Frazier v. Graves

NICHOLAS FRAZIER, et al. PLAINTIFFS v. SOLOMON GRAVES, et al. DEFENDANTS

Case No. 4:20-cv-00434-KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

March 31, 2021

ORDER

Before the Court is defendants Solomon Graves, Secretary of the Arkansas Department of Corrections ("DOC"); Dexter Payne, Division of Correction Director, Arkansas Department of Corrections ("ADC"); Benny Magness, Chairman of Arkansas Board of Corrections ("ABC"); Bobby Glover, Vice Chairman of ABC; John Felts, Member of ABC; William "Dubs" Byers, Member of ABC (collectively, "State defendants") motion to dismiss the amended complaint of plaintiffs Marvin Kent, Michael Kouri, Jonathan Neeley, Alfred Nickson, Trinidad Serrato, Robert Stiggers, Victor Williams, John Doe No. 1, Wesley Bray, Price Brown, John Doe No. 2, Joseph Head, Darryl Hussey, Jimmy Little, Lee Owens, Torris Richardson, and Roderick Wesley, plaintiffs, individually and on behalf of all others similarly situated (collectively, "plaintiffs").¹ Plaintiffs filed a response to the motion on September 10, 2020 (Dkt. No. 103). State defendants, all of whom are sued in their official capacity only, replied to the response on October 9, 2020, and filed a supplemental reply to the response on October 20, 2020 (Dkt. Nos. 107, 111).

For the reasons set forth below, the Court grants in part and denies in part State defendants' motion to dismiss (Dkt. No. 95); denies as moot plaintiffs' motion for expedited discovery (Dkt.No. 37); grants plaintiffs' motion for the Court to take judicial notice of 48 additional incarcerated people testing positive for COVID-19 at third facility operated by defendants (Dkt. No. 66); denies as moot defendants' motion to dismiss the original complaint (Dkt. No. 76); and denies as moot State defendants' motion to continue the trial setting (Dkt. No. 134).

I. Overview

A. Complaint, Emergency Motion For Temporary Restraining Order And Preliminary Injunction, Supplemental Motion For Temporary Restraining Order

On April 21, 2020, plaintiffs filed a class action complaint and petition for writ of habeas corpus (Dkt. No. 1). Plaintiffs alleged that conditions in ADC facilities create a serious risk of COVID-19-related infection, disease, and death (Id., ¶¶ 72-89). Plaintiffs claimed that the spread of COVID-19 in ADC facilities jeopardizes the public health of surrounding communities, especially African American communities (Id., ¶¶ 90-97). Plaintiffs asserted that defendants have intentionally failed to adopt and implement adequate policies and procedures to prevent and mitigate the spread of COVID-19 (Id., ¶¶ 98-126). Plaintiffs asserted three causes of action: (1) violation of the Eighth Amendment brought pursuant to 42 U.S.C. § 1983 on behalf of all plaintiffs; (2) violation of the Eighth Amendment brought by a petition for writ of habeas corpus under 28 U.S.C. § 2241 on behalf of the proposed high risk subclass; and (3) violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., on behalf of the proposed disability subclass (Id., ¶¶ 127-48).

On the same day, plaintiffs also filed an emergency motion for temporary restraining order and preliminary injunction (Dkt. No. 2). In this motion, plaintiffs requested that this Court grant immediate relief to protect them against the substantial risk of COVID-19 infection, illness, and death while incarcerated in ADC facilities (Id., at 1-2). Plaintiffs asserted that they are entitled toa preliminary injunction because they are substantially likely to succeed on the merits of their claim that defendants' failure to take steps to address the imminent risk caused by COVID-19 constitutes deliberate indifference in violation of plaintiffs' Eighth Amendment rights (Id., at 2). Plaintiffs further asserted that defendants have violated, and will continue to violate, the ADA by failing to provide plaintiffs with disabilities with reasonable accommodations that would allow them to have safe housing while serving their prison sentence that does not place them at substantial risk of COVID-19 infection, illness, or death by virtue of their disability (Id.). Plaintiffs maintained that defendants are aware of the substantial risk posed by the virus and the recommended steps issued by the Centers for Disease Control and Prevention ("CDC") to prevent its spread but have failed to take steps to protect plaintiffs (Id.). Plaintiffs asserted that they and putative class members are also entitled to relief because they will suffer irreparable harm absent relief and that traditional legal remedies will not adequately protect their rights (Id.).

On Monday, April 27, 2020, plaintiffs also filed a supplemental motion for temporary restraining order (Dkt. No. 22). Plaintiffs' supplemental motion for temporary restraining order requested that the Court enter immediately a temporary restraining order (Id., at 1). Plaintiffs provided a draft proposed order outlining in detail the relief they requested in their motion, which was comparable but not identical to the relief they sought in their motion for preliminary injunction (Dkt. No. 22-1). The Court conducted a hearing with all parties on that motion on Tuesday, April 28, 2020 (Dkt. Nos. 24; 26). Plaintiffs filed a motion for expedited discovery, while the Court had under advisement their request for preliminary injunctive relief (Dkt. No. 37). On May 4, 2020, the Court entered an Order denying plaintiffs' motion for temporary restraining order but held under advisement plaintiffs' previously filed motion for preliminary injunction (Dkt. No. 42).

After the Court's ruling on plaintiffs' request for a temporary restraining order, plaintiffs and defendants submitted to the Court additional record evidence and further briefing. The Court conducted a hearing on plaintiffs' motion for preliminary injunction (Dkt. Nos. 62; 63), and the parties filed post-hearing briefs (Dkt. Nos. 64; 65). Plaintiffs filed a motion asking the Court to take judicial notice of 48 additional incarcerated people testing positive for COVID-19 at a third facility operated by defendants (Dkt. No. 66). The motion is granted (Dkt. No. 66).

In an Order dated May 19, 2020, the Court denied plaintiffs' motion for preliminary injunction (Dkt. No. 68).

B. Defendants' Motion to Dismiss Original Complaint

The defendants named in the original complaint filed a motion to dismiss the complaint (Dkt. No. 76). Plaintiffs requested an extension of time to respond to defendants' motion to dismiss on the ground that they would be filing an amended complaint superseding the original (Dkt. No. 83). Plaintiffs filed an amended class action complaint and petition for writ of habeas corpus (Dkt. No. 84).

"[A]s a general proposition, if a defendant files a Motion to Dismiss, and the plaintiff later files an Amended Complaint, the amended pleading renders the defendant's motion to dismiss moot." Oniyah v. St. Cloud State Univ., 655 F. Supp. 2d 948, 958 (D. Minn. 2009) (citing Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) ("If anything, [plaintiff's] motion to amend the complaint rendered moot [defendant's] motion to dismiss the original complaint."); Standard Chlorine of Del., Inc. v. Sinibaldi, 821 F. Supp. 232, 239-40 (D. Del. 1992) (finding that plaintiff's filing of an amended complaint rendered defendant's motion to dismiss moot)). Thus, under Eighth Circuit precedent, plaintiffs' filing an amended complaint rendersmoot defendants' first motion to dismiss (Dkt. No. 76). Accordingly, the Court denies as moot the motion to dismiss (Dkt. No. 76).

C. The Amended Complaint

1. The Parties And Class Allegations

Plaintiffs filed an amended class action complaint and petition for writ of habeas corpus on July 13, 2020 (Dkt. No. 84). The amended complaint added a number of plaintiffs and two new defendants, Arkansas Secretary of Health, Dr. Jose Romero,² and Wellpath, LLC ("Wellpath"), the contracted medical provider for the DOC (Id., ¶¶ 91-92).

In their amended complaint, plaintiffs seek relief on behalf of themselves and a class consisting of people who are currently incarcerated, or will be in the future, in an ADC detention facility during the duration of the COVID-19 pandemic (Id., ¶ 93). Plaintiffs also propose two subclasses, to include an (a) high risk subclass, defined as:

People in the custody of a DOC facility aged 50 or over and/or who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions such as chronic lung disease or asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or for any other reason; people with chronic liver or kidney disease, or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), or an inherited metabolic disorder; people who have had or are at risk of stroke; and people with any condition specifically identified by CDC, currently or in the future, as increasing their risk of contracting, having severe illness, and/or dying from COVID-19;

and (b) disability subclass, defined as:

People in custody who suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of contracting, becomingseverely ill from, and/or dying from COVID-19 due to their disability or any medical treatment necessary to treat their disability, with a broad construction of "disability" pursuant to 28 C.F.R. § 35.101, which favors expansive coverage to the maximum extent permitted by the terms of the Americans With Disabilities Act ("ADA") that does not require extensive analysis.

(Id., ¶ 93).

2. Factual Allegations In The Amended Complaint

Plaintiffs contend that because people incarcerated in DOC facilities are housed in ...