RELIST WATCH

Holding prison officials accountable for COVID measures

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. 

On Friday, the Supreme Court justices will be meeting for the first time in nearly a month to discuss whether to grant review of any new cases. As you might expect, a significant number of petitions and applications have built up – 420 are slated for Friday’s conference. But out of all of those cases, only one of them has been newly relisted since the court’s final conference of 2024: Burt v. Gordon.

In the early days of the COVID-19 pandemic, Michigan Governor Gretchen Whitmer issued an executive order requiring the state’s department of corrections to follow guidelines set by the Centers for Disease Control to stem the spread of COVID-19 in Michigan’s prisons. The department created procedures to separate prisoners who had contracted COVID-19 or were in close contact with someone who had from other prisoners.

After contracting COVID-19 in August 2020 at the Muskegon Correctional Facility, Jimmie Leon Gordon sued the warden and deputy warden, arguing that they violated the Eighth Amendment by being deliberately indifferent to the risk that the COVID-19 pandemic presented to him.

The district court dismissed Gordon’s lawsuit on the ground that he had not shown that prison officials had recklessly disregarded the risk that he would contract COVID-19.

But the U.S. Court of Appeals for the 6th Circuit reversed, holding the district court should have accepted as true Gordon’s allegations that prison administrators had disregarded published social-distancing guidelines and failed to isolate infected prisoners.

On remand, the district court concluded that prison administrators were entitled to qualified immunity because, in light of the unprecedented circumstances of the COVID-19 pandemic, no clearly established federal law would have alerted the defendants that their actions were unconstitutional.

The 6th Circuit again reversed. It held that notwithstanding the novelty of the coronavirus, it was clearly established before the pandemic that prison officials could not exhibit deliberate indifference to an inmate’s exposure to dangerous communicable diseases, and that prison officials have a duty to protect prisoners from exposure to dangerous prison conditions. The court concluded that “a reasonable prison official would have understood that, by purposefully commingling infected prisoners with uninfected prisoners, … she was violating the Eighth Amendment.”

At the Supreme Court, Michigan argues that given the novelty of the COVID pandemic, there was “no clearly established precedent to provide specific guidance to prison officials in their protection of prisoners.” It contends that although courts of appeals have been “inconsistent in their treatment of COVID-19,” courts have generally held that “prison officials have fulfilled their duties so long as they established reasonable protocols … to combat the spread of the virus in prisons”—just as Michigan did here. And Michigan argues that the 6th Circuit analyzed the issue “at too high a level of generality,” rather than looking at the specific measures Michigan employed and determining whether they were clearly illegal when they were adopted.

Though Gordon represented himself before the 6th Circuit, he is now represented by the MacArthur Justice Center, which argues that the issue is not the subject of a circuit split and review of the court of appeals’ unpublished decision is not warranted.

The Supreme Court devotes significant resources to summary decisions reversing what it concludes are unwarranted denials of qualified immunity, as well as unwarranted grants of habeas relief. It seems likely that one or more justices is taking a close look to determine whether the denial of qualified immunity here was warranted.

New Relists

Burt v. Gordon, 24-73
Issue: Whether the U.S. Court of Appeals for the 6th Circuit improperly denied qualified immunity to prison officials based on their response to the unprecedented COVID-19 global pandemic by defining the relevant law at too high level of generality, and identifying no precedent recognizing a constitutional right under similar circumstances that would have put reasonable officials on notice that their conduct may violate the Constitution given the novel challenge of the pandemic.

Returning Relists

Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22, Dec. 6 and Dec. 13 conferences.) 

Turco v. City of Englewood, New Jersey, 23-1189
Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22, Dec. 6 and Dec. 13 conferences.)

Coalition Life v. City of Carbondale, Illinois, 24-57
Issue: Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22, Dec. 6 and Dec. 13 conferences.)

Carter v. United States, 23-1281
Issues: (1) Whether Feres v. United States should be limited not to bar tort claims brought by service members alleging medical malpractice who were under no military orders, not engaged in any military mission, and whose military status was retroactively altered from inactive to active duty post medical malpractice; and (2) whether the Feres doctrine conflicts with the plain language of the Federal Tort Claims Act and should thus be clarified, limited, or overruled.
(Relisted after the Dec. 6 and Dec. 13 conferences.)

Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6 and Dec. 13 conferences.)