment. See, e.g., Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 841–42 (1994) (Scalia, J., concurring) (noting that equitable judgments at common law “usually required ‘a single simple act,’” and that English chancery courts maintained a “categorical rule that no decree would issue that required ongoing supervision” (quoting Henry L. McClintock, Principles of Equity § 15, at 32–33 (2d ed. 1948)).

Structural injunctions against state prisons had their heyday in the 1970s and 1980s. In 1977, for example, a district judge in Houston entered a structural injunction against the Texas prison system. See Brown v. Beto, No. 69-H-74, ECF No. 53 (S.D. Tex. July 20, 1977). That injunction allowed three different federal district judges over the course of 42 years to manage prisoner worship services in Texas before our court finally vacated it. See Brown v. Collier, 929 F.3d 218 (5th Cir. 2019).

In 1980, a different district judge issued a different structural injunction against the Texas prison system—regulating every conceivable condition of confinement, including fire exits, water supplies, sanitation in prison kitchens, toilets, work safety and hygiene, and the precise number of dentists who must be available for teeth cleanings. See Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980). That structural injunction remained in place for 22 years. See Ruiz v. Johnson, No. H-78-987, ECF No. 9015 (S.D. Tex. June 17, 2002).

Between 1975 and 1994, the “number of prisoner lawsuits [grew] astronomically” from 6,600 in 1975 to 39,000 in 1994.

Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir. 1998) (quotation omitted). Between 1978 and 1983, 34 States were subject to federal injunctions that governed their prisons.

U.S. Dep’t of Justice, Bureau of Justice Statistics, 1981 Sourcebook of Criminal Justice Statistics 150 (1982).

Taken together, in 1984, 24% of the nation’s 903 state prisons were subject to a structural injunction.

See  1984 U.S. Dep’t of Justice, Bureau of Justice Statistics, Census of State Adult Correctional Facilities 17 (1988). And those injunctions displaced States’ decisionmaking on issues including prison overcrowding, staffing, sanitization, food services, medical care, and a panoply of other issues affecting prison life. See ibid.

Amazingly, in 1995, “more than twenty-five percent of suits filed in federal district court were brought by prisoners.”

Alexander, 159 F.3d at 1324.


These structural injunctions imposed massive federalism costs. After all, States pay for their prisons. State prisoners got there by committing state crimes and standing trial in state courts, based on evidence collected by state law-enforcement and charges brought by state prosecutors. Law-abiding state taxpayers expect their States and their state officials to keep criminals behind bars.

And States are the ones with general police powers. So it offends the foundational premises of our federal system when a State must ask a federal judge (or risk contempt for violating a structural injunction) if the State’s prison cafeteria menu is written in the proper font. See Brown v. Beto, supra, ECF No. 53, ¶ 21.

All of this created a significant backlash in both Congress and the courts. In 1996, Congress enacted the PLRA. See Pub. L. No. 104–134, § 801–10 (1996). That statute severely circumscribed the availability of a judicial forum for prisoner complaints. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). It limited the kinds of claims that could be brought, see, e.g., 42 U.S.C. 1997e(c) (requiring dismissal of meritless claims); id. § 1997e(e) (prohibiting claims for emotional injury), and it stripped courts of authority to retain jurisdiction over prisons through consent decrees, see 18 U.S.C. 3626(b)(2).

“A centerpiece of the PLRA’s effort to reduce the quantity of prisoner suits is an invigorated exhaustion provision,” which requires prisoners asserting constitutional claims to exhaust administrative remedies as a predicate to suit. Woodford, 548 U.S. at 84; see 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner . . . until such administrative remedies as are available are exhausted.”). After the PLRA, exhaustion is no longer left to the discretion of district courts—it’s “mandatory.” Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016). Exhaustion is even required where the relief sought cannot be granted through the administrative process. See Booth v. Churner, 532 U.S. 731, 734, 739 (2001).

A central purpose of this tide-shifting legislation “was to extricate [federal courts] from managing state prisons.” Guajardo v. Tex. Dep’t of Crim. Just., 363 F.3d 392, 394 (5th Cir. 2004) (per curiam) (quotation omitted); see Porter v. Nussle, 534 U.S. 516, 524 (2002) (noting the purpose of the PLRA as being to “reduce the quantity and improve the quality of prisoner suits”).

The federal courts generally heard Congress’s message. Today, courts generally recognize that structural injunctions raise “sensitive federalism concerns” by usurping state sovereignty. Horne v. Flores, 557 U.S. 433, 448 (2009). And after the PLRA, the Supreme Court emphasized that federalism concerns are particularly acute in the context of prison management. See Shaw v. Murphy, 532 U.S. 223, 228–30 (2001); Lewis, 518 U.S. at 386 (Thomas, J., concurring); see also Procunier v. Martinez, 416 U.S. 396, 405 (1974) (emphasizing that federal judges are ill-equipped “to deal with the increasingly urgent problems of prison administration”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989); Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973) (“It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.”).

Federal judges are particularly ill-equipped to manage state prisons:

“Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions.” Brown v. Plata, 563 U.S. 493, 558 (2011) (Scalia, J., dissenting). That’s why Justice Scalia worried that structural injunctions over state prisons invite district judges to “indulge incompetent policy preferences.” Ibid. (emphasis omitted); see also Shaw, 532 U.S. at 228–30; Lewis, 518 U.S. at 388 (Thomas, J., concurring); Rhodes v. Chapman, 452 U.S. 337, 349 (1981).


If we simply must comment on the district court’s handling of this case, see ante, at 22, we can only say this: It’s reminiscent of the pre-PLRA world.

First, this case should’ve been dismissed at the outset because the prisoners failed to exhaust their administrative remedies. See 42 U.S.C. 1997e(a). Administrative relief is deemed “available” so long as the State grants the administrator “authority to take some action in response to a complaint,” even if the relief available does not provide the “remedial action an inmate demands.” Booth, 532 U.S. at 736 (emphasis added). And there is no COVID exception to the PLRA’s exhaustion requirement: “[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion. Time and again, this Court has taken such statutes at face value—refusing to add unwritten limits onto their rigorous textual requirements.” Ross, 136 S. Ct. at 1857 (citation omitted); see also id. at 1858 (rejecting the Fourth Circuit’s effort to ignore the PLRA’s exhaustion requirement under “special circumstances”). We explained this problem—along with myriad others—in our first decision in this case. See Valentine v. Collier, 956 F.3d 797, 804–05 (2020) (per curiam). The district court plowed ahead anyway. And as a result, the entirety of the proceedings in this case occurred in direct contravention of the statute passed by Congress. We have no basis for commending that.

Second, the district court recognized that its injunction could be described as “micro-management of the state’s conduct” that “burden[s] . . . the government’s budget, or . . . assume[s] a responsibility that should be left for the legislature.” Valentine v. Collier, 2020 WL 5797881, at *37 (S.D. Tex. Sept. 29, 2020). In that at least, the district court was quite correct. The injunctions in this case were an amalgamation of CDC guidance, penological philosophy, and policy preferences. But they were not based in federal law.

And therefore, our panel unanimously agrees that the plaintiffs have failed to win any relief at all, and defendants are entitled to judgment.*

With that, I concur in the judgment.

I also reject the majority’s assumption that “wheelchair and walker-bound inmates did not have equal access to the heightened hand hygiene service provided by the prison through the additional soap and handwashing stations.” Ante, at 24.

The mobility- impaired inmates do not claim an inability to access sinks with soap and running water to clean their hands; they can and do participate in the government program by washing their See id. at 25.

Instead, the mobility-impaired inmates argue only that they get their hands dirty more quickly than able-bodied inmates because they must touch the rims of their wheelchairs (or the handles of their walkers) to return to their cubicles or to the dining hall.

But that isn’t the denial of participation in a government program.

Rather, that’s participation in the government hand-washing program, followed by a desire to participate in it again. See Providence Behav. Health v. Grant Rd. Pub. Util. Dist., 902 F.3d 448, 459 (5th Cir. 2018) (finding no ADA violation where denial of accommodation “did not create a situation where disabled individuals had an unequal ability to use and enjoy the facility compared to individuals who do not have a disability”).

The majority is nonetheless correct to reject the plaintiffs’ ADA claims (just as we reject all of the plaintiffs’ other claims).

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Oldham’s Jailhouse Rant against the Oldies
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