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Fountain v. Livingston

United States District Court, E.D. Texas, Tyler Division

April 16, 2017

FREDDIE FOUNTAIN
v.
BRAD LIVINGSTON

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

          RON CLARK UNITED STATES DISTRICT JUDGE.

         The Plaintiff Freddie Fountain, a prisoner of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court referred the case to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. The sole named Defendant is former TDCJ Executive Director Brad Livingston.

         I. The Plaintiff's Complaint

         Fountain asserts that it is the practice and policy of Livingston, as Executive Director, to subject prisoners including himself to “constant and/ or substantial extremely high, cruel, dangerous, injurious, and deadly indoor summertime temperatures in high numbers of prisoners throughout the State of Texas.” Fountain acknowledges that remedial measures are supposed to be taken, but claims these measures are entirely or to a great extent insufficient and widely ineffective in accomplishing the goal of protecting prisoners from the cruelties and dangers of the high indoor summer temperatures.

         Fountain goes on to assert that Livingston has sufficient, substantial, and long-term knowledge of the actual heat-related conditions, dangers, injuries, and deaths, as well as the insufficiency of the remedial measures. Nonetheless, Fountain asserts nothing has been done to protect the prisoners.

         Fountain argues that the remedial measures, including ice water, showers, and fans, are not provided in the manner in which they are claimed to be and are not adequate to alleviate the situation. He provides a list of inmates whom he says have died because of the heat and states that he himself has suffered a number of serious injuries as a result of exposure to the excessive temperatures. For relief, Fountain requests monetary damages and an order that the defendant provide the prisoners with safe and humane indoor temperatures by any means necessary.

         II. The Magistrate Judge's Report

         The Magistrate Judge issued a Report recommending Fountain's lawsuit be dismissed as duplicative. The Magistrate Judge observed that Fountain also has another lawsuit pending, styled Fountain v. Rupert, et al., civil action no. 6:15cv100. This lawsuit raises over a dozen claims concerning Fountain's conditions of confinement, of which one asserts that Fountain has been subjected to “extremely high, dangerous, cruel, and harmful inner cell temperatures through the entire summers of 2011, 2012, 2013, 2014, 2015, and 2016.” He asserts that TDCJ officials maliciously refused even to attempt to protect him from these temperatures by failing to provide cool-down showers, cool fluids such as meal drinks and ice water, or air conditioning. Fountain states that these high indoor temperatures cause serious harm and death to Texas prisoners every year and that he has suffered serious injury, including a near-fatal heat stroke in 2014 and an instance of organ failure in 2015.

         The Magistrate Judge stated that courts should ensure a plaintiff “obtains one bite at the litigation apple - but not more, ” citing Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993). Under this principle, the Magistrate Judge stated that a district court is justified in dismissing an in forma pauperis complaint which is duplicative of pending litigation then being pursued by the same plaintiff.

         While the district court normally should dismiss the later-filed action in favor of the lawsuit filed earlier, the Magistrate Judge observed that cause no. 6:14cv268 comprises only one claim, that of exposure to excessive heat, while cause no. 6:15cv100 includes a number of claims, including but not limited to exposure to excessive heat. The Magistrate Judge determined that the interests of judicial economy favor allowing Fountain to go forward with all of his claims in one lawsuit, cause no. 6:15cv100.

         III. Fountain's Objections to the Report

In his objections, Fountain argues as follows:
A review of the two actions would reveal that, although the subjection to in-prison heat [sic] and lack of remedial measures is a baseline background element in each case, the actual injuries sustained as a result which are separate and unique are foremost issue only in 6:15cv100, whereas the backdrop condition and a single separate injury are issue [sic] in this case. Which makes the two cases measurably different.

         Fountain states that the claims in cause no. 6:14cv268 involve the overall state-wide condition of heat exposure as well as injuries which he sustained on August 14, 2013, while the claims in 6:15cv100 involve such heat related injures as a heat stroke in 2014 and heat exhaustion combined with organ ...


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