Sain et al v. Collier et al, No. 4:2018cv04412 - Document 120 (S.D. Tex. 2019)

Court Description: MEMORANDUM OPINION AND ORDER granting 19 MOTION to Dismiss, granting 21 MOTION to Dismiss, denying 31 FIRST AMENDED MOTION FOR CLASS CERTIFICATION AND, IN THE ALTERNATIVE, MOTION FOR EXPEDITED DISCOVERY, AND JUDGES ORDER, granting in pa rt and denying in part 59 MOTION for Summary Judgment, denying 82 MOTION to Strike Plaintiffs' Supplement to Motion for Class Certification (ECF 72), denying 111 MOTION to Strike Exhibits to Plaintiffs' First Amen ded Response to Defendants' Motion for Summary Judgment, denying 119 MOTION for Leave to File Motion to Strike Certain Exhibits to Plaintiffs' Supplement to Their Rejoinder. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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Sain et al v. Collier et al Doc. 120 United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JOHN SAIN (TDCJ #01373168), et al., Plaintiffs, V. BRYAN COLLIER, et al., Defendants. § § § § § § § § § § ENTERED August 30, 2019 David J. Bradley, Clerk CIVIL ACTION NO. H-18-4412 MEMORANDUM OPINION AND ORDER 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 Complaint") (Docket Entry No 25). ("First Amended 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 Warden Donald Muniz, who is no longer assigned to the Luther Unit facility, was dismissed previously and is no longer a party in (continued...) 1 Dockets.Justia.com 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 Certifi cation") (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. 111); 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). 1( •••continued) this case. See Order, Docket Entry No. 68, pp. 1-2. For purposes of identification, all page numbers reference the pagination imprinted by the court's electronic filing system, CM/ECF. -2- The court has considered all of the pleadings, responses, replies, and supplements. motions, 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. A. Background 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: 2 Eugene Boston (TDCJ #02075115); Salvador Capuchino complaint, Docket Entry No. 1, pp. 107-108. First Amended Complaint, Docket Entry No. 25, pp. 108-09. Plaintiffs Michael Cummings (TDCJ #02079838), Brian Quintanilla (TDCJ #02110859), and Brandon Pruitt (TDCJ #02141885) were terminated from the case previously on April 29, 2019. See Order, Docket Entry No. 67, p. 3. Likewise, the claims of plaintiff Thyee McGruder (TDCJ #02158413) were dismissed on August 21, 2019. See Order, Docket Entry No. 118, pp. 1-2. 3 -3- (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 hypertension, sclerosis (M. S.) , depression, arthritis, obesity, prostate hypoglycemia, vitamin and mineral deficiencies, problems, major nerve neuropathy, 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 Plaintiffs' Motion for Leave to Amend Named Plaintiffs, With Appendix and Orders, Docket Entry No. 92, p. 2. 4 Order, Docket Entry No. 104, p. 2 (denying leave to amend subject to reconsideration after ruling on the defendants' pending motion for summary judgment). As discussed further below, the record shows that Boston and Snearly did not exhaust administrative Therefore, the court will not remedies before filing suit. reconsider its decision to deny leave to add them as plaintiffs. To the extent that there is a fact issue regarding whether Capuchino exhausted his administrative remedies as required, the court will grant leave to add him as a plaintiff on a provisional basis until the issue of exhaustion is resolved. 5 6 Declaration of John Sain, Docket Entry No. 6-2, p. 16 7 Id. 3. -4- 1 2. 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, diabetes, who is cirrhosis 59 of years of age, the liver, suffers from depression, "type I 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 anti fungal cream, an anti-anemia drug, a loop diuretic, an ammonia detoxicate, 1 2. agent, a proton-pump inhibitor, a Id. 9 Declaration of David Cummings, Docket Entry No. 6-1, p. 40 11 12 2. thyroid 8 10 1 1 a 4. Id. 1 3. Id. 1 4. Declaration of Phillip Gullett, Docket Entry No. 6-2, p. 2 -5- 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 "obesity, poor vision, and cellulitis in [his] lower legs." 19 with His medical conditions "require the use of both special shoes and a cane for ambulatory movement." 20 Wilson's medications include "a 14Id. 1srd. 16 17 Declaration of Jerry Smith, Docket Entry No. 6-3, p. 2 2. Id. 3 and 2. 18 Id. 4. 19 Declaration of David Wilson, Docket Entry No. 6-3, p. 5 2. 2ord. -6- topical dermatological ointment and an NSAID/Oxicam. " 21 assigned to work in the prison laundry, temperature where Wilson is "the apparent 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, reflux disease (GERD), and allergies." 26 gastric esophageal He has been prescribed "a beta blocker, an ACE Inhibitor, a calcium channel blocker, a loop diuretic, 21 an anti-histamine, a non-steroidal anti-inflammatory Id. 3 . Exhibit 1, Declaration No. 92-1, p. 3 2. 23 24 Id. 3. 25 Id. 4. of Eugene Boston, Docket Entry Exhibit 3, Declaration of Salvador Capuchino, Docket Entry No. 92-1, p. 10 2. 26 -7- 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 United States Constitution.32 of the Eighth Amendment to the The lead defendant, Bryan Collier, is sued in his official capacity as Executive Director of TDCJ.33 11 27Id. 1 3. 2srd. 1 4. Jo Id. 1 5. 1 7. 29Declaration of Jesse Snearly, Docket Entry No. 92-1, p. 17 2 and 3. 31Id. 11 32First Amended Complaint, Docket Entry No. 25, pp. 101-02 315-22. 33Id. at 11 1 19. -8- James McKee is also sued in his official capacity as Warden of the Luther Unit.34 The plaintiffs sue three state entities, CMHCC, for failing to accommodate their TDCJ, UTMB, and "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 34 Id. at 11 20. Id. at 102-05 323-32. The plaintiffs also reference the ADA Amendments Act of 2008 ("ADAAA"). See id. The court will treat claims under the ADAAA as those arising under the ADA. 35 36 Id. at 11 22 (citing Tex. Gov't Code § 493.004). 37 Id. at 12 24. Id. at 12 23 (citing Tex. Gov't Code § 501.133); see also CMHCC's Motion to Dismiss, Docket Entry No. 21, pp. 3-4 (citing Tex. Gov't Code § 501.146). 38 -9- 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 39 First Amended Complaint, Docket Entry No. 25, p. 12 Exhibit 2, TDCJ Unit Directory: No. 6-1, p. 34. 40 1 25. Luther Unit, Docket Entry First Amended Complaint, Docket Entry No. 25, p. 13 1 27; Exhibit 1, TDCJ - Offenders On Hand at the Luther Unit as of July 31, 2018, Docket Entry No. 6-1, pp. 4-32. 41 42 First Amended Complaint, Docket Entry No. 25, p. 13 1 30. See Temperature Log forms, Docket Entry Nos. 6-4 through 6-13. For purposes of this Order all temperatures are reported in Fahrenheit. 43 -10- even hotter ventilation.44 than outside temperatures because of inadequate 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 airconditioning.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 inmates.49 enter," which irritate the 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 First See Exhibit No. 105-26, readings in 44 Amended Complaint, Docket Entry No. 25, pp. 16-17 1 46. 128, Fifth Sworn Affidavit of John Sain, Docket Entry p. 5 (alleging that he has observed dorm temperature the 125 ° F to 130 ° F range). 45First Amended Complaint, Docket Entry No. 25, p 18 . 46Id at 22 1 60. . 41Id. at 25 1 68. 48Id. at 14 49Id. at 17 1 32. 1 45. -11- 1 48. plaintiffs assert that neither the ventilation system nor the personal fans operate during power outages, night or when there is a storm. 50 which can occur at 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, weakness. 52 injunctive nausea, headaches, dizziness, To remedy these conditions, relief ordering prison muscle cramps, and the plaintiffs seek 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 50 51 Id. at 14 Id. at 7 1 34. 1 2 and 15 1 35. See Exhibit 1, Declaration of Eugene Boston, Docket Entry No. 105-1, p. 8; Exhibit 3A, Declaration of David Cummings, p. 14; Exhibit 4, Declaration of Phillip Gullett, Docket Entry No. 105-1, p. 21; Exhibit 8, Declaration of John Sain, Docket Entry No. 105-1, pp. 35-36; Exhibit 9, Declaration of Jerry Smith, Docket Entry No. 105-1, p. 42; Exhibit 10, Declaration of Jesse Snearly, Docket Entry No. 105-1, p. 45. 52 53 First Amended Complaint, Docket Entry No. 25, pp. 8-9 -12- 1 7. 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]ll 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 anticholinergic, anticonvulsant, 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 Memorandum and Order dated June 14, 2016, in Cole v. Livingston, Civil No. H-14-1698, Docket Entry No. 473, pp. 2-3. Sometime after the Memorandum and Order was entered in the Cole case, former Executive Director Brad Livingston retired and current Executive Director Bryan Collier was substituted as the lead defendant in his place pursuant to Fed. R. Civ. P. 25(d). 54 -13- 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: ( 3) diabetes; (2) obesity; cardiovascular disease, including chronic hypertension and arteriosclerosis; (6) (1) pulmonary Disease ( 4) psychiatric conditions; ( 5) advanced age; disease, such as Chronic Obstructive ( "COPD") , emphysema, and asthma; ( 7) Pulmonary sweat gland dysfunction; and (8) cirrhosis of the liver, cystic fibrosis, and thyroid dysfunction. 57 55 The district court also identified several Id. at 3. Memorandum and Opinion Setting Out Findings of Fact and Conclusions of Law dated July 19, 2017, in Cole v. Collier, Civil No. H-14-1698, Docket Entry No. 737, p. 91. 56 57 Id. at 32-35. -14- 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 injunctive relief and ordered the defendants to: preliminary "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 58 Id. at 35-37. 59 Id. at 40. 60 Id. at 98. The settlement 61 Final Order and Judgment Approving Class Action Settlement and Attorneys' Fees, dated June 8, 2018, in Cole v. Collier, Civil No. H-14-1698, Docket Entry No. 1188, p. 5. -15- 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, finalized, shortly after the Cole settlement was 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 62Id. 63 Id. at 35. 64 First Amended Complaint, Docket Entry No. 25, p. 28 83. 65 Id. at 40-41 134, 135. -16- 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 sensitive to heat for medical reasons; and (2) (1) are 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, permanent (1) the ADA, injunction consistent "24/7" and the RA, ordering the the plaintiffs seek a defendants to provide 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 similar to the Pack "equitable or better accommodation" Unit Respite Program; ( 3) implement an "equitable or better accommodation" similar to the Pack Unit air conditioning plan by 66 Id. at 27 1 80. 67 Id. at 28 1 83. 68 Id. at 92-94 11 requiring 298-300. -17- 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 the class is so numerous 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. 69 Id. at 107 1 344(d) (iii) that joinder of all (1) Id. at 92-94 11 298-300. See also Plaintiffs' First Amended Motion for Class Certification, Docket Entry No. 31, pp. 9-10. 70 -18- FED. R. Crv. 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 bear requirements. purposes of class certification As the party seeking class certification, Rule 23(a)). plaintiffs for the burden of proof with respect to under the these Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996). Even assuming that they could satisfy the first three pre requisites 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., 401 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." -19- 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)); Binkley v. Rendell, Civ. No. 1:101245, 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] action.") (citations omitted); 7A Charles Alan Wright Miller, Federal Practice and Procedure § 1769.1 (" [C] lass representatives cannot & in a class & Arthur R. n.13 (3rd ed.) 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 71 Plaintif fs' First Amended Motion for Class Certification, Docket Entry No. 31, p. 45. -20- (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 72 UTMB's Motion to Dismiss, Docket Entry No. 19, p. 1. 73 CMHCC's Motion to Dismiss, Docket Entry No. 21, p. 1. -21- 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.'" Halmekangas 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. pcOrder.com, 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. 533, See, e.g., Little v. KPMG LLP, 575 F.3d 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)). Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss the CMHCC Pursuant to Rule 12(b) ("Plaintiffs' Response to Defendants' Motion to Dismiss CMHCC"), Docket Entry No. 39, pp. 1-11; Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss the UTMB Pursuant to Rule 12(b), Docket Entry No. 40, pp. 1-10. 74 Defendant UTMB's Reply to Plaintiff's Response in Opposition to the UTMB's Motion to Dismiss, Docket Entry No 43, pp. 1-8; CMHCC's Reply in Support of its Motion to Dismiss, Docket Entry No. 44, pp 1-7. 75 -22- 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." v. Martini Club, Bustos 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[.]" 1955, 1965 (2007). Bell Atlantic Corp. v. Twombly, 127 S. Ct. 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 It is evident that the plaintiffs have access to the pleadings and exhibits filed by counsel for class members in the Cole v. Collier litigation. Although it appears that the plaintiffs have been aided by these professionally prepared documents, the court will apply the standard of liberal construction to the plaintiffs' pleadings. 76 -23- recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Igbal, 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." art. III, § 2. (2016) U.S. Const. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (" 'No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court controversies.'" (1997))). jurisdiction to actual cases or (quoting Raines v. Byrd, 117 S. Ct. 2312, 2317 "[T]he requirement that a claimant have 'standing is an 77 UTMB's Motion to Dismiss, Docket Entry No. 19, p. 1. 78 Id. at 3-9. -24- essential unchanging and part requirement of Article III.'" 128 S. Ct. 2759, 2768 the of case-or-controversy Davis v. Federal Election Comm'n, (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 F. App'x 351, 356, 2012 WL 171619, at *3 (5th Cir. 2012) (per curiam) ( "Standing to seek declaratory judgment is subject to these same requirements.") plaintiff must clearly element." Spokeo, At the motion-to-dismiss stage "the allege facts demonstrating each 136 S. Ct. at 1547 ( 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 F. App'x 285, 287, 2008 WL 4238279, at *1 (5th Cir. Sept. 17, 2008) (per curiam) (noting that "[t]hrough a committee 79 First Amended Complaint, Docket Entry No. 25, p. 12, 24. -25- 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 Gov't Code Institutions confinement, 494.001 § ("The Division] is supervision, mission to of provide rehabilitation, [TDCJ's safe and See Tex. Correctional appropriate 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 80 Id. at 11 1 22 (citing Tex. Gov't Code § 493.004). Id. at 23 1 63 ("The TDCJ Medical Director shall retain final approval authority for all statewide policies and procedures."). 81 -26- 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 bane) (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. § 501.146. See Tex. Gov't Code 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 conditioning be installed at the Luther Unit. 83 82 that air Under these CMHCC's Motion to Dismiss, Docket Entry No. 21, pp. 3-5. Id. at 4. The plaintiffs claim that CMHCC has the authority See Plaintiffs' to enter into contracts for certain services. Response to Defendants' Motion to Dismiss CMHCC, Docket Entry No. 39, p. 5 (citing Tex. Gov't Code § 501.148 (c)- {d)). CMHCC (continued...) 83 -27- 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, CMHCC's 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 CMHCC argues, therefore, that it is capacity to sue or be sued.84 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 F. App'x 260, 265, 2018 WL 5095824, at *3 (5th Cir. Oct. 17, 2018) (per curiam). have the requisite capacity to sue or be sued, To 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. (citation 1991) 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 continued) notes, however, that the statutory provision relied upon by the plaintiffs was repealed in 2013. See Acts 2013, 83rd Leg., R.S., Ch. 1154, Sec. 29(e), eff. Sept. 1, 2013. Currently, only TDCJ has the authority to contract with an entity to "fully implement the managed health care plan." Tex. Gov't Code § 501.147(b)(5). 83 84 ( ••• CMHCC's Motion to Dismiss, Docket Entry No. 21, pp. 5-6. ssrd. -28- 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." 17(b)(3). Fed. R. Civ. P 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 Id. at 6 & n.2. Examples of state statutes expressly conferring the authority to sue and be sued include: Tex. Gov't Code § 81.014 ("The state bar may sue and be sued in its own name."); Tex. Loe. Gov't Code § 327.161 ("A zoo board may sue and be sued."); Tex. Educ. Code § 45.152(b) (stating that an athletic stadium authority "may sue and be sued"); Tex. Agric. Code § 58.022(2) (creating the Agricultural Finance Authority and including the power "to sue and be sued"); Tex. Agric. Code § 60.060(a) ("The [agricultural development] district may sue and be sued."); Tex. Bus. Orgs. Code § 101.605(1) ("A series established under this subchapter has the power and capacity, in the series' own name, to: (1) sue and be sued; (2) contract.); Tex. Educ. Code § 22.08-App. (b) ("The trustees or common consolidated school district may sue and be sued, plead or be impleaded, in any court of Texas of proper jurisdiction."); Tex. Gov't Code § 1232.067(3) (specifying that the Board of the Texas Public Finance Authority "may sue and be sued") 86 -29- 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, CMHCC's 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 Defendants' MSJ, Docket Entry No. 59. A separate copy of the Defendants MSJ, which contains a brief un-redacted discussion of the plaintiffs' medical records, is filed under seal. See Docket Entry No. 60, pp. 22-24. 87 Plaintiffs' Response to Defendants' Motion for Summary Judgment, with Order and Appendix, Docket Entry No. 74. The Appendix of exhibits are filed separately at Docket Entry Nos. 75 and 76. 88 Reply in Support of the Motion for Summary Judgment on Behalf of Defendants Bryan Collier, James McKee, and the Texas Department of Criminal Justice, Docket Entry No. 86. 89 -30- 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 Motion to Strike Exhibits to Plaintiffs' Response Defendants' Motion for Summary Judgment, Docket Entry No. 87. 90 to Plaintiffs' Response to Defendants' Motion to Strike Exhibits to Plaintiffs' Response for Defendants' Motion for Summary Judgment, with Order, Docket Entry No. 100. 91 Plaintiffs' First Amended Response to Defendants' Motion for Summary Judgment, with Appendix and Order ("Plaintiffs' First Amended Response"), Docket Entry No. 105. 92 Plaintiffs' Rejoinder to Defendants' Reply in Support of Defendants' Motion for Summary Judgment, with Appendix and Order ("Plaintiffs' Rejoinder"), Docket Entry No. 107. 93 Reply to Plaintiffs' First Amended Response to Motion for Summary Judgment on Behalf of Defendants Bryan Collier, James McKee, and the Texas Department of Criminal Justice ("Defendants' Reply"), Docket Entry No. 110; Defendants' Motion to Strike Exhibits, Docket Entry No. 111; Defendants' Motion for Leave to File Motion to Strike Exhibits, Docket Entry No. 119. 94 -31- 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." Cir. 2010) Dillon v. Rogers, 596 F.3d 260, 266 (5th (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. = =c. , 302 F.3d 531, 545 n.13 (5th Cir. 2002). v ·-=A=&=B=-=B=u=i=l=d=e r s:...L-.-=In 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 bane) (a -32- non-movant cannot demonstrate a genuine issue of material fact with conclusory allegations, scintilla of evidence). unsubstantiated assertions, or only a 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). Evidentiary Issues B. 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. 95 Defendants' Motion to Strike Exhibits, Docket Entry No. 111, pp. 1-10; Defendants' Motion to Strike Exhibits to Docket Entry 112: Plaintiffs' Supplement to Plaintiffs' Rejoinder to Defendants' Reply in Support of Defendants' Motion for Summary Judgment, Docket Entry No. 119-2, pp. 1-5. p. 1. 96 Defendants' Motion to Strike Exhibits, Docket Entry No. 111, -33- 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 To the extent that the defendants challenge sworn statements provided by the plaintiffs and other inmates as offering improper expert opinions, the court may consider evidence from fact or lay witnesses regarding matters within their personal knowledge about See the conditions of confinement at the Luther Unit. United States v. Valencia, 600 F.3d 389, 416 (5th Cir. 2010) (citing Fed. R. Evid. 701; and National Hispanic Circus, Inc. v. Rex Trucking, Inc., 414 F.3d 546, 551-52 (5th Cir. 2005)). 97 Plaintiffs' First Amended Response, Docket Entry No. 105, pp. 11, 12. 98 99 Id. at 12. Exhibit B, Declaration of Dr. Dean Rieger and Report, Docket Entry No. 59-3, pp. 2-32. 100 -34- 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. § 1997e(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§ 1997e(a) to Exhibit 20, Dr. McGeehin's Expert Report, Docket Entry No. 105-5, pp. 1-32; Exhibit 23, Dr. Vassallo's Expert Report, Docket Entry No. 105-6, pp. 1-27; Exhibit 21, Dr. Vassallo's Supplemental Report, Docket Entry No. 105-5, pp. 32-36. 101 102 section 1997e(a) provides that No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 u.s.c. § 1997e(a). -35- 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. 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 -36- a grievance requirement. through both steps to satisfy the exhaustion 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. 103 Defendants' MSJ, Docket Entry No. 59, p. 53, n.9. Exhibit TT, Grievances #2019003068, #2018170415, #2018141180, #2016181204, Docket Entry No. 60-9, pp. 8-10, 11-22, 33-36 (grievances regarding a disciplinary conviction imposed when Sain objected to an inadequate response to a heat-related emergency, inadequate ventilation in the housing units due to power outages, and overheated conditions resulting in heat-related illness); Exhibit UU, Grievances #2018186706, #2018177352, and #2019003062, Docket Entry No. 60-10, pp. 3-15 (grievances regarding abusive treatment by officers in respite areas and a disciplinary conviction that involved a request for respite). 104 Exhibits II, JJ, KK, Affidavits from Vickie Barrow, Docket Entry Nos. 59-36, 59-37, and 59-38 (stating that neither Boston, Snearly, nor Smith, has filed a grievance during the time period relevant to this suit). 105 -37- The plaintiffs appear to acknowledge that several of the named not administrative remedies as plaintiffs have required. 106 They argue that only one of the named plaintiffs needs exhausted 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). has been certified. Under these Here, however, no class 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., 1322-N, Leonard v. Federal Bureau of Prisons, 2007 WL 1703638, at *2-3 (N.D. No. 3: 06-CV- 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 Plaintiffs' First Amended Response, Docket Entry No. 105, pp. 74-75. The plaintiffs argue that, in addition to exhaustion by Cummings, Gullett, and Wilson, two other prisoners (Brandon Pruitt and Brian Quintanilla) have exhausted administrative remedies. See id. at 74. The plaintiffs overlook the fact that both Pruitt and Quintanilla were previously dismissed from this case at the plaintiffs' request. See Order, Docket Entry No. 67, p. 3. 106 107 First Amended Complaint, Docket Entry No. 25, p. 95 -38- 1 307. 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 100 ° 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, asthma." 110 "from apparent heat-related illness complicated by 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 108 109 110 First Amended Complaint, Docket Entry No. 25, p. 28 83. Id. at 28-30 84-87 (Tables 1, 2, and 3). rd. at 40 134. -39- Director Collier has taken "no steps to bring the dangerous temperatures down in any TDCJ facility." 111 Eighth Amendment Legal Standard 1. 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" violating the Eighth Amendment. 2392, 2399 (1981). without Rhodes v. Chapman, 101 S. Ct. 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 111 of confinement are Id. at 31 89-90. -40- 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, , 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 disposing of their waste) provided no sanitary means of 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. indifference is an extremely high standard to meet." "Deliberate 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." -41- 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 measures.'" dangerous temperatures without adequate remedial Yates v. Collier, 868 F.3d 354, 360 (5th Cir. 2017) (quoting Hinojosa 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 -42- (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 plaintiff or plaintiffs,'" quoting 18 U.S.C. § of a particular 3626 (a) (1) (A)) . Fifth Circuit has found that an injunctive The 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.10 (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' MSJ, Exhibit MM, Autopsy Report and Death Certificate, Docket Entry No. 60-2, pp. 2, 11 (Concluding that the cause of death was "acute respiratory failure due to asthma exacerbation"); Exhibit NN, Correctional Managed Health Care Urgent/Emergent Care Record, Docket Entry No. 60-3, pp. 14-23. See also Exhibit B, Report of Dr. Dean Rieger, Docket Entry No. 59-3, p. 10. 2 11 113 Exhibi t NN, Correctional Managed Health Care, Refusal of Treatment or Services, Docket Entry No. 60-3, pp. 3-4, and Clinic (continued...) -43- 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 continued) Notes, Docket Entry No. 60-3, pp. 5-14. The plaintiffs dispute that Inmate C's death was not exacerbated by heat, but present no evidence to support their argument. See Plaintiffs' First Amended Response, Docket Entry No. 105, p. 41. 113 ( ••• 114 Exhibit A, Three-Year Plan, Docket Entry No. 59-2, pp. 4-15. 115 Defendants' MSJ, Docket Entry No. 59, p. 9. -44- offender in the TDCJ system . . . a Heat Sensitivity Score based on This their medical conditions and prescribed medications."116 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. 2. 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. 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. n6Id. Id. at 13; Exhibit A, Three-Year Plan, Docket Entry No. 59-2, pp. 8-9 (explaining that these conditions are considered "Group 1 factors" and that offenders who have at least one Group 1 factor are considered "Cool Bed Priority (CBP) offenders"). 117 -45- 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 or Rifaximin antibiotics 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 8 11 Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 9. -46- 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 #1421575) 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 9 11 Id. at 9-10. 120 Id. at 9. 121 Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 11. Defendants' Supplement to Their Motion for Summary Judgment, Docket Entry No. 64, pp. 1-2, and Exhibit WW, Affidavit of Justin Brock, Docket Entry No. 64-1, pp. 2-3 (documenting the relocation of 142 inmates in January 2019; 315 inmates in February 2019; 294 inmates in March 2019; and 272 inmates in April 2019). 123 Exhibit LL, Affidavit of Debra Gibbs, Docket Entry No. 60-1, pp. 2-3. 124 -47- 1,478 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 re-purpose units that are already TDCJ also plans to 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 2019. 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. 129 125 Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 5. The Three-Year Plan expressly addresses the special needs of developmentally disabled or DDP inmates by air-conditioning the Hodge Unit. See Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 12. The Hodge Unit, which is located near the Skyview Unit, houses inmates who are developmentally disabled and may lack the "mental capacity to reliably exercise regular, normal self-care . to help mitigate the risk of heat-related illness." Id. 126 127 128 129 Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 12. Id. at 12-13. Id. at 14-15. -48- 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 0 13 AD-10.64 includes Id. at 11. MSJ, Docket Entry No. 59, p. 9; Exhibit c, 131 Defendants' Affidavits of Sarah Wright, Docket Entry No. 59-4, pp. 2-3 (John Sain) and pp. 6-7 (Phillip Gullett). Exhibit pp. 10-11. 2 13 133 A, Three-Year Plan, Docket Entry No. 59-2, Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 10. 134Id. Attachment A to Exhibit A, AD-10.64, Docket Entry No. 59-2, pp. 17-33. 5 13 -49- specific heat mitigation measures that are intended to protect all These offenders regardless of their individual risk level. 136 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: 0 Providing additional water and cups in offender dorms, housing areas, recreational areas, and during meal times, along with ice; 0 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; 6 13 Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 7. 137Id. -50- o Allowing offenders to wear shorts and t-shirts in dayrooms and recreational areas; o Ensuring maintenance of fans, blowers, and showers in offender housing areas; o Allowing additional possible; o Lowering the water temperature for single temperature showers in offender housing areas; o Placing posters in housing areas reminding offenders of heat precautions and the importance of water intake, and ensuring all posters that have been damaged or destroyed are replaced; and o Allowing fans for offenders in all custody levels, to include restrictive housing and disciplinary status, and ensuring the fan program is in place allowing the permanent issuance of fans to indigent offenders.140 showers for offenders when In addition to these measures, wardens are instructed to implement additional precautions when excessive heat or heat-wave conditions last more than three consecutive days by initiating the Incident Command System, 141 which is based upon the National Incident Management System protocols developed by the Department of Homeland Security for situations. 142 improved coordination in response to emergency Under these conditions wardens may restrict, and potentially cancel, outside work and recreation and may also reduce Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 7; Attachment A to Exhibit A, AD-10.64, Docket Entry No. 59-2, p. 25. 140 Attachment A to Exhibit A, AD-10.64, Docket Entry No. 59-2, 141 p. 25. 142 Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 6. -51- kitchen and dish room operations as needed. 143 Inmates are also permitted to purchase "electrolyte sports drinks from the unit commissary without affecting their spending limit." 144 AD-10.64 contains additional provisions for first-aid measures in the event of a heat-related illness or injury and features a standardized annual training program that is required at each unit to ensure prevention of injuries due to excessive or extreme temperatures . 145 Training is required for both officers and inmates. 146 Pursuant to the new revision of AD-10.64, TDCJ has issued an annual "Seasonal Preparedness Directive" to ensure compliance with procedures developed to prevent illness or injuries related to extreme temperatures beginning on April 15 through the end of October, or at any other time when forecasted temperatures so require. 147 The list of mandatory precautions and actions required to be implemented generally includes: o Providing flyers and posting information in high visibility areas about heat mitigation measures. 143 Id. at 25-26. 144 Id. at 26. 145 Id. at 27-29. Id. at 29-30. Exhibits J and K, Officer and Offender Heat Training Videos, Docket Entry No. 61. 146 Defendants' MSJ, Attachment B to Exhibit A, "Seasonal Preparedness Directive - February 2018," Docket Entry No. 59-2, pp. 35-38, and Attachment C to Exhibit A, "Seasonal Preparedness Directive - March 2019," Docket Entry No. 59-2, pp. 40-43. 147 -52- o Instituting "wellness checks" and monitoring by staff, medical providers, and all others who work with inmates to identify those who are heat sensitive and immediately seek care for those requesting medical assistance or exhibiting signs of an illness. o Conducting training to ensure that all staff and inmates are aware of the signs of heat related illnesses and that all staff are aware of procedures found in AD-10.64. o Limiting transportation and prioritizing the use of air-conditioned transport vehicles. o Restricting outside activity such as work and recreation. o Ensuring that additional water and ice are provided to staff and offenders in work areas. o Screening newly arrived inmates to determine if they have conditions or a prescription for medication that makes them more susceptible to heat. o Considering heat-sensitive restrictions when making housing assignments. 0 Ensuring access to water, ice, showers in the housing areas. 0 Ensuring that inmates at all custody levels have access to a working fan, cooling towels, and electrolyte drinks, which are available at the commissary. all Ensuring that necessary preventive maintenance is completed on ice machines, fans, evaporative coolers, and blowers, vehicles. 148 0 and cold Wardens are required to allocate "all available resources to ensure safety of staff and offenders during periods of excessive heat" and to contact their respective regional director if more resources are Exhibit C, Seasonal Preparedness Directive - March 2019, Docket Entry No. 59-2, pp. 40-43. 148 -53- needed. 149 To ensure that the heat mitigation measures are implemented correctly, wardens must personally conduct an audit using a preparedness checklist that is then forwarded to the regional director and to the Director of the TDCJ Correctional Institutions Division ( currently Lorie Davis). 150 c. The Implementation of Measures at the Luther Unit defendants present evidence consisting primarily of affidavits from former Assistant Warden Fernando Fuster, who was assigned to the Luther Unit until October 31, 2018, 151 and Senior Warden McKee, who has been assigned to the Luther Unit since December 1, 2018, 152 detailing the extent that the above-referenced remedial measures have been implemented at the Luther Unit since 2018. According to the affidavits provided by these officials and other supporting documentation provided by the defendants, implementation of AD-10.64 has emphasized the several measures, which are summarized below, to reduce the effects of exposure to extreme heat in the summer. 149 Id. at 43. Id. See also Exhibit R, Seasonal Preparedness Checklist for the Luther Unit, dated March 29, 2018, Docket Entry No. 59-19, pp. 3-7. 150 G, Exhibit Affidavit of Fernando Fuster ( "Fuster Affidavit"), Docket Entry No. 59-8, p. 2. Fuster reports that, since November 1, 2018, he has been Senior Warden at TDCJ' s Travis County State Jail. See id. 151 Exhibit H, Affidavit of James McKee ( "McKee Affidavit"), Docket Entry No. 59-9, p. 2. 152 -54- Training is required for "all staff" at the Luther Unit on preventing, identifying, and treating heat-related illnesses. 153 All inmates at the Luther Unit were required to participate in "heat-illness prevention training" at least once during the summer, either during job training or in the gym for all inmates who had "unassigned job status." 154 All newly transferred inmates to the Luther Unit receive a flyer (I-204) about temperature extremes and other information provided as part of a prison safety program during orientation. 155 In addition, the Seasonal Preparedness Directive and safety posters are displayed in housing, common, and work areas, instructing offenders on how to avoid heat-related illness. 156 A monitoring system is used to determine whether to implement additional measures that are required when the heat index exceeds 90 ° F or to initiate the Incident Command System protocol for periods of excessive heat or heat-wave conditions lasting longer than three days. 157 Officials at the Luther Unit reportedly Fuster Affidavit, Docket Entry No. 59-8, p. 4. See also Exhibits J and K, Officer and Offender Heat Training Videos, Docket Entry No. 61 (on file with the clerk's office). 153 154 Fuster Affidavit, Docket Entry No 59-8, p. 4. Id. (referencing I-204, which is described as a "Hot/Cold, PREA [Prison Rape Elimination Act], Suicide Prevention Flyer"). 155 156 Fuster Affidavit, Docket Entry No. Affidavit, Docket Entry No. 59-9, p. 3. 59-8, 157 Defendants' MSJ, Docket Entry No. 59, p. 29. -55- p. 2; McKee monitor, record, and announce the temperature and heat index every hour on the half hour.158 Ice water is reportedly available to the inmates in accessible coolers 24 hours a day, seven days a week.159 Correctional officers are to be advised at staff meetings of their responsibility to keep the coolers in their area of assignment filled with ice and water.160 The Luther Unit has five icemakers, two in the ice house, one in the officers' dining room, one in the kitchen, and one at the Trusty Camp.161 The Luther Unit commissary also has ample amounts of electrolyte replenishment drinks and mixes available for inmates.162 All housing areas at the Luther Unit and the trusty camp have windows to the outside that can be opened by the inmates, unless directed otherwise by a correctional officer.163 The windows that open are covered by screens to allow airflow.164 Warden McKee notes 158Fuster Affidavit, Docket Entry No. Affidavit, Docket Entry No. 59-9, p. 3. 159Fuster Affidavit, Docket Entry No. p. 59-8, 59-8, 160Id. p. 3; McKee 3. 161Id. 162Exhibit Y, Electrolyte Sales - Luther Unit, Docket Entry No. 59 - 2 6 , p. 3 (reflecting that 145,856 electrolyte drinks and drink mixes were dispensed through the commissary at the Luther Unit during 2018) 163Fuster Affidavit, Docket Entry No. 59-8, p. 4. 164McKee Affidavit, Docket Entry No. 59-9, p. 4. -56- that a work order request has been approved to replace window screens in multiple locations at the Luther Unit. 165 All inmates at the Luther Unit, indigent, housing including those who are reportedly have access to a personal fan for their area.166 In addition, there throughout the prison and large drum are wall-mounted fans fans that are used to re-circulate air located in the corners of all dorms, chow halls, and the trusty camp dayroom. 167 Although the plaintiffs allege that fans are inoperable during power outages, the defendants present evidence showing that there have been only two instances of power outages at the Luther Unit since 2016. 168 maintenance The defendants supervisor at the provide Luther an affidavit Unit, who from states a that temporary power outages from storms have been rare and that when they do happen these outages are of "extremely short duration, lasting from seconds to a matter of minutes." 169 There are four Id. See also Exhibit DD, TDCJ Facilities Division Decision Memorandum dated January 29, 2019, and attached documentation, Docket Entry No. 59-31, pp. 6-9. 165 Fuster Affidavit, Docket Entry (referencing the "indigent fan program"). No. 166 59-8, pp. 3-4 Id. at 4. See also Exhibit P, Photographs, Docket Entry No. 59-17, pp. 22-25, 29, 54-55, 65-66, 70-72, 74, 78, 80, 82-83, 86-87, 89-90, 94-95, 97, 99, 109, 120-21, 125, 127, 140-43, 146, 147 (depicting wall mounted fans, mobile fans, and drum fans). 167 Fuster Affidavit, Docket Entry No. Affidavit, Docket Entry No. 59-9, pp. 4-5. 16 8 Exhibit z, No. 59-27, p. 2. 169 Affidavit of -57- Kevin 59-8, Grizzle, pp. 4-5; McKee Docket Entry emergency back-up generators at the Luther Unit. 170 In the event of a power outage, the emergency back-up generators will power vital functions, including dayroom fans, the ice house, the ice machines, the water pumps, the showers, emergency lights and the emergency room located in the infirmary. 171 The defendants present evidence showing that all inmates have access to at least one "cool down shower" on a daily basis during the summer. 172 According to the defendants, any inmate at the Luther Unit can request a cool-down shower at any time, which will be accommodated within reason. 173 Consistent with AD-10.64, which requires that respite areas be made available at all TDCJ prison units on demand during periods of excessive heat, 174 the Luther Unit has made available several air conditioned areas that are accessible by inmates requesting relief from extreme heat. In 2018 those areas included the Major's Hallway and, alternatively, the infirmary or education building, which could be made available at the discretion of the supervisor 170 Id. at 3. Id. See also Exhibit AA, Affidavit of Kim Farguson, Docket Entry No. 59-28, pp. 2-3 (describing all areas powered by the four generators). 1 71 Fuster Affidavit, Docket Entry No. 59-8, Affidavit, Docket Entry No. 59-9, p. 3. p. 3; McKee Fuster Affidavit, Docket Entry No. Affidavit, Docket Entry No. 59-9, p. 4 p. 3; McKee 172 173 174 p. 24. 59-8, Attachment A to Exhibit A, AD-10.64, Docket Entry No. 59-2, -58- on duty depending on the time of day and available staffing levels. 175 Warden McKee has reportedly identified "overflow respite areas for emergency situations," although he does not specify where those areas are located. 176 TDCJ and medical staff are required by AD-10. 64 to work together to identify inmates who are susceptible to heat-related illnesses due to medical conditions or a medication regimen. 177 Inmates who are identified by medical staff as having a condition or prescription for medication that would make them more susceptible to heat are added to a Medical Heat Restriction List, which is provided to correctional officers for the purpose of conducting wellness checks for those inmates during each security round. 178 In conducting a wellness check, officers are required to go to an inmate's cell or bunk to visually inspect or observe the inmate for signs of a heat-related ailment and, if necessary, request that Correctional a full officers at medical the evaluation Luther Unit be conducted. 179 reportedly 175 Fuster Affidavit, Docket Entry No. 59-8, p. 3. 176 McKee Affidavit, Docket Entry No. 59-9, p. 3. conduct Attachment A to Exhibit A, AD-10.64, Docket Entry No. 59-2, pp. 22, 23. 177 178 Id. at 23-24. Id. at 18, 22; see also Attachment C to Exhibit A, Seasonal Preparedness Directive - March 2019, Docket Entry No. 59-2, p. 40 (detailing procedures for conducting wellness checks using the "Heat Restriction List" and directing officers to "immediately seek care for all offenders requesting medical assistance or exhibiting signs of illness"). 179 -59- wellness checks every 30 minutes for inmates identified by the medical department. 180 In addition, all inmates are evaluated by medical personnel for heat sensitivity, and correctional officers are trained in how to acclimatize workers in compliance with this policy, which also allows for frequent breaks and hydration while working outside. 181 Inmates are authorized to wear light clothing such as "t-shirts and shorts" as an added precaution during times of extreme heat. 182 Likewise, towels" inmates are authorized to utilize and carry "cooling that are available from the commissary at the Luther Unit. 183 The defendants do not dispute that extreme heat poses a serious risk to the health and safety of inmates at the Luther The defendants acknowledge that heat exhaustion and heat Unit. stroke are serious medical conditions which, if left untreated, can lead to disability or death. 184 The defendants state, however, that °Fuster Affidavit, Docket Entry No. Affidavit, Docket Entry No. 59-9, p. 4. 18 59-8, p. 4; McKee Fuster Affidavit, Docket Entry No. 59-8, pp. 3, 4; McKee Affidavit, Docket Entry No. 59-9, pp. 3, 4. 181 Attachment A to Exhibit A, AD-10. 64, Docket Entry No. 59-2, p. 25; Attachment C to Exhibit A, Seasonal Preparedness Directive - March 2019, Docket Entry No. 59-2, p. 42. 182 Attachment A to Exhibit A, AD-10.64, p. 25; Attachment C to Exhibit A, Seasonal - March 2019, Docket Entry No. 59-2, p. 43; Docket Entry No. 59-17, p. 33 (depicting an available at the Luther Unit commissary) 183 184 Docket Entry No. 59-2, Preparedness Directive Exhibit P, Photograph, "EZ-Cool Cooling Towel" Defendants' MSJ, Docket Entry No. 59, pp. 19-20. -60- there has never been a death at the Luther Unit due to untreated heat exhaustion, stroke, or environmental hyperthermia. 185 Likewise, the defendants contend that there were no heat-stress illnesses diagnosed in 2016 or 2018. 186 An inmate who was assigned to work outdoors was diagnosed with heat exhaustion in July of 2017, but he was promptly treated with IV fluids and subsequently reassigned to work indoors as a janitor in one of the dorms. 187 The defendants note, moreover, that none of the named plaintiffs have suffered a serious heat-related illness at the Luther Unit during the period of time relevant to this lawsuit. 188 Although lack of injury is a relevant factor for consideration, a plaintiff does not need to have suffered an injury to warrant an Id. at 20 (referencing Exhibit B, Declaration of Dr. Dean Rieger, Docket Entry No. 59-3, pp. 16, 19). 185 Exhibit D, Affidavit of Justin Brock, Docket Entry No. 59-5, pp. 2-4 (summarizing heat-related illnesses at the Luther Unit reported to the Emergency Action Center between January 1, 2003, through December 31, 2018). 186 Exhibit 00, "Emergency Action Center Incident Report" and Related Records, Docket Entry No. 60-4, pp. 3-14, 15-16, 20. 187 Defendants' MSJ (Un-redacted Version Under Seal), Docket Entry No. 60, pp. 22-24 (observing that Phillip Gullett, Jerry Smith, David Wilson, Eugene Boston, and Jesse Snearly "have no medical records that reveal instances where they sought medical treatment for any conditions that arguably could be caused by exposure to heat"); Exhibit PP, Docket Entry No. 60-5, pp. 3-8 (medical records showing that John Sain was treated in the infirmary after he became overheated on August 5, 2016, but released after his condition improved); Exhibit QQ, Docket Entry No. 60-6, pp. 3, 7-10 (medical records showing that David Cummings was treated for "hot flashes" associated with injections to treat his prostate cancer, but that restrictions were unnecessary because he was already unassigned for purposes of work). 188 -61- injunction from potentially life-threatening conditions. 189 See Gates, 376 F.3d at 333 (emphasizing that "[an] inmate need not show that death or serious illness has occurred" in order to demonstrate that conditions of confinement violate the Eighth Amendment) (citing Helling v. McKinney, 113 S. Ct. 2475, 2481 (1993) ("It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.")). Rather, the legal standard focuses on whether a plaintiff can prove a "substantial risk of serious harm" and deliberate indifference to that risk on the part of prison officials. Gates, 376 F.3d at 341. The defendants argue that the mitigation measures implemented in connection with the Cole v. Collier settlement agreement, including the Three-Year Plan and revisions to AD-10.64, effectively counter whatever risk of serious harm is posed by high temperatures at the Luther Unit.190 The defendants argue further that the mitigation measures currently in place at the Luther Unit meet or exceed measures upheld by the Fifth Circuit, which affirmed The prohibition found in the PLRA, 42 U.S.C. § 1997e(e), which limits recovery of damages without proof of a physical injury, "does not apply in the context of requests for declaratory or injunctive relief sought to end an allegedly unconstitutional condition of confinement." Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (citing Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999)). 189 Defendants' MSJ, Docket Entry No. 59, Gates, 376 F.3d 323 and Ball, 792 F.3d 584). 190 -62- pp. 17-19 (citing a district court's injunction requiring the Mississippi Department of Corrections to "provide fans, ice water, and daily showers when the heat index is 90 degrees F or above, or alternatively to make such provisions during the months of May through September." Gates, 376 F. 3d at 339. 191 The defendants note further that, where adequate mitigation measures are in effect, the Fifth Circuit has struck down an injunction that required air-conditioning in a prison facility as overbroad and "unnecessary to correct the Eighth Amendment violation." Ball, 792 F.3d at 599. 192 The defendants argue that the plaintiffs cannot demonstrate that extreme heat poses a substantial risk of harm or that they have implemented the newly revised heat mitigation measures, education, and monitoring strategy with conscious disregard or deliberate indifference to such a risk for purposes of making an Eighth Amendment claim. 193 The Plaintiffs' Evidence and Arguments 3. Throughout their pleadings, the plaintiffs rely heavily on evidence and findings made during Cole v. Collier, which involved the Pack Unit and a floor plan similar to the one found at the Luther Unit, arguing that they are entitled to similar relief. As another court in this district recently observed, injunctive relief 1 91 Defendants' MSJ, Docket Entry No. 59, p. 17. 192 Id. at 18-19. 193 Id. at 17. -63- was entered in Cole based on "an extensive factual record and was specifically tailored to conditions at the Pack Unit and the inmates' medical conditions." Taylor v. Collier, Civil Action No. 3:17-358, 2019 WL 1383021, at *7 (S.D. Tex. March 26, 2019). Standing alone, mere proximity and similarity of floor plans are not sufficient to demonstrate that inmates at the Luther Unit are at equal or greater risk than those at the Pack Unit in 2017, when the findings in Cole were made. Likewise, evidence from the Cole litigation does not establish that conditions currently found at the Luther Unit are identical to conditions previously found to exist at the Pack Unit. While the court does not ignore the evidence presented and the findings made in the Cole case, it looks primarily at whether the plaintiffs have presented evidence showing that efforts to implement improvements to the TDCJ heat mitigation program in the wake of the Cole settlement have been effective to reduce the serious risk of harm posed by extreme heat. The plaintiffs do not dispute that the Three-Year Plan and revisions to AD-10.64 represent a comprehensive strategy to mitigate the effects of extreme temperatures faced by the entire TDCJ population, including its personnel . 194 The plaintiffs argue, The plaintiffs speculate that the Three-Year Plan will be ineffective to reduce risk because it is "specious" and "non binding." Plaintiffs' First Amended Response, Docket Entry No. 105, p. 21. However, the plaintiffs do not refute the evidence showing that the measures outlined in the Three-Year Plan have already identified and prioritized hundreds of susceptible inmates (continued...) 194 -64- however, that the defendants have acted with deliberate indifference in response to the existing risk of harm posed by extreme heat because the revised heat mitigation measures outlined by the Three-Year Plan and revised version of AD-10.64 have not been implemented effectively at the Luther Unit. The plaintiffs dispute the defendants' contention that no inmate has died at the Luther Unit due to heat-related complications, although they concede that they have not obtained assistance from a medical expert to refute the opinion provided by the defendants' expert that Inmate C's death was not due to heat. 195 The plaintiffs also dispute that there were no heat-related illnesses suffered by an inmate at the Luther Unit in 2018, noting that an inmate with multiple sclerosis and other chronic medical conditions was found unresponsive and had to be hospitalized in August of 2018.196 The plaintiffs argue that there are "fact ( ••• continued) for placement in air-conditioned housing, including several proposed plaintiffs in this case. Defendants' Supplement to Their Motion for Summary Judgment, Docket Entry No. 64, pp. 1-2, and Exhibit WW, Affidavit of Justin Brock, Docket Entry No. 64-1, pp. 2-3 (documenting the relocation of 142 inmates in January of 2019; 315 inmates in February of 2019; 294 inmates in March of 2019; and 272 inmates in April of 2019). 194 195 p. 29. Plaintiffs' First Amended Response, Docket Entry No. 105, Exhibit 5, Declaration of Thyee McGruder, Docket Entry No. 105-1, pp. 25-26; Exhibit 8, Declaration of John Sain, Docket Entry No. 105-1, pp. 38-39. 196 -65- disputes" regarding the effectiveness of several material aspects of the heat mitigation plan, which are addressed below. 197 a. Availability of Respite "On Demand" The plaintiffs contend that access to respite on demand is not always available upon request as dictated by AD-10.64. 198 The plaintiffs present numerous declarations showing that officers have displayed hostility and have denied inmates access to respite when asked.199 Plaintiff Cummings reports that he and other inmates were Plaintiffs' First Amended Response, Docket Entry No. 105, pp. 46-58. 197 Exhibit 8, Declaration of John Sain, Docket Entry No. 105, p. 35 (stating that he "often" has been told to leave respite after only ten or fifteen minutes and has twice been required to submit to "a rectal temperature probe to remain in respite"). 198 See Exhibit 2, Declaration of Salvador Capuchino, Docket Entry No. 105-1, p. 13 (describing opposition from one officer, who placed him in administrative segregation on an unspecified date when he attempted to invoke the policy); Exhibit 6, Declaration of Brandon Pruitt, Docket Entry No. 105-1, p. 29 (stating that he "has utilized respite but encountered difficulty" because he "must appear sick to qualify"); Exhibit 119, "4th Sworn Affidavit of James Brown," Docket Entry No. 105-24, p. 15 (alleging that an officer refused him respite after he advised that he was "feeling dizzy" on June 13, 2019); Exhibit 123, Sworn Affidavit of Joshua Berkery, Docket Entry No. 105-24, p. 24 (stating that he was denied access to a respite area on July 3, 2019, because he wanted to bring a book to read) ; Exhibit 124, Sworn Affidavit of Harvey Smith, Docket Entry No. 105-24, p. 26 (stating that he was told he could not stay in respite if he had to use the restroom); Exhibit 127, Second Sworn Affidavit of Charles Ray Bragg, Jr., Docket Entry No. 105-26, p. 2 (alleging that he was denied respite on July 10, 2019); Exhibit 131, Fifth Sworn Affidavit of Salvador Capuchino, Jr., Docket Entry No. 105-26, p. 15 (stating that staff harasses inmates by taking their ID cards, threatening them with disciplinary cases, and "stripping out" inmates who ask for respite as a means to discourage such requests); Exhibit 1, Sworn Affidavit (continued...) 199 -66- removed from the respite area after only 10 minutes on July 27, 2018. 200 When another inmate (Adam Wayne Walker) complained and asked to go to a different respite area he was handcuffed and put in administrative segregation, which is not air-conditioned. 201 Cummings states that he was harassed by a sergeant after spending three hours in a respite area on May 26, 2019, 202 Access to respite on demand is touted by the defendants as an important enhancement in its expanded administrative response to Viewing the evidence in the light most favorable extreme heat. 203 to the plaintiffs, as non-movants, the plaintiffs have raised a genuine issue of material fact about whether access to respite is available upon request under the current heat mitigation program implemented at the Luther Unit. b. Inadequate Respite in the Major's Hallway The plaintiffs take issue with conditions in the respite area found in the Major's Hallway, arguing that it is not adequately air ( ••• continued) of Francisco Cerda, Docket Entry No. 112-1, p. 3 (advising that there is a staff shortage at the Luther Unit and that requests for respite have been ignored "when an officer is not available"). 199 Exhibit 3A, Declaration of David Cummings, No. 105-1, pp. 14-15. 200 201 Docket Entry Id. at 15. Exhibit 1 o 8, 2nd Sworn Affidavit of David Cummings, Docket Entry No. 105-23, pp. 22-23. 202 Defendants' MSJ, Docket Entry No. 59, pp. 35-36; Exhibit A, Three-Year Plan, Docket Entry No. 59-2, p. 7. 203 -67- conditioned, available. 204 has no fans, no outlets, and no water cooler The space is described as overcrowded and having frequent "in and out" traffic that prevents the area from remaining cool.205 With a population of around 1,263 inmates as of June of 2018, the court questions how the Maj or's Hallway depicted in photographs provided by the defendants can suitably offer respite to all inmates who request it during times of extreme heat. 206 Even assuming it could do so during the day, it appears from the record that the Major's Hallway offers no overnight accommodations. alleged shortcomings raise a genuine issue of The material fact regarding whether the Major's Hallway, which is designated as the primary respite area for the Luther Unit, is adequate to provide cooler conditions during periods of extreme heat. Plaintiff's First Amended Response, Docket Entry No. 105, pp. 49-50; Exhibit 3A, Declaration of David Cummings, Docket Entry No. 105-1, p. 14 (alleging that the Major's hallway does not have air-conditioning "other than what comes from Admin offices nearby" and was "not cool"); Exhibit 11, Declaration of David Wilson, Docket Entry No. 105-1, p. 48 (describing the Major's Hallway as offering "virtually no respite" due to lack of adequate A/C duct work). 204 Exhibit 5, Declaration of Jesse Snearly, Docket Entry No. 92-1, p. 17 (stating that he does not normally utilize the respite areas "because there are so many people here who are trying to get a spot in a limited seated situation and the guards often imply that [he is] too young and healthy to need respite"); Exhibit 131, Fifth Sworn Affidavit of Salvador Capuchino Jr., Docket Entry No. 105-26, p. 13. 205 206 Exhibit P, Photographs, Docket Entry No. 105-17, pp. 20-21. -68- c. Inadequate Air Circulation The plaintiffs contend that air circulation in the housing units is inadequate because power goes out on a regular basis. 207 The plaintiffs provide several affidavits from inmates in support of this contention. 208 The plaintiffs also present evidence showing that, contrary to the defendants' representations, exhaust fans in the housing areas do not work when power is out. 209 The plaintiffs present evidence that personal fans are not always available for inmates who are indigent. 210 In addition, even when fans are working, the plaintiffs state that the fans do little 207 p. 54. Plaintiff's First Amended Response, Docket Entry No. 105, Exhibit 36, Affidavit of Howard Harris, Docket Entry No. 105-10, p. 2 (alleging without providing any details that the Luther Unit has "an extensive history of multiple power outages" as a result of storms, which outages can last a "few minutes" or "several hours"); Exhibit 37, Affidavit of William Taylor, Docket Entry No. 105-10, p. 5 (same); Exhibit 38, Affidavit of Irving Lloyd, Docket Entry No. 105-10, p. 8 (same); Exhibit 39, Affidavit of John Sain, Docket Entry No. 105-10, p. 11 (same). 208 Exhibit 121, Fourth Sworn Affidavit of John Sain, Docket Entry No. 105-24, p. 20. The plaintiffs assert that they may be able to raise a fact issue if granted discovery in the form of "Luther Unit shift logs, ICS logs, work orders, overtime requests, comp time requests, large purchases of multiple motors which fail when single phase power burns them out, fuse and transformer parts, requests and purchase orders, the electric utility contracted to provide power and service trouble and work order reports," which could demonstrate that "numerous and frequent power outages occur on a regular basis(.]" Plaintiffs' First Amended Response, Docket Entry No. 105, p. 53. 209 Exhibit 112, Second Sworn Affidavit of James Brown, Docket Entry No. 105-23, p. 33. 210 -69- more than circulate hot air. 211 The plaintiffs point to an expert report from Dr. Michael McGeehin, who testified during the Cole litigation that the use of industrial and individual fans when temperatures exceed 90 ° do more harm than good.212 In his opinion, the use of fans does not lower the risk of heat-related illness and death.213 This evidence raises a genuine issue of material fact on whether the fans installed at the Luther Unit are adequate to reduce temperatures in the housing units during times of sweltering heat. d. Ineffective Cool-Down Showers The plaintiffs present evidence that cool-down showers are not available upon request and, when available, are ineffective because they are too brief in duration.214 The plaintiffs argue further see Exhibit 5, Declaration of Jesse Snearly, Docket Entry No. 92-1, p. 17; Exhibit 1, Declaration of Eugene Boston, Docket Entry No. 105-1, p. 8; Exhibit 3A, Declaration of David Cummings, p. 14; Exhibit 4, Declaration of Phillip Gullett, Docket Entry No. 105-1, p. 22; Exhibit 8, Declaration of John Sain, Docket Entry No. 105-1, p. 36; Exhibit 9, Declaration of Jerry Smith, Docket Entry No. 105-1, p. 42; Exhibit 1, Sworn Affidavit of Francisco Cerda, Docket Entry No. 112-1, p. 4. 211 Exhibit 2 O, No. 105-5, p. 26. 212 Dr. McGeehin' s Expert Report, 2 13 Docket Entry See also Cole v. Livingston, No. H-14-1698, Id. WL 3258345, (S.D. Tex. June 14, 2016) (summarizing testimony Dr. McGeehin that when temperatures rise "above a 95 degree index, there is no evidence that fans cool the body, and that may do further damage"). 2016 from heat they Exhibit 131, Fifth Sworn Affidavit of Salvador Capuchino, Jr., Docket Entry No. 105-26, p. 15 (stating that requests for cool-down showers are often ignored by officers and are too quick to provide meaningful cooling); Exhibit 1, Sworn Declaration of (continued...) 214 -70- that cool-down showers are generally too quick in duration to have any value for reasons discussed by Dr. McGeehin, who has opined that cool showers twice a day did little to abate the serious risk of heat-related illness at the Pack Unit.215 The Fifth Circuit has also recognized that showers once a day are ineffective to provide relief from heat where the water temperature remains hot. Ball, 792 F.3d at 596. See The plaintiffs have presented sufficient evidence to raise a genuine issue of material fact on whether cool down showers are available and adequate as a remedy to reduce body heat during the summer months. The plaintiffs raise several other arguments regarding the adequacy of heat mitigation efforts at the Luther Unit, and they present additional evidence that officials fail to ensure adequate amounts of ice water.216 Based on the voluminous record and mindful of the objections raised by the defendants regarding the ( ••• continued) Francisco Cerda, Docket Entry No. 112-1, p. 4 (stating that cool down showers have afforded no relief from heat and humidity); Exhibit 2, Sworn Affidavit of Arlen Ray Tenberg, Docket Entry No. 112-1, p. 7 (same). 214 Exhibit 2 O, No. 105-5, p. 28. 215 Dr. McGeehin' s Expert Report, Docket Entry Plaintiffs' First Amended Response, Docket Entry No. 105, pp. 51-52. See Exhibit 130, Sworn Affidavit of Travis L. Clinard, Docket Entry No. 105-26, p. 11 (alleging that the Kitchen Captain is refusing to provide ice for coolers); Exhibit 131, Fifth Sworn Affidavit of Salvador Capuchino, Jr., Docket Entry No. 105-26, p. 15 (stating that ice coolers are refilled three times per day at 6:00 a.m., 2:00 p.m., and 10:30 p.m. and that officers refuse requests for refills); Exhibit 1, Sworn Affidavit of Francisco Cerda, Docket Entry No. 112-1, p. 3 (stating that officers ignore requests for additional ice when it runs out). 216 -71- plaintiffs' evidence, the court concludes that there are a sufficient number of fact issues that require further consideration regarding whether, despite the defendants' efforts to invigorate their heat mitigation program, conditions at the Luther Unit continue to pose a substantial risk of serious harm to the plaintiffs and potentially other inmates whose ability to thermoregulate is compromised by similar medical conditions. Fact issues remain as to whether the with defendants have acted deliberate indifference to a substantial risk of serious harm of which they are well aware, see Yates, 868 F.3d at 360-61 (summarizing several recent cases against TDCJ alleging Eighth Amendment violations based on excessive heat in prison), but have failed to take adequate steps to alleviate that risk at the Luther Unit. As a result, the Defendants' Motion for Summary Judgment will be denied with respect to the plaintiffs' claim that they have been exposed to conditions of extreme heat that violate the Eighth Amendment. E. Claims Under the ADA and the RA Title II of ADA prohibits "disability discrimination in the provision of public services." Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011). Specifically, Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such -72- entity." 42 u.s.c. § 12132. Similarly, the RA prohibits discrimination against individuals with disabilities in federally funded institutions. See 29 u.s.c. § 794(a). The same legal standards apply to both the ADA and the RA. See Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). To establish a viable claim, a plaintiff must show that (1) he is a qualified individual with a disability; (2) he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) he is being discriminated against by reason of his disability. See Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011); Back v. Texas Dep't of Criminal Justice Institutional Div., 684 F. App'x 356, 358 (5th Cir. 2017). Assuming that they are disabled, 217 the plaintiffs cannot prevail because they have not established that they were excluded from air-conditioned areas of the prison -- which are maintained for the comfort of administrators, ranking officers, educators, and health care providers -- because of a disability. Instead, the evidence shows that the plaintiffs are excluded from these areas A person is disabled under the ADA and the RA, which incorporates the ADA's definition of disability by reference, if he has "a physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102 (1) (A); Ball, 792 F.3d at 597 & n.10. Major life activities include, but are not limited to: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. at § 12102 (2)(A). Major life activities also include "the operation of a major bodily function." Id. at§ 12102(2) (B). 217 -73- because they are inmates. Absent a showing that the plaintiffs were discriminated against or adversely treated by reason of a disability, the defendants are entitled to summary judgment on the plaintiffs' claims under the ADA and RA. See Davidson v. Texas Dep't of Criminal Justice Institutional Div., 91 F. App'x 963, 965, 2004 WL 542206, at *2 (5th Cir. 2004) (affirming dismissal of an inmate's ADA claim because he failed to allege or show that he was adversely treated solely by reason of a disability); Hay v. Thaler, 470 F. App'x 411, 418, 2012 WL 2086453, at *4 (5th Cir. 2012) (dismissing an inmate's claims under the ADA and RA for failing to show that the alleged discrimination was by reason of his disabilities). V. Remaining Claims What remains for adjudication in this case is a determination whether plaintiff John Sain and proposed plaintiff Salvador Capuchino exhausted administrative remedies as required before filing suit and, if so, whether Sain, plaintiffs Cummings, who have exhausted Capuchino, administrative and the other remedies (David Phillip Gullett, and David Wilson) can establish that they are entitled to prevail on their claim that defendants TDCJ, Bryan Collier, and James McKee (in their official capacities) have violated their rights under the Eighth Amendment by subjecting them to unsafe conditions of confinement with deliberate indifference. This will require a trial on whether the plaintiffs are entitled to relief in the form of an injunction and, if so, the scope of relief -74- allowed under the Prison Litigation Reform Act. § 3626(a)(1). See 18 U.S.C. The court will issue a separate order setting this case for a scheduling conference to address what discovery is needed before the case can be set for trial. VI. Conclusion and Order Accordingly, the court ORDERS as follows: 1. The University of Texas Medical Branch's Motion to Dismiss (Docket Entry No. 19) is GRANTED. 2. The Correctional Managed Health Care Commit tee's Motion to Dismiss (Docket Entry No. 21) is GRANTED. 3. The Motion for Summary Judgment on Behalf of Defendants Bryan Collier, James McKee, and the Texas Department of Criminal Justice (Docket Entry No. 59) is GRANTED IN PART and DENIED IN PART. The claims of plaintiff Jerry Smith are DISMISSED for failure to exhaust administrative remedies. The plaintiffs' request to add Eugene Boston and Jesse Snearly as parties (Docket Entry No. 92) is DENIED. The plaintiffs' request to add Salvador Capuchino as a plaintiff (Docket Entry No. 92) is DENIED WITHOUT PREJUDICE to the right to submit evidence that he has exhausted his administrative remedies. 4. Defendants' Motion to Strike Exhibits to Plaintiffs' First Amended Response to Defendants' Motion for Summary Judgment (Docket Entry No. 111) and Defendants' Motion for Leave to File Motion to Strike Exhibits to Docket Entry 112: Plaintiffs' Supplement to Plaintiffs' Rejoinder to Defendants' Reply in Support of Defendants' Motion for Summary Judgment (Docket Entry No. 119) are DENIED. 5. First Amended Motion for Class Plaintiffs' Certification and, in the Alternative, Motion for Expedited Discovery (Docket Entry No. 31); 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); and Defendants' Motion to Strike -75- Plaintiffs' Supplement to Motion for Class Certification (Docket Entry No. 82) are DENIED. 6. The court will issue a separate order setting this case for a scheduling conference. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 30th day of August, 2019. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -76-

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