United States District Court, S.D. Texas, Houston Division
ORDER DENYING MOTION FOR RECONSIDERATION
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Motion for
Reconsideration of Plaintiffs' Amended First Motion for
Attorneys' Fees. (Doc. No. 599.) The Court denied
Plaintiffs' motion for attorneys' fees on December 7,
2016. (Doc. No. 584). After considering the Motion, the
response thereto, and all applicable law, the Court
determines that the motion should be denied.
21, 2016, the Court partially granted Plaintiffs'
Emergency Motion for Preliminary Injunction (Doc. No. 434),
ordering the Texas Department of Criminal Justice “to
provide drinking water to the [prison] inmates at the Wallace
Pack Unit [in Navasota, Texas] that conforms with EPA maximum
contaminant level requirements . . . .” (Doc. No. 477
at 15.) The preliminary injunction was in effect until
September 22, 2016, and was not renewed at that time.
Defendants appealed the injunction, and at the time the Court
considered Plaintiffs' motion for attorneys' fees,
the Fifth Circuit had not yet ruled. Since that time, the
Fifth Circuit dismissed the appeal as moot, since the
injunction was no longer in place. (Doc. No. 594.) §
as to the underlying issue in this case-the high temperatures
in Texas prisons during the summer months-is ongoing. Indeed,
on May 1, 2017, Plaintiffs filed a Motion for Preliminary and
Permanent Injunction, this time with regard to the hot
temperatures experienced by the plaintiffs in Pack Unit. An
evidentiary hearing is set on that motion for the week of
June 19, 2017.
54(b) allows a court to revise an interlocutory order any
time prior to the entry of judgment adjudicating all the
claims and all the parties' rights and liabilities. The
Federal Rules of Civil Procedure do not, however,
specifically provide for motions for reconsideration. See
Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 n. 1
(5th Cir. 2004). Motions for reconsideration from
interlocutory orders are generally governed by the standards
for Rule 59(e) motions. Hamilton Plaintiffs v. Williams
Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir. 1998);
Thakkar v. Balasuriya, No. H-09-0841, 2009 WL
2996727, at *1 (S.D. Tex. Sept. 9, 2009).
motion under Rule 59(e) must “clearly establish either
a manifest error of law or fact or must present newly
discovered evidence.” Ross v. Marshall, 426
F.3d 745, 763 (5th Cir. 2005) (citing Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Relief is
also appropriate where there has been an intervening change
in the controlling law. See Schiller v. Physicians
Resource Group Inc., 342 F.3d 563, 567 (5th Cir. 2003).
Motions under Rule 59(e) “cannot be used to raise
arguments which could, and should, have been made before the
judgment issued.” Id. In considering a motion
for reconsideration, a court “must strike the proper
balance between two competing imperatives: (1) finality, and
(2) the need to render just decisions on the basis of all the
facts.” Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 355 (5th Cir. 1993). While a district court has
“considerable discretion” to grant or deny a
motion under Rule 59(e), id., the Fifth Circuit
cautions that reconsideration under Rule 59(e) is an
extraordinary remedy that courts should use sparingly.
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th
Cir. 2004); see also In re Goff, No. 13-41148, 2014
WL 4160444, *4 (5th Cir. 2014) (“A motion for
reconsideration should only be granted in extraordinary
Plaintiffs' first motion for attorneys' fees, they
contended that, because the Court entered a preliminary
injunction with regard to the arsenic-laden water, they were
“prevailing parties” under 42 U.S.C. §
1988(b) and were entitled to attorney's fees. The Court
denied the motion, holding that it was premature.
Plaintiffs' motion for reconsideration contends that
because the Fifth Circuit has since dismissed Defendants'
appeal as moot, Plaintiffs are prevailing parties and are
entitled to attorneys' fees.
governing statute, 42 U.S.C. § 1988(b), provides that
“the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable
attorney's fee.…” In Buckhannon Board
& Care Home, Inc. v. West Virginia Department of Health
& Human Resources, the Supreme Court stated that a
prevailing party exists when there is a “judicially
sanctioned change in the legal relationships of the
parties.” 532 U.S. 598, 605 (2001). Since
Buckhannon, the Fifth Circuit has not decided under
what circumstances a preliminary injunction may meet the
prevailing party standard and support an award of
attorney's fees. However, a number of circuit courts have
addressed the issue, and the Fifth Circuit reviewed the
varying analyses in Planned Parenthood of Houston and
Southeast Texas v. Sanchez, 480 F.3d 734 (2007).
example, the Eleventh Circuit has stated that “a
preliminary injunction on the merits, as opposed to a merely
temporary order which decides no substantive issues but
merely maintains the status quo, entitles one to prevailing
party status and an award of attorney's fees.”
Taylor v. City of Fort Lauderdale, 810 F.2d 1551,
1558 (11th Cir. 1987). However, attorneys' fees will not
be awarded if it is later determined that the preliminary
injunction was granted as a result of a “mistake in
law.” Id. The Seventh Circuit has held that a
preliminary injunction may lead to prevailing party status if
the plaintiff obtains “substantive relief that is not
defeasible by further proceedings” and the case is
mooted after the preliminary injunction is granted. Dupuy
v. Samuels, 423 F.3d 714, 719 (7th Cir. 2005). The D.C.
Circuit determined that a preliminary injunction suffices for
prevailing party status if the plaintiff obtains substantial
relief and the defendant does not appeal the injunction.
Select Milk Producers, Inc. v. Johanns, 400 F.3d
939, 945 (D.C.Cir. 2005). And the Ninth Circuit has found
that a preliminary injunction “carries all the
‘judicial imprimatur' necessary to satisfy
Buckhannon.” Watson v. County of
Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002). The
Ninth Circuit noted, however, that if a plaintiff secures a
preliminary injunction but subsequently loses on the merits,
the plaintiff would not be a prevailing party. Id.
Fifth Circuit did not select an approach from those outlined
in Planned Parenthood because it found that the
plaintiffs did not qualify as prevailing parties under any of
the existing tests. Id. at 741.
correctly point out that the Court denied Plaintiffs'
motion for attorneys' fees in part because it was unknown
whether the preliminary injunction would be upheld on appeal.
But the fact that the appeal was dismissed as moot does not
change the Court's finding that the motion for
attorneys' fees is premature. This is because
“[s]everal of the tests described above look to
information that is not yet available in this
case”-most importantly, whether Plaintiffs will
ultimately prevail on the merits of their case: the hot
temperatures in Pack Unit. (Doc. No. 484 at 3.) “Other
tests require showings that are directly contradicted in this
case, such as the case having been mooted or the defendants
having failed to appeal the injunction.” (Id.)
Because the Court has not yet ruled on Plaintiffs'