The opinion
Case: 23-30825 Document: 279-1 Page: 1 Date Filed: 03/30/2026
United States Court of Appeals United States Court of Appeals
Fifth Circuit
FILED
for the Fifth Circuit March 30, 2026
____________
Lyle W. Cayce
Clerk
No. 23-30825
____________
Kentrell Parker, on behalf of themselves and all others similarly
situated; Farrell Sampier, on behalf of themselves and all others similarly
situated; Reginald George; John Tonubbee, on behalf of
themselves and all others similarly situated; Otto Barrera, on behalf of
themselves and all others similarly situated; Clyde Carter, on behalf of
themselves and all others similarly situated; Edward Giovanni, on behalf
of themselves and all others similarly situated; Ricky D. Davis, on behalf of
themselves and all others similarly situated; Lionel Tolbert, on behalf of
themselves and all others similarly situated; Rufus White, on behalf of
themselves and all others similarly situated; Shannon Hurd; Alton
Adams; Ian Cazenave; Edward Washington; Alton
Batiste,
Plaintiffs—Appellees,
versus
Tim Hooper, Warden, Louisiana State Penitentiary, in his official capacity;
Ashli Oliveaux, Assistant Warden for Health Services, in her official
capacity; Gary Westcott, Secretary, Louisiana Department of Public
Safety and Corrections; Randy Lavespere, Medical Doctor; Stacye
Falgout; Paul Toce; Bill Hawkins; Cynthia Park, ACNP;
The Louisiana Department of Public Safety and
Corrections,
Defendants—Appellants.
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______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-318
______________________________
Before Elrod, Chief Judge, and Jones, Smith, Stewart,
Richman, Southwick, Haynes, Graves, Higginson,
Willett, Ho, Duncan, Engelhardt, Oldham, Wilson,
Douglas, and Ramirez, Circuit Judges. 1
Edith Hollan Jones, Circuit Judge:
This appeal arises from atavistic court rulings that seek to control
prison management in violation of constitutional law and fundamental
principles of federalism. Congress enacted the Prison Litigation Reform Act
(“PLRA”) in 1996 to rein in such judicial adventurism, 18 U.S.C. § 3626(a),
(f), yet its precepts were violated by the district court. We have appellate
jurisdiction to review the state defendants’ appeal, and we VACATE and
REMAND to the district court.
BACKGROUND
In 2015, a class of inmates filed suit against the defendants-appellants
(“Defendants”) who run the Louisiana State Penitentiary (“LSP”) at
Angola. They claimed that the prison’s medical care was constitutionally
deficient, and it failed to follow the Americans with Disabilities Act and the
Rehabilitation Act (collectively, “ADA/RA”). Although the case was tried
in October 2018, evidence of prisoners’ medical treatment that occurred
years earlier was introduced. In March 2021, the court entered a 124-page
Liability Opinion with extensive findings concerning alleged systemic Eighth
Amendment violations and ADA/RA noncompliance.
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1
Judge Southwick concurs only in the holding that the court has jurisdiction to
consider this appeal.
2
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Chastened, 2 the prison authorities immediately began renovating
their facilities, upgrading personnel, and improving standards of care, as they
anticipated the bifurcated remedial trial scheduled for June 2022. At that
trial, the court considered some (but not all) of the interim improvements
and the scope and nature of any remedies that it would require of LSP. After
trial, LSP made other improvements, including the introduction in October
of an electronic medical recordkeeping system, which promised to rectify
numerous concerns of the court. See, e.g., Lewis v. Cain (“Remedial
Opinion”), 701 F. Supp. 3d 361, 389 (M.D. La. 2023) (“The utter and
complete disarray of the medical records is emblematic of indifference.”).
Citing its trial-management discretion, the court refused to consider the
upgrades. Not until November 2023 was the court’s 104-page Remedial
Opinion issued, together with a Remedial Order and Final Judgment. The
Judgment stated:
Judgment is hereby entered in favor of Class Plaintiffs and the
ADA Sub-Class Plaintiffs and against Defendants, the current
Warden of the Louisiana State Penitentiary, et al. This matter
shall be closed by the Clerk of Court; however, the Court
retains jurisdiction over the procedures set forth in the Court’s
Remedial Order and any issues pertaining thereto.
Further, the Remedial Order stated, in pertinent part:
For the reasons set forth in the Court’s Rulings, dated March
31, 2021, (“Liability Ruling”) and November 6, 2023,
(‘Remedial Ruling’):
IT IS HEREBY ORDERED: . . . .
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2
Defendants also challenge the district court’s liability findings but made
improvements notwithstanding their disagreement.
3
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Six decretal sections of the Remedial Order followed, concerning
Special Masters; Remedial Plans for Medical Care and the ADA;
Cooperation and Access to require the Defendants’ coordination with
Special Masters or their representatives; Reporting, a timetable for reporting
to the court; Monitoring Implementation of Remedial Plans and Periodic
Reports to the Court; and Fees and Costs.
Several features of the Remedial Order must be highlighted. In its first
section, the court “[o]rder[ed]” the appointment of special masters “to cure
and eliminate the violations found in the Court’s Liability Ruling and
Remedial Ruling.” The parties were required to convene and agree on three
“special masters” in lieu of only one authorized by the PLRA. See 18 U.S.C.
§ 3626(f). The Remedial Order ignored the PLRA’s express appointment
procedure for “a” special master. Id. The Remedial Order required the state
to bear the cost of special masters, contrary to the PLRA. Id. § 3626(f)(4).
Most egregiously, the Remedial Order omitted any indication that its
prescriptions adhere to the needs-narrowness-intrusiveness limitations
imposed on federal courts’ injunctive relief by the PLRA. Id. §
3626(a)(1)(A). In their panel brief, the Plaintiffs conceded these violations of
the PLRA.
Second, the Remedial Order’s section titled, “Medical Care Remedial
Plan” identified seven areas of “[s]tandards and [p]rocedures” that must be
upgraded: sick call, clinical care, specialty care, infirmary and in-patient care,
emergency care, medical-records management, and medical management
and administration. The Remedial Order expressly incorporated the court’s
Remedial Opinion, which identified with even greater specificity the
allegedly deficient areas of care at LSP.
Third, under the “Fees and Costs” provision, the court authorized
Plaintiffs’ counsel to seek fees as “prevailing parties,” and counsel did so,
seeking over $8 million in fees.
4
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Upon entry of the Judgment, the court administratively closed the
case. This appeal followed.
At Defendants’ request, a panel of this court stayed the Remedial
Order pending appeal, and another panel later reviewed the merits. Parker v.
Hooper (“Stay Opinion”), 95 F.4th 231 (5th Cir. 2024) (per curiam); Parker
v. Hooper (“Panel Opinion”), 128 F.4th 691 (5th Cir. 2025) (per curiam). At
no time during the stay proceeding or in the parties’ briefs did the parties
question this court’s appellate jurisdiction. This court raised the question
sua sponte and received further briefing. A panel majority then issued its
decision that would have dismissed the appeal. Panel Opinion, 128 F.4th at
693. The court voted to rehear the case en banc, consequently vacating the
panel opinion. Parker v. Hooper, 134 F.4th 867 (5th Cir. 2025) (per curiam).
DISCUSSION
The following discussion explains why we have appellate jurisdiction
under either 28 U.S.C. § 1291 or § 1292(a)(1); why the district court’s
Remedial Order violates the PLRA in several respects; and why the district
court’s Remedial Opinion and Remedial Order erroneously found the
Defendants guilty of ongoing deliberate indifference to serious medical
needs, the constitutional prerequisite both for liability and institutional-
injunctive relief.
I.
Our appellate jurisdiction is ordinarily governed by 28 U.S.C. § 1291
and § 1292. Section 1291 authorizes “appeals from all final decisions of the
district courts,” id. § 1291 (emphasis added), while Section 1292, pertinent
here, permits appeals from “[i]nterlocutory orders of the district
courts . . . granting, continuing, modifying, refusing or dissolving
injunctions,” id. § 1292(a)(1). We take the district court’s entry of “Final
Judgment” literally and construe it as a “final,” appealable judgment. But
5
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even if that interpretation were proved faulty, the Remedial Order grants
interlocutory injunctive relief, which is appealable to this court.
A.
The Remedial Order and Final Judgment are “final” under Section
1291 because, together, they ended the litigation between the class and the
Defendants favorably to the Plaintiffs and specified a detailed framework
implementing injunctive relief. By every objective measure, the district
court’s Final Judgment resolved the substantive issues of liability and
remedy, subject only to ongoing compliance procedures.
As the Remedial Opinion stated, the court would “enter judgment in
favor of Plaintiffs and against Defendants.” Remedial Opinion, 701 F. Supp.
3d at 441 (emphasis added). In line with that intention, the Final Judgment
retained jurisdiction in the district court only over “procedures set forth in the
Remedial Order and any issues pertaining thereto.” The Remedial Order
prescribed appointment of special masters to “cure and eliminate” the
violations found in the court’s previous rulings. 3 It further described the
Plaintiffs as “prevailing parties” entitled to file a fee request. Although,
typical of institutional-reform orders, the court provided for (more than one)
special master to oversee its decrees, the district court carefully articulated
at length which unconstitutional medical-care conditions must be cured.
Expanding on the seven broad areas of care it detailed, the Remedial Order
incorporated the court’s Remedial Opinion, which, in dozens of pages,
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3
ROA.30661 (“The Court hereby Orders the appointment of 3 Special Masters to
develop proposed remedial plans, make recommendations regarding implementation and
monitor implementation of remedial plans (‘Remedial Plans’) to cure and eliminate the
violations found in the Court’s Liability Ruling and Remedial Ruling.”).
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itemized shortcomings in every one of those seven areas of care and
disability-law compliance. 4
Labels alone cannot make a non-final order “final” for appellate
purposes. Riley v. Kennedy, 553 U.S. 406, 419, 128 S. Ct. 1970, 1981 (2008).
But common sense compels us to acknowledge that the district court’s Final
Judgment was in fact final. To emphasize the practical point, what
conscientious attorney for the Defendants would not have filed a notice of
appeal from the three concurrently issued documents: the Remedial Opinion,
Remedial Order, and Final Judgment?
The panel majority relied on the general rule that “[a] final decision is
one by which a district court disassociates itself from a case.” Gelboim v.
Bank of Am. Corp., 574 U.S. 405, 408, 135 S. Ct. 897, 902 (2015) (internal
quotation marks and citation omitted). But Section 1291 has not been applied
with wooden formality. The Supreme Court held long ago that “[a]
pragmatic approach to the question of finality has been considered essential
to the achievement of the just, speedy, and inexpensive determination of
every action: the touchstones of federal procedure.” Brown Shoe Co. v.
United States, 370 U.S. 294, 306, 82 S. Ct. 1502, 1513 (1962) (internal
quotations and citation omitted). In Brown Shoe, an antitrust case, the Court
held that requiring the defendant to propose a post-judgment remedial plan
was “sufficiently independent of, and subordinate to, the issues presented by
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4
For example, as to infirmary and in-patient care, “patients continue to be outside
of sight or sound of nurses due to the positioning of nurses and black coverings over
windows”; nurses do not round patients every two hours; “head-to-toe” physical
assessments of patients by nursing staff are not performed sufficiently; infirmary forms do
not provide a space for date and time; vital-sign flowsheets do not allow for documentation
of the time vitals were taken; the infirmary does not provide adequate equipment and
supplies including “crutches, walkers, or bedside commodes’” and inmate orderlies
perform tasks outside the scope of their appropriate use. Remedial Opinion, 701 F. Supp.
3d at 410–11.
7
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th[e] appeal to make the case in its present posture a proper one for review
now.” Id. at 308, 82 S. Ct. at 1514. Brown Shoe set the standard for this
court’s routine handling of institutional-reform decrees: When the merits of
the case have been decided, this court has appellate jurisdiction. Ongoing
injunctive proceedings to remedy unconstitutional conditions are appealable
as they become contested. 5
From the 1960s onward, this court has had significant experience in
reviewing institutional-reform decrees, particularly as schools were judicially
desegregated. See Frank T. Read, The Bloodless Revolution: The Role of the
Fifth Circuit in the Integration of the Deep South, 32 Mercer L. Rev. 1149,
1153–65 (1981). In such cases, an appeal of the initial judgment of liability
often occurred and was later followed by a series of appeals as injunctive
measures moved forward. See id. at 1155–56 & 1155 n.18 (discussing the vast
procedural history of the Bush v. Orleans Parish School Board litigation, and
citing every reported decision involved); see also, e.g., Singleton v. Jackson
Mun. Separate Sch. Dist., 348 F.2d 729, 729 n.1 (5th Cir. 1965) (noting that its
procedural history involved district-court injunctions that required the
creation of desegregation plans and multiple appeals from various district-
court orders).
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5
See, e.g., M. D. ex rel. Stukenberg v. Abbott, 907 F.3d 237, 243 (5th Cir. 2018)
(affirming in part, reversing in part, vacating, and remanding for modification of injunction
that required sweeping changes to Texas’s foster-care system); M. D. ex rel. Stukenberg v.
Abbott, 929 F.3d 272, 275–76 (5th Cir. 2019) (affirming in part, modifying in part, and
vacating in part district court’s modified injunction); M. D. ex rel. Stukenberg v. Abbott, No.
24-40248, 2024 WL 1651273, at *1 (5th Cir. Apr. 17, 2024) (administratively staying
contempt order and district-court proceedings); M. D. ex rel. Stukenberg v. Abbott, No. 24-
40248, 2024 WL 2309123, at *1 (5th Cir. May 20, 2024) (granting stay of district court’s
contempt order); see also Ball v. LeBlanc, 792 F.3d 584, 598 (5th Cir. 2015) (addressing
appeal after the district court’s injunction only required Louisiana to “develop a plan” to
keep prisons cooler).
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A related but typical example of this court’s assertion of appellate
jurisdiction is found in Morales v. Turman, 535 F.2d 864, 867 (5th Cir. 1976),
rev’d on other grounds, 430 U.S. 322, 97 S. Ct. 1189 (1977). The district court
there determined that practices at Texas’s juvenile correctional facilities
constituted cruel and unusual punishment under the Eighth Amendment. Id.
at 866–67. The plaintiffs maintained that no final, appealable order had
issued because “the judge withheld issuance of permanent injunctive relief
pending submission of a comprehensive plan to be drawn up by the parties.”
Id. at 867 n.6. But this court held, “[t]he difficulty with this contention is
that[,] while some flexibility was left to the parties in determining precisely
how compliance with the minimum standards would be structured, the
District Court made it perfectly clear that any plan submitted must be
consistent with the minimum requirements laid out in its opinion.” Id.
Consequently, “[i]n circumstances [like] these, the requirement of finality
must be given a practical construction.” Id. On further appeal, the Supreme
Court simply stated that the district court’s “judgment is reviewable on the
merits in the Court of Appeals.” Morales v. Turman, 430 U.S. 322, 324, 97
S. Ct. 1189, 1190 (1977) (citing 28 U.S.C. § 1291).
Although nearly fifty years old, Morales remains a controlling
precedent in this circuit. The objection that the court’s liability findings
there were more detailed than those in this case is in error. 6 In Morales, the
legally relevant elements of decretal terms like “adequate infirmary
facilities” became clear in light of the court’s liability opinion. Here, too, the
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6
Compare ROA.30661–65 (plan must address, among other things, “Sick Call”
standards such as “the sick call request process, evaluation by a provider, and
documentation”; “Emergency Care” standards including “protocols for the appropriate
use and training of EMTs”; and “the appointment of a qualified, properly trained ADA
Coordinator”), with Morales v. Turman, 383 F. Supp. 53, 105 (E.D. Tex. 1974) (plan must
address “[a]dequate infirmary facilities” and “[a]ccess to medical staff without delay or
interference”).
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legally relevant elements of the already-specific Remedial Order are clear in
light of the Remedial Opinion’s granular explication of LSP’s constitutional
shortcomings. 7
Critically, none of the decisions cited by plaintiffs in support of non-
finality was issued in the context of institutional-reform litigation. Cf. Ueckert
v. Guerra, 38 F.4th 446, 448 (5th Cir. 2022) (dismissing an appeal of a
qualified-immunity decision as untimely); Midland Asphalt Corp. v. United
States, 489 U.S. 794, 795–800, 109 S. Ct. 1494, 1496–99 (1989) (holding that
a denial of a defendant’s motion to dismiss an indictment is not immediately
appealable).
Moreover, out-of-circuit caselaw may support a decision of non-
finality, but this court is not bound by it. See, e.g., Parsons v. Ryan, 949 F.3d
443, 473 (9th Cir. 2020); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 464–
65 (9th Cir. 1989). The Ninth Circuit views “orders requiring the submission
of detailed plans” as “not final orders appealable” under Section 1291.
Parsons, 949 F.3d at 473 (citation omitted); Balla, 869 F.2d at 464–65. The
court in Balla expressly distinguished its approach from this circuit’s
caselaw. 869 F.2d at 464–65 (distinguishing United States v. Alabama, 828
F.2d 1532, 1536-38 (11th Cir. 1987)); Alabama, 828 F.2d at 1537 (“Our
_____________________
7
Take, for example, the Remedial Order’s and Opinion’s specific dictates with
respect to sick-call standards. The Opinion held that LSP’s sick call is constitutionally
inadequate because LSP does not review complaints daily; the sick-call request form
provides no place for the patient to time and date their request or time and date when the
request was received; the triage process is not explained and is not noted in patient charts;
physical examinations are performed by EMTs rather than by nurse practitioners; and sick
calls are at times conducted via telemedicine rather than in-person. Remedial Opinion, 701
F. Supp. 3d at 392–95. These are not “mere guidelines subject to further negotiation,” but
clear constitutional deficiencies the remedial plan “must be consistent with” and remedy.
See Morales, 535 F.2d at 867 n.6. The Remedial Opinion and Order establish the
requirements LSP must satisfy to pass constitutional muster with sufficient specificity to
permit appellate review.
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decision follows the reasoning of this court’s predecessor in Morales v.
Turman.”).
On the other hand, as noted, the Eleventh Circuit continues to follow
United States v. Alabama and Morales. In JW ex rel. Tammy Williams v.
Birmingham Board of Education, the district court’s order was deemed final
and appealable because it contained detailed factual findings and legal
conclusions about constitutional violations. See 904 F.3d 1248, 1254–56 (11th
Cir. 2018). That the court ordered the parties post-judgment to “submit a
proposed training and procedure plan that would remedy the constitutional
problems identified in its order” and included for guidance a series of
“general practices” did not detract from the appealability. Id. at 1255.
The finality of the district court’s Final Judgment should not have
been debatable. The court supported its monumental opinions holding LSP
liable for unconstitutional deprivation of prisoner medical care by itemizing
hundreds of exact remedies required and by ordering special masters to “cure
and eliminate” the violations. Indeed, the parties to the litigation never
considered finality an issue before this court raised it. There is no support in
the record for Plaintiffs’ contention that the Final Judgment is not “final”
because, at some future date, the district court may reduce its demands on
LSP after the special masters report back on prescriptive measures. To the
contrary, the court “made perfectly clear” exactly how any remedial plan
must fulfill the “minimum requirements” of the Eighth Amendment and the
ADA/RA in order to “cure and eliminate” the violations. 8 See Morales, 535
_____________________
8
Nothing in the district court’s 200-plus pages of opinions demonstrates
uncertainty as to what it considered LSP’s constitutional violations or areas for which it
required remedies. Nor does the record show any attempt by the court to follow the
PLRA’s needs-narrowness-intrusiveness requirements (beyond a perfunctory citation) or
any interest in re-trying its merits and remedies opinions in the course of dealing with
special masters.
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F.2d at 867 n.6. This appeal conforms to Fifth Circuit precedent and a
flexible and “practical” interpretation of finality condoned by the Supreme
Court. See Brown Shoe, 370 U.S. at 306, 82 S. Ct. at 1513; Abbott v. Perez, 585
U.S. 579, 601, 138 S. Ct. 2305, 2323 (2018).
B.
Alternatively, if construing the court’s Final Judgment as “final” is
erroneous, the district court’s Remedial Order supports an appeal under
Section 1292(a)(1) as an interlocutory order granting an injunction. When
“an order has the practical effect of granting or denying an injunction, it
should be treated as such for purposes of appellate jurisdiction.” Abbott, 585
U.S. at 594, 138 S. Ct. at 2319 (quotation marks and citation omitted). 9 In
the context of institutional-reform litigation, this court does not delay review
until the minutiae of a remedial plan have been settled. Doing so would
undermine the very purpose of Section 1292(a)(1). As the Court noted in
Abbott, “[m]uch harm can occur before the final decision in the district
court”—“[l]awful and important conduct may be barred, and unlawful and
harmful conduct may be allowed to continue.” Id. at 595, 138 S. Ct. at 2319.
In this case, the district court’s insistence on a Remedial Order that plainly
violated the PLRA and exceeded the court’s authority constitutes the
“unlawful and harmful conduct” that would continue absent appellate
review.
Abbott powerfully confirms that “whether any particular remedies
would have ultimately been ordered by the District Court” does not deprive
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9
The dissents construe the Remedial Order as “relating only to the conduct or
progress of the litigation” and therefore purely interlocutory, like a discovery order. That
seems unlikely, given over ten years of litigation culminating in 200+ pages of substantive
rulings by the district court. In any event, the dissents’ principal authority, Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275–79, 108 S. Ct. 1133, 1136–38 (1988),
held only that a district court decision not to exercise Colorado River abstention at the
beginning of a case was interlocutory and unappealable.
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an appellate court of jurisdiction. Id. at 601, 138 S. Ct. at 2323. In that case,
a three-judge court held that (1) Texas’s legislative redistricting plans
violated Section 2 of the Voting Rights Act and the Fourteenth Amendment,
and (2) the violations “must be remedied.” Id. at 598, 138 S. Ct. at 2321.
And if Texas did not intend to adopt new plans, the court would likely do so.
Id. But the district court’s order did no more. The Supreme Court
recognized that Texas risked “deleterious consequences” if it attempted to
implement redistricting plans the district court had just found
unconstitutional. Id. at 599, 138 S. Ct. at 2322. The three-judge court’s
rejection of the status quo was held sufficiently injunctive to establish
appellate jurisdiction. Id. at 601, 138 S. Ct. at 2323. The Court explicitly
rejected the contention that “appellate jurisdiction is lacking . . . because we
do not know at this point what a remedy would entail, who it would affect,
and when it would be implemented.” Id. (internal quotation marks and
citation omitted). As in Abbott, there is no hint in the record here “that the
court contemplated the possibility of allowing” the status quo at LSP to
continue. See id. at 599, 138 S. Ct. at 2322. The Remedial Order’s clear
outline of necessary changes to LSP medical care is sufficient to establish
appellate jurisdiction under the “practical effect” given to Section 1292(a)(1)
by Abbott. See id. at 595, 138 S. Ct. at 2320.
Abbott, though critical, was hardly the first word on the interpretation
of Section 1292(a)(1). During the school-desegregation era, when “the
[district] Court positively and affirmatively directed that a plan be submitted
that would provide for carrying out the [order] that [was] later to be
effectuated,” we held that “the ordering of the plan dealing expressly with these
prohibited acts amounts to a mandatory injunction.” Bd. of Pub. Instruction of
Duval Cnty. v. Braxton, 326 F.2d 616, 619 (5th Cir. 1964) (emphasis added).
Consequently, the court’s order was appealable. Id. at 617. In Morales, this
court alternatively held that, “[i]n any event, the order requiring that the
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parties meet and negotiate a plan complying with the decision is itself a
mandatory injunction which is appealable” under Section 1292(a)(1). 535
F.2d at 867 n.6; see also Johnson v. Gambrinus Co./Spoetzel Brewery, 116 F.3d
1052, 1056–57 (5th Cir. 1997) (Section 1292(a)(1) appellate jurisdiction
existed when district court ordered parties to meet and negotiate a plan for
future compliance with the ADA); Brumfield v. La. State Bd. of Educ., 806
F.3d 289, 296 (5th Cir. 2015) (an order requiring state to submit reports of
racial data and test scores to the federal government was “not for discovery”
and constituted an appealable injunction under Section 1292(a)(1)).
The analogies between our precedents and the instant case are
unavoidable. The fact that details of LSP’s compliance may need to be
worked out is no different from the future implementation of detailed school-
desegregation plans that this court routinely reviewed on an interlocutory
basis. See Braxton, 326 F.2d at 617. The court’s orders requiring the LSP to
“meet and confer” with the Plaintiffs to select special masters, to provide
documents and LSP personnel at the masters’ request, and to pay for special
masters and redress innumerable violations are on point with appellate-
review decisions in Morales, 535 F.2d at 867 n.6, and Johnson, 116 F.3d at
1056–57. As in Brumfield, these provisions are not interim orders that the
court will alter, but essential parts of the district court’s remedial framework.
Echoing Brumfield, the current requirements of the Remedial Order alone will
subject LSP to a “burdensome, costly, and endless process,” and the
Remedial Order contemplates a “new and different . . . regime.” 806 F.3d
at 297.
Plaintiffs offer several arguments against Section 1292(a)(1)
jurisdiction: (1) the district court’s rulings are essentially precatory and have
yet to mature into injunctive decrees enforceable against LSP; (2) only a
“forthcoming injunction” will “clarify” the issues on appeal; and (3) the
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Remedial Order’s provisions concerning special masters are procedural, not
injunctive. None is persuasive.
Plaintiffs’ first argument relies on out-of-circuit precedents for the
general proposition that an order requiring submission of a remedial plan is
generally not an appealable injunction subject to Section 1292(a)(1). See
Armstrong v. Wilson, 124 F.3d 1019, 1024 (9th Cir. 1997). Armstrong’s
narrower interpretation of appellate jurisdiction fails to control over this
court’s wealth of precedent. And oddly, from Plaintiffs’ perspective, the
Armstrong court upheld its jurisdiction to review a prison decree requiring
preparation of a plan to comply with the ADA. Although the final content
of the plan remained unknown, the district court’s order made the content
and scope of the remedial scheme sufficiently clear to enable appellate
review. As Armstrong elaborated, “[t]he [district] court further directed that
the plan address specific substantive concerns of the disabled inmates such
as disability grievance procedures, reception center processing times,
accommodations for emergency situations, assistive aids, accessibility of new
construction, criteria for medical disabilities, and school and job assignments
for disabled prisoners.” Id. at 1022 (citation omitted). Here, the specificity
with which the district court condemned LSP’s inmate medical care, the
remedies it ordered, and the Remedial Order provisions that ignore the
PLRA are all “sufficiently clear to enable appellate review.” See id.
The answer to Plaintiffs’ second argument, urging that a final
injunction (whenever that may be issued) will “clarify” the issues for appeal,
is also answered by Armstrong. Although no final remedial plan had been
settled, the court concluded, it “will in no way alter our ‘appellate
perspective’ on the single issue the defendants raise in this appeal of the
remedial order: whether the ADA and RA apply to state prison inmates.”
Id.
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In this appeal, LSP posits that the district court applied the wrong
legal standards in holding the Defendants liable, in ordering systemic
institutional changes in prisoner medical and disability care, and in failing to
apply the PLRA. These are discrete issues of law; their analysis will not
change with possible tinkering in the “implementation” of the Remedial
Order. For instance, the special masters might propose to “cure and
eliminate” the court’s finding that orderlies were inadequately trained by one
of several methods (hiring better trained orderlies, upgrading training, or
using more telemedicine facilities). But the variety of approaches does not
change the substantive questions about prison officials’ deliberate
indifference as a matter of liability in the first instance or in making changes
since the litigation commenced.
Adjudicating the district court’s noncompliance with the PLRA is
also, contrary to the Plaintiffs’ contention, a discrete and ripe issue. They
assert that, when “an actual injunction issues,” the appellate issues will be
“clarified” because the court’s order may then be “narrowly drawn,
extend[] no further than is necessary to correct the violation of the Federal
right, and [be] the least intrusive means necessary to correct the violation of
the Federal right.” 18 U.S.C. § 3626(a)(1). This is what the PLRA requires,
and the district court had to comply with these strictures when it considered
and issued its Remedial Opinion and Remedial Order. That the court may
choose to cure the statutory deficiency of its rulings in the future (after LSP
has been forced to expend even more time, energy, and resources litigating
the details of hundreds of compliance modules) is hardly an argument for
postponing immediate appellate review.
Finally, the Remedial Orders’ provisions for special masters are not
procedural, but plainly injunctive. Plaintiffs’ supplemental en banc brief
appears to concede that the Remedial Order actually requires the Defendants
to do certain things: “meet and confer” to discuss potential masters and
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No. 23-30825
“submit” the names to the court; make LSP headquarters employees,
wardens, and security personnel available to facilitate records requests and
prison access by special masters; and pay the masters’ costs. Plaintiffs
minimize the breadth of the orders, however, by analogizing them to mere
discovery rulings designed “to advance litigation toward trial.” See Panel
Opinion, 128 F.4th at 696. Appointing special masters and facilitating broad
prison and records access do not represent “discovery”; they are part of the
LSP’s punishment for allegedly violating constitutional duties. Even if the
Remedial Order provisions are interlocutory, they are likely subject to
contempt if disobeyed. Worse yet, Plaintiffs already conceded that the
district court’s prescribed use of special masters violates the PLRA in
several ways. These provisions, even apart from the infirmities of the court’s
reasoning in assessing liability and remedies, threaten “deleterious
consequences” for LSP were it to refuse compliance. Abbott, 585 U.S. at
599, 138 S. Ct. at 2322. Abbott is on point, as it gave “practical effect” to
Section 1292(a)(1) in upholding the appealability of a court order that
functionally equaled an interlocutory injunction. Id. at 595, 138 S. Ct. at
2320.
Along with our jurisdiction to review the court’s injunctive orders, we
may also review the Remedial and Liability Opinions as briefed by both
parties. This court’s appellate jurisdiction extends to “determining whether
there is any insuperable objection, in point of jurisdiction or merits” to the
injunction. Denver v. N.Y. Tr. Co., 229 U.S. 123, 136, 33 S. Ct. 657, 663 (1913)
(emphasis added); see also 16 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3921.1 (3d ed. 2024)
(appellate review “properly extends to all matters inextricably bound up with
the injunction decision”); Abbott, 585 U.S. at 603–07, 138 S. Ct. at 2324–26
(examining merits of district-court judgment supporting injunction); Biediger
v. Quinnipiac Univ., 691 F.3d 85, 96 (2d Cir. 2012).
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The consequences of Plaintiffs’ belated desire to withhold appellate
review should not be overlooked. First, doing so might prejudice their class
members, who from their perspective are being denied the medical care they
deserve while the details of further relief take a year or two to effectuate.
Second, if LSP continues to upgrade medical care, whether or not it satisfies
their preconceptions of constitutional adequacy, Plaintiffs jeopardize their
argument that the Defendants have been acting with deliberate indifference.
See Farmer v. Brennan, 511 U.S. 825, 845, 114 S. Ct. 1970, 1983 (1994);
Valentine v. Collier, 993 F.3d 270, 282 (5th Cir. 2022) (stating that
“[d]eliberate indifference is determined based on prison officials’ current
attitudes and conduct” (emphasis added; internal quotations omitted)).
Third, rejecting appellate jurisdiction here is not a “no harm, no foul” issue
that affords the Defendants an opportunity to fight another day. The state
cannot realistically claw back any fees that are erroneously awarded to
Plaintiffs’ counsel, nor can it recover the prison’s administrative time,
resources, and costs expended in complying with Remedial Order provisions
that violate the PLRA and substantive law. Fourth, the intrusion on vital
interests of federalism mandated by the district court’s rulings cannot be
tolerated. As the Supreme Court recognized fifty years ago, “[i]t is difficult
to imagine an activity in which a State has a stronger interest . . . than the
administration of its prisons.” Preiser v. Rodriguez, 411 U.S. 475, 491–92, 93
S. Ct. 1827, 1837 (1973). But if this court were to deny appellate review now,
the precedent would condone shielding from review district court orders that
prescribe relief in broad terms and violate the PLRA, with finality just over
the horizon. The intrusions on states’ interests would be irretrievable.
The reality of institutional-reform litigation is that courts’ sweeping
decrees consistently involve long-term relief, and courts impose judgments
and remedial orders with finality although they do not “dissociate”
themselves from the case in managing post-judgment details. This court,
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now fortified by Abbott, has not required and will not require public entities
subjected to broad, compulsory remedial decrees to wait until the ink is dry
on every minute point that may later arise in an institutional-reform plan
before permitting appellate review. We have jurisdiction under either
Section 1291 or 1292(a)(1).
II.
Normally, appellate review considers the merits of a judgment before
addressing remedial issues. We invert the order here because imperatives
created by Congress in the PLRA were, as Plaintiffs themselves
acknowledge, violated in several ways. Even if the district court’s
constitutional conclusions were to withstand scrutiny (as discussed below),
the PLRA governed its remedial proceedings. A federal court’s failure to
observe strictures that Congress enacted precisely to cabin our jurisdiction
over prison reform cases is intolerable.
Congress passed the PLRA in 1996 to limit the oversight of state
prisons by federal courts. See Pub. L. No. 104-134, 110 Stat. 1321. The law
was enacted “in the wake of a sharp rise in prisoner litigation in the federal
courts,” and it “contains a variety of provisions designed to bring this
litigation under control.” Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378,
2382 (2006); see also Valentine, 993 F.3d at 292–93 (5th Cir. 2021) (Oldham,
J., concurring) (observing that 24% of state prisons were subject to federal
structural injunctions in 1984). To eliminate federal court interference with
state and local prison management, the PLRA “establishe[d] standards for
the entry and termination of prospective relief in civil actions challenging
prison conditions.” Miller v. French, 530 U.S. 327, 331, 120 S. Ct. 2246, 2250
(2000). The PLRA reinforced the Supreme Court’s recognition fifty years
ago that “[i]t is difficult to imagine an activity in which a State has a stronger
interest . . . than the administration of its prisons.” Rodriguez, 411 U.S. at
491–92, 93 S. Ct. at 1837. Still today, the Court acknowledges “sensitive
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federalism concerns” when federal court decrees usurp a state’s sovereignty
and authority over its prisons. Horne v. Flores, 557 U.S. 443, 448, 129 S. Ct.
2579, 2593 (2009).
The Remedial Order violated the PLRA by (1) failing the needs-
narrowness-intrusive requirements and (2) violating the special master
provisions.
A.
First, the Remedial Order constituted “prospective relief,” defined
by the PLRA as “all relief other than compensatory monetary damages.” 18
U.S.C. § 3626(g)(7). “Relief” is further defined as “all relief in any form that
may be granted or approved by the court . . . .” Id. § 3626(g)(9). Every
mandate of the Remedial Order, therefore, had to pass muster under the
needs-narrowness-intrusiveness provision that is the PLRA’s cornerstone.
United States v. Hinds Cnty. Bd. of Supervisors, 128 F.4th 616, 626 (5th Cir.
2024). That provision states:
Prospective relief . . . shall extend no further than necessary to
correct the violation of the Federal right of a particular plaintiff
or plaintiffs. The court shall not grant or approve any
prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal
right . . . .
18 U.S.C. § 3626(a)(1)(A).
During the remedial phase of the case, the district court noted the
needs-narrowness-intrusiveness standard in a ruling in limine. Following
that perfunctory citation, there is no further mention of Section 3626(a)(1) in
the court’s subsequent 104-page Remedial Opinion or in the Remedial Order.
The Remedial Order, instead, globally requires the “special masters” to
propose remedial plans that will “cure and eliminate the violations found in
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the Court’s Liability Ruling and Remedial Ruling.” Together, those rulings
prescribe hundreds of detailed changes in every aspect of the prison’s
medical care. To be sure, the Remedial Order discussed the impact of
numerous upgrades to personnel, training, facilities, and communication that
the Defendants had made before the remedial trial. But it essentially
dismissed all of them by finding (over and over) that the changes were
insufficient to “cure the violations” found in the Liability Opinion. Further,
the district court refused to admit evidence of or consider LSP’s adoption of
an electronic medical-records-management system a few months after the
remedial trial—but more than a year before it issued its Remedial Opinion
and Order. The overall result of the district court’s orders, or failure to
consider ongoing changes, is a mishmash of mandates, some of which are
already rendered obsolete by events.
For instance, the prison’s previous medical-records management was
repeatedly characterized by the district court in pejoratives ranging from
inadequate and sloppy to non-existent for just about every facet of medical
care offered. Implementing an electronic records system may well have
“cured” those problems and many related deficiencies in prisoners’
diagnostics and care. The changes wrought—e.g., electronic medical
records, improved access to specialist consultants, and newly hired and
better trained personnel—are synergistic, just as the district court stated
their absence “cumulatively” indicated constitutionally deficient care. The
Remedial Order, however, operates in a vacuum with respect to these
significant changes. It does not satisfy the statutory duty to limit the court’s
supervision to actual “needs”; does not implement “narrow” solutions; and
requires anything but the “least intrusive” ongoing judicial management.
The Plaintiffs were aware of the importance of applying the needs-
narrowness-intrusiveness criteria in the Remedial Order. They urged the
court to do a needs-narrowness-intrusiveness ruling after Defendants
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appealed, but it refused. In this court, however, the Plaintiffs contend that,
because the Remedial Order instructs “special masters” to propose remedial
plans, the district court will later evaluate the proposals, with the parties’
input, in light of Section 3626(a)(1). They also suggest that the court may
alter its Remedial Order to account for ongoing changes to prison medical
care. Nothing in the record supports this theory. The Judgment and
Remedial Order plainly demonstrate the conclusion of the court’s analysis,
except for ongoing procedural review of the special masters’ plans to “cure
the violations” found in its rulings. Moreover, the statute required the court
not to “grant or approve any prospective relief” absent findings of needs,
narrowness, and non-intrusiveness “to correct the violation of the Federal
right.” 18 U.S.C. § 3626(a)(1)(A) (emphasis added). At the very least, this
language favors application of the standard before entry of judgment, not as a
product of ongoing, never-ending, serial implementation of changing
decrees. It is incontrovertible that the Remedial Order imposes “prospective
relief,” every item of which had to be evaluated under the PLRA’s stringent
standard.
B.
The Remedial Order ignores the PLRA in commanding special
master relief. It immediately requires the Defendants to take the following
steps: expeditiously cooperate with the court’s appointment of three special
masters; designate prison officials as “contact persons” with the masters to
“coordinate and facilitate” their work; make prison facilities available to the
masters and their delegates on 24 hours’ notice; make all records and
documents available “without delay” and within 14 days of request; and
secure “reasonable access” to prisoners. Unbelievably, the Remedial Order
requires Louisiana to pay for the special masters’ services.
Additional deviations from the PLRA’s requirements pertain to the
district court’s attempt to designate three “special masters” to implement
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its Remedial Order. The violations include the selection process for the
special masters, the appointment of three rather than one master, and shifting
the master’s compensation to the state of Louisiana. Each violation requires
discussion.
A “special master” is “any person appointed by a Federal court
pursuant to Rule 53 of the Federal Rules of Civil Procedure or pursuant to
any inherent power of the court to exercise the powers of a master, regardless
of the title or description given by the court.” 18 U.S.C. § 3626(g)(8)
(emphases added). The special master “may be authorized by a court to
conduct hearings” or “to assist in the development of remedial plans.” Id.
§ 3626(f)(6)(A), (f)(6)(C) (emphasis added). 10 Plaintiffs erroneously
_____________________
10
In relevant part, the pertinent provisions state:
(f) Special masters.—
(1) In general.—
(A) In any civil action in a Federal court with respect to prison
conditions, the court may appoint a special master who shall be
disinterested and objective and who will give due regard to the
public safety, to conduct hearings on the record and prepare
proposed findings of fact.
....
(2) Appointment.—
(A) If the court determines that the appointment of a special
master is necessary, the court shall request that the defendant
institution and the plaintiff each submit a list of not more than 5
persons to serve as a special master.
(B) Each party shall have the opportunity to remove up to 3
persons from the opposing party’s list.
(C) The court shall select the master from the persons remaining
on the list after the operation of subparagraph (B).
....
(4) Compensation.—The compensation to be allowed to a special
master under this section . . . shall be paid with funds appropriated to
the Judiciary.
....
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contend that the special masters contemplated by the district court are not
within the PLRA because they will not exercise “quasi-judicial power.” See
Benjamin v. Fraser, 343 F.3d 35, 39–40, 45–46 (2d Cir. 2003), overruled on
other grounds by, Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009); see also
Handberry v. Thompson, 446 F.3d 335, 352 (2d Cir. 2006). The statute
prescribes otherwise, because “any” person, “regardless” of title or
description, may be designated a “special master” who “may” “assist in the
development of remedial plans.” That is what the court ordered here.
Congress broadly described the position and duties of special masters to
prevent easy evasion of the PLRA’s further requirements for special
masters. Applied in this case, the district court’s “special masters” should
have been selected and paid in accordance with the PLRA. 11
_____________________
(6) Limitations on powers and duties.—A special master appointed
under this subsection—
(A) may be authorized by a court to conduct hearings and prepare
proposed findings of fact, which shall be made on the record;
(B) shall not make any findings or communications ex parte;
(C) may be authorized by a court to assist in the development of
remedial plans; and
(D) may be removed at any time, but shall be relieved of the
appointment upon the termination of relief.
(g) Definitions.—As used in this section—
....
(8) the term “special master” means any person appointed by a
Federal court pursuant to Rule 53 of the Federal Rules of Civil
Procedure or pursuant to any inherent power of the court to exercise
the powers of a master, regardless of the title or description given by
the court . . . .
18 U.S.C. § 3626 (emphases removed).
11
Plaintiffs’ effort to recharacterize the special masters as “experts” pursuant to
Federal Rule of Evidence 706 is misguided because Federal Rules are subject to acts of
Congress. In any event, the district court refused the Plaintiffs’ motion to redesignate the
special masters, which was filed only after the Defendants appealed.
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Plaintiffs conceded that, if the court ordered “prospective relief”
under the PLRA, and if the special masters’ appointment was governed by
that statute, then the court’s selection process violated the statute. The
PLRA’s process requires courts to accept a list of up to five candidates each
from the parties; each party may remove three candidates on the other
party’s list; and the court will select “a” special master from the remaining
candidates. 18 U.S.C. § 3626(f)(2). The district court here ordered the
parties to “meet and confer” to agree on one candidate for each of three
positions, but if they cannot agree, to “submit up to three proposed names
for each position,” leaving the final decision to the court. The Remedial
Order bears no relationship to the statutory process.
Also squarely at odds with the statute is the district court’s
requirement for “three” special masters, where the PLRA authorizes only
“a” special master. 18 U.S.C. § 3626(f)(1)(A). Plaintiffs assert that the
Dictionary Act, 1 U.S.C. § 1, allows statutory words of the singular to include
several persons, parties, or things “unless the context indicates otherwise.”
But the Supreme Court explained that “[t]he Dictionary Act does not
transform every use of the singular ‘a’ into the plural ‘several’” because
context is what matters. Niz-Chavez v. Garland, 593 U.S. 155, 164, 141 S. Ct.
1474, 1482 (2021). The context cuts against Plaintiffs’ adaptation of the
Dictionary Act here. Seven paragraphs of Section 3626(f) refer to “a” or
“the” special master. 18 U.S.C. § 3626(f)(1)(A), (f)(1)(B), (f)(2)(a), (f)(3)–
(6). Changing all these references to embrace multiple special masters would
be grammatical legerdemain.
Finally, as Plaintiffs conceded in their initial brief, the Remedial Order
violates the PLRA by requiring the State to pay the fees of the special
masters. This is unbelievable, as noted before, because the statute orders
compensation of special masters from the federal Judiciary appropriations.
18 U.S.C. § 3626(f)(4). In fact, the special master’s hourly rate may “not
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[be] greater than the hourly rate established under section 3006A for
payment of court-appointed special counsel,” together with reasonable costs.
Id. But the district court ordered the Louisiana Department of Corrections
to pay “[a]ll” their costs, without limitation.
In en banc briefing, Plaintiffs remain consistent with their position
that all that’s been done so far is “preliminary” and far from “final”
adjudication by the district court. Thus, they contend that the district court
might allow the masters’ fee applications to be handled as in any other fee-
shifting litigation. The state could then litigate the “reasonableness” of the
fees and appeal adverse rulings. That is nonsense. The PLRA does not
provide for adversarial testing of CJA-modelled (i.e., government
reimbursed) compensation for a special master. Inviting such litigation
graphically demonstrates the disparity between the Plaintiffs’ and district
court’s antiquated conception of institutional-reform litigation and the
requirements of the PLRA. Congress disavowed the former procedures, so
at odds with the structure of Federalism, precisely to maintain the possibility
of prison reform while harmonizing it with judicial restraint and states’
legitimate institutional concerns.
The district court’s multiple deviations from the PLRA inexcusably
thrust the Defendants into sweeping judicial oversight contrary to the statute.
Equally inexcusably, other courts in this circuit have opted to replicate the
district court’s errors exactly. If the courts are to be governed by federal law,
just as the state must abide by constitutional law, the PLRA must be strictly
enforced.
III.
Although the en banc court may reconsider every aspect of the district
court’s liability and remedial holdings, it is only necessary to point out the
court’s grave errors in addressing the remedial phase of the case. The
Supreme Court holds that injunctive relief is inappropriate in prison-
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conditions cases unless efforts to fix unconstitutional conditions are so
lacking that they continue to reflect prison officials’ deliberate indifference.
See Valentine, 993 F.3d at 281–82; Farmer, 511 U.S. at 844–47, 114 S. Ct. at
1982–84. The court here used the wrong legal standard in gauging the status
of LSP’s medical care following watershed improvements. Repeatedly, its
Remedial Opinion described the improvements as “robust” or partially
corrective of problems described in the Liability Opinion. But repeatedly,
the court held, they were “not enough” to cleanse the Defendants of
deliberate indifference or remove the threat of future unconstitutional denial
of adequate medical care. Moreover, the court erroneously refused to update
its remedial analysis with evidence of critical reforms that LSP achieved in
the seventeen months between the remedial trial and the Remedial Opinion.
The district court also applied the wrong standard when addressing the
prison’s compliance with the ADA/RA. These errors reflect a fundamental
misunderstanding of the purpose of injunctive relief in institutional-reform
litigation. The Remedial Order must be vacated and remanded for a
thorough reconsideration in light of the correct standards.
A. Eighth Amendment
After the Defendants were found liable for Eighth Amendment and
ADA/RA violations in every aspect of medical and disabled care provided
to LSP inmates, they began systematically to upgrade the system. The court
consequently allowed LSP to offer evidence of ongoing improvements from
January 1, 2019, to May 31, 2022, before the ten-day remedial hearing in June
2022.
Another seventeen months elapsed until the Remedial Order issued.
During that interval, the Defendants continued to upgrade medical care.
They moved to supplement the record in November 2022, a year before the
court’s Remedial Order, to reflect that (1) LSP implemented electronic
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healthcare records; (2) LSP was re-accredited by the American Correctional
Association; (3) LSP hired an additional physician, doubling the number of
physicians; and (4) LSP significantly increased the number of nurse practi-
tioners. Reasoning that its pre-hearing discovery cutoff was just an ordinary
exercise of trial court discretion, the court refused to consider this vital infor-
mation. As a result, many provisions of the Remedial Order had become ob-
solete as soon as it was entered.
The district court’s overarching error lay in its failure to evaluate
whether prison medical and disabled care required injunctive relief despite
continuously improved conditions. Since the 1970s, the Supreme Court has
held that deliberate indifference to serious medical needs of prisoners consti-
tutes the “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429
U.S. 97, 104, 97 S. Ct. 285, 291 (1976) (citation omitted). Such mistreatment
amounts to unconstitutional “punishment” under the Eighth Amendment.
Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc). To effec-
tuate liability based on “punishment,” Williams noted, the Supreme Court’s
test for deliberate indifference adopted a criminal standard of recklessness.
Id. (citing Farmer, 511 U.S. at 839–40, 114 S. Ct. at 1979–80). The test has
two parts: plaintiffs’ “objective exposure to a substantial risk of serious
harm”; and “that prison officials acted or failed to act with [subjective] de-
liberate indifference to that risk.” Carlucci v. Chapa, 884 F.3d 534, 538 (5th
Cir. 2018). But, as the Supreme Court 12 and this court have consistently
held, this quasi-criminal standard is not met for mere negligence or a failure
_____________________
12
Gamble, 429 U.S. at 105–06, 97 S. Ct. at 292 (“inadvertent failure to provide
medical care” or negligent diagnoses do not establish a constitutional violation); Wilson v.
Seiter, 501 U.S. 294, 305, 111 S. Ct. 2321, 2328 (1991) (“mere negligence” does not
establish a constitutional violation); Farmer, 511 U.S. at 844, 114 S. Ct. at 1982–83 (officials
are not deliberately indifferent if they “responded reasonably to the risk” of serious harm).
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to meet a standard of community care or even gross negligence. 13 In essence,
when prison officials have attempted to care for a prisoner’s medical needs,
even if the care falls short, they have not exhibited subjective deliberate in-
difference.
Just as important, a federal court, after initially finding liability, may
not simply order remedial injunctive relief that supplants prison management
with federal oversight. Well before passage of the PLRA, the Supreme Court
had made this abundantly clear. Thus, deliberate indifference “‘should be
determined in light of the prison authorities’ current attitudes and conduct’:
their attitudes and conduct at the time suit is brought and persisting thereaf-
ter.” Farmer, 511 U.S. at 845, 114 S. Ct. at 1983 (quoting Helling v. McKinney,
509 U.S. 25, 36, 113 S. Ct. 2475, 2482 (1993)); see also Bell v. Wolfish, 441 U.S.
520, 547–48, 562, 99 S. Ct. 1861, 1878–79, 1886 (1979). Further, “to establish
eligibility for an injunction, the inmate must demonstrate the continuance of
that disregard during the remainder of the litigation and into the future.”
Farmer, 511 U.S. at 846, 114 S. Ct. at 1983. Both sides may rely on ongoing
developments in the prison to establish that the inmate is not entitled to an
injunction. Id.
_____________________
13
Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001) (“It is
indisputable that an incorrect diagnosis by prison medical personnel does not suffice to
state a claim for deliberate indifference.”); Brauner v. Coody, 793 F.3d 493, 498 (5th Cir.
2015) (“Deliberate indifference is not established when ‘medical records indicate that [the
plaintiff] was afforded extensive medical care by prison officials.’”) (citation omitted);
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (“Deliberate indifference ‘is an
extremely high standard to meet.’” (citation omitted)); Rogers v. Boatright, 709 F.3d 403,
410 (5th Cir. 2013) (“Unsuccessful medical treatment, acts of negligence, or medical
malpractice do not constitute deliberate indifference.” (citation omitted)); Mendoza v.
Lynaugh, 989 F.2d 191, 192 (5th Cir. 1993) (“[D]elay in medical care can only constitute an
Eighth Amendment violation if there has been deliberate indifference”); see also Brewster
v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009).
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Citing Farmer, this court held that, “[w]hen there is a possible consti-
tutional violation that is likely to continue over time as in a prison injunction
case, we consider the evidence from the time suit is filed to the judgment.”
Valentine, 993 F.3d at 282 (emphasis added). Valentine concluded that
“[i]njunctive relief is forward looking, and given the Defendants’ response
[to the COVID-19 pandemic] including actions taken on the eve of and dur-
ing trial, the permanent injunction is not warranted.” Id. at 289. Even more
pointedly, this court held that a district court properly considered conditions
after trial when it refused to impose injunctive relief in a Mississippi prison
case where extensive improvements had been made in the interim. Dockery
v. Cain, 7 F.4th 375, 379 (5th Cir. 2021). This court quoted Farmer’s admon-
ishment that a court “should approach issuance of injunctive orders with the
usual caution” and “may . . . exercise its discretion if appropriate by giving
prison officials time to rectify the situation before issuing an injunction.”
Id. (quoting Farmer, 511 U.S. at 846–47, 114 S. Ct. at 1984). And we empha-
sized Farmer’s “restrained approach” “to prevent federal courts from ‘be-
coming enmeshed in the minutiae of prison operations.’” Id. (some internal
quotations omitted) (quoting Farmer, 511 U.S. at 847, 114 S. Ct. at 1984). Fi-
nally, Dockery rejected Plaintiffs’ position that district courts must make a
risk-of-recurrence finding. Id. at 380. 14
The district court’s failure to apply these principles is unjustified. To
begin, the court’s refusal to update remedial conditions from May 2022 to
the date of its Remedial Order in November 2023 violated Farmer, Valentine,
_____________________
14
See also Hallett v. Morgan, 296 F.3d 732, 743 (9th Cir. 2002) (“[I]n the absence
of a ‘current and ongoing’ violation, there is no occasion to fashion prospective relief to
cure the violation. In other words, if a violation no longer exists, the statute [PLRA] does
not permit the court to order prospective relief.” (citing 18 U.S.C. § 3626(a)(1)(A))); but
cf. Porter v. Clarke, 923 F.3d 348, 366–68 (4th Cir. 2019); Thomas v. Bryant, 614 F.3d 1288,
1320 (11th Cir. 2010). Porter and Thomas disagreed with Hallett’s reading of the PLRA.
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and Dockery. The district court asserted its right to manage its docket, set
deadlines, and protect the Plaintiffs from an endless loop of evidence. As the
court noted, the foregoing authorities acknowledge a district court’s discre-
tion. Particularly, however, the court relied on the Supreme Court’s decision
in Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910 (2011). Plata, a case about
prison overcrowding, refused to require that the state of California’s request
to update remedial evidence be accepted where (1) the state failed to show
what additional evidence it would have submitted; and (2) the state’s prison
operation had been in receivership under a court decree for over a decade.
Id. at 522–24, 131 S. Ct. at 1935–36. Plata is distinguishable. In LSP’s case,
there was an extended delay between the remedial hearing and the Remedial
Order that could easily have supported supplemental briefing by both parties
or even limited discovery by Plaintiffs. Further, LSP had no history of court
oversight before the remedial hearing, and the Defendants explained exactly
what post-hearing remedial measures had been taken and their importance to
any potential remedial decree.
As a result, the court’s Remedial Opinion completely ignored that, as
of autumn 2022, LSP had fully installed its electronic health-records system,
and by January 2023, the Defendants hired an additional staff physician and
increased the number of nurse practitioners from seven to nine. These indis-
putable facts related directly to deficiencies that the court found in its Liabil-
ity Opinion and continued to assert in the Remedial Opinion. Indeed, defi-
ciencies in staffing and recordkeeping underlie a large number of the court’s
liability findings. One might think that the Defendants’ efforts to cure some
of the most significant sources of inadequate medical care would be explored
by the district court, not rebuffed. As in Dockery, the court could easily have
accepted further briefing or reopened limited discovery. Dockery v. Hall, 443
F. Supp. 3d 726, 736 (S.D. Miss. 2019), aff’d sub nom., Dockery v. Cain, 7
F.4th 375 (5th Cir. 2021).
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Moreover, if the district court’s current injunctive order takes effect
and requires special masters to address the issues listed in the Remedial Or-
ders, a significant portion of those issues will have been dealt with even before
the Remedial Order issued. 15 Any court-appointed master will be striking at
straw men, needlessly interfering with prison authorities’ duties, and running
up bills for no constitutional remedial purpose. The court’s failure to incor-
porate significant medical care improvements into its Remedial Opinion and
Remedial Order violated this court’s precedents and constituted an abuse of
discretion.
The court also fatally erred by finding ongoing subjective deliberate
indifference in support of its broad injunction. As noted above, “[d]eliberate
indifference is an ‘extremely high’ standard to meet.” Brewster v. Dretke,
587 F.3d 764, 770 (5th Cir. 2009) (quoting Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006)). The Defendants’ remedial efforts may prove insuffi-
cient to cure all the identified institutional problems, but they indicate con-
cern and sincerity on the part of prison officials that negate subjective indif-
ference. Farmer, 511 U.S. at 844, 114 S. Ct. at 1982–83 (“[P]rison offi-
cials . . . may be found free from liability if they responded reasonably to the
risk, even if the harm ultimately was not averted.” (emphasis added)); Hinds
Cnty., 120 F.4th at 1261 (“A reasonable response to inadequate prison con-
ditions is indeed sufficient to prevent a deliberate-indifference finding even
if the County’s attempts were unsuccessful or if the County did not choose
the optimal approach to the problem.”). Yet the district court relied heavily
_____________________
15
Within five of the seven Remedial Order sections pertaining to medical care, the
terms “documentation” and “charting” appear ubiquitously and include patient history,
treatment records, medication administration, and specialist referrals. One section is
actually titled, “Standards and Procedures for medical records management, including
electronic medical records and protocols for providing real time or contemporaneous
access to medical records by outside providers, specialists, and related disciplines.”
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on outdated and out-of-circuit district-court cases 16 rather than this court’s
multiple authorities in concluding that none of LSP’s remedial measures suf-
ficed to narrow, much less eliminate, the need for broad ongoing injunctive
relief.
In the Remedial Opinion, the court repeatedly acknowledged but then
discounted improvements in the following areas of prison medical care.
1. Clinical care. The court found that LSP had remedied three out of
five deficiencies noted in the Liability Order, but the medical records were
still “in shambles.” This problem, of course, was solved after the remedial
hearing by electronic health records but went unacknowledged by the court.
The court criticized the “episodic treatment” of medical complaints, despite
the hiring of an additional nurse practitioner and adoption of a web-based
medical service. The court illustrated “constitutionally substandard care”
by means of three examples of delayed care, “medical errors,” and a holding
that a “mere encounter with a medical health care provider is not evidence
of medical care or treatment.” These findings ignore the very high bar re-
quired to establish ongoing deliberate indifference of the Defendants. See
Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001); Valen-
tine, 993 F.3d at 281; see also Mendoza v. Lynaugh, 989 F.2d 191, 192 (5th Cir.
1993).
_____________________
16
The court quoted Laube v. Haley, 234 F. Supp. 2d 1227, 1251 (M.D. Ala. 2002),
and cited Braggs v. Dunn, 257 F. Supp. 3d 1171, 1260 (M.D. Ala. 2017), for the proposition
that “[e]fforts to correct systemic deficiencies that ‘simply do not go far enough,’ when
weighed against the risk of harm” constitute deliberate indifference. Remedial Opinion, 701
F. Supp. 3d at 435–36; but see Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) (The
subjective inquiry must leave room for the possibility that prison officials “responded
reasonably to the risk, even if the harm ultimately was not averted.” (quoting Farmer, 511
U.S. at 844, 114 S. Ct. at 1982–83)).
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2. Sick call. After the Liability Opinion issued, LSP completely over-
hauled its sick-call procedures. As the evidence shows, each patient was be-
ing seen within one day by an EMT; nurse practitioners became available
through telemedicine; and medical records were available. Nonetheless, the
court held the changes had not “transformed the system” and, in the case of
telemedicine, were “not optimal.” This analysis is unmoored to the rigorous
Eighth Amendment standard, particularly because it disregarded that sub-
stantial improvements should have eliminated any finding of ongoing delib-
erate indifference. See Hinds Cnty., 120 F.4th at 1261 (citing Farmer, 511 U.S.
at 844–45, 114 S. Ct. at 1982–83); Rasho v. Jeffreys, 22 F.4th 703, 711 (7th Cir.
2022) (Even if a prison “could have done more,” corrective efforts “demon-
strate a commitment to addressing the problem—the antithesis of the callous
disregard required to make out an Eighth Amendment Claim.”).
3. Specialty care. LSP expanded its onsite specialty clinics from four
to thirteen; made telemedicine consultations available; substantially in-
creased the number of specialty referrals and appointments and reduced the
number of missed appointments; took steps to schedule and track appoint-
ments more closely; installed monitors in the disabled dorms to notify in-
mates of upcoming appointments; and worked to coordinate care and provide
adequate follow-up patient care after specialty workups. This “framework
for constitutionally adequate health care,” as the district court described it,
was still not enough. The court instead focused on a handful of specific cases
in which allegedly poor medical treatment occurred. But the fact that some
improvements may not have provided “optimal care” does not detract from
the important advances that were made by Defendants, which negated a le-
gitimate finding of ongoing deliberate indifference. See Gobert, 463 F.3d at
349.
4. Emergency care. After the Liability Opinion found staffing in
LSP’s emergency-care unit to be constitutionally inadequate, LSP revised
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No. 23-30825
its staffing. An RN and EMT are now present 24/7, with a nurse practi-
tioner either present in the unit or on-call on prison grounds 24/7. LSP also
altered the policy for self-declared emergencies and limited EMTs’ discre-
tion to ensure proper oversight. The court acknowledged “improved staffing
in the [emergency unit]” but continued to find constitutionally deficient care
based on seven patient files. Again, the court failed to consider that LSP’s
response may be less than transformative but sufficient to dispel the notion
of deliberate indifference. See Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir.
2016). Nor did it apply the caselaw that disagreements over medical judg-
ment or isolated negligence may constitute medical malpractice but do not
rise to the level of quasi-criminal deliberate indifference. See Gamble, 429
U.S. at 106, 97 S. Ct. at 292; Williams, 797 F.3d at 281; Domino, 239 F.3d at
756.
5. Inpatient/Infirmary care. The district court “commended” De-
fendants for upgrading staffing in the acute-care unit to one RN for every ten
patients and one RN for every fifteen long-term care patients. Staffing short-
ages, which led to the misuse of orderlies for nursing tasks, was the court’s
concern in the Liability Opinion. But again, the district court found the inte-
gration of additional trained nurses inadequate due to occasional lapses. LSP
also installed red call buttons outside the door of each prisoner’s locked room
to improve communications with nursing staff, and national guidelines pre-
scribe that patients be within sight or sound of nurses. But the court nonethe-
less found the call buttons inadequate to satisfy its erroneous view of consti-
tutional standards. See Jeffreys, 22 F.4th at 711.
6. Medical Leadership/Organizational Structure. It seems a dubious
proposition that a federal court may hold that a state institution’s governing
organizational structure—as opposed to actions of identified leaders in the
structure—is unconstitutional. See Wilson, 501 U.S. at 305, 111 S. Ct. at 2327.
But that was the import of the district court’s Liability Opinion. Responding
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to those concerns, however, LSP fired old leaders, hired new leaders, and
instituted new oversight procedures for prison medical care. The new
healthcare administrator meets regularly with the new Deputy Warden, a li-
censed practical nurse. LSP implemented a weekly backlog tracker to iden-
tify delays, and the doctors meet daily with nurse practitioners and LSP’s
medical department heads. The court discounted these developments be-
cause, it claimed, understaffing persists, the improvements “simply do not
go far enough,” and leadership “disagreed with several of the Court’s liabil-
ity findings.” The court disagreed with LSP’s protocol for conducting mor-
tality reviews. The court also discounted changes that were made to the qual-
ity assurance/quality improvement (“QA/QI”) programming due to the Li-
ability Opinion’s criticism; the court held that LSP lacks “empirical evi-
dence” that the program is effective. Finally, the court found the QA/QI
programming lacked attention to “remedying constitutional deficiencies.”
Nonsense. Contrary to the court’s conclusion, a layman may “disagree”
with any court’s ruling yet not be deliberately indifferent to the patients’
needs. And nothing in the court’s vague critique of the QA/QI program-
ming identified exactly which “constitutional deficiencies” had to be ad-
dressed by means of a bureaucratic program.
***
None of these Remedial Opinion complaints, coupled with the affirm-
ative changes made by Defendants, rises to the level of showing ongoing de-
liberate indifference by the Defendants. See Gobert, 463 F.3d at 346. That is
especially true, given that the American Correctional Association (“ACA”)
reaccredited LSP in August 2024 after the prison satisfied 100% of 64 man-
datory standards and 98.98% of the nonmandatory standards set forth by the
ACA.
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B. ADA/RA Compliance
As with the Eighth Amendment, the district court made the same kind
of mistakes in regard to LSP’s alleged violations of the ADA/RA. In par-
ticular, the district court’s Remedial Opinion continually discounted im-
provements that it knew had been made for the benefit of disabled prisoners.
The district court’s analysis of “failure to accommodate” and “program-
matic accommodations” substituted its view of prison management for the
statutory standard, which allows some institutional flexibility in providing for
disabled prisoners’ needs. In short, the district court created its own pre-
ferred standard of medical care for the prison.
What the district court failed to acknowledge is that “the ‘ADA does
not set out a standard of care for medical treatment,’ and the ‘ADA is not
violated by a prison’s simply failing to attend to the medical needs of its dis-
abled prisoners.’” Carter ex rel. Carter v. City of Shreveport, 144 F.4th 809,
815 (5th Cir. 2025) (emphasis in original) (quoting Hale v. Harrison Cnty. Bd.
of Supervisors, 8 F.4th 399, 404 n.† (5th Cir. 2021) (per curiam)); Bell v. State
Prison Offs., No. 23-30339, 2024 WL 2863293, *6 (5th Cir. June 6, 2024) (per
curiam) (unpublished) (“The ADA is a discrimination statute, not merely a
recourse-for-failure-to-treat statute.” (emphasis in original)); Nottingham v.
Richardson, 499 F. App’x 368, 377 (5th Cir. 2012) (“The ADA is not violated
by a prison’s simply failing to attend to the medical needs of its disabled pris-
oners.”). Even the Supreme Court refused to hold that the ADA imposes a
“standard of care” on States. See Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581, 603 n.14, 119 S. Ct. 2176, 2188 n.14 (1999) (“We do not in this opinion
hold that the ADA imposes on the States a ‘standard of care’ for whatever
medical services they render, or that the ADA requires States to provide a
certain level of benefits to individuals with disabilities.” (some internal quo-
tations omitted)).
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As a result, the district court’s Remedial Opinion went too far. Al-
though ADA/RA remedies are not subject to the PLRA, the court’s mi-
cromanagement of the prison’s facilities, personnel, procedures, and stand-
ards of care require reconsideration.
***
For all these reasons, the district court was made aware of a substantial
risk of serious legal error that could arise from discounting the Defendants’
innovations and improvements to prison medical care and disability care that
were made during the remedial phase and post-trial, but it chose to ignore the
risk. Likewise, it chose to ignore that ongoing improvements and innovations
gave rise to a strong legal likelihood that the Defendants were not guilty of
continued deliberate indifference or disability discrimination. The district
court, in sum, was deliberately indifferent to both the evidentiary and legal
framework that bound it. This court, following the Supreme Court, must
maintain a delicate balance among the prerogatives of public institutions, the
demands of federalism, and the judiciary’s limited remedial role. The court’s
Remedial Order fails as a matter of law.
CONCLUSION
The judgment of the district court is VACATED and RE-
MANDED for further proceedings consistent herewith.
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No. 23-30825
Priscilla Richman, Circuit Judge, concurring in part and dissenting in
part:
I concur in JUDGE JONES’ opinion for the en banc court with the
exception of the opinion’s conclusions regarding Eighth Amendment
violations, the Americans with Disabilities Act (ADA), and the
Rehabilitation Act (RA).
Even after the considerable remediation efforts undertaken by the
Louisiana State Penitentiary (LSP), the record reflects what I consider to be
deliberate indifference with regard to the serious medical needs of at least
two inmates. 1 The district court identified those inmates as Patient #4 and
Patient #10. 2 It is not clear whether two, a few, or several instances of
deliberate indifference require prospective injunctive relief and if so, how
such relief might be tailored. I would remand to the district court for further
consideration of the scope of injunctive relief, if any is necessary, to address
prospective shortcomings such as these two instances in the medical
treatment of inmates, bearing in mind that under the Prison Litigation
Reform Act (PLRA), “any prospective relief . . . must be narrowly drawn,
[must] extend[] no further than necessary to correct the violation of the
Federal right, and [must be] the least intrusive means necessary to correct
the violation of the Federal right.” 3 The PLRA further requires that “[t]he
court shall give substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the relief.” 4
_____________________
1
See ROA.30587-89.
2
ROA.30587-89.
3
18 U.S.C. § 3626(a)(1)(A).
4
Id.
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As to the ADA and RA, the district court concluded that LSP failed to
accommodate inmates with regard to disciplinary procedures, not medical
care. 5 The en banc court’s majority opinion does not address these
conclusions. There is evidence of ADA and RA violations. Accordingly, I
do not concur in the majority opinion in this regard.
_____________________
5
See ROA.22513-14, 30641-45.
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Haynes, Circuit Judge, dissenting, joined by Stewart, Graves,
Higginson, Douglas, and Ramirez, Circuit Judges:
I respectfully dissent from the majority opinion’s exercise of
jurisdiction over this appeal. 1 We do not have jurisdiction under either 28
U.S.C. § 1291 or § 1292(a)(1). 2 Accordingly, this appeal should be dismissed.
First, we do not have jurisdiction under 28 U.S.C. § 1291, which gives
us jurisdiction over “appeals from all final decisions of the district courts of
the United States.” “A final judgment is normally deemed not to have
occurred until there has been a decision by the district court that ends the
litigation on the merits and leaves nothing for the court to do but execute the
judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989)
(citation modified). “A court’s ruling is only final if the judge intends to have
nothing further to do—with the motion (if an interlocutory appeal) or the
case (if a conventional appeal).” Ueckert v. Guerra, 38 F.4th 446, 450 (5th
Cir. 2022) (citation modified).
Here, there is no final decision. The Remedial Order makes clear that
the district court did not “intend[] to have nothing further to do.” Id.
(citation modified). Rather, the Remedial Order expressly contemplates that
_____________________
1
If jurisdiction were proper in this case, I would remand the case to the district
court but, unlike the majority opinion, I would not make rulings on what has already been
done but rather request the district judge to take another look to make proper
determinations at this point given that the district court has been stayed for quite some time
by this court.
2
A more fulsome discussion of our lack of jurisdiction, which I agree with and echo
here, was included in the panel majority opinion. Parker v. Hooper, 128 F.4th 691 (5th Cir.
2025) (per curiam).
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the district court will conduct further action in the case, providing actions the
district court “will” take. 3
The document entered by the district court labeled “Judgment” also
does not confer appellate jurisdiction under § 1291 because it does not “end[]
the litigation on the merits.” 4 Midland Asphalt, 489 U.S. at 798 (citation
modified). Instead, the “Judgment” states that the district court “retains
jurisdiction over the procedures set forth in [its] Remedial Order.” A
document labeled “Judgment” does not close the case, even if it purports to
do so, where the case is not actually finished. See Sears, Roebuck & Co. v.
Mackey, 351 U.S. 427, 437 (1956) (“The District Court cannot, in the exercise
of its discretion, treat as ‘final’ that which is not ‘final’ within the meaning
of § 1291.”). Therefore, there is no final decision over which we can exercise
appellate jurisdiction under § 1291.
Second, we do not have jurisdiction under 28 U.S.C. § 1292(a)(1),
which gives us appellate jurisdiction over interlocutory orders “granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions.” A court order “relat[ing] only to the
conduct or progress of litigation before that court ordinarily is not considered
an injunction and therefore is not appealable under § 1292(a)(1).” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988). Where an
order “is merely a step in the litigation process and is in no way directed to
the merits of the underlying action, the order is not appealable under
_____________________
3
For example, the Remedial Order says the district court “will appoint three
Special Masters to prepare proposed Remedial Plans” and “will review the proposed
Remedial Plans and any requests for amendment and will enter Orders necessary and
appropriate to effect remedies.”
4
The “Judgment” awards no relief. It merely states that “Judgment is hereby
entered” and “[t]his matter shall be closed by the Clerk of Court.”
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§ 1292(a)(1).” S. Ute Indian Tribe v. Leavitt, 564 F.3d 1198, 1206 (10th Cir.
2009) (quoting Lewis v. Bloomsburg Mills, Inc., 608 F.2d 971, 973 (4th Cir.
1979)) (citation modified).
Here, the Remedial Order is not an appealable injunction under
§ 1292(a)(1) because it does not identify, much less grant, any injunctive
relief. Indeed, the Remedial Order does not impose any substantive
obligation upon Defendants regarding medical care, the Americans with
Disabilities Act, or the Rehabilitation Act of 1973. As the district court has
not yet appointed a special master, Defendants’ only obligation under the
Remedial Order, absent the stay, would be to propose names of potential
special masters. This is not an injunction, but instead a court directive
advancing the litigation. Further, the Remedial Order’s requirements
regarding cooperation with the special masters would likewise not be
injunctive. See S. Ute Indian Tribe, 564 F.3d at 1207 (stating that although an
order “may be characterized as an order to do something, it is no more an
‘injunction’ than is an order to turn over papers in discovery or submit to a
physical examination” (citation omitted)). Because the Remedial Order is
not an injunction, we lack appellate jurisdiction under § 1292(a)(1).
We do not have appellate jurisdiction, and this appeal should be
dismissed. Accordingly, I respectfully dissent.
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Stephen A. Higginson, Circuit Judge, dissenting, joined by
Stewart, Graves, Douglas, and Ramirez, Circuit Judges:
“Appeal gives the upper court a power of review, not one of
intervention.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949). Today, the majority defies this foundational principle. It turns
Congress’s constraints on our jurisdiction inside out so it can erase multi-
year, class action district court litigation that first confirmed and then sought
to address proven, persistent unconstitutional medical care failures, which
resulted in at least six preventable deaths at the Louisiana State Penitentiary
at Angola. 1 In doing so, the majority sidesteps Supreme Court case law,
overlooks our own precedent, and splits with our sister circuits to construct
a new, district-court-stripping rule of appellate intervention against
institutional litigation.
The majority asserts that we have jurisdiction through “either”
Section 1291 “or” Section 1292(a)(1) to address the merits of this case, in the
first instance, by the en banc court. Given the lack of finality in this litigation,
I focus this opinion on my concerns regarding Section 1291, but I also agree
with Judge Haynes that Section 1292(a)(1) straightforwardly does not
confer jurisdiction over this appeal. 2 I do not address the merits because we
_____________________
1
Chief Judge Dick’s careful and detailed opinions are these: the Liability Opinion,
Lewis v. Cain, No. 3:15-cv-318, 2021 WL 1219988 (M.D. La. Mar. 31, 2021), and the
Remedial Opinion, Lewis v. Cain, 701 F. Supp. 3d 361 (M.D. La. 2023). For the district
court’s own summary of some of its factual findings, see the Appendix to this opinion.
2
To supplement both the clear directive from Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 279 (1988), that “[a]n order by a federal court that relates
only to the conduct or progress of litigation before that court ordinarily is not considered
an injunction and therefore is not appealable under § 1292(a)(1)”—which the majority
does not cite—and our sister circuits’ law discussed in Judge Haynes’s dissent, I offer
these additional authorities: Groseclose v. Dutton, 788 F.2d 356, 359–61 (6th Cir. 1986) (per
curiam); Spates v. Manson, 619 F.2d 204, 209–10 (2d Cir. 1980); Taylor v. Bd. of Educ., 288
F.2d 600, 603–06 (2d Cir. 1961); In re City of Springfield, 818 F.2d 565, 567–68 (7th Cir.
44
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lack jurisdiction to do so, and the parties did not present any merits
arguments to the en banc court. I add only one further note relating to the
substance of this appeal, a reminder from the Supreme Court: “Courts may
not allow constitutional violations to continue simply because a remedy
would involve intrusion into the realm of prison administration.” Brown v.
Plata, 563 U.S. 493, 511 (2011).
***
Starting with Supreme Court case law, the majority mentions Riley v.
Kennedy, 553 U.S. 406, 419 (2008), only in passing to then say that “common
sense” compels the majority’s conclusion. In Riley, as the majority notes,
the Supreme Court did caution that a district court’s labeling of an order does
not control its appealability. Id. But this selective reading ignores the
fundamental rule of finality, repeated in Riley: “A final judgment is ‘one
which ends the litigation on the merits and leaves nothing for the court to do
but execute the judgment.’” Id. (quoting Catlin v. United States, 324 U.S.
229, 233 (1945)). The majority also disclaims the Supreme Court’s workable
bright-line rule instructing appellate courts not to bifurcate the liability and
remedial stages of litigation in district courts: “We have long held that an
order resolving liability without addressing a plaintiff’s requests for relief is
not final.” Id.
_____________________
1987); Garzaro v. Univ. of P.R., 575 F.2d 335, 337 (1st Cir. 1978). Furthermore, we know
that Congress did not intend for our jurisdiction to include appeals of injunctions between
the liability and remedy phases because Congress expressly provided for such appeals in
the admiralty context in Section 1292(a)(3), without granting such jurisdiction in any other
arena. See 28 U.S.C. § 1292(a)(3); see also Beluga Holding, Ltd. v. Com. Cap. Corp., 212 F.3d
1199, 1203 (11th Cir. 2000); cf. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 113–14
(2009) (emphasizing that “rulemaking, ‘not expansion by court decision’” is Congress’s
“preferred means for determining whether and when prejudgment orders should be
immediately appealable” (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 48
(1995))).
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Our own settled law reflects these same principles. “‘[A] final
decision is one by which a district court disassociates itself from a case’ and
‘terminates an action.’ Accordingly, a final order must also specify the
remedies that the victorious plaintiffs will receive.” Hignell-Stark v. City of
New Orleans, 46 F.4th 317, 329–30 (5th Cir. 2022) (alteration adopted)
(quoting Gelboim v. Bank of Am. Corp., 574 U.S. 405, 408–09 (2015)); see also
Gross v. Keen Grp. Sols., L.L.C., 18 F.4th 836, 839–40 (5th Cir. 2021) (“For
purposes of Section 1291 a decision is final only if it ‘ends the litigation on
the merits and leaves nothing for the court to do but execute judgment.’”
(quoting Cook v. City of Tyler, 974 F.3d 537, 539 (5th Cir. 2020))); Ueckert v.
Guerra, 38 F.4th 446, 450 (5th Cir. 2022).
The Remedial Order neither ended the litigation to divorce the district
court from this case nor specified the remedies that could follow. To the
contrary, the Remedial Order expressly contemplates further action at the
district court in a series of at least seven steps. It provides first that the parties
must meet and confer and then submit names of proposed special masters.
After those proposals, the district court would appoint special masters. 3 Only
after they had been appointed would the parties be required to cooperate with
the special masters and provide them access to the penitentiary. And then,
after the special masters reviewed the facility’s current conditions and
operations, they would submit a proposed remedial plan to the district court.
At that point, the parties would have an opportunity to file proposed
amendments to the plan. Then, finally, the district court might issue a
_____________________
3
I use the plural “special masters” for readability because it is consistent with the
district court’s order, but, in not reaching the merits, I express no opinion on the parties’
arguments about, or the majority’s analysis of, whether a singular special master or multiple
special masters would be appropriate in this case.
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remedy in this case. 4 With over a half dozen steps before a final order would
require the defendants to change their practices, the district court clearly
anticipated this litigation continuing before it.
Rather than engage with this well-established jurisprudence, the
majority finds and magnifies a footnote from an opinion that we have never
applied to assert jurisdiction under Section 1291. 5 See Morales v. Turman, 535
F.2d 864, 867 n.6 (5th Cir. 1976), rev’d on other grounds, 430 U.S. 322 (1977). 6
Morales is not factually applicable to this case. There, the district court’s
order required “that any plan submitted must be consistent with the
minimum requirements laid out in its opinion.” Id. Our court found that the
“minimum standards” were not “mere guidelines subject to further
negotiation by the parties.” Id. By contrast, here, the plan to be submitted
after investigations of the facility would be subject to review and proposed
amendments by the parties—as well as an additional consultation between
_____________________
4
The majority distorts the Remedial Order by insisting that it directs special
masters to “cure and eliminate” constitutional violations. Only after the district court had
entered a final remedial plan, however, would the special masters be tasked with monitoring
“implementation of” that plan “to cure and eliminate the violations found in the Court’s
Liability Ruling and Remedial Ruling.”
5
In its fifty-year history, Morales has been used in discussing appellate jurisdiction
just twice, and in both instances, only in finding jurisdiction under Section 1292(a)(1). See
United States v. Texas, 601 F.3d 354, 362 (5th Cir. 2010); Johnson v. Gambrinus Co., 116
F.3d 1052, 1057 (5th Cir. 1997).
6
Two years after Morales, we reflected on finality for appeals in Freeman v.
Califano, 574 F.2d 264, 266 (5th Cir. 1978) (per curiam): “Finality as a condition of review
is an historic characteristic of federal appellate procedure.” In doing so, we noted that
“judicial administration must not be leaden-footed. Its momentum would be arrested by
permitting separate review of the component elements in a unified cause.” Id. Here, the
district court has ensured careful consideration of this case with “years of discovery, 21
days of trial, and two site visits to Angola by the Court,” which might eventually culminate
in a remedial plan. Lewis, 701 F. Supp. 3d at 378 (footnotes omitted). Our intervention
halted that progress and has created great additional delay.
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the parties “in an effort to agree upon proposed amendments”—before an
implementing order from the district court. Additionally, the “minimum
standards” in Morales were “extremely detailed” and included requiring the
facility to administer specific types of IQ tests, to enlist a language
pathologist, and to hire psychologists with certain degrees. Morales v.
Turman, 562 F.2d 993, 997 (5th Cir. 1977); see also Parker v. Hooper, 128 F.4th
691, 698 (5th Cir. 2025) (per curiam). Unlike the order in Morales, the
Remedial Order does not establish minimum standards; it only identifies the
constitutional violations that an eventual remedial plan would target, taking
into account developments at the facility after the Remedial Opinion and
Remedial Order were issued. See Parker, 128 F.4th at 699 & n.8.
Next, on the persuasive authority front, the majority acknowledges
that its inversion of Section 1291’s constraint into an expansive new rule of
interlocutory appellate intervention has been rejected by our sister circuits.
But the majority overlooks the depth of the conflict we create by citing only
Ninth Circuit case law. At least six other circuits also counsel against
asserting jurisdiction. For example, in Groseclose v. Dutton, 788 F.2d at 358–
61, the Sixth Circuit held that neither Section 1291 nor Section 1292
conferred appellate jurisdiction over an order requiring the parties to submit
“the name of an individual to serve as special master” and “a remedial plan”
for improving conditions of confinement for prisoners sentenced to death.
The court reasoned that the parties could use “a variety of alternatives” to
improve conditions, leaving significant case development for the district
court to handle before an appeal would be appropriate. Id. at 360; see also
Navarro-Ayala v. Hernandez-Colon, 956 F.2d 348, 350–51 (1st Cir. 1992);
Taylor, 288 F.2d at 602–03; Inmates of Allegheny Cnty. Jail v. Wecht, 874 F.2d
147, 155–56 (3d Cir. 1989), vacated on other grounds, 493 U.S. 948; El-Tabech
v. Gunter, 992 F.2d 183, 185 (8th Cir. 1993); Jackson v. Fort Stanton Hosp. &
Training Sch., 964 F.2d 980, 987–89 (10th Cir. 1992).
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As those circuits’ cases—and our own precedent—demonstrate,
“[t]he effect of [Section 1291] is to disallow appeal from any decision which
is tentative, informal or incomplete. . . . So long as the matter remains open,
unfinished or inconclusive, there may be no intrusion by appeal.” Cohen, 337
U.S. at 546. In its appetite to turn what is non-final into something final in
order to dead-end the district court’s efforts to uphold the Constitution, the
majority fails to acknowledge, much less apply, the three-prong test that the
Supreme Court painstakingly requires before intermediate appellate courts
can enter, and invalidate, midstream, district court proceedings.
Under Cohen, only a “narrow class” of non-final orders is appealable,
and only when an intermediate appeal serves “the interest of ‘achieving a
healthy legal system.’” Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
863, 867 (1994) (quoting Cobbledick v. United States, 309 U.S. 323, 326
(1940)); see also Cohen, 337 U.S. at 546–47. Those orders must satisfy three
conditions: they must (1) be “conclusive,” (2) “resolve important questions
completely separate from the merits,” and (3) “render such important
questions effectively unreviewable on appeal from final judgment in the
underlying action.” Digit. Equip. Corp., 511 U.S. at 867. Failure on any one
of the Cohen prongs is “fatal.” GEO Grp., Inc. v. Menocal, 146 S. Ct. 774, 781
(2026).
Our court’s new rule of sweeping and interventionist appellate
jurisdiction fails all three.
The Remedial Order immediately falters on the first two prongs.
There has been no conclusive determination as to the remedies in this case,
and while the merits of this case involve substantial rights, the non-final
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Remedial Order does not. 7 As discussed above, it contemplates that the
parties meet and confer and submit nominations for special masters who,
eventually, will submit information and recommendations to the district
court. To be crystal clear, there is no current legal order imposing any
obligation on the defendants to change any aspect of their prison medical
care.
On the third and final prong, our court’s premature dictate of an
outcome not only overlooks that appellate review would of course exist after
a final judgment, but also actually removes an additional layer of appellate
review at the district court level. Even accepting the majority’s premise that
the special masters contemplated in the Remedial Order must be within the
PLRA, those special masters are “appointed by a Federal court pursuant to
Rule 53 of the Federal Rules of Civil Procedure.” 18 U.S.C. § 3626(g)(8).
Rule 53 guarantees parties de novo review of a special master’s findings
before the district court. See Fed. R. Civ. P. 53(f)(3); see also Fid. Tr. Co.
v. Bd. of Educ., 174 F.2d 642, 645 (7th Cir. 1949) (holding that an order
providing for reference to a special master was not an appealable final order
because it “clearly contemplated further action by the court”); Sick v. City of
Buffalo, 574 F.2d 689, 692–94 (2d Cir. 1978).
_____________________
7
The majority seems to see diminution of substantial rights in meeting and
conferring and giving special masters access to the penitentiary. Like the panel majority, I
see these requirements as more akin to a discovery order. Parker, 128 F.4th at 696–97. The
majority reasons that the Remedial Order is final and distinct from a discovery order
because the parties are “likely subject to contempt” if they disobey the order, but the
possibility of contempt does not indicate finality or an injunctive quality. It is well
established that a finding of contempt is required before a party can appeal a discovery
order. See, e.g., Piratello v. Philips Elecs. N. Am. Corp., 360 F.3d 506, 508 (5th Cir. 2004)
(per curiam) (“[A] party that wishes to immediately appeal a discovery order ‘must first
refuse compliance, be held in contempt, and then appeal the contempt order.’” (alteration
adopted) (quoting Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992))).
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The Remedial Order acknowledges this additional review and permits
the parties to submit amendments to the special masters’ proposed remedial
plans, which the district court would review before entering any “Orders
necessary and appropriate to effect remedies.” One irony of this case is that
the majority repeatedly faults the district court for failing to adequately
consider the improvements the defendants have already made, but the special
masters’ assessment would necessarily consider those improvements as they
examined current conditions and practices. Indeed, the district court’s order
was patient and protective of Louisiana’s insistence that it could show it had
already rectified its dire prison conditions. The district court denied the
plaintiffs’ request for immediate remedial intervention after Louisiana
contended that it could show its current conditions militated against remedial
measures. But the majority mistakes district court restraint for finality.
Finally, and most concerning, the majority downplays its own
adventurism by saying we will only deploy muscular appellate
interventionism against district court inquiries into constitutional
violations—before present facts are confirmed and appropriate remedies are
issued—when those violations are institutional in breadth. Thus, our new
exception to Section 1291’s constraint against appellate intervention will only
apply, it seems, when constitutional violations are particularly egregious and
widespread because they are institutionally entrenched and lasting. 8
Section 1291 is not a weapon for an appellate court to invalidate
ongoing, responsible district court litigation it disfavors. Cf. M.D. ex rel.
_____________________
8
This inversion of Section 1291 is most disturbing when the majority cites, as
purported support, a law review article that describes our court’s opposite effort,
intervening to protect constitutional rights against institutional violations.
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Stukenberg v. Abbott, 132 F.4th 770, 773–75 (5th Cir. 2025) (dissenting from
denial of rehearing en banc).
I fear that our decision today not only upends Supreme Court and
circuit law but also guarantees the harm Section 1291 exists to prevent. Our
court now has given itself license to intervene, supplanting the role of district
courts, to stop inquiry into the worst constitutional violations. After scant
months of en banc attention to appellate jurisdiction, we undermine years of
fact-finding of constitutional violations that led to multiple preventable
deaths and significantly more unfathomable pain and suffering. 9 One
harrowing example is the death of a 28-year-old kept in a segregation unit
who made an emergency request for medical attention while suffering from
stomach and back pain. Lewis, 701 F. Supp. 3d at 406. He was not given
treatment, and eight hours later, he was found “collapsed on the floor,
foaming at the mouth, with a temperature of 108.2 degrees.” Id. “No
attempt was made to cool the patient with ice.” Id. The defendants excused
their inaction, claiming that “by the time EMTs arrived in the patient’s cell,
he ‘was essentially a dead man.’” Id. Even Louisiana did not ask us to unfind
these facts.
***
At bottom, this appeal concerns a district court order instructing par-
ties to meet and confer. If that directive constitutes a final order bestowing
jurisdiction on our en banc court to take over ongoing proceedings, then dis-
trict courts have become obsolete.
_____________________
9
See, e.g., infra Appendix.
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APPENDIX
As noted in Footnote 1, the following text is copied from the district
court’s Remedial Opinion:
In the following pages, the Court will make detailed and extensive
findings of the callous and wanton disregard for the medical care of inmates
at Angola. The finding is that the “care” is not care at all, but abhorrent cruel
and unusual punishment that violates the United States Constitution. These
are but a few examples:
• After a 3-month delay in getting a CT scan that was ordered when a
chest x-ray revealed a suspected malignancy, the CT confirmed the
suspicious lesion, and the patient was referred to a pulmonologist. Yet
the patient did not see a pulmonologist for another 4 months. After
finally seeing the pulmonologist, twice the pulmonologist ordered a
biopsy which the patient never received. The pulmonologist charted
his frustration:
“the biopsy didn’t occur, what gives?”
***
“strongly suggest immediate IR [interventional radiology],
FNA [fine needle aspiration] of left upper lobe nodule.”
Yet a biopsy was never completed. More than a year after the initial
suspicious x-ray findings, the patient was hospitalized for a partial lung
removal due to cancer, after which the patient was ordered to begin
chemotherapy. Commencement of chemotherapy was also
inexplicably delayed. The patient died.
• A 50-year-old inmate made seven requests for medical attention for
escalating back pain that went unanswered. The man became
incontinent and bed ridden. When medics finally evaluated him, he
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was found lying on the floor. He was finally seen by a doctor but died
within hours. His autopsy revealed a large liver abscess and resulting
spinal cord compression.
• An inmate underwent a colectomy due to untreated Chron’s disease.
Angola failed to refer him to gastroenterologist, failed to provide
indicated immunosuppressive therapy, and failed perform to adequate
physical examinations. The patient died.
• An inmate complained of chest pain for more than 16 months. When
he was finally referred to a thoracic surgeon, a biopsy of a pulmonary
nodule was ordered. When finally performed, the biopsy revealed
adenocarcinoma of the lung. The patient died a week later.
• An inmate complained for nearly three years of symptoms consistent
with laryngeal cancer, yet he saw an Angola physician only a few times.
After 33 months of constant complaints, he was diagnosed with
laryngeal cancer from which he subsequently died.
• A 65-year-old man with a history of diabetes, severe coronary artery
disease and heart failure presented seven times in a single month with
fevers as high as 103.6 degrees, altered mental state, and complaints
of chest tightness. At one point, while exhibiting an altered mental
state and a fever of 103.6 degrees, he was confined to a “locked room”
in the infirmary with the “hatch up,” after which he was not seen by
physician for three days. Two days after being discharged from the
infirmary, he was found vomiting in his cell. Angola doctors ordered
EMTs not to transport the sick man to the hospital. He died in his cell
the next day.
• An inmate made an emergency sick call for severe flank pain. An x-ray
and physical exam yielded no diagnosis. The pain progressed to the
point that the man could not get out of bed, yet Angola’s medical
director refused EMT requests to transfer him to a hospital. Three
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days later he was found unresponsive in his cell. He died the following
day.
• An inmate with a tracheotomy presented with a progressively
worsening cold and made repeated emergency sick calls. The inmate
was seen in Angola’s Acute Treatment Unit (“ATU”) multiple times
but each time he was simply returned to his dormitory where he finally
died.
• An inmate experienced two years of abdominal pain and weight loss
that was unheeded and untreated leading to hospitalization and a
diagnosis of advanced stage colon cancer, resulting in a preventable
death.
• An inmate suffered repeated and extensive delays in getting a
colonoscopy that was ordered which resulted in emergency treatment,
two hospital stays, and five surgical interventions - all avoidable.
• The failure to administer ordered Statin drugs to an inmate resulted
in a heart attack and stroke requiring the inmate’s repeated avoidable
hospitalizations.
Lewis v. Cain, 701 F. Supp. 3d 361, 378–80 (M.D. La. 2023) (alterations in
original) (footnotes omitted).
55