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Cole v. Collier

United States District Court, S.D. Texas, Houston Division

July 19, 2017

KEITH COLE, Plaintiffs,
v.
BRYAN COLLIER, Defendants.

          MEMORANDUM AND OPINION SETTING OUT FINDINGS OF FACT AND CONCLUSIONS OF LAW

          KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE

         Introduction ...................................................................................................................................... 3

         I. Findings of Fact ........................................................................................................................ 4

         A. Procedural Background .................................................................................................. 4

         1. The Plaintiff Classes ............................................................................................... 5

         2. The First Preliminary Injunction .............................................................................. 6

         B. The Evidence in the Record ............................................................................................ 7

         1. The Parties .............................................................................................................. 7

         2. The Wallace Pack Unit ........................................................................................... 8

         3. The Fact Witnesses ................................................................................................ 10

         4. The Expert Witnesses ........................................................................................... 16

         5. Overview of the Factual Issues .............................................................................. 20

         C. The Outdoor and Indoor Heat Index at the Pack Unit .................................................. 22

         D. The Effects of Heat on the Human Body ..................................................................... 26

         1. The Effects of Heat on an Individual with Comorbidities .................................... 32

         2. The Effects of Heat on an Individual Taking Certain Medications ...................... 35

         3. The Effects of Heat on an Individual with Multiple Comorbidities and/or Who Takes Certain Medications ................................................................ 37

         4. The Heat Index Threshold for Heat Illness ........................................................... 39

         E. Conditions in TDCJ Facilities, Including the Pack Unit, Prior to 2013 ........................ 42

         F. Heat-Related Deaths and Illnesses in TDCJ Facilities .................................................. 43

         G. The Current Conditions in the Pack Unit ...................................................................... 45

         1. Heat Mitigation Measures ...................................................................................... 45

         2. Heat Wave/Extreme Temperature Policy ............................................................. 67

         3. Heat-Related Illnesses in the Pack Unit ................................................................. 70

         H. The Proposed Remedies ................................................................................................ 72

         1. Air Conditioning .................................................................................................... 73

         a. The Effectiveness of Air Conditioning ......................................................... 73

         b. Pre-Existing Air Conditioned Beds Within TDCJ ........................................ 74

         c. Medical Providers' Inability to Recommend Air Conditioned Housing ...... 75

         d. The Installation and Cost of Air Conditioning at the Pack Unit ................... 77

         2. Window Screens .................................................................................................... 79

         3. Creation of a Heat Wave Policy for the Pack Unit ................................................ 81

         4. Other Remedies ...................................................................................................... 81

         II. Conclusions of Law ................................................................................................................ 82

         A. The Legal Standard ....................................................................................................... 82

         B. Likelihood of Success on the Merits ............................................................................ 83

         1. The Constitutional Requirements ......................................................................... 83

         2. Conditions of Confinement that Violate the Eighth Amendment .......................... 83

         a. Substantial Risk of Serious Injury or Death .................................................. 83

         b. Deliberate Indifference ................................................................................. 86

         C. Irreparable Injury .......................................................................................................... 91

         D. Balancing the Harms .................................................................................................... 92

         E. The Public Interest ........................................................................................................ 93

         F. Bond ............................................................................................................................. 94

         III. Remedy .................................................................................................................................. 94

         IV. Conclusion ............................................................................................................................ 99

         Introduction

         Plaintiffs in this class action request relief from conditions in a state prison. In turning to this subject, the Court is acutely aware of both the limitations of its own competence, and the importance of ensuring that constitutional treatment is accorded one of society's most discrete and disenfranchised minorities.

         In a perfect world, the safety and good health of prisoners would be assured by Solomonic men and women who had simultaneous expertise in the corrections industry, construction, safety engineering, medicine, and law. In the world we inhabit, however, judges are asked to make judgments and enforce decisions because courts are, in our government's architecture, where individuals and institutions bring constitutional issues. The task is one that any court must approach with the utmost humility. Still, the fact that a case is difficult does not lead to the conclusion that a decision should be avoided.

         The immediate issue is whether a preliminary injunction should be entered to redress conditions that are alleged to create an unconstitutional risk of heat-related illnesses at the Wallace Pack Unit, a prison operated by the Texas Department of Criminal Justice (“TDCJ”). Although no heat-related deaths have been reported at the Pack Unit, at least 23 men have died because of heat at TDCJ facilities from 1998 to today. For reasons that will be set forth, the Court does find that a preliminary injunction should issue to ensure that prisoners at the Pack Unit are not deprived of their Eighth Amendment right to be free of cruel and unusual punishment.

         I. Findings of Fact

         A. Procedural Background

         Plaintiffs filed this lawsuit on June 19, 2014. Docket Entry No. 1. Initially, Plaintiffs consisted of four men-David Bailey, Marvin Yates, Keith Cole and Nicholas Diaz- incarcerated at the Pack Unit. The Pack Unit is a Type-I Geriatric prison, which means it is a single-level facility with wheelchair accommodations. Id. at 2-3; Docket Entry No. 326 at 12. The Pack Unit is owned and operated by TDCJ. Docket Entry No. 326 at 12.

         Plaintiffs have sued Defendants Bryan Collier, the Executive Director of TDCJ, and Robert Herrera, the warden of the Pack Unit, under 42 U.S.C. § 1983, alleging that the conditions of confinement in the Pack Unit violate Plaintiffs' Eighth Amendment right to be safe from conditions of confinement that cause a substantial risk of serious injury or death. Docket Entry No. 629 at 42-43. A smaller subset of the plaintiffs-those who claim to have a disability-also alleges that TDCJ is violating its right to be reasonably accommodated under the Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”). Id. at 43-45.

         Plaintiffs moved for class certification, and in May 2016, the Court held a four-day evidentiary hearing. On June 14, 2016, the Court granted Plaintiffs' motion for class certification, certifying a general class and two subclasses. Docket Entry No. 473. Around the same time, Plaintiffs also moved for a preliminary injunction requiring the Pack Unit to provide safe drinking water, to adopt a formal policy to address the dangers of heat waves, to monitor regularly the temperatures inside the Pack Unit, and to amend its policy regarding respite areas- locations that prisoners can go to for relief from the heat. Docket Entry No. 434. The Court considered evidence on the Motion during the four-day evidentiary hearing. On June 21, 2016, the Court entered a preliminary injunction ordering the Pack Unit to provide water that conformed to the Environmental Protection Agency (“EPA”) maximum contaminant level requirements for arsenic. Docket Entry No. 477. Soon thereafter, the Court denied Defendants' Motion for Summary Judgment. Docket Entry No. 533.

         On May 1, 2017, Plaintiffs filed a motion for a second preliminary injunction, and on May 22, 2017, Defendants responded. Docket Entry Nos. 620 & 641. The Court held a nine-day hearing in June 2017. Plaintiffs ask this Court to order TDCJ to lower the indoor temperatures at the Pack Unit to below 88 degrees[1] for the summer of 2017. They contend that the extreme heat they endure at the Pack Unit is dangerous and damaging to their health, and that Defendants' mitigation measures are wholly inadequate to counter the high temperatures. As a result, Plaintiffs claim, the heat creates an unconstitutional condition of confinement. Docket Entry No. 620. If the Court fails to order Pack Unit to lower the temperatures, Plaintiffs request various forms of alternate relief, including mandating three hours of scheduled respite time, installing portable “cooling units” in the inmate housing areas, monitoring each person's water consumption, and requiring medical staff to conduct “wellness checks” for heat-sensitive people. Id. at 3-13. Defendants argue, primarily, that the mitigation measures they have implemented since 2015 have eradicated any potential constitutional violation caused by the heat in the Pack Unit. Docket Entry No. 641 at 13-14.

         1. The Plaintiff Classes

         In its previous ruling granting Plaintiffs' motion for class certification, the Court certified three classes. Docket Entry No. 473. First, the Court certified the General Class, which is defined as:

All inmates who currently are, or in the future will be, incarcerated at the Pack Unit, and who are subjected to TDCJ's policy and practice of failing to regulate high indoor heat index temperatures in the housing areas.

Id. at 2-3. The Court also certified two subclasses. The Heat-Sensitive Subclass is defined as:

All people who are incarcerated at the Pack Unit, or in the future will be, that are subjected to TDCJ's policy and practice of failing to regulate high indoor heat index temperatures in the housing areas, and either: (1) have a physiological condition that places them at increased risk of heat-related illness, injury, or death (including, but not limited to, suffering from obesity, diabetes, hypertension, cardiovascular disease, psychiatric conditions, cirrhosis of the liver, chronic obstructive pulmonary disease, cystic fibrosis, asthma, sweat gland dysfunction, and thyroid dysfunction); or, (2) are prescribed an anticonvulsant, anticholinergic, antipsychotic, antihistamine, antidepressant, beta blocker, or diuretic; or (3) are over age 65.

Id. at 3. The Disability Subclass consists of:

All people incarcerated at the Pack Unit, or who will be in the future, that are subjected to TDCJ's policy and practice of failing to regulate high indoor heat index temperatures in the housing areas and suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of heat-related illness, injury, or death due to their disability or any medical treatment necessary to treat their disability.

Id. Defendants appealed the grant of class certification. The Fifth Circuit has yet to issue its ruling.

         2. The First Preliminary Injunction

         On June 21, 2016, the Court entered a preliminary injunction finding that the drinking water at the Pack Unit contained between two and four-and-a-half times the amount of arsenic permitted by the EPA, and ordering the Pack Unit, for a defined period, to provide water that conformed with the EPA maximum contaminant level requirements for arsenic. Docket Entry No. 477. Plaintiffs had also asked the Court to order that each inmate receive three hours of scheduled respite every day, and to order Pack Unit to measure, daily, the temperature inside each of the housing areas. Docket Entry No. 434. The Court, at that time, declined to order such relief. Docket Entry No. 477 at 29-30. Defendants appealed the Court's order, and their appeal was dismissed as moot. Docket Entry No. 594.

         B. The Evidence in the Record

         This motion for a second preliminary injunction requires balancing the expediency demanded by the request for emergency relief with a full and fair consideration of the voluminous record. The parties submitted hundreds of pages of exhibits. Fifteen witnesses testified at the nine-day hearing, including four expert witnesses. Additionally, Plaintiffs have incorporated by reference the testimony and evidence presented at the 2016 four-day hearing. This consisted of testimony from eight witnesses, including three expert witnesses. Docket Entry No. 477. Previously, the Court had visited the Pack Unit.

         The Court reviews the factual record under the applicable legal framework to resolve the disagreements between the parties, and to enter the findings of fact and conclusions of law.[2]

         1. The Parties

         As described above, the Court certified a General Class and two subclasses in June 2016. The General Class includes every person currently incarcerated at the Pack Unit, and the two subclasses include subsets of that population. The named Plaintiffs in the case are Keith Cole, Jackie Brannum, Richard King, Michael Denton, Fred Wallace, and Marvin Ray Yates.

         The defendants in this case are Bryan Collier, the Executive Director of TDCJ, and Robert Herrera, the Warden of the Pack Unit, both of whom are sued in their official capacities. TDCJ is also a defendant.

         2. The Wallace Pack Unit

         The Wallace Pack Unit is one of 109 custodial facilities operated by TDCJ across the state of Texas.[3] Docket Entry No. 326 at 12. It began housing prisoners in 1983. Id. The facility has wheelchair accommodations, 60 wheelchair-accommodated cells, and a 12-bed infirmary. Id. While the facility does house numerous older men, those who are unable to engage independently in the activities of daily living are assigned to assisted living and/or long-term inpatient care, in other facilities. Id. These facilities include type-II or type-III Geriatric facilities, which are required to have air conditioning. Defs.' Ex. 109 at 1. TDCJ has one type-II Geriatric facility and one Type-III Geriatric facility. Hearing Tr. 5 at 41.

         The Pack Unit houses approximately 1, 450 men, and has approximately 334 employees. Docket Entry No. 326 at 12. The unit has, among other facilities, a cattle farm and an agricultural farm. Id. There is an air conditioned infirmary, and at least one medical provider is present 24 hours a day, seven days a week. Id. All of the administration offices are air conditioned, as are the visitation areas, the education department, the barbershop, and a small portion of the craft shop. Id. at 13-14.

         The Pack Unit has three separate housing areas: the main building, the expansion dormitory, and the trusty camp. Id. at 13. Each of these housing areas is set up in a dormitory style, with open-air cubicles for each person. Id. Each dormitory has a “dayroom, ” with tables, chairs, and televisions. Pls.' Ex. 2. None of the dormitories contains conditioned air.[4] Docket Entry No. 326 at 12. Within the main building, four dormitories extend from either side of a main hallway. Pls.' Ex. 1 These dormitories are labeled Dormitory A, Dormitory B, Dormitory C, and Dormitory D. Id. Each dormitory is divided into four sub-dormitories, which are labeled numerically, from 1 to 16. Hearing Tr. 3 at 17. Two of those dormitories are wheelchair accessible, and contain 30 cubicles each. Id. at 29; 38-39. The other dormitories house approximately 54 men each. Hearing Tr. 4 at 227. Each dormitory contains toilets, and all of the main-building dormitories use a communal shower space with 72 shower heads. Hearing Tr. 3 at 31. The expansion dormitory is housed outside of the main building, but within the perimeter gates. Id. at 34. This dormitory holds approximately 111 men, and contains showers within the dormitory. Id. The trusty camp has a 321-person capacity, and is located outside of the main perimeter fence. It also contains its own showers. Id. at 15, 35.

         The parties stipulated that, as of September 18, 2014, [5] the Pack Unit contained 728 men with hypertension (high blood pressure), 212 men with diabetes, 142 men with coronary artery disease, 111 obese men, 53 men with a psychiatric condition, 66 men prescribed an anti-psychotic medication, 22 men with cirrhosis of the liver, 84 men with chronic obstructive pulmonary disorder (“COPD”), 189 with thyroid dysfunction, and 113 with asthma. Docket Entry No. 721 at 3-4. There are 188 men in the Pack Unit over the age of 65. Id. Many of these conditions overlap within one person. However, all of the conditions, individually, cause heat sensitivity, as will be discussed in greater detail below.[6] The Pack Unit also houses a number of men who are young and healthy. These men work in the fields or the kitchen, help carry drinking water to the housing areas, and are integral to the functioning of the Pack Unit as a whole. Hearing Tr. 3 at 21-23.

         3. The Fact Witnesses

         The fact witnesses testified about the conditions in the Pack Unit, specifically relating to extreme heat in the summers, and to the mitigation measures that have been implemented.

         The 2017 Preliminary Injunction Hearing

         Richard King is a named Plaintiff in this case. He is a 71-year-old man incarcerated at the Pack Unit. He has been in TDCJ custody for 28 years, and at the Pack Unit for six years. He currently works in the craft shop in the Pack Unit. Mr. King suffers from high blood pressure, diabetes, and obesity. He takes Furosemide and Carvedilol, two medications included on the Correctional Managed Health Care Committee's policy listing medications that interfere with the body's ability to regulate temperature.[7] Additionally, in 2010 Mr. King suffered from a viral infection that attacked his nerves, leading to the loss of 25-30 percent of the use of his legs. He currently resides in the expansion dormitory of the Pack Unit, also known as E Dormitory. Mr. King testified that the heat in the E Dormitory during the summer is like “walk[ing] out to your car in the middle of the summertime.” Hearing Tr. 1 at 16. He stated that, in the summer, he sweats profusely, his energy level drops, his appetite diminishes, and he finds it difficult to function normally. Additionally, it is difficult for him to write letters because sweat drips all over his paper, and when he lies down, sweat pools in his eyes. He finds that it is often cooler to lie on the concrete floors than in his bunk, because the personal fan that he owns blows hot air and does not have a cooling effect. He also testified about mitigation measures that the Pack Unit has implemented, including a cool-down shower in his dormitory, ice water, respite areas, and training about heat-related illnesses. He stated that these measures create temporary relief from the heat. Hearing Tr. 1 at 3-64.

         Jackie Brannum is also a named Plaintiff, age 63, and is incarcerated at the Pack Unit. He has been in TDCJ custody for approximately 22 years, and has been at the Pack Unit for 16 years. Like Mr. King, Mr. Brannum spends much of his time in the craft shop. He suffers from high blood pressure, diabetes, obesity, and schizoaffective disorder. Mr. Brannum takes Risperidone, Nortriptyline, Propranolol, and Amlodipine, Lisinopril, Pravastatin, Prozac, and Carbamazepine, all of which are listed as “drugs associated with heat stress” by the Correctional Managed Health Care Committee (“CMHCC”). Defs.' Ex. 4 at 7. He also uses a walker because of a pinched nerve in his back that makes walking difficult. He currently resides in dormitory D16, within the main building. Mr. Brannum has not been allowed to work after he passed out while working in the kitchen several years ago. Although Mr. Brannum was not diagnosed with a heat-related illness at that time, he notes that it was hot in the kitchen, and that he was placed in a cool-down area of the infirmary and told to drink cold water. He compares the heat in his housing area to getting into a hot box in the sun during the summertime. The heat makes him feel weak, dizzy, and nauseated. His heart feels like it beats faster, he has difficulty breathing, and he gets headaches. He testified that he often sleeps on the concrete floor during the summer, because the concrete is cooler than his bunks; however, some officers have told him he cannot sleep on the floor. Mr. Brannum also complained of insects that get in through the openings in the wire screens that cover the windows, and which bite him. Finally, Mr. Brannum testified about his attempts to use the respite areas at the Pack Unit. He stated that, though he has used the respite areas several times, he has been shuffled between various areas; he has been made to stand with his nose to the wall in one respite area, despite his mobility impairment; he has been told that he could not go to respite because it was full; and he has been told that in order to stay in respite in the infirmary, he must submit to a core (rectal) temperature reading. Hearing Tr. 1 at 67-118.

         Thomas Pennington is a 52-year-old man incarcerated at the Pack Unit. He has been in TDCJ for 28 years, and has been in the Pack Unit for the past 11 years. Mr. Pennington has high blood pressure, diabetes, and deep vein thrombosis (which causes blood clots in his legs), and is morbidly obese. He must use a cane to walk. He also suffers from sleep apnea, which interferes with his breathing at night. He uses a Continuous Positive Airway Pressure (“CPAP”) machine to sleep, but has problems during the summer months because the sweat his body produces makes it difficult to keep the mask as tight as it needs to be. Mr. Pennington takes Metoprolol and Furosemide, two medications included on CMHCC's list of drugs associated with heat stress. Mr. Pennington currently resides in dormitory B6, which has a Power Breezer that TDCJ recently installed. Mr. Pennington testified that the Power Breezer does nothing to help with the temperature in his dormitory. He spoke about his experiences using the respite areas: while he has never been denied access to respite, he has been discouraged by the constant movement and standing required of him. He stated that, in the lower administration hallway, he is required to stand, which is difficult for him. In the barbershop, he may be able to stay for 15-20 minutes before he is told to go to the infirmary, and is only allowed to stay in the infirmary for a short period of time as well. About three years ago, he was sent on a stretcher to the infirmary because he began feeling sick, had difficulty breathing, and felt nauseated as a result of the heat. In June 2017, he felt the same symptoms when he was leaving the inmate cafeteria, and had to go to the infirmary to cool down. Finally, Mr. Pennington testified about the insects that come into the housing areas and bite him and the other inmates. Hearing Tr. 1 at 119-159.

         Carlos Huerta is a 30-year-old man incarcerated at the Pack Unit. He has been in TDCJ for three-and-a-half years, and in the Pack Unit for the past two years. He lives in the upstairs section of the expansion dormitory. Mr. Huerta suffers from high blood pressure and is obese. He takes Atenolol, which is on CMHCC's list of medications that interfere with heat regulation. The heat causes him to feel dizzy, have headaches, and get frustrated. Mr. Huerta testified that he witnessed a Correctional Officer collapse in the dormitories on a very hot day. He, too, was diagnosed with heat exhaustion last summer. He testified that he was feeling hot in his dormitory, so he went outside. Mr. Huerta was walking[8] outside, which is something he's been told to do to lose weight, and he felt worse. He went back into his dormitory, drank water, took a cold shower, and got in front of the fan, but still did not feel better. Finally, he asked to go to medical, where his core body temperature was found to be 102.3 degrees; he was sent to the hospital, and was diagnosed with heat exhaustion. Finally, Mr. Huerta testified about his one attempt to use the respite areas; he stated that he did not like it, because some of the officers would limit how long inmates could stay depending on the officer's opinion of when they had sufficiently cooled off. Hearing Tr. 1 at 161-199.

         Keith Cole is a named Plaintiff in this case. He is a 63-year-old man incarcerated in the Pack Unit. He has been in TDCJ for more than 23 years, and has lived in the Pack Unit for the past six years. He currently resides in dormitory B6. Mr. Cole suffers from chronic cardiovascular disease, high blood pressure, high cholesterol and diabetes. Mr. Cole takes many medications, three of which are on CMHCC's list of medications that cause heat stress: Amlodipine, Metoprolol, and Hydrochlorothiazide.[9] He testified that, since the lawsuit was filed, conditions have improved in the Pack Unit: ice water is more readily available, cool-down showers have been implemented, and he regularly accesses air conditioned respite areas. However, he stated that most men living at Pack Unit are not as assertive as he is, and would not demand access to respite, as he feels he must. Indeed, he estimated that only 15 to 20 men use respite on a regular basis. Furthermore, Mr. Cole maintained that, even with these measures in place, he and others are still at risk of harm from the heat in the housing areas. He stated that, on a daily basis in the summer, he feels dizzy, nauseated, and short of breath. Additionally, he is bothered by mosquitoes and other insects that get into the dormitory areas through the window screens. Finally, Mr. Cole testified that the Power Breezer in his dormitory does nothing to cool the air, and has no cooling effect unless he is standing directly in front of it. Hearing Tr. 1 at 199-246.

         Robert Herrera has been the Senior Warden of the Pack Unit since 2010. He started his career as a correctional officer in TDCJ at the age of 18, and has worked his way through the ranks to become a warden. Defendants offered Warden Herrera's testimony regarding the functioning of the Pack Unit on a daily basis, and the various security concerns that he must consider. He also spoke about the mitigation measures that have been implemented at the Pack Unit, and their effectiveness in combating heat illness. Hearing Trs. 3 at 3-114, 4 at 2-246, 5 at 3-21.

         Phyllis McWhorter is a registered nurse and the manager for TDCJ's Mental Health Services Liaison and Utilization Review. Prior to December 2016, Ms. McWhorter was the manager of the Health Services Liaison, focusing on heat-related illnesses in all TDCJ facilities. In this role, she collected reports of heat-related illnesses as they were submitted by employees at the various facilities in TDCJ. She testified as to the number of reports of heat-related illness at the Pack Unit between the years of 2010 and 2016, and the number of those illnesses occurring indoors versus outdoors. She also spoke to the ability of medical providers to request that an inmate be assigned to a Type II or Type III Geriatric Unit, both of which are air conditioned. Hearing Tr. 5 at 25-98.

         Cody Ginsel is currently the Division Director for the Private Facilities Contract Monitoring Oversight Division. His prior position in TDCJ was as Deputy Director of Management Operations in the Correctional Institutions Division. Before that, he was a warden or assistant warden in TDCJ for 13 years. Mr. Ginsel spoke to the financial ability of TDCJ to air condition the housing areas of the Pack Unit. He also testified about the heat mitigation policies that have been designed by TDCJ and their implementation in the Pack Unit. Finally, Mr. Ginsel reviewed the Incident Command System, which is the system that TDCJ alleges to be a heat wave policy. Hearing Trs. 5 at 99-204, 6 at 2-244.

         Kim Farguson is the Director of Maintenance in the Facilities Department of TDCJ. He testified that he has been working for TDCJ for 20 years, and has a mechanical license to work in the fields of heating, air conditioning, natural gas piping, and sheet metal, among others. Mr. Farguson testified as to the electrical capacity in Pack Unit, and its ability to accommodate the air conditioning units proposed by Plaintiffs. He also prepared a report about the estimated cost of implementing many of Plaintiffs' other proposed remedies. Hearing Tr. 8 at 79-120.

         LaMorris Marshall is the Captain of correctional officers at the Pack Unit. He has worked for TDCJ for the past 21 years. Mr. Marshall testified about the mitigation measures that have been implemented in the Pack Unit, and the inmates' knowledge of these measures. He also testified as to two incidents that occurred during the first week of the hearing, wherein approximately 60, and then 150, inmates simultaneously requested respite. These incidents were significant because, prior to those two days, the largest number of inmates who had requested respite at the same time was approximately 20. Hearing Tr. 9 at 3-90.

         Michael Denton is a named Plaintiff in this case. He is 39, has been living at the Pack Unit for more than 10 years, and currently resides in the expansion dormitory. He does not have any medical conditions that impact his body's ability to regulate its temperature, nor is he taking any medications that have detrimental effects. He works in the kitchen at the Pack Unit. During the summers at the Pack Unit, Mr. Denton suffers from headaches, dizziness, and extreme perspiration. He was one of the approximately 60 men who requested respite simultaneously, and testified about that experience. Hearing Tr. 9 at 91-126.

         The 2016 Class Certification/Preliminary Injunction Hearing[10]

         Cody Ginsel testified at both the 2016 and the 2017 hearings. In 2016, he was still the Deputy Director of Management Operations in the Correctional Institutions Division of TDCJ. Mr. Ginsel testified about issues relating to the arsenic levels in the water at the Pack Unit, which was the subject of the 2016 hearing. However, he also testified about the heat mitigation policies at the Pack Unit. Thus, for the purposes of this opinion, his testimony in 2017 was substantially similar to the testimony he gave in 2016. Docket Entry No. 459 at 14-130.

         4. The Expert Witnesses

         The 2017 Second Preliminary Injunction Hearing

         Ron Brown was presented by Plaintiffs to testify under Rule 702 of the Federal Rules of Evidence on the possibility of air conditioning the Pack Unit, as well as the associated cost. Mr. Brown testified that he is registered by the State of Texas as a mechanical engineer, and is also certified in electrical, automatic controls, and energy management. He was licensed as a professional engineer in 1979, and has been practicing as a mechanical engineer ever since. He has been registered as an engineer in 26 states, and has spent the majority of his career designing air conditioning systems for various types of structures. In preparing his opinion in this case, Mr. Brown toured the Pack Unit, reviewed blueprints and other structural documents, and performed various calculations using an engineering software. Hearing Tr. 2 at 2-93.

         Eldon Vail also testified for Plaintiffs under Rule 702. Mr. Vail spent his career in the Washington Department of Corrections. He started as a correctional officer before becoming the superintendent of three different facilities. He worked his way up through the administration, became the deputy director for seven years, and then in 2007 became the head of the agency until 2011, when he retired. Since that time, he has been consulting on correctional issues for the U.S. Department of Justice and other entities, as well as serving as an expert in litigation. Mr. Vail testified about the importance of air conditioning prisons in hot climates, and about his experience retrofitting two prisons in the state of Washington. He also testified about other states in the U.S. that require cooled air in their facilities, as well as the mitigation measures in place at the Pack Unit. Mr. Vail toured the Pack Unit and interviewed several men incarcerated there in preparing his opinion for this case. Hearing Tr. 2 at 96-280.

         Dr. Dean Rieger was presented by Defendants as a Rule 702 witness in corrections. Dr. Rieger has a medical degree and a master's degree in public health. Over the course of his career, Dr. Rieger has been the medical director for a women's facility in Michigan, the medical director for the state prison of southern Michigan, the state regional medical director for southeast Michigan, and the medical director for the Indiana Department of Corrections. From 2006-2016, Dr. Rieger was the Chief Medical Officer and Corporate Medical Director for Correct Care Solutions, a private managed healthcare company that focuses on correctional healthcare. Dr. Rieger testified about the effects of heat stress on the human body, the compounding effects caused by certain conditions or medications, and the mitigation measures in place at the Pack Unit. Dr. Rieger testified that he has earned approximately $40, 000 to $45, 000 through his work for TDCJ in this and other heat-related cases. Hearing Tr. 7 at 2-173.

         Frank Traknyak also testified as a Rule 702 witness for Defendants. He is an engineer, and owns a company called Trak Engineering, which focuses on mechanical, electrical and other types of engineering. About 60 percent of Mr. Traknyak's professional focus is on heating and air conditioning, and he has designed thousands of systems. Mr. Traknyak testified as to the cost of installing permanent and temporary air conditioning systems in the housing areas of the Pack Unit. In coming to his conclusions, Mr. Traknyak visited Pack Unit, reviewed drawings, and performed various calculations using an engineering software. Hearing Trs. 7 at 181-208, 8 at 2-78.

         The 2016 Class Certification/Preliminary Injunction Hearing

         Dr. Susi Vassallo testified as a Rule 702 witness for Plaintiffs at the hearing in 2016. Dr. Vassallo is a practicing physician, board certified in emergency medicine and medical toxicology. She is licensed in New York and Texas, and is a professor of emergency medicine at the New York University School of Medicine. She is also on faculty at Dell Medical School, the new medical school for the University of Texas at Austin. Dr. Vassallo is a specialist in thermoregulation-the capacity of the body to maintain the temperature of 98.6 degrees. She is also board certified in correctional health by the National Commission on Correctional Health Care. Dr. Vassallo testified about the risk of heat-related illnesses for the men incarcerated in the Pack Unit, and the effectiveness of the heat mitigation measures as compared to the effectiveness of air conditioning. She expounded on the effects of heat on the human body, as well as the effects of heat on individuals who have comorbidities, or take medications that impede their ability to thermoregulate. Docket Entry No. 465 at 29-226.

         Dr. Michael McGeehin was presented by Plaintiffs as a Rule 702 witness. Dr. McGeehin spent much of his career as the Division Director for the Division of Environmental Hazards and Health Effects at the United States Centers for Disease Control and Prevention. He received his doctorate degree in environmental epidemiology, and has published several peer-reviewed epidemiological articles related to heat. Dr. McGeehin testified about various populations' risks of heat-related illness. He also spoke to the effectiveness of different heat mitigation measures. Docket Entry No. 460 at 7-157.

         Dr. Dean Rieger testified at both the 2016 and 2017 hearings on behalf of Defendants. His credentials are detailed above; his testimony in 2016 was substantially similar to the testimony given in 2017. Docket Entry No. 466 at 4-135.

         Dr. Kathryn Means testified on behalf of Defendants as a Rule 702 witness. Dr. Means is board certified in hospice and palliative medicine. She has practiced as a primary care physician, but has mostly focused on geriatrics. In 2009, she began working for TDCJ as a consulting physician in the Health Services Division. After the summer of 2011, Dr. Means was tasked with reviewing the autopsies of the men who died from heat-related illness. As an expert in this case, Dr. Means testified about the risk to the named Plaintiffs of heat illness, and spoke generally about the risk of heat illness faced by all individuals living at the Pack Unit. Dr. Means reviewed extensive literature relating to heat-related illness, reviewed the medical records of the named Plaintiffs in the case, and reviewed the medical records of 22 heat related illnesses that had occurred in TDCJ. She was compensated at the rate of $300 per hour, and as of April 1, 2016, had been paid $206, 000. At the time that she testified, Dr. Means was a defendant in two lawsuits stemming from the deaths of two individuals in TDCJ from heat-related illness during the summer of 2012. Because TDCJ was her employer when the acts alleged in the lawsuits occurred, TDCJ was covering the cost of Dr. Means' legal defense, and will pay any judgment against her. Docket Entry No. 466 at 135-257.

         The Court finds that Drs. Vassallo, McGeehin, Rieger, and Means meet the Rule 702 requirements to testify as to the effects of heat on the human body, and on populations as a whole. The Court also finds that Mr. Brown and Mr. Traknyak are qualified to testify as experts of mechanical engineering, specifically with regard to air conditioning. Finally the Court finds that Eldon Vail meets the requirements to testify as an expert in corrections.

         5. Overview of the Factual and Legal Issues

         There is little dispute that the heat in the housing areas of the Pack Unit during the summer months could violate Plaintiffs' constitutional right to conditions of confinement that are free from a substantial risk of serious harm or injury. The parties' dispute focuses on the effectiveness of TDCJ's mitigation measures in reducing that risk to an acceptable level.

         In sum, TDCJ avers that its mitigation measures, which include the constant provision of ice water, both industrial and personal fans, cool-down showers, access to respite areas, wellness checks, and the training of both correctional officers and inmates on the recognition of heat-related illnesses, have successfully reduced the number of heat-related illnesses in the Pack Unit. Plaintiffs dispute that all of the inmates at the Pack Unit know they have access to respite areas at any time of day or night, and further contend that the Pack Unit could not accommodate the numbers of inmates who would want to take advantage of these respite areas. Plaintiffs also assert that correctional officers at the Pack Unit are not, in fact, conducting wellness checks, but are merely continuing the pre-existing practice of conducting security checks, which do not assess the inmates' well-being. Plaintiffs argue that an unconstitutional risk of heat-related illness remains, and that the only way to reduce this risk is to air condition the housing areas. This is especially true, according to Plaintiffs, for individuals with heat sensitivities.

         For the reasons set out below, the Court finds and concludes that the mitigation measures put in place by TDCJ are insufficient to combat the substantial risk of serious injury or death faced by the inmates at the Pack Unit during the summer months. Since the 12 heat-related deaths in 2011 and 2012, TDCJ has implemented, and attempted to implement, many of the mitigation measures discussed by the Fifth Circuit in Ball v. LeBlanc, 792 F.3d 584, 599 (5th Cir. 2015). While these measures have achieved various levels of effectiveness, they do not reduce the substantial risk of heat-related illness faced by all of the men at the Pack Unit, and particularly not the men with heat sensitivities. Although Pack Unit officials state that they have made all of the air conditioned spaces available as respite areas, the testimony of Plaintiffs and of Pack Unit officials reveals that these respite areas can handle only a fraction of the men living at Pack Unit, and even then, the men are often forced to stand, not talk, and move quickly from one respite area to another. Furthermore, the testimony of Plaintiffs and Pack Unit officials belies TDCJ's claim that wellness checks are being conducted for those with heat sensitivities. Instead, it is clear that there is no difference between the security checks that have always been done at the Pack Unit, and the wellness checks that TDCJ claims are being performed. Thus, two of the major mitigation measures touted by TDCJ are ineffectively implemented. The other measures are either entirely ineffective, or are somewhat effective but still insufficient.

         The Court is particularly troubled by Defendants' seeming indifference to heat-sensitive inmates. It finds that this indifference has permeated all aspects of Defendants' handling of extreme heat in the summers, from failing to consider the installation of air conditioning after 23 deaths occurred from heat-related illness, to failing to notify prison officials and inmates when heat advisories have been issued, to placing Power Breezers in a high-humidity environment, despite Defendants' own expert opinion that Power Breezers will be ineffective, and even harmful, in these conditions. In some cases Defendants' actions have risen beyond indifference to obstruction, such as when, after this lawsuit was filed, Warden Herrera ordered his staff to stop measuring the indoor heat index during the summer months.

         The Court finds and concludes that, based on the credible, reliable evidence in the present record, Plaintiffs are likely to succeed on the merits of their Eighth Amendment claim that the conditions of confinement in the Pack Unit create a substantial risk of serious injury or death. The Court does not reach Plaintiffs' ADA and RA claims, as insufficient evidence has been presented for the Court to determine the likelihood of success as to those claims. Plaintiffs are entitled to a preliminary injunction, as set out in detail below.

         C. The Outdoor and Indoor Heat Index at the Pack Unit

         Texas is famously hot, and the Pack Unit is no exception. The Pack Unit is located five miles south of Navasota, Texas, about 70 miles northwest of Houston, Texas, in the southeastern part of the state. Pls.' Exs. 3 & 4. Officials at the Pack Unit monitor the outdoor heat index on a daily basis. The heat index is the combination of the temperature and relative humidity, and is a better indication of how the body “feels” heat than air temperature alone. Docket Entry No. 340 18 at 7. The heat indices at the Pack Unit during the summer months are represented in the following chart:[11]

         Outdoor Heat Index at the Pack Unit Heat Index Highs (2011-2016)

Year

Number of Days: High Over 100°F

Number of Days: High 90-99°F

Number of Days: High 80-89°F

2011

74

16

1

2012

45

43

2

2013

73

16

3

2014

34

47

9

2015

11

71

9

2016

13

55

13

         In 2016, the heat index at the Pack Unit reached over 100 degrees on 13 days, and was between 90 degrees and 99 degrees for 55 days. In 2015, the Pack Unit experienced 11 days on which the heat index reached over 100 degrees, and 71 days of heat indices between 90 degrees and 99 degrees. In 2014, there were 34 days of heat indices over 100 degrees, and 47 days of heat indices between 90 degrees and 99 degrees. In 2013, the number of days over 100 degrees heat index jumped to 73, with a corresponding decrease to 16 in the number of days between 90 degrees and 99 degrees. In 2012, a summer in which two individuals incarcerated at other TDCJ facilities died of heat-related illness, the number of days featuring heat indexes over 100 degrees decreased to 45. In 2011, the year that a heat wave hit Texas that led to the deaths of 10 individuals confined in TDCJ facilities, the Pack Unit experienced 74 days over 100 degrees, just one more than the number experienced in 2013.

         The heat index was regularly measured inside the dormitories until the present lawsuit was filed. Hearing Tr. 4 at 108. At that point, Warden Herrera ordered his staff to stop measuring the temperature and humidity. Id. Thus, the Court does not have as much information about the conditions inside the dormitories as it does about the conditions outdoors. However, the parties have stipulated that the readings taken for Professor Thomas Sager's report, commissioned by Plaintiffs, accurately depict the heat index for the dormitories that were measured from August 27, 2014 through October 8, 2014. Docket Entry No. 693 at 1. These readings are summarized in the chart below:

         (Image Omitted)

         Professor Sager used the readings above to determine, within a reasonable degree of statistical certainty, the heat index inside three Pack Unit dormitories for the period of June 17, 2014 through August 26, 2017, a time period when no measurements were recorded. Id. Prof. Sager used regression analysis, which is a reliable method of statistical analysis, to come to his conclusions. These heat indices are represented in the following charts:

         (Image Omitted)

         Prof. Sager's results reveal that the heat indices inside Dormitory A of the Pack Unit were over 100 degrees for approximately 13 days from June 17, 2014 through October 6, 2014. In Dormitory C, that number increased to 41 days. Indeed, Dormitory C experienced eight days where the heat index reached over 105 degrees. Six of those days occurred in the span of a single week-in other words, there were three days above 105 degrees, one day below 105 degrees, and then three more above 105 degrees.[12] During these seven days, the heat indices never fell below 80 degrees.[13] Docket Entry No. 340-18 at 128. Dormitory D experienced 40 days over 100 degrees.

         In sum, TDCJ's recordings of the outdoor heat index in 2014 demonstrate a total of 34 days over 100 degrees. Dormitories C and D experienced 41 and 40 days over 100 degrees, respectively. Accordingly, the Court finds that the conditions in Dormitories C and D are hotter than the conditions outdoors. Of the three dormitories that were measured, only Dormitory A is cooler than conditions outdoors. This conforms with, and ...


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