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Sain v. Collier

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

August 30, 2019

JOHN SAIN (TDCJ #01373168), et al., Plaintiffs,
BRYAN COLLIER, et al., Defendants.



         Plaintiff John Sain filed Plaintiffs' Class Action Complaint and Jury Demand ("Complaint") (Docket Entry No. 1) on behalf of himself and several other inmates confined by the Texas Department of Criminal Justice ("TDCJ") at the Luther Unit in Navasota. Thereafter, Sain and several other inmates filed Plaintiffs' First Amended Class Action Complaint and Jury Demand ("First Amended Complaint") (Docket Entry No 25). The defendants named in the First Amended Complaint, which seeks injunctive and declaratory relief from conditions resulting in exposure to extreme heat during the summer, include TDCJ Executive Director Bryan Collier, Warden James McKee, TDCJ, the TDCJ Correctional Managed Health Care Committee ("CMHCC"), and the University of Texas Medical Branch ("UTMB").[1]

         Now pending before the court are the following motions: UTMB's Motion to Dismiss (Docket Entry No. 19); CMHCC's Motion to Dismiss (Docket Entry No. 21); Plaintiffs' First Amended Motion for Class Certification and, in the Alternative, Motion for Expedited Discovery ("Plaintiffs' First Amended Motion for Class Certification") (Docket Entry No. 31); Motion for Summary Judgment on Behalf of Defendants Bryan Collier, James McKee, and TDCJ ("Defendants' MSJ") (Docket Entry No. 59); Plaintiffs' Supplement to Motion for Class Certification and Response to Defendants' Response in Opposition to Plaintiffs' Motion for Class Certification with Order and Appendix (Docket Entry Nos. 72-73); Defendants' Motion to Strike Plaintiffs' Supplement to Motion for Class Certification (Docket Entry No. 82); Defendants' Motion to Strike Exhibits to Plaintiffs' First Amended Response to Defendants' Motion for Summary Judgment ("Defendants' Motion to Strike Exhibits") (Docket Entry No. Ill); and Defendants' Motion for Leave to File Motion to Strike Exhibits to Docket Entry No. 112: Plaintiffs' Supplement to Plaintiffs' Rejoinder to Defendants' Reply in Support of Defendants' Motion for Summary Judgment ("Defendants' Motion for Leave to File Motion to Strike Exhibits") (Docket Entry No. 119).

         The court has considered all of the pleadings, motions, responses, replies, and supplements. For reasons explained below, the court will deny the plaintiffs' motion for class certification. The court will grant the motions to dismiss filed by UTMB and CMHCC. In addition, the defendants' motions to strike evidence will be denied and the motion for summary judgment filed by Collier, McKee, and TDCJ will be granted in part and denied in part.

         I. Background

         A. The Plaintiffs

         The original Complaint, which was executed by the lead plaintiff, John Sain (TDCJ #01373168), asserts civil rights claims on behalf of himself and other inmates at the Luther Unit.[2] In addition to Sain, the First Amended Complaint was executed by four other named plaintiffs who are assigned to the Luther Unit: David Cummings (TDCJ #02153663), Phillip Gullett (TDCJ #01672020), Jerry Smith (TDCJ #02171841), and David Wilson (TDCJ #01648044).[3] The plaintiffs have requested leave to add three other inmates at the Luther Unit: Eugene Boston (TDCJ #02075115); Salvador Capuchino (TDCJ #01675667); and Jesse Snearly (TDCJ #02042412).[4] Although the court previously denied leave to add these proposed plaintiffs as parties, the court will consider their claims for purposes of resolving the pending motions.[5]

         Sain describes himself as a 62-year-old inmate with "multiple sclerosis (M.S.), hypertension, prostate problems, major depression, arthritis, obesity, hypoglycemia, nerve neuropathy, vitamin and mineral deficiencies, multiple food and medicinal allergies, and difficulty processing food due to the removal of [his] stomach and a length of [his] intestine."[6] Sain takes a variety of medications and supplements for these conditions, including an "immune system suppressant which must be received as an injection once per week, an alpha blocker, a diuretic, an antidepressant, nerve and muscle system suppressants, and vitamin/mineral supplements."[7] Due to his medical condition Sain has been "medically unassigned" for the past ten years, meaning that he is not allowed to work.[8]

         Cummings describes himself as a "morbidly obese" 50-year-old inmate with "prostate cancer, high blood pressure[.]"[9] Cummings takes vitamins, an antacid, an "anti-lipemic agent, a non-steroidal anti-inflammatory agent, an ACE inhibitor, and an alpha blocker" for these conditions.[10] Like Sain, Cummings is medically unassigned for purposes of performing work.[11]

         Gullett, who is 5 9 years of age, suffers from "type I diabetes, cirrhosis of the liver, depression, hyper-thyroid, stomach ulcers, hypertension, chronic staph infections, and various heat and humidity induced skin rashes."[12] Gullett receives insulin "two or three times per day" to treat his diabetes.[13] He also takes as prescribed "an anti-depressant, an atypical anti-psychotic, a bi-annual Hepatitis A vaccine, an anti-histamine, a non-steroidal anti-inflammatory agent, a statin, a topical dermatological antifungal cream, an anti-anemia drug, a loop diuretic, an ammonia detoxicate, a thyroid agent, a proton-pump inhibitor, a sympathomimetic agent, a mineral corticoid receptor antagonist, an adrenal topical ointment, and ursodiol for [his] liver."[14] Due to his liver condition, Gullett reports that he is jaundiced and must make frequent trips to the prison hospital in Galveston.[15] Gullett does not mention having a job assignment.

         Smith, who reports that he is 66 years old, does not suffer from any medical conditions (other than having a pin in his right hip and one leg shorter than the other), but states that he "suffer[s] a lot just due to [his] age."[16] He does not take any medication, but he uses "a cane for all movement."[17] Smith does not mention having a job assignment, but notes that he is restricted to "sedentary work only," with no lifting over 20 pounds and no walking over 100 yards.[18]

         Wilson describes himself as a 51-year-old inmate with "obesity, poor vision, and cellulitis in [his] lower legs."[19] His medical conditions "require the use of both special shoes and a cane for ambulatory movement."[20] Wilson's medications include "a topical dermatological ointment and an NSAID/Oxicam."[21] Wilson is assigned to work in the prison laundry, where "the apparent temperature ... is higher than other sections of [the] Luther Unit."[22]

         Boston describes himself as a 65-year-old inmate with high blood pressure, tinnitus, and depression.[23] His medications include "an ACE inhibitor (Lisinopril), a calcium channel blocking agent (Verapamil), an alpha blocker (Terazosin), a statin (Atorvastatin), and a Selective Serotonin Reuptake Inhibitor (SSRI) (Citalopram)."[24]He performs work as an "SSI" or janitor who cleans the dorm restroom and living areas.[25]

         Capuchino is a 45-year-old inmate who reportedly suffers from "hypertension, angina, dysrhythmia, arthritis, coronary artery disease, obesity, muscle cramping, neuropathy, degenerative disc disease, spinal fusion, asthma, pneumonia, gastric esophageal reflux disease (GERD), and allergies."[26] He has been prescribed "a beta blocker, an ACE Inhibitor, a calcium channel blocker, a loop diuretic, an anti-histamine, a non-steroidal anti-inflammatory agent, nitroglycerin, and [a] proton pump inhibitor."[27] Despite these conditions, Capuchino works in the laundry.[28]

         Snearly is a 23-year-old inmate with "no chronic medical conditions" or prescription medications.[29] He also reportedly works in the Luther Unit laundry facility.[30] Although Snearly considers himself to be "healthy," he states that he feels the effects of heat exhaustion day and night, both in the housing dormitories and at work, because of conditions that are inadequate to afford relief from the outdoor heat.[31]

         B. The Defendants

         The plaintiffs sue two individual defendants under 42 U.S.C. § 1983 for denying them access to climate-controlled conditions of confinement in violation of the Eighth Amendment to the United States Constitution.[32] The lead defendant, Bryan Collier, is sued in his official capacity as Executive Director of TDCJ.[33] James McKee is also sued in his official capacity as Warden of the Luther Unit.[34]

         The plaintiffs sue three state entities, TDCJ, UTMB, and CMHCC, for failing to accommodate their "heat sensitive disabilities" in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA") .[35] TDCJ is the state agency responsible for operating the Texas prison system, including the Luther Unit, which incarcerates convicted felons.[36] UTMB is a public medical school that provides "direct patient care" for inmates confined at certain TDCJ facilities, including the Luther Unit, under a contract with the State of Texas.[37] CMHCC is not an agency, but is a statutorily created committee made up of members employed by TDCJ, UTMB, Texas Tech University Health Science Center ("TTUHSC"), employees of other medical schools, and members of the public who are appointed by the governor. The purpose of CMHCC is to develop a managed health care plan for TDCJ inmates.[38]

         C. Conditions at the Luther Unit

         All of the named plaintiffs are currently serving prison sentences at the Luther Unit, which is operated by TDCJ in Navasota, Grimes County, Texas.[39] Opened in 1982, [40] the Luther Unit has the capacity to house 1, 316 inmates and held 1, 263 inmates as of July 31, 2018.[41] The plaintiffs describe the Luther Unit as a "medical facility" that "houses geriatric inmates, inmates with both physical and mental disabilities, and inmates with chronic medical problems," as well as "able-bodied" inmates who perform work in "the fields, laundry, maintenance, the kitchen, and other assigned locations," under conditions that are, for the most part, not air-conditioned.[42]

         The plaintiffs present evidence that the heat index for the geographical area where the Luther Unit is located regularly exceeds 90° F (Fahrenheit) during the summer months and frequently exceeds 100° F, particularly in the middle of the day.[43] The plaintiffs assert that temperatures inside the Luther Unit can be even hotter than outside temperatures because of inadequate ventilation.[44]

         The plaintiffs report that the law library, the education building, and the visitation area of the Luther Unit have air-conditioning, but that access to these locations is limited.[45] All administrative offices are also air-conditioned.[46] With the exception of a dormitory with 12 beds reserved for inmates with "serious medical conditions" who require "assisted living, "[47] all other dormitories where inmates are housed do not have air-conditioning .[48]

         According to the plaintiffs, the dormitories are poorly ventilated because windows are often difficult to open or close and, while most have screens, gaps in the screen mesh allow "small black biting bugs and others to enter," which irritate the inmates.[49] There is a ventilation system at the Luther Unit that features industrial fans to circulate air and inmates are also allowed to own a personal fan to promote air flow, but the plaintiffs assert that neither the ventilation system nor the personal fans operate during power outages, which can occur at night or when there is a storm.[50] Plaintiffs state that whenever power goes out the exhaust fans installed to evacuate smoke and toxic gas as part of the Luther Unit's "Fire Alarm System" do not work.[51]

         All of the named plaintiffs, with the exception of Snearly, who is young and suffers from no pre-existing medical condition, claim that exposure to extreme heat in the Luther Unit, particularly its dormitory housing areas, has caused them to suffer health problems during the summer months, including difficulty in breathing, nausea, headaches, dizziness, muscle cramps, and weakness.[52] To remedy these conditions, the plaintiffs seek injunctive relief ordering prison officials to provide air-conditioning for all inmates at the Luther Unit on a class-wide basis similar to the relief authorized by the district court in litigation by inmates at the Pack Unit, which is adjacent to the Luther Unit in Navasota.[53]

         D. The Pack Unit Litigation and Cole v. Collier

         In 2014 inmates at the Pack Unit filed a lawsuit in this district, seeking injunctive relief from exposure to extreme heat. That case, which eventually became known as Cole v. Collier, Civil No. H-14-1698 (S.D. Tex.), resulted in the certification of a general class of `` [a] 11 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."[54] The district court also certified two sub-classes of Pack Unit inmates, including a "Heat-Sensitive Subclass" and a "Disability Subclass" that were defined respectively as follows:

(1) 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; and
(2) 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.[55]

         After a nine-day evidentiary hearing the district court concluded that TDCJ's existing efforts to mitigate the effects of extreme heat for inmates at heightened risk of harm, either from medical conditions or medication regimens that "decrease the body's ability to regulate temperatures," were "insufficient" and that conditions at the Pack Unit violated the Eighth Amendment right to be free from cruel and unusual punishment.[56] The district court identified the following medical conditions that "impede thermoregulatory functioning," placing individuals at higher risk for heat-related illnesses such as heat stroke: (1) diabetes; (2) obesity; (3) cardiovascular disease, including chronic hypertension and arteriosclerosis; (4) psychiatric conditions; (5) advanced age; (6) pulmonary disease, such as Chronic Obstructive Pulmonary Disease ("COPD"), emphysema, and asthma; (7) sweat gland dysfunction; and (8) cirrhosis of the liver, cystic fibrosis, and thyroid dysfunction.[57] The district court also identified several types of medications that exacerbate the effects of heat on the body.[58]

         The court in Cole credited testimony from an expert witness (Dr. Susi Vassallo), who observed that the risk of heat-related illness increases when temperatures exceed a threshold of 88° F.[59]Concluding that exposure to extreme heat posed a serious risk of harm that was not addressed adequately by TDCJ, the district court held that the Cole plaintiffs were entitled to preliminary injunctive relief and ordered the defendants to: "correct the numerous problems with the existing respite program"; lower the temperature in housing areas for heat-sensitive inmates; install window screens to block insects from entering windows of the housing areas; develop a "heat wave policy for the Pack Unit;" and propose within a set time frame remedies that conform to the district court's order.[60]

         The parties in Cole engaged in mediation and reached a settlement agreement, in which TDCJ agreed to install air-conditioning in housing units where the class members reside and to "maintain indoor heat indices at or below 88 degrees Fahrenheit between April 15 and October 15 of each year."[61] The settlement agreement called for temporary air-conditioning to be put in place between April and October 2018, and 2019, with "permanent air conditioning in all housing areas of the Pack Unit before April 15, 2020, to keep the heat index at 88 degrees Fahrenheit or less."[62]The settlement agreement was approved by the district court on June 8, 2018.[63]

         E. The Plaintiffs' Claims

         Pointing to the record in Cole, the plaintiffs argue that the defendants are on notice that excessive heat poses a significant risk to inmate health and safety, but have disregarded this risk where they are concerned.[64] The plaintiffs allege that an inmate at the Luther Unit (identified by the plaintiffs as "Inmate C") died in July of 2018, shortly after the Cole settlement was finalized, from "apparent heat-related illness" complicated by "chronic asthma" and other unspecified "comorbidities" that placed him at a high risk of heat-related illness.[65] The plaintiffs state that inmates at other TDCJ facilities such as the Pack Unit have access to air-conditioning, but that TDCJ has chosen not to install air-conditioning at the Luther Unit for "political and financial reasons. "[66] The plaintiffs assert that the Cole litigation mandates relief for inmates at the Luther Unit because TDCJ and Director Collier are aware that exposure to excessive heat puts inmates at risk of heat-related illnesses, injuries, and/or death, but have failed to take steps to prevent these conditions by installing air-conditioning in areas where most prisoners live, work, eat, and receive other services.[67]

         Similar to the Cole litigation, the plaintiffs in this case seek certification of a general class of all inmates at the Luther Unit with two subclasses for Luther Unit inmates who (1) are sensitive to heat for medical reasons; and (2) suffer from a disability that renders them susceptible to the effects of extreme heat.[68] Arguing that conditions at the Luther Unit violate the Eighth Amendment, the ADA, and the RA, the plaintiffs seek a permanent injunction ordering the defendants to provide (1) consistent ``24/7" electrical power throughout the Luther Unit facility to each cubicle outlet, dorm, and roof-mounted exhaust fan for the purpose of ensuring fire safety and air circulation; (2) implementation of an "equitable or better accommodation" similar to the Pack Unit Respite Program; (3) implement an "equitable or better accommodation" similar to the Pack Unit air-conditioning plan by requiring that indoor temperatures be maintained "below dangerous levels" with a heat index of 88° F or lower in all areas where inmates congregate, including all "housing, work, program, activity, and service areas, dining areas, the gymnasium, dayrooms, hallways, new building construction, laundry areas, and kitchen work areas inside the Luther Unit;" and (4) equal access and accommodation to all programs, activities, and services .[69]

         II. Plaintiffs' Motion for Class Certification

         The plaintiffs ask the court to certify a general class of all inmates at the Luther Unit, with subclasses for medically sensitive inmates and those with disabilities that are similar to those certified by the district court in Cole.[70] To obtain class certification a litigant must satisfy four threshold requirements found in Rule 23 (a) of the Federal Rules of Civil Procedure by establishing that

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a); see also Amchem Products, Inc. v. Windsor, 117 S.Ct. 2231, 2245 (1997) (listing the "four threshold requirements" of numerosity, commonality, typicality, and adequacy of representation for purposes of class certification under Rule 23(a)). As the party seeking class certification, the plaintiffs bear the burden of proof with respect to these requirements. Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).

         Even assuming that they could satisfy the first three prerequisites for class certification, the plaintiffs in this case cannot meet the fourth criteria found in Rule 23(a) (4) regarding adequacy of representation. To meet the adequacy requirement "the court must find that class representatives, their counsel, and the relationship between the two are adequate to protect the interests of absent class members." Unger v. Amedisys Inc., 4 01 F.3d 316, 321 (5th Cir. 2005) (citing Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002)). The plaintiffs do not have counsel and are representing themselves. As pro se litigants, the plaintiffs cannot establish that they can adequately represent the rights of others. See McGrew v. Texas Board of Pardons & Paroles, 47 F.3d 158, 162 (5th Cir. 1995) (per curiam) (citing Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973)). Although the plaintiffs have vigorously pursued this suit, courts have consistently held that "a prisoner proceeding pro se is inadequate to represent the interests of his fellow inmates in a class action." Caputo v. Fauver, 800 F.Supp. 168, 170 (D.N.J. 1992) (citations omitted); see also DeBrew v. Atwood, 792 F.3d 118, 132 (D.C. Cir. 2015) (`` [A] pro se litigant who is not trained as a lawyer is simply not an adequate class representative."); Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (observing that "the competence of a layman is `clearly too limited to allow him to risk the rights of others'") (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)); Binklev v. Rendell, Civ. No. 1:10-1245, 2012 WL 263655, at *6 (M.D. Penn. Jan. 30, 2012) ("It is well-established that a prisoner proceeding pro se is inadequate to represent the interests of his fellow inmates[s] in a class action.") (citations omitted); 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1769.1 & n.l3 (3rd ed.) (``[C]lass representatives cannot appear pro se.") (collecting cases).

         Although the plaintiffs have asked the court to appoint counsel for the proposed class under Rule 23(g), [71] "the purpose of Rule 23 (g) is not to enable pro se plaintiffs to obtain [appointed] counsel in conjunction with class certification; the purpose of the rule is to ensure that the proposed class counsel is adequate." Howard v. Pollard, 814 F.3d 476, 478 (7th Cir. 2015) (emphasis in original). There is no automatic right to appointment of counsel in civil rights cases. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Where a litigant proceeds in forma pauperis, the court may "request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1); see also Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 109 S.Ct. 1814, 1823 (1989) (holding that the statute governing in forma pauperis cases does not authorize "coercive appointments of counsel" for indigent litigants in civil cases). The plaintiffs have not requested leave to proceed in forma pauperis; nor have they provided the necessary evidentiary support for making such a determination in compliance with the Prison Litigation Reform Act (the "PLRA"), which governs this suit. See 28 U.S.C. § 1915(a)(2) (requiring a certified copy of an inmate's trust fund account statement or institutional equivalent). Accordingly, the court will deny the Plaintiffs' First Amended Motion for Class Certification at this time without addressing any of the other arguments raised by the parties.

         III. Motions to Dismiss By UTMB and CMHCC

         Defendant UTMB moves to dismiss the plaintiffs' claims against it under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.[72] Defendant CMHCC also moves to dismiss the plaintiffs' claims against it under Rules 12(b)(1), 12(b)(6), and 9(a).[73] The plaintiffs have filed a response to each motion, [74] to which both UTMB and CMHCC have filed a reply.[75]

         A. Standards of Review

          Federal courts are "courts of limited jurisdiction, having `only the authority endowed by the Constitution and that conferred by Congress.'" Halmekanqas v. State Farm Fire and Casualty Co., 603 F.3d 290, 292 (5th Cir. 2010). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Krim v., Inc., 402 F.3d 489, 494 (5th Cir. 2005). Dismissal under Rule 12 (b) (1) is appropriate if the plaintiff lacks the requisite standing to sue. See, e.g., Little v. KPMG LLP, 575 F.3d 533, 540-41 (5th Cir. 2009) (affirming dismissal for lack of standing under Rule 12(b)(1)). When a Rule 12(b)(1) challenge is raised with other Rule 12 challenges, the court should consider the Rule 12(b)(1) arguments before addressing any attack on the merits. Ramming v. United States. 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam)).

         Motions to dismiss under Rule 12(b)(6) are appropriate only where the plaintiff's complaint fails to state a claim upon which relief can be granted. In reviewing a motion under Rule 12(b)(6), a court must "accept [] all well-pleaded facts as true and view[] those facts in the light most favorable to the plaintiff." Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). To withstand a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) . If the complaint has not set forth "enough facts to state a claim to relief that is plausible on its face," it must be dismissed. Id. at 1974.

         The plaintiffs are representing themselves and have capably done so thus far.[76] Courts are required to give a pro se litigant's contentions a liberal construction. See Erickson v. Pardus, 127 S.Ct. 1081, 2200 (2007) (citing Estelle v. Gamble, 97 S.Ct. 285, 292 (1976)); see also Haines v. Kerner, 92 S.Ct. 594, 595-96 (1972) (noting that allegations in a pro se complaint, however inartfully pleaded, are held to less stringent standards than formal pleadings drafted by lawyers). Nevertheless, "[t] hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 127 S.Ct. at 1965).

         B. Claims Against UTMB

         UTMB moves to dismiss because the plaintiffs seek relief that UTMB cannot provide -- particularly uninterrupted electricity, air-conditioning, and implementation of heat mitigation measures.[77]Because the pleadings do not allege that UTMB has caused the complained of conditions or has the ability to grant the relief sought, UTMB argues that the plaintiffs fail to establish the requisite case or controversy for purposes of establishing standing to sue and that the plaintiffs further fail to state a claim upon which relief may be granted for that reason.[78]

         Article III of the United States Constitution limits federal court jurisdiction to "cases" and "controversies." U.S. Const, art. Ill. § 2. See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) ("`No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.'" (quoting Raines v. Byrd, 117 S.Ct. 2312, 2317 (1997))). "[T]he requirement that a claimant have 'standing is an essential and unchanging part of the case-or-controversy requirement of Article III.'" Davis v. Federal Election Comm'n, 128 S.Ct. 2759, 2768 (2008) (quoting Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992)).

         It is well established that "the irreducible constitutional minimum of standing contains three elements." Lujan, 112 S.Ct. at 2136. To satisfy these elements a plaintiff seeking injunctive or declaratory relief must have (1) suffered an injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) that is fairly traceable to the defendant's actions; and (3) that is likely to be redressed by a favorable decision. See id. at 2136; see also BroadStar Wind Systems Group Ltd. Liability Co. v. Stephens, 459 Fed.Appx. 351, 356, 2012 WL 171619, at *3 (5th Cir. 2012) (per curiam) ("Standing to seek declaratory judgment is subject to these same requirements."). At the motion-to-dismiss stage "the plaintiff must clearly . . . allege facts demonstrating each element." Spokeo, 13 6 S.Ct. at 154 7 (internal quotation marks omitted).

         UTMB is a public medical school under contract to provide "direct patient care" to offenders housed at some of TDCJ's prisons, including the Luther Unit.[79] See also, e.g., Norman v. TDCJ-ID. 293 Fed.Appx. 285, 287, 2008 WL 4238279, at *l (5th Cir. Sept. 17, 2008) (per curiam) (noting that "[t]hrough a committee created by the state legislature, the TDCJ contracts out its medical services to the University of Texas Medical Branch and the Texas Tech University Health Sciences Center."). As a matter of state law TDCJ, and not UTMB, is responsible for operating the Luther Unit, which is part of the state prison system.[80] See Tex. Gov't Code § 494.001 ("The mission of [TDCJ's Correctional Institutions Division] is to provide safe and appropriate confinement, supervision, rehabilitation, and reintegration of adult felons, and to effectively manage or administer correctional facilities based on constitutional and statutory standards."). The plaintiffs acknowledge that TDCJ, not UTMB, is the final authority and decision-maker with respect to the implementation of policies affecting the Luther Unit.[81]

         The plaintiffs, whose primary claim concerns the lack of access to climate-controlled conditions of confinement or effective heat mitigation measures, do not allege any facts showing that they have suffered an injury or that they have been exposed to unsafe conditions created by UTMB's conduct. Likewise, the plaintiffs do not allege any facts showing that UTMB can install air conditioning at the Luther Unit or that it has authority to provide any of the other relief sought. Absent a showing that UTMB has caused any of the complained of conditions or that it has the ability to redress the wrongs alleged, the plaintiffs fail to show that they have standing to seek injunctive or declaratory relief against UTMB. See Okpalobi v. Foster, 244 F.3d 405, 426-27, 431 (5th Cir. 2001) (en banc) (concluding that the plaintiffs failed to demonstrate standing to obtain injunctive or declaratory relief because the defendants lacked authority and had "no power to redress the asserted injuries")- For the same reasons, the plaintiffs fail to state a claim upon which relief may be granted where UTMB is concerned. Accordingly, UTMB's Motion to Dismiss will be granted.

         C. Claims Against CMHCC

         CMHCC also moves to dismiss the plaintiffs' claims for lack of standing, arguing that it lacks the authority to redress the alleged violations.[82] CMHCC notes that it is a committee created by the Texas Legislature for the limited purpose of developing a "managed health care plan" for inmates incarcerated in the state prison system, which is operated by TDCJ. See Tex. Gov't Code § 501.146. Although the plaintiffs correctly note that CMHCC assists TDCJ in developing health care policies, only TDCJ has the authority to order, fund, or otherwise require that air conditioning be installed at the Luther Unit.[83] Under these circumstances an injunction against CMHCC would be meaningless. See Okpalobi, 244 F.3d at 426-27. Because the plaintiffs have not shown that they satisfy this element of standing, CMHCCs Motion to Dismiss for lack of jurisdiction will be granted.

         CMHCC also invokes Rule 9(a) of the Federal Rules of Civil Procedure and argues that the plaintiffs' claims must be dismissed because, as a committee that is subservient to TDCJ, CMHCC lacks capacity to sue or be sued.[84] CMHCC argues, therefore, that it is not a proper party to this suit.[85] Lack of capacity to be sued is a defense that may be raised by a defendant under Rule 9(a)(2) and asserted in a motion under Rule 12(b)(6). See Barrie v. Nueces County District Attorney's Office, 753 Fed.Appx. 260, 265, 2018 WL 5095824, at *3 (5th Cir. Oct. 17, 2018) (per curiam). To have the requisite capacity to sue or be sued, a governmental department or political subdivision must "enjoy a separate legal existence." Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991) (citation and internal quotation marks omitted) . ``[U]nless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself." Id.

         An entity's capacity to sue or be sued "shall be determined by the law of the state where the court is located." Fed. R. Civ. P 17(b) (3) . To have the requisite capacity under Texas law, a governmental department or political subdivision must have been granted the authority to "sue or be sued." Darby, 939 F.2d at 313. CMHCC points to numerous examples in which the Texas legislature explicitly granted a state-created entity the power to sue and be sued.[86] By contrast, the statutory scheme that authorizes CMHCC to assist TDCJ with developing state-wide policies related to inmate health care does not include any language granting CMHCC the power to sue and be sued. See Tex. Gov't Code §§ 501.131-501.156. The plaintiffs do not identify any statutory provision that explicitly grants CMHCC with the authority to sue or be sued on its own behalf. Absent specific legislative action that explicitly confers upon CMHCC the power to sue or be sued, CMHCC lacks the requisite legal capacity and cannot be sued. For this additional reason, CMHCCs Motion to Dismiss will be granted.

         IV. Motion for Summary Judgment By Collier, McKee, and TDCJ

         Executive Director Bryan Collier, Warden James McKee, and TDCJ have filed a joint motion for summary judgment on the plaintiffs' claim that, by not affording access to cooled air or climate-controlled conditions, these defendants have violated the Eighth Amendment, as well as the ADA and the RA.[87] In support, the defendants present evidence of a heat mitigation plan implemented as a result of the Cole v. Collier settlement and records showing that several of the named plaintiffs have not exhausted administrative remedies before filing this suit as required by the PLRA, which governs this lawsuit. The plaintiffs have filed a response, [88] and the defendants filed a reply.[89] The defendants filed a motion to strike certain exhibits, [90] to which plaintiffs have filed a response.[91] Thereafter, the plaintiffs submitted an amended response, [92] and a sur-reply.[93] The defendants have filed a reply to the plaintiffs' amended response and motions to strike certain exhibits.[94]

         A. Standard of Review

          Defendants' MSJ is governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule a reviewing court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (2018); see also Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986) . An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id.

         In deciding a summary judgment motion, the reviewing court must "construe all facts and inferences in the light most favorable to the nonmoving party." Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal quotation marks omitted) . If the movant demonstrates an "absence of evidentiary support in the record for the nonmovant's case," the burden shifts to the nonmovant to "come forward with specific facts showing that there is a genuine issue for trial." Sanchez v. Young County, Texas, 866 F.3d 274, 279 (5th Cir. 2017) (citing Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010)); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.l3 (5th Cir. 2002). Likewise, the non-movant cannot avoid summary judgment by presenting" [c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation." Jones v. Lowndes County, Mississippi, 678 F.3d 344, 348 (5th Cir. 2012) (quoting TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (a non-movant cannot demonstrate a genuine issue of material fact with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence). Further, the court has no obligation under Rule 56 ```to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Adams v. Travelers Indem. Co. of Connecticut, 465 F.3d 156, 164 (5th Cir. 2006).

         B. Evidentiary Issues

         Before turning to the arguments presented in Defendants' MSJ, the court will address several evidentiary issues raised by the parties. The defendants have filed motions to strike certain exhibits filed by the plaintiffs in response to the summary judgment motion.[95] The defendants note that several of the plaintiffs' exhibits are mislabeled or out of order as they appear in the court's electronic filing system, CM/ECF.[96] The court has retained the original version of the exhibits submitted by the plaintiffs in their response to the summary judgment, which are voluminous, and has made every effort to identify them with page-number cites to the record where they appear in CM/ECF.

         To the extent that the defendants have lodged objections to content found in many of the plaintiffs' exhibits, the court has taken the objections into account when determining whether the exhibits contain competent, admissible evidence for purposes of the summary judgment motion.[97] Therefore, the defendants' motions to strike will be denied as unnecessary.

         In their response to the Defendants' MSJ, the plaintiffs appear to argue that this case is not ripe for consideration because they have not had the opportunity to pursue discovery.[98]The plaintiffs argue, in particular, that they require an expert witness to provide a report regarding the effectiveness of the heat mitigation strategies in place at the Luther Unit.[99] Defendants have presented a report from Dr. Dean Rieger, who describes the heat mitigation program that TDCJ has implemented and offers an opinion about its efficacy for lowering the risk of heat stroke.[100]The court has taken judicial notice of expert reports that the plaintiffs have provided, which were originally submitted in connection with the Cole v. Collier litigation.[101] Because the available record discloses fact issues that preclude summary-judgment on several issues, the court does not consider whether the plaintiffs' argument warrants a continuance for the purpose of allowing discovery under Rule 56(d) of the Federal Rules of Civil Procedure.

         C. Exhaustion of Administrative Remedies

         Because this case is governed by the PLRA, 42 U.S.C. § l997e(a), the plaintiffs were required to exhaust administrative remedies before filing a suit challenging prison conditions.[102] See Woodford v. Ngo, 126 S.Ct. 2378, 2382-83 (2006) (citing Porter v. Nussle, 122 S.Ct. 983, 988 (2002); Booth v. Churner, 121 S.Ct. 1819, 1825 (2001)); see also Jones v. Bock, 127 S.Ct. 910, 918-19 (2007) (confirming that `` [t] here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). The Fifth Circuit has construed § l997e(a) to require "that administrative remedies be exhausted before the filing of a § 1983 suit." Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998); see also Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004); Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir. 1999). Because pre-filing exhaustion is mandatory, a case must be dismissed if available administrative remedies were not exhausted. See Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (noting further that "[d]istrict courts have no discretion to excuse a prisoner's failure to properly exhaust the prison grievance process before filing their complaint").

         TDCJ has a formal two-step administrative grievance process. See Johnson, 385 F.3d at 515; see also Wendell, 162 F.3d at 891 (outlining the two-step procedure, which at Step 1 entails submitting an administrative grievance at the institutional level followed by a Step 2 appeal if the result is unfavorable) . A Step 1 grievance, which is reviewed by officials at the inmate's assigned facility, must be filed within fifteen days of the alleged incident or challenged event. See Johnson, 385 F.3d at 515. Once an inmate receives a response to his Step 1 grievance, he then has ten days to file a Step 2 grievance to appeal an unfavorable result at the state level. See id. Substantial compliance with this process is not enough to exhaust remedies under the PLRA. Dillon, 596 F.3d at 268 ("Under our strict approach, we have found that mere ` substantial compliance' with administrative remedy procedures does not satisfy exhaustion ..."). A Texas prisoner must pursue a grievance through both steps to satisfy the exhaustion requirement. See Johnson, 385 F.3d at 515 (citation omitted).

         The defendants acknowledge that plaintiffs David Cummings, Phillip Gullett, and David Wilson appear to have properly completed the exhaustion process with regard to the claims raised in the First Amended Complaint.[103] The evidence suggests that John Sain and Salvador Capuchino have also filed grievances that appear to have placed the defendants on notice of at least some of their claims in this case.[104] A fact issue remains as to whether Sain and Capuchino have exhausted required administrative remedies.

         The defendants present evidence showing that Jerry Smith and two other proposed plaintiffs (Eugene Boston and Jesse Snearly) have not filed any grievances since January 1, 2016, and have not attempted to exhaust administrative remedies with respect to the claims presented.[105] Accordingly, the claims by these plaintiffs are subject to dismissal for lack of exhaustion.

         The plaintiffs appear to acknowledge that several of the named plaintiffs have not exhausted administrative remedies as required.[106] They argue that only one of the named plaintiffs needs to have satisfied the exhaustion requirement for their claims to proceed as a class action.[107] As the plaintiffs correctly note, the Fifth Circuit has held that the exhaustion requirement is satisfied for a class of plaintiffs if at least one named plaintiff has completed the grievance process. See Gates v. Cook, 376 F.3d 323, 330 (5th Cir. 2004) (citations omitted). Here, however, no class has been certified. Under these circumstances, each named plaintiff must satisfy the exhaustion requirement, which is not excused by the mere filing of a motion for class certification. See, e.g., Leonard v. Federal Bureau of Prisons, No. 3:O6-CV-1322-N, 2007 WL 1703638, at *2-3 (N.D. Tex. June 13, 2007) (concluding that a prisoner could not rely on Gates where he fails to meet the prerequisites for a class action).

         The Fifth Circuit has emphasized that "pre-filing exhaustion of prior grievance process is mandatory" and that district courts lack discretion to excuse a prisoner's failure to exhaust his administrative remedies. Gonzalez, 702 F.3d at 788. Because the record reflects that Jerry Smith, Eugene Boston, and Jesse Snearly did not exhaust available administrative remedies before filing this suit, the defendants are entitled to summary judgment on the claims of these plaintiffs.

         D. Claims Under the Eighth Amendment

         Pointing to the Cole v. Collier case involving the Pack Unit, the plaintiffs allege that the defendants have violated the Eighth Amendment by continuing to expose them to "extremely high indoor temperatures at the Luther Unit despite acknowledging these high indoor apparent temperatures put inmates at risk of heat-related illnesses, injuries, and/or death."[108] The plaintiffs point to records showing that "outdoor apparent temperatures at the Luther Unit routinely exceed 10 0° F during the summer" at both the Pack Unit and the nearby Luther Unit facilities.[109] The plaintiffs assert that an inmate identified as "Inmate C" died in early July of 2018, "from apparent heat-related illness complicated by asthma."[110] Despite this incident the plaintiffs claim that Warden McKee has failed to investigate costs associated with ways to cool even a single indoor housing area at the Luther Unit and that Director Collier has taken "no steps to bring the dangerous temperatures down in any TDCJ facility."[111]

         1. Eighth Amendment Legal Standard

         To the extent that Plaintiffs John Sain, David Cummings, Phillip Gullett, David Wilson, and Salvador Capuchino have exhausted administrative remedies, their claims concerning the conditions of their confinement are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment, i.e., the "unnecessary and wanton infliction of pain." Wilson v. Seiter, 111 S.Ct. 2321, 2323 (1991) (quoting Estelle v. Gamble, 97 S.Ct. 285, 291 (1976)). The Supreme Court has recognized that prison conditions may be "restrictive and even harsh" without violating the Eighth Amendment. Rhodes v. Chapman, 101 S.Ct. 2392, 2399 (1981). Although the Constitution "`does not mandate comfortable prisons,' . . . neither does it permit inhumane ones." Farmer v. Brennan, 114 S.Ct. 1970, 1976 (1994) (quoting Rhodes, 101 S.Ct. at 2400) . Specifically, "prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates [.]" Farmer, 114 S.Ct. at 1976 (internal quotation marks omitted).

         To demonstrate a violation of the Eighth Amendment where conditions of confinement are concerned, a prisoner must demonstrate that his confinement resulted in a deprivation that was "objectively, sufficiently serious," such that it resulted in the denial of "the minimal civilized measure of life's necessities." Farmer, 114 S.Ct. at 1977 (quoting Rhodes, 101 S.Ct. 2399) . See, e.g., Palmer v. Johnson, 193 F.3d 346, 354 (5th Cir. 1999) (finding that conditions violated the Eighth Amendment where inmates were herded into a small outdoor space, deprived of protection from excessive cold and wind, and provided no sanitary means of disposing of their waste). Under this standard courts must measure prison conditions under the "evolving standards of decency that mark the progress of a maturing society[.]" Gates v. Cook, 376 F.3d 323, 332-33 (5th Cir. 2004) (citation and internal quotation marks omitted).

         If a sufficiently serious deprivation is shown, a plaintiff must then show that prison officials acted with "deliberate indifference" to the effect that this deprivation would have on his health and safety. Farmer, 114 S.Ct. at 1977. "Deliberate indifference is an extremely high standard to meet." Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)." [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 114 S.Ct. at 1979. A prison official acts with the requisite deliberate indifference "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 1984.

         The Fifth Circuit has repeatedly recognized that the Eighth Amendment `` ` guarantees inmates a right to be free from exposure to extremely dangerous temperatures without adequate remedial measures.'" Yates v. Collier, 868 F.3d 354, 360 (5th Cir. 2017) (quoting Hinoiosa v. Livingston, 807 F.3d 657, 669 (5th Cir. 2015)); see also Gates, 376 F.3d at 339-40 (addressing claims of exposure to extreme heat and conditions posing a substantial risk of heat-related illness). The Fifth Circuit has qualified that "merely uncomfortable heat in a prisoner's cell does not reflect a basic human need that the prison has failed to meet." Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015) ("Ball I") (internal citation and quotation marks omitted). However, extreme heat in prison cells amounts to a constitutional violation when it poses "an unreasonable risk of serious damage to a prisoner's health" and prison officials act with deliberate indifference to the risk. Id.

         The plaintiffs seek an injunction directing prison officials to air condition the housing units and other areas frequented by inmates at the Luther Unit. Although air conditioning in prison cells is not "necessarily an impermissible remedy," Yates, 868 F.3d at 370, the Prison Litigation Reform Act limits the availability of prospective injunctive relief. See Ball I, 792 F.3d at 598-99 (cautioning that injunctive relief under the PLRA must be `` ` narrowly drawn'" and `` ` shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs, '" quoting 18 U.S.C. § 3626(a) (1) (A)) . The Fifth Circuit has found that an injunctive remedy requiring air-conditioning is inappropriate unless "other acceptable and less-intrusive remedies" have been tried and found unsuccessful. Yates, 868 F.3d at 370. The Fifth Circuit has upheld the use of heat mitigation measures such as ice, fans, and showers as alternative means by prison officials to reduce the risk of exposure to extreme heat. See Ball v. LeBlanc, 881 F.3d 346, 352 n.lO (5th Cir. 2018) ("Ball II") (collecting cases).

         2. The Defendants' Evidence and Arguments

         The defendants argue that there has never been a heat-related death at the Luther Unit and present evidence that Inmate C died as the result of chronic asthma that was not attributed to or caused by exposure to excessive heat.[112] The defendants point to medical records showing that Inmate C refused respiratory therapy and work restrictions that were offered shortly before his death.[113] The defendants also present evidence that the Luther Unit has adopted a comprehensive strategy to reduce the risk of heat-related injury or death pursuant to a Three Year Plan for Offenders Who Are at Highest Risk for Heat Related Illness ("Three-Year Plan"), and a related administrative policy which includes mitigation measures, education, and monitoring.[114]

         a. The Three-Year Plan

         The Three-Year Plan features new policies and mitigation measures that were not in place before the Cole litigation, including: "allowing offenders unlimited access to air-conditioned respite areas at any time and for any reason; providing cool-down showers and unlimited iced drinking water; increasing training for both offenders and officers regarding heat-stress illnesses and available mitigation measures; and creating an Incident Command System to uniformly respond to periods of excessive temperatures. "[115]

         The Three-Year Plan also features a new process to place certain offenders who may be at an increased risk of developing a heat-stress illness in air-conditioned housing by assigning "every offender in the TDCJ system ... a Heat Sensitivity Score based on their medical conditions and prescribed medications."[116] This system, which is designed to identify "Cool Bed Priority (CBP) offenders," was developed after consultation with medical professionals and incorporates 26 factors that were used to define the Cole sub-class for inmates with heat-sensitivity due to medical issues.[117] The general categorization of inmates considered to have "Group 1 factors" include those with the following issues:

1. Heart and Medical Disease - Offenders are CBP offenders if they have certain conditions, such as:
a. Coronary artery disease and chronic ischemic heart disease;
b. Previous myocardial infarction; c. Heart failure;
d. An implantable cardiac device/ pacemaker; or
e. Percutaneous transluminal coronary angioplasty or a stent.
2. Mental Health Disorders - Offenders are CBP offenders if they have one of the following active psychiatric conditions:
a. Schizophrenia;
b. Schizo-affective disorder;
c. Psychosis; or
d. Bipolar disorder.
3. Dementia and Alzheimer's Disease - Offenders are CBP offenders if they have dementia or Alzheimer's disease.
4. Developmental Disabilities - Offenders are CBP offenders if they are developmentally disabled. This includes, but is not limited to, offenders in the Developmental Disabilities Program (DDP).[]
5. 65 Years of Age or Older - Offenders are CBP offenders if they are 65 years or older and have certain conditions or are prescribed certain medications, such as:
a. Asthma and are prescribed inhaled or oral steroids and/or long-acting beta-agonist inhalers;
b. Chronic Obstructive Pulmonary Disease and are prescribed inhaled or oral steroids and/or long-acting beta-agonist inhalers;
c. Cirrhosis and are also receiving one of the following:
a diuretic, daily laxatives, or the non-absorbable antibiotics Rifaximin or Neomycin;
d. A body mass index (BMI) equal to or greater than 40;
e. A BMI equal to 35 but less than 40 and are receiving diuretic medication;
f. Diabetes or hypertension with target organ damage; or
g. High-activity anticholinergic medications.[118]

         Inmates who have a Heat Sensitivity Score of at least one point and those who are designated as a developmentally disabled or DDP offenders are considered to have priority for air-conditioned housing.[119] Inmates who do not meet any of the Group 1 factors will have a Heat Sensitivity Score of zero.[120]

         To implement the Three-Year Plan TDCJ identified approximately 12, 000 offenders with a Heat Sensitivity Score of 1 or greater, 4, 900 of whom were already located in air-conditioned housing.[121]Starting in July of 2018 TDCJ relocated 745 offenders with the highest Heat Sensitivity Scores to air-conditioned housing at the LeBlanc Unit.[122] During the first four months of 2019 TDCJ continued to re-assign inmates to air-conditioned housing based on their Heat Sensitivity Scores.[123] Three inmates who were originally listed as named or prospective plaintiffs in this lawsuit (Michael Cummings, TDCJ #2079838; Michael Alberts, TDCJ #1554298; and Antonio Almaraz, TDCJ #14215 75) have been moved to air-conditioned housing as the result of their Heat Sensitivity Scores.[124]

         Under the terms of the Cole settlement TDCJ has installed temporary air conditioning at the Pack Unit, which accommodates 1, 4 78 inmates, with plans to construct and install permanent air-conditioning at that facility.[125] To accommodate the security and medical needs of other identified inmates whose Heat Sensitivity Score indicate a priority, TDCJ intends to install permanent air-conditioning in all housing areas at the Hodge Unit, [126] which is anticipated to be completed by 2021.[127] TDCJ also plans to re-purpose units that are already air-conditioned housing, including "expansion cell blocks" found at the Clements Unit, the Allred Unit, the Smith Unit, and the Gib Lewis Unit, as well as "12-Building" facilities of the Robertson Unit, the McConnell Unit, and the Polunsky Unit in 2 019.[128] TDCJ plans to re-purpose portions of several other state-operated prison units (the Cotulla Unit, the Tulia Unit, the Fort Stockton Unit, the Ney State Jail, and the Chase Field Work Camp) and several privately operated facilities (the Willacy County State Jail, the B. Moore Unit, the Diboll Unit, the Cleveland Unit, and the Estes Unit) by the end of 2021.[129]

         TDCJ has also sought additional funding to create air-conditioned special housing for aging offenders at the Stiles Unit and the Lane Murray Unit.[130] The defendants report that, based on their current Heat Sensitivity Scores, plaintiffs Sain and Gullett are among those inmates who are scheduled to be moved to air-conditioned housing by 2021.[131]

         In addition to implementing an automated system that tracks inmates with heat sensitivity and available "cool beds, "[132] medical providers within TDCJ began a "therapeutic conversion" to reduce the number of inmates with mental health disorders who were prescribed tricyclic antidepressants (TCAs), which can affect heat sensitivity.[133] As of December 18, 2018, there are no longer any patients in TDCJ who are prescribed TCAs.[134]

         b. Revisions to Administrative Directive 10.64

         The Three-Year Plan was adopted pursuant to a revised version of TDCJ Administrative Directive 10.64 (rev. 9) ("AD-10.64") to address extremes in temperature conditions.[135] AD-10.64 includes specific heat mitigation measures that are intended to protect all offenders regardless of their individual risk level.[136] These measures include making respite areas available 24 hours per day, seven days per week, for all offenders who are not assigned to air-conditioned housing.[137] Offenders may request access to a respite area "even if they are not feeling ill at the time of the request, and are permitted to stay in the respite area as long as necessary."[138] In addition, offenders requesting such access "are not required to be seen by medical staff unless they are exhibiting signs or symptoms of a heat-related illness."[139]

         The newly revised version of AD-10.64 also requires prison units to take extra precautions where the heat index is above 90 degrees, including, but not limited to:

o Providing additional water and cups in offender dorms, housing areas, recreational areas, and during meal times, along with ice;
o Transporting psychiatric inpatient offenders to other facilities via air-conditioned transfer vehicles only;
o Transporting offenders during the coolest hours of the day, when possible;
o Allowing offenders to utilize and carry cooling towels;
o Allowing offenders to wear shorts and t-shirts in dayrooms and ...

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