Petition for Writ of Certiorari — Elzie Ball, et al., Petitioners v. James M. LeBlanc, Secretary, Louisiana Department of Public Safety and Corrections, et al.
Supreme Court briefAug 6, 2018
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IN THE
ELZIE BALL, NATHANIEL CODE, AND JAMES MAGEE,
Petitioners,
v.
JAMES M. LEBLANC ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Mercedes Montagnes
THE PROMISE OF
JUSTICE INITIATIVE
636 Baronne St.
New Orleans, LA 70113
Tejinder Singh
Counsel of Record
Erica Oleszczuk Evans
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
Nilay U. Vora
THE VORA LAW FIRM, P.C. (202) 362-0636
tsingh@goldsteinrussell.com
201 Santa Monica Blvd.
Suite 300
Santa Monica, CA 90401 Steven Scheckman
SCHIFF, SCHECKMAN
& WHITE LLP
650 Poydras St., Suite 2760
New Orleans, LA 70130
QUESTION PRESENTED
The Prison Litigation Reform Act of 1995 (PLRA)
provides that before a district court may order
prospective relief with respect to prison conditions, it
must find “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).
Petitioners are three prisoners who, due to
medical conditions, are uniquely susceptible to serious
heat-related injury. After a trial, the district court
found overwhelming evidence that respondents, who
operate the prison, had violated petitioners’ Eighth
Amendment rights by housing them in excessively hot
cells (often more than 100 degrees Fahrenheit)—and
found that the only way to remedy the violation was
for the prison to keep the heat index below 88 degrees.
Respondents proposed to install air conditioning.
The Fifth Circuit affirmed that respondents were
violating the Eighth Amendment, but held that the
PLRA prohibits the district court from ordering a
maximum heat index, and prohibits air conditioning.
The court based its decision on circuit precedent
endorsing lesser remedies. Those remedies were then
tried, but they failed to cure the violation, so the
district court again ordered a maximum heat index—
achievable without air conditioning. Citing the
mandate rule, the Fifth Circuit reversed.
The Question Presented is whether the PLRA’s
tailoring requirement prohibits a district court from
ordering a prison to maintain a maximum heat index
to remedy a constitutional violation caused by heat.
ii
PARTIES TO THE PROCEEDING
Petitioners are Elzie Ball, Nathaniel Code, and
James Magee.
Respondents are James M. LeBlanc, the Secretary
of the Louisiana Department of Public Safety and
Corrections; Darrell Vannoy, Warden of the Louisiana
State Penitentiary in Angola, Louisiana; James Cruz,
Warden of Death Row at the Louisiana State
Penitentiary in Angola, Louisiana; and the Louisiana
Department of Public Safety and Corrections. The
individual respondents were sued below in their
official capacities.
iii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDING ............................ ii
TABLE OF AUTHORITIES ....................................... iv
PETITION FOR A WRIT OF CERTIORARI .............. 1
OPINIONS BELOW .................................................... 1
JURISDICTION........................................................... 1
RELEVANT STATUTORY PROVISIONS ................. 1
STATEMENT OF THE CASE..................................... 3
REASONS FOR GRANTING THE WRIT ................ 13
I.
The Decision Below Conflicts With
Other Circuits’ Precedents ............................. 14
II.
The Question Presented Is Important
And Recurring ................................................. 18
III. The Decision Below Conflicts With This
Court’s Decisions............................................. 20
IV. This Case Is An Ideal Vehicle To Decide
The Question Presented ................................. 28
CONCLUSION .......................................................... 32
APPENDIX A: Opinion of the Court of Appeals
(5th Cir. Jan. 31, 2018) .............................................. 1a
APPENDIX B: Opinion of the District Court
(M.D. La. Dec. 22, 2016) .......................................... 24a
APPENDIX C: Opinion of the Court of Appeals
(5th Cir. July 8, 2015) .............................................. 60a
APPENDIX D: Opinion of the District Court
(M.D. La. Dec. 19, 2013) .......................................... 86a
APPENDIX E: Order of the Court of Appeals
(5th Cir. Mar. 9, 2018) ........................................... 207a
iv
TABLE OF AUTHORITIES
Cases
Amado v. Microsoft Corp.,
517 F.3d 1353 (Fed. Cir. 2008) .............................. 31
Benjamin v. Fraser,
343 F.3d 35 (2d Cir. 2003) ..................................... 16
Benjamin v. Horn,
2008 WL 2462027 (S.D.N.Y. June 18, 2008) ......... 15
Benjamin v. Schriro,
370 F. App’x 168 (2d Cir. 2010) ............................. 16
Benjamin v. Shriro,
2009 WL 3464286 (S.D.N.Y. Oct. 26, 2009) .......... 15
Brown v. Plata,
563 U.S. 493 (2011) .............................. 20, 21, 22, 23
Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800 (1988) ................................................ 29
Cole v. Collier,
2018 WL 2766028
(S.D. Tex. June 8, 2018) ............................. 24, 25, 26
Estelle v. Gamble,
429 U.S. 97 (1976) .................................................. 23
Gates v. Cook,
376 F.3d 323 (5th Cir. 2004) .......................... passim
Graves v. Arpaio,
623 F.3d 1043 (9th Cir. 2010) .......................... 14, 15
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1916) ................................................ 29
Jones-El v. Berge,
374 F.3d 541 (7th Cir. 2004), aff’g
2004 WL 420157 (W.D. Wis. Feb. 26, 2004) .... 16, 17
v
Major League Baseball Players Ass’n v. Garvey,
532 U.S. 504 (2001) ................................................ 29
Mercer v. Theriot,
377 U.S. 152 (1964) ................................................ 29
Messenger v. Anderson,
225 U.S. 436 (1912) ................................................ 29
Rhodes v. Chapman,
452 U.S. 337 (1981) .......................................... 13, 24
Trop v. Dulles,
356 U.S. 86 (1958) .................................................. 23
United States v. Swift & Co.,
286 U.S. 106 (1932) ................................................ 31
United States v. United Shoe Mach. Corp.,
391 U.S. 244 (1968) ................................................ 31
Yates v. Collier,
868 F.3d 354 (5th Cir. 2017) .................................. 20
Constitutional Provision
U.S. Const. amend. VIII .................................... passim
Statutes
Prison Litigation Reform Act of 1995,
Pub. L. No. 104-134, §§ 801-810,
110 Stat. 1321, 1321-66 to 1321-77 (1996) .............. 6
18 U.S.C. § 3626(a)(1).............................................. 2
18 U.S.C. § 3626(a)(1)(A) ............................... 6, 7, 15
18 U.S.C. § 3626(b)(3)............................................ 15
28 U.S.C. § 1254(1) ...................................................... 1
Regulation
10A N.C. Admin. Code 14J.1217(a) .......................... 24
vi
Other Authorities
Associated Press, Kansas to Air-Condition Next
Prison as Heat Becomes Concern, KMUW
(Aug. 14, 2017), http://kmuw.org/post/kansasair-condition-next-prison-heat-becomesconcern .................................................................... 24
Maurice Chapman, “Cooking Them to Death”:
The Lethal Toll of Hot Prisons, The Marshall
Project (Oct. 11, 2017),
https://www.themarshallproject.org/2017/10/
11/cooking-them-to-death-the-lethal-toll-ofhot-prisons ........................................................ 19, 20
Jeff Edwards & Scott Medlock, Air Conditioning
Is a Human Right, Time (July 21, 2016),
http://time.com/4405338/air-conditioninghuman-right/ ........................................................... 24
Daniel W.E. Holt, Heat in US Prisons and Jails
(2015), https://web.law.columbia.edu/sites/
default/files/microsites/climate-change/holt_-_
heat_in_us_prisons_and_jails.pdf ............................ 18
Camilo Mora et al., Global Risk of Deadly Heat,
7 Nature Climate Change 501 (2017).................... 23
Nat’l Weather Serv., Heat Index,
https://www.weather.gov/safety/heat-index
(last visited Aug. 3, 2018) ........................................ 3
Nat’l Weather Serv., Summer Weather Safety,
https://www.weather.gov/media/lsx/wcm/Heat/
SummerWeatherSafetySummary2017.pdf
(last visited Aug. 3, 2018) ...................................... 19
vii
Press Release, Ctrs. for Disease Control &
Prevention, CDC Urges Everyone: Get Ready
To Stay Cool Before Temperatures Soar
(June 6, 2013), https://www.cdc.gov/media/
releases/2013/p0606-extreme-heat.html ............... 19
The Sentencing Project, State Data Map:
State Imprisonment Rate (2016),
https://www.sentencingproject.org/the-facts/#
map ......................................................................... 18
Stephen M. Shapiro et al.,
Supreme Court Practice (10th ed. 2013)................ 29
U.S. Census Bureau, Number of Multifamily
Units Completed with Air-Conditioning
(2017), https://www.census.gov/construction/
chars/pdf/mfu_aircond.pdf .................................... 23
PETITION FOR A WRIT OF CERTIORARI
Petitioners Elzie Ball, Nathaniel Code, and James
Magee respectfully petition for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Fifth Circuit.
OPINIONS BELOW
The Fifth Circuit’s opinion (Pet. App. 1a-23a) is
reported at 881 F.3d 346. The district court’s opinion
(Pet. App. 24a-59a) is reported at 223 F. Supp. 3d 529.
The Fifth Circuit’s opinion in the first appeal in this
case (Pet. App. 60a-85a) is reported at 792 F.3d 584. A
prior opinion of the district court in this case (Pet. App.
86a-206a) is reported at 988 F. Supp. 2d 639.
JURISDICTION
The judgment of the court of appeals was entered
on January 31, 2018. The court denied a timely
petition for rehearing en banc on March 9, 2018 (Pet.
App. 207a). On May 29, 2018, Justice Alito extended
the time within which to file a petition for a writ of
certiorari to and including July 9, 2018. On June 28,
2018, Justice Alito further extended the time to
August 6, 2018. No. 17A1307. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
The Prison Litigation Reform Act of 1995
provides, in relevant part:
(a) REQUIREMENTS FOR RELIEF.—
(1) PROSPECTIVE RELIEF.—
(A) Prospective relief in any civil action with
respect to prison conditions shall extend no
further than necessary to correct the violation of
2
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. The court shall give substantial weight to
any adverse impact on public safety or the
operation of a criminal justice system caused by
the relief.
(B) The court shall not order any prospective
relief that requires or permits a government
official to exceed his or her authority under State
or local law or otherwise violates State or local
law, unless—
(i) Federal law requires such relief to be
ordered in violation of State or local law;
(ii) the relief is necessary to correct the
violation of a Federal right; and
(iii) no other relief will correct the violation of
the Federal right.
(C) Nothing in this section shall be construed to
authorize the courts, in exercising their remedial
powers, to order the construction of prisons or the
raising of taxes, or to repeal or detract from
otherwise applicable limitations on the remedial
powers of the courts.
18 U.S.C. § 3626(a)(1).
3
STATEMENT OF THE CASE
1. Located about an hour north of Baton Rouge,
Louisiana State Penitentiary in Angola is the largest
maximum security prison in the United States.
Angola’s death row facility was built in 2006. Pet. App.
60a-61a. Spanning 25,000 feet, the facility includes
four housing wings, each containing two tiers. It also
has offices, visitation rooms, medical facilities, and
staff facilities. All of these places—except the housing
tiers where inmates are kept—are air conditioned. Id.
at 62a.
To say that South Louisiana gets hot in the
summer understates the matter. It is hotter than
Washington, D.C., and the combined heat and relative
humidity regularly produce heat index values that
give rise to “extreme caution” or even “danger” as
categorized by the National Oceanic and Atmospheric
Administration (NOAA). Pet. App. 115a-29a (reporting
temperature data).1 At these values, prolonged exposure
to heat can cause serious illness or even death,
especially to people who are more vulnerable to
overheating—including the elderly and individuals
with chronic medical conditions. Id. at 140a.
Unfortunately, confinement at Angola does not
shield the inmates from summer heat; indeed, the
1
NOAA has prepared a chart showing these levels. See Nat’l
Weather Serv., Heat Index, https://www.weather.gov/safety/heatindex (last visited Aug. 3, 2018). Heat index values between 91
and 103 correspond to “extreme caution,” and values from 103
and 124 correspond to “danger.” Ibid. This data was presented to
the district court, which cited to it. Pet. App. 115a & n.37 (citing
a prior version of the Web site).
4
prison’s architecture exacerbates the problem.
According to data collected by a neutral third-party
expert in this case, the heat index in the tiers regularly
ventures into dangerous territory, exceeding “104
degrees at various times during the data collection
period” (July 15 through August 5, 2013). Pet. App.
113a-14a (footnote omitted).2 Moreover, “the temperature,
humidity, and heat index inside the death row tiers
were, more often than not, the same or higher than the
temperature, humidity, and heat index recorded
outside of the death row tiers.” Id. at 114a (emphasis
omitted). Indeed, the tier walls “were hot to the touch.”
Id. at 131a.
Before this litigation began, prisoners had no
refuge from this sweltering heat. Inmates were kept in
small, windowless cells for 23 hours a day. During the
remaining hour, inmates were permitted to go outside
to the recreation cage (but only four times a week),
spend time in the tier (which also lacks air
conditioning), and/or take a hot shower. Pet. App.
102a-03a. Only during this one-hour period could
inmates directly access the 48- or 68-ounce ice chest—
if it was not broken or empty—available in each tier.
Ibid. For the remaining 23 hours, inmates depended
for the distribution of ice on guards or other inmates,
2
A report prepared by a Special Master and submitted to the
district court on June 1, 2018, which is based on temperature
data from 2016, 2017, and part of 2018, indicates that “June
through September are the critical months in terms of excessive
heat in the Death Row tiers at Angola. In fact, the heat index is
excessive (between 88 and 103 degrees Fahrenheit) almost every
day of those four months.” Dist. Ct. Doc. 461, at 2 (emphasis
omitted).
5
who may and did refuse inmates’ requests. Id. at
103a-04a.
Petitioners Elzie Ball, Nathaniel Code, and James
Magee suffer from diagnosed medical conditions
and/or are prescribed medications that render them
particularly susceptible to heat and less capable of
thermoregulation. Pet. App. 35a. They are accordingly
especially at risk for heat-induced illness or death. Id.
at 2a, 18a, 26a-27a.
In the course of this litigation, petitioners
experienced heat-related symptoms. All three
petitioners
report
dizziness,
lightheadedness,
headaches, profuse sweating, and difficulty sleeping.
Pet. App. 108a-12a. Petitioners Ball and Code, who are
both in their sixties, also report unexplained tingling
sensations throughout their body, as well as swelling
and pain. Id. at 35a-36a, 108a-10a. Ball also
experiences blood pressure spikes in the summer, and
respondents’ staff physician commented that sooner or
later, Ball “is going to stroke out.” Id. at 108a.
Petitioner Magee also experiences nausea and
sometimes has trouble breathing. Id. at 111a-12a.
All three petitioners are at serious risk of harm.
Indeed, petitioners’ expert, Dr. Suzi Vassallo, provided
“largely uncontroverted” testimony that petitioners
were at “imminent risk of severe physical harm”
including stroke, heat stroke and myocardial
infarction. Pet. App. 147a-49a. Dr. Vassallo further
testified that the extreme heat at Angola worsened
petitioners’ underlying medical conditions. Id. at
141a-42a.
2. In 2013, after exhausting their administrative
remedies, petitioners sued respondents for violations
6
of the Eighth Amendment based on exposure to
excessive heat without adequate remedial measures.
Pet. App. 63a. In addition to declaratory relief,
petitioners sought an injunction requiring that the
heat index be maintained at a safer level of 88 degrees
Fahrenheit. Id. at 89a.
To be clear: a heat index of 88 degrees is not
comfortable. As Dr. Vassallo explained, “none of us
would tolerate being in a setting at 88 degrees heat
index.” Pet. App. 89a-90a n.8. But at any value above
88 degrees, peer-reviewed scientific literature
indicates that “the morbidity and mortality from heat
rises exponentially.” Ibid.
After a bench trial, the district court determined,
based on “overwhelming evidence,” that the extreme
heat in Angola subjected petitioners to a substantial
risk of serious harm. Pet. App. 191a. The court also
found that respondents had knowledge of but
disregarded the risk, thus acting with deliberate
indifference. Id. at 159a-62a. Accordingly, the court
ruled that “the conditions of confinement at Angola’s
death row constitute cruel and unusual punishment,
in violation of the Eighth Amendment.” Id. at 191a.
In ordering relief, the district court was mindful
of the requirements of the Prison Litigation Reform
Act of 1995 (PLRA), Pub. L. No. 104-134, §§ 801-810,
110 Stat. 1321, 1321-66 to 1321-77 (1996), which
provides that prospective relief with respect to prison
conditions “shall extend no further than necessary to
correct the violation of the Federal right of a particular
plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A). Thus,
the statute requires a court approving prospective
relief to find “that such relief is narrowly drawn,
extends no further than necessary to correct the
7
violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal
right.” Ibid.
In compliance with the PLRA, the district court
noted that it was “uncontested that Defendants may
move any death row inmate to a different tier and/or
cell at any time,” such that “a remedy aimed at
ameliorating the heat conditions throughout the death
row facility is necessary to adequately vindicate
Plaintiffs’ rights, and is not overbroad.” Pet. App.
200a-01a. The court thus enjoined respondents to,
among other things, “immediately develop a plan to
reduce and maintain the heat index in the Angola
death row tiers at or below 88 degrees Fahrenheit,” the
temperature beyond which Dr. Vassallo stated that
the risk for heat-related illnesses rises exponentially—
and to maintain that heat ceiling from April 1 through
October 31. Id. at 90a, 201a.
Based on the district court’s order, respondents
proposed in their initial Heat Remediation Plan to
“install[] air-conditioning throughout the death-row
facility as a remedy to the constitutional violations”
that the court had found. Pet. App. 24a. Although the
court had not specifically ordered the installation of
air conditioning, respondents concluded that it was
the best way to comply with the court’s order.
3. Respondents also appealed the district court’s
judgment. The United States filed an amicus brief
supporting petitioners, arguing that the district court
had correctly determined that the conditions at Angola
violate the Eighth Amendment.
The Fifth Circuit agreed that a violation had
occurred, affirming the district court’s holding that
8
respondents violated the Eighth Amendment by
“housing these prisoners in very hot cells without
sufficient access to heat-relief measures, while
knowing that each suffers from conditions that render
him extremely vulnerable to serious heat-related
injury.” Pet. App. 75a.
The court of appeals nevertheless vacated the
injunction on the grounds that its scope violated the
PLRA. Pet. App. 61a. To determine the scope of
permissible relief, the court did not rely principally on
the facts of this case. Instead, it cited a prior Fifth
Circuit case, Gates v. Cook, 376 F.3d 323 (5th Cir.
2004). In Gates, the district court found an extreme
risk of heat-related illness in a Mississippi prison, and
ordered the prison “to provide fans, ice water, and
daily showers when the heat index is 90 degrees or
above.” Id. at 339. The Fifth Circuit in Gates affirmed
the injunction insofar as it applied to the relevant part
of the prison, holding that the district court’s findings
were not clearly erroneous. Id. at 339-40.
Here, the Fifth Circuit treated the relief afforded
in Gates as a ceiling under the PLRA. Pet. App. 61a.
Thus, the court held that because the district court in
Gates had not required the prison to lower the heat
index, the district court in this case was not permitted
to do so. Id. at 82a. The court of appeals further held
that because the district court’s order had led to the
installation of air conditioning—which was not
mandated in Gates—the relief in this case was
“unnecessary to correct the Eighth Amendment
violation” as a matter of law. Ibid. Instead, the Fifth
Circuit held that the district court was limited on
remand to “the types of remedies this court endorsed
in Gates.” Ibid. It offered examples, such as diverting
9
cool air from the guards’ pod into the tiers, allowing
inmates to access air conditioning during tier time,
allowing daily cool showers, providing cold drinking
water and ice at all times, supplying personal ice
containers and fans, and installing additional ice
machines. Id. at 84a.
Judge Reavley dissented. He would have upheld
the injunction, “which in principal only orders the heat
index in the Angola death row tiers to be maintained
below 88 degrees.” Pet. App. 85a (Reavley, J.,
dissenting).
4. On remand, respondents submitted a Second
Plan to the district court. Pet. App. 28a. The plan
implemented some of the remedies discussed in the
Fifth Circuit’s opinion, allowing petitioners to take
cold showers, have an individual fan, and have more
ice. Id. at 28a-29a. Respondents asserted that
diversion of cool air from guard pod, however, was
infeasible. See id. at 29a-30a.
Unfortunately, the Second Plan failed to remedy
the constitutional violation, and petitioners continued
to experience heat-induced symptoms. Petitioners
thus sought modification of the plan in the district
court. Pet. App. 29a-30a.
In the background, respondents voluntarily
implemented a provisional Third Plan, Pet. App. 5a,
which expanded on the Second Plan by requiring the
State to:
(1) relocate plaintiffs to another tier, close to
the guards’ pod, (2) install an air vent in the
guards’ pod to divert cool air to plaintiffs’
cells, (3) set up a plastic curtain around
plaintiffs’ cells to trap the cool air, (4) provide
10
each plaintiff with an “IcyBreeze” unit, which
is essentially an ice chest that blows cold air,
and (5) regularly replenish the IcyBreeze
units with ice.
Id. at 6a. The district court found that “[t]he total cost
of implementing all of the measures pursuant to the
Third Plan was less than $2,000.” Id. at 44a.
5. Following two evidentiary hearings, the district
court found that “Plaintiffs continued to experience
heat-related symptoms during the implementation of
the Second Plan.” Pet. App. 35a. The court made
detailed factual findings, explaining why the features
of the Second Plan—whether considered individually
or in combination—were inadequate to “sufficiently
reduce the substantial risk of serious harm to
Plaintiffs as a result of their exposure to the conditions
of extreme heat present in Angola’s death-row tiers.”
Id. at 36a. Thus, the court considered the efficacy of
cold showers, id. at 43a-44a; fans, id. at 42a-43a; and
ice, id. at 43a—all in detail, aided by expert and
firsthand testimony, and concluded based on the
“compelling and uncontroverted expert testimony”
that the measures in the Second Plan, “whether
standing alone or in combination, ‘absolutely’ do not
reduce the substantial risk of serious harm to
Plaintiffs due to the conditions of extreme heat present
in Angola’s death-row tiers.” Id. at 51a-52a.
Based on this new testimony, the district court
found, as a matter of fact, that “[t]he only sufficient
means to reduce the substantial risk of serious harm
to Plaintiffs as a result of their exposure to the
conditions of extreme heat present in Angola’s deathrow tiers is to lower the temperature and heat indices
to which Plaintiffs are exposed.” Pet. App. 37a. That is
11
because, as Dr. Vassallo explained, the temperature
and heat index are the “cause of risk,” and the only
way to ensure safety in the prison was to address the
cause. Ibid. Based on these factual findings, the court
held that “[t]he only means to reduce the substantial
risk of serious harm to Plaintiffs, and thereby remedy
the Eighth Amendment violation in this case, is to
lower the temperatures and heat indices to which
Plaintiffs are exposed.” Id. at 53a.
The district court thus determined that the
Second Plan was inadequate, but the Third Plan was
sufficient to remedy the constitutional violation
“consistent with the limitations of the PLRA.” Pet.
App. 54a. Thus, “the measures implemented under the
Third Plan only afford relief to [petitioners] and no
other portion of the death-row population at Angola,”
and are no broader than necessary to remedy the
constitutional violation. Ibid. The court further
explained that in requiring respondents to maintain
the Third Plan, it was “not intruding upon the
province of prison officials, but rather ordering
Defendants merely to implement a Plan of their own
creation.” Id. at 55a. The court concluded that an
injunction was necessary, however, because there was
a real danger that without such an order, respondents
would revert to the insufficient measures of the
Second Plan. Id. at 56a-57a.
The district court thus ordered respondents to
“implement the remedial measures under the Third
Plan during any period in which the heat index in the
death-row tiers exceeds 88 degrees Fahrenheit.” Pet.
App. 57a.
6. Respondents again appealed, arguing that they
should not be required to maintain the Third Plan, and
12
contending that the Fifth Circuit’s prior opinion
foreclosed the use of a maximum heat index as part of
any remedy. Pet. App. 7a. Respondents’ principal
concern was that requiring them to maintain a
temperature ceiling would effectively require them to
install mechanical air conditioning—which would
impose an undue burden.
The Fifth Circuit rejected respondents’ arguments
that the measures in the Third Plan were
inappropriate or tantamount to air conditioning. Pet.
App. 12a-13a. But, citing the mandate rule, the Fifth
Circuit agreed with respondents that the district court
was not allowed to require the prison to maintain a
maximum heat index of 88 degrees. Id. at 9a-11a.
According to the court of appeals, its prior opinion had
squarely foreclosed that remedy as inconsistent with
Gates. Id. at 10a-12a. The Fifth Circuit also rejected
petitioners’ argument that new evidence (specifically
the evidence relating to the failure of the Second Plan,
which established that the Eighth Amendment
violation persisted), created an exception to the
mandate rule—holding that “the relevant testimony—
especially
Vassallo’s
critical
testimony—was
materially unchanged.” Id. at 9a. The court thus
reversed the order imposing the injunction and
ordered the district court to fashion new relief, without
incorporating a temperature ceiling into its analysis.
Id. at 16a.
Judge Higginson concurred in part and dissented
in part, explaining that “[t]o forbid the district court
from considering a maximum safe heat index is to
require that court to remedy the constitutional
violation that we have found exists . . . without
considering its cause.” Pet. App. 17a-18a (Higginson,
13
J., concurring in part and dissenting in part). The
“factual finding [that medically compromised
plaintiffs face a risk of serious harm when they are
exposed to heat indices above 88 degrees] must be
considered when the district court assesses whether
any heat-remediation plan is sufficient to remedy
[petitioners’] Eighth Amendment injury.” Id. at 18a.
Judge Higginson also highlighted the tension
between the majority’s categorical rule and this
Court’s precedents. Specifically, the notion that the
Fifth Circuit’s prior decision in Gates “set a ceiling for
permissible heat-relief measures in prisons,” Pet. App.
22a, conflicts with this Court’s pronouncement that
“[n]o static ‘test’ can exist by which courts determine
whether conditions of confinement are cruel and
unusual,” or absolves courts from considering the
“totality of the circumstances,” ibid. (quoting Rhodes
v. Chapman, 452 U.S. 337, 346 (1981); id. at 362-63
(Brennan, J., concurring in the judgment)).
7. Petitioners timely sought rehearing en banc,
which was denied. This petition followed.
REASONS FOR GRANTING THE WRIT
Certiorari should be granted for four reasons.
First, the Fifth Circuit’s categorical rejection of a
maximum heat index and air conditioning conflicts
with the decisions of at least three other courts of
appeals. Second, the Question Presented is important:
across the country, and especially in the South,
prisoners face unconstitutional exposure to oppressive
heat; if they do not have access to robust remedies,
many will be injured or die. Third, the decision below
is at odds with this Court’s precedents and
misconstrues the PLRA. Finally, this case provides an
14
ideal vehicle to address these issues. The district court
made detailed factual findings, teeing up the purely
legal question whether the Fifth Circuit correctly
interpreted the PLRA’s tailoring requirement.
I.
The Decision Below Conflicts With
Other Circuits’ Precedents.
The Fifth Circuit’s decision has two essential
attributes. First, it categorically rejects any rule
setting a maximum heat index as inconsistent with
the PLRA. Second, the court held that certain
remedies—specifically air conditioning—are never
permissible under the PLRA. Other courts of appeals
have rejected both of these propositions.
1. In Graves v. Arpaio, 623 F.3d 1043, 1049 (9th
Cir. 2010) (per curiam), the district court ordered that
any detainees taking psychotropic drugs could only be
housed in cells where the temperatures would “not
exceed 85° F,” because certain psychotropic drugs
make it impossible for detainees to regulate their own
body temperature, such that exposure to temperatures
above 85 degrees creates a substantial risk of serious
harm. The defendant argued that this relief was not
“narrowly tailored” because it applied to all detainees
taking psychotropic drugs, and not only those whose
medications affected their bodies’ ability to regulate
heat. Ibid.
The Ninth Circuit rejected the defendant’s
argument, explaining that “[t]he PLRA does not
require that prospective relief exactly map onto the
requirements of the Eighth Amendment. Rather, the
statute authorizes relief that is ‘necessary to correct’
the ongoing constitutional violation found by the
district court.” 623 F.3d at 1050 (quoting 18 U.S.C.
15
§ 3626(a)(1)(A), (b)(3)). Because the district court had
found, as a matter of fact, that the jail’s mental health
screening capabilities were inadequate to sort the
relevant prisoners, the court held that a narrower
remedy was “impracticable”; the Ninth Circuit
affirmed. Ibid.
There is no way to square the Ninth Circuit’s
holding in Graves with the decision below. Here, like
the plaintiffs in Graves, petitioners have medical
conditions that make them vulnerable to excessive
heat. Here, as in Graves, the district court determined
that the only way to address this substantial risk of
serious harm is to maintain the heat index at or below
a fixed level. Indeed, if anything, the relief ordered in
this case is narrower than the relief in Graves: the
injunction here protects only three inmates (as
opposed to all detainees taking psychotropic drugs)
and it takes effect only when the heat index reaches
88 degrees (as opposed to the temperature reaching
85). But where the Ninth Circuit affirmed the district
court’s injunction, the Fifth Circuit rejected the
narrower injunction in this case as overbroad.
2. The Second Circuit has heard a number of cases
about prison conditions in New York City jails. District
courts have required the jails to place heat-sensitive
inmates in air-conditioned housing any time the
temperature exceeds 85 degrees, and to ensure that
those air conditioning units cool the air to below 80
degrees. See Benjamin v. Shriro, 2009 WL 3464286, at
*9-10 (S.D.N.Y. Oct. 26, 2009); Benjamin v. Horn, 2008
WL 2462027, at *1 (S.D.N.Y. June 18, 2008)
(upholding as consistent with PLRA a Heat Order
consent decree requiring “heat sensitive” inmates to
move to air-conditioned housing when temperature
16
outside exceeded 85 degrees). Other orders require the
jail system to maintain the ventilation and heating
units in good working order because of extreme
temperatures. See Benjamin v. Fraser, 343 F.3d 35, 52
(2d Cir. 2003), overruled on other grounds by Caiozzo
v. Koreman, 581 F.3d 63 (2d Cir. 2009), in turn
overruled by Darnell v. Pineiro, 849 F.3d 17 (2d Cir.
2017); Benjamin v. Schriro, 370 F. App’x 168, 171-72
(2d Cir. 2010). All of these orders have been upheld as
consistent with the PLRA—and were terminated only
upon the defendants’ showing of compliance, subject to
ongoing monitoring.
Importantly, the Second Circuit has emphasized
that, “[a]lthough the [PLRA’s] need-narrownessintrusiveness requirement for prospective relief ‘might
at first glance seem to equate permissible remedies
with constitutional minimums, a remedy may require
more than the bare minimum the Constitution would
permit and yet still be necessary and narrowly drawn
to correct the violation,’” considering the need for a
“practicable ‘means of effectuation.’” Schriro, 370
F. App’x at 170 (quoting Fraser, 343 F.3d at 54)
(brackets omitted). Accordingly, the Second Circuit’s
interpretation of the PLRA does not mandate a ceiling
of permissible relief to remedy constitutional
violations resulting from extreme temperatures—and
of course it permits remedies including heating and air
conditioning.
3. The Seventh Circuit has also refrained from the
use of categorical exclusions in deciding whether
lowering of overall temperatures using cooling
systems may be “necessary” under the PLRA, and
upheld a consent decree requiring the cooling of cells
through air conditioning. See Jones-El v. Berge, 374
17
F.3d 541 (7th Cir. 2004), aff’g 2004 WL 420157, at *1
(W.D. Wis. Feb. 26, 2004) (where agreement required
defendants to cool the cells to temperatures between
80 and 84 degrees, and there was no other way to
reduce cell temperatures in the prison apart from air
conditioning, defendants were ordered to install air
conditioning). The consent decree at issue in Jones-El
provided that the corrections department would
“implement a means of cooling the cells during
summer heat waves.” Id. at 543. The agreement stated
that it was consistent with the PLRA and provided for
the district court’s retention of jurisdiction to enforce.
The plaintiffs moved to enforce the agreement. In
opposing the motion, the defendants admitted that the
only practical way to implement the consent decree
was by installing air conditioning—and so the district
court ordered it. The Seventh Circuit upheld
enforcement of the consent decree that incorporated
the PLRA. 374 F.3d at 543. In doing so, the court did
not reject as categorically impermissible the
injunction that required that temperatures remain
below 84 degrees, and further upheld the requirement
of air conditioning as a means to cool the cells.
Although the court did not directly confront the issue
of PLRA compliance, it underscored the case-specific
nature of the inquiry.
4. This circuit conflict calls out for this Court’s
review. Other courts of appeals recognize that in order
to remedy an ongoing constitutional violation, a
district court may have to order new forms of
relief. More specifically, they routinely uphold the use
of maximum temperatures, as well as the installation
of air conditioning, as narrowly tailored means to cure
Eighth Amendment violations arising from excessive
18
heat. The Fifth Circuit’s categorical rejection of these
remedies—for no reason other than the fact that they
were not implemented in Gates v. Cook, 376 F.3d 232
(5th Cir. 2004)—is flatly at odds with these
precedents, and represents an unduly restrictive
understanding of the PLRA.
II.
The Question Presented Is
Important And Recurring.
The Question Presented is important in two ways.
First, it affects a large number of prisoners who are at
risk of heat-related illness. The warmest parts of the
country, including Louisiana, Texas, the Southwest,
and Florida, are seeing increases in extreme-heat
days. These same regions also have some of the largest
per capita prison populations in the country. The
Sentencing Project, State Data Map: State Imprisonment
Rate (2016), https://www.sentencingproject.org/the-facts/
#map. Alongside increasing ambient temperatures,
the prison population is aging. “Between 1999 and
2013, the number of state and federal prisoners age 55
and older increased by 234 percent[.]” See Daniel W.E.
Holt, Heat in US Prisons and Jails 19 (2015),
https://web.law.columbia.edu/sites/default/files/microsites/
climate-change/holt_-_heat_in_us_prisons_and_jails.pdf.
Age correlates with heat sensitivity, and so this
demographic trend will aggravate the risk of heatrelated illness and injury. More and more prisoners
also have mental illnesses or other health conditions
that make it difficult to thermoregulate (or require
drug therapy that inhibits thermoregulation). See id.
at 26.
Second, the potential consequences for affected
prisoners are grave, including severe illness and
19
death. Heat- and humidity-related illness can result in
kidney failure, respiratory problems, and heart issues.
These injuries can arise suddenly and without
warning. In fact, heat has been the number one
weather-related killer over the past thirty years in the
United States, and the risks are particularly salient
for those with preexisting medical or mental health
issues. See Nat’l Weather Serv., Summer Weather
Safety, https://www.weather.gov/media/lsx/wcm/Heat/
SummerWeatherSafetySummary2017.pdf (last visited
Aug. 3, 2018). The Centers for Disease Control and
Prevention warn of heat dangers, noting that, “every
year on average, extreme heat causes 658 deaths in
the United States—more than tornadoes, hurricanes,
floods, and lightning combined.” Press Release, Ctrs.
for Disease Control & Prevention, CDC Urges
Everyone: Get Ready to Stay Cool Before Temperatures
Soar (June 6, 2013), https://www.cdc.gov/media/releases/
2013/p0606-extreme-heat.html.
Importantly, the foregoing data establishes that
exposure to heat injures and kills even free people, i.e.,
people who are free to visit an air-conditioned
shopping mall, or ride an air-conditioned bus, or visit
a public swimming pool, or take other measures to
address the heat.
The problems are much worse in prisons, where
no such relief is available. Report after report
documents injuries and deaths to prisoners who must
suffer through summer heat without air conditioning.
See, e.g., Maurice Chapman, “Cooking Them to Death”:
The Lethal Toll of Hot Prisons, The Marshall Project
(Oct. 11, 2017), https://www.themarshallproject.org/
2017/10/11/cooking-them-to-death-the-lethal-toll-of-hotprisons. Even when officers provide ice, water, and
20
fans (i.e., the measures respondents sought to
implement in the Second Plan), heat-related deaths
occur because these measures are insufficient to offset
the effects of the heat index. See ibid.
Indeed, the Fifth Circuit itself knows that heat
poses a severe risk in prisons. The court held that
respondents in this case violated the Eighth
Amendment, affirming the district court’s factual
finding that petitioners are at risk of serious harm.
Pet. App. 2a. And in other cases, the court has
acknowledged that “inmates have died as a result of
excessive heat.” Yates v. Collier, 868 F.3d 354, 358 (5th
Cir. 2017).
Allowing the Fifth Circuit’s ruling to stand will
effectively guarantee more heat-related deaths in
state prisons, in clear violation of the Eighth
Amendment. Every heat wave puts lives at risk—and
the risk is only growing. The PLRA was never meant
to stand as a barrier against access to basic human
necessities, and this Court should grant certiorari to
establish that rule. See Brown v. Plata, 563 U.S. 493,
511 (2011) (“A prison that deprives prisoners of basic
sustenance . . . is incompatible with the concept of
human dignity and has no place in civilized society.”).
III.
The Decision Below Conflicts With
This Court’s Decisions.
1. Certiorari should also be granted because the
Fifth Circuit’s opinion conflicts with this Court’s
holding and reasoning in Plata, 563 U.S. 493. There,
the State tried and failed for years to cure ongoing
constitutional violations resulting from overcrowding.
This Court recognized that limiting the prison
21
population was the only viable remedy, and affirmed
the district court’s order granting that relief.
Addressing the PLRA’s tailoring requirement, the
Court explained that “[t]he scope of the remedy must
be proportional to the scope of the violation, and the
order must extend no further than necessary to
remedy the violation.” 563 U.S. at 531. But equally,
the Court recognized that “a narrow and otherwise
proper remedy for a constitutional violation” will not
be deemed to violate the PLRA “simply because it will
have collateral effects.” Ibid. Applying this standard,
the Court determined that a reduction in population
was necessary, and not prohibited merely because it
would benefit prisoners outside the plaintiff class.
The Court also upheld the district court’s
conclusion that the prison population should be
reduced to 137.5% of design capacity. See Plata, 563
U.S. at 539, 541. The State argued that this figure
expressed the “policy preferences” of the plaintiffs’
expert witnesses, and not a constitutional analysis. Id.
at 539. But the Court disagreed, holding that “[w]hen
expert opinion is addressed to the question of how to
remedy the relevant constitutional violations, as it
was here, federal judges can give it considerable
weight.” Id. at 540. The Court further held that “[t]he
PLRA’s narrow tailoring requirement is satisfied so
long as . . . equitable, remedial judgments are made
with the objective of releasing the fewest possible
prisoners consistent with an efficacious remedy.” Id.
at 541.
The Court emphasized that district courts cannot
“shrink from their obligation to enforce the
constitutional rights” of inmates, and “may not allow
constitutional violations to continue simply because a
22
remedy would involve intrusion into the realm of
prison administration.” 563 U.S. at 511 (quotation
marks omitted).
The Fifth Circuit in this case should have followed
this Court’s lead and affirmed the district court’s
judgment. As this Court recognized in Plata, remedies
can and should address the root cause of constitutional
violations. It follows that when the cause of a
constitutional violation is exposure to heat above a
certain threshold, requiring the prison to maintain the
temperature below that threshold is a narrowly
tailored remedy.
Consistent with that logic, the district court in
this case twice determined that the only way to cure
the ongoing violation of petitioners’ constitutional
rights was to require respondents to maintain the heat
index below 88 degrees—and it made all of the factual
findings expressly required by the PLRA. The court
made these findings after a full trial where it heard
detailed testimony from petitioners’ expert witness,
Dr. Vassallo, one of the foremost experts in this area.
And in issuing the second injunction, the district court
did even more: it specifically evaluated the efficacy of
lesser remedies (the Second Plan), and found them
inadequate—again based on compelling, uncontroverted
evidence. It then issued an even narrower injunction
that cost the prison only $2,000 to implement.
Under Plata, the district court did more than
enough to satisfy the PLRA’s tailoring requirements,
and the Fifth Circuit was wrong to vacate the
injunction.
2. The Fifth Circuit’s approach also threatens to
ossify the Eighth Amendment—a constitutional
23
provision that necessarily evolves over time. See, e.g.,
Estelle v. Gamble, 429 U.S. 97, 102 (1976); Trop v.
Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion).
This entire approach is inconsistent with the Eighth
Amendment, and has no basis in the PLRA as
interpreted by Plata.
In the context of heat specifically, there can be no
question that evolving standards of decency favor the
use of temperature ceilings, and air conditioning when
necessary. The science about the dangers of
overheating—described in detail above, and to the
district court by Dr. Vassallo—is already clear. And
every new report only finds greater risk from exposure
to high heat. See, e.g., Camilo Mora et al., Global Risk
of Deadly Heat, 7 Nature Climate Change 501, 501
(2017) (conducting “a global analysis of documented
lethal heat events” and explaining that “[a]n
increasing threat to human life from excess heat now
seems almost inevitable”).
Moreover, our society’s ability to manage heat has
never been better, as air conditioning and other
remedies have only become cheaper and more efficient
over time. As petitioners explained at trial, in the
South Census region (which covers Angola), 98 percent
of multifamily units had air conditioning by 1974.
See U.S. Census Bureau, Number of Multifamily
Units Completed with Air-Conditioning 4 (2017),
https://www.census.gov/construction/chars/pdf/mfu_
aircond.pdf (from Characteristics of New Housing
data project). Ever since the year 2000, the level of airconditioning saturation in multifamily units has been
100 percent. Ibid. Thus, by 2006—when the State built
its “state-of-the-art prison facility” at Angola, Pet.
App. 60a—cool air in the summer was no longer a
24
luxury in the South, but instead “the minimal civilized
measure of life’s necessities.” Rhodes v. Chapman, 452
U.S. 337, 347 (1981).
In prisons, too, the overwhelming trend is toward
using air conditioning to reduce the maximum heat
index. “Virtually all federal prisons have air
conditioning,” including the facilities at Guantanamo
Bay. Jeff Edwards & Scott Medlock, Air Conditioning
Is a Human Right, Time (July 21, 2016),
http://time.com/4405338/air-conditioning-human-right/.
Some States likewise require temperatures between or
below certain thresholds, including cooler than 88
degrees. See, e.g., 10A N.C. Admin. Code 14J.1217(a)
(“Each jail shall have heating, ventilation, and air
conditioning systems that are capable of maintaining
temperatures in confinement units at not less than 68
degrees Fahrenheit during the heating season and not
more than 85 degrees Fahrenheit during the cooling
season.”); Associated Press, Kansas to Air-Condition
Next Prison as Heat Becomes Concern, KMUW (Aug.
14, 2017), http://kmuw.org/post/kansas-air-conditionnext-prison-heat-becomes-concern.
A recent example illustrates that prisons can and
do provide air conditioning for inmates. The U.S.
District Court for the Southern District of Texas
approved a settlement whereby the Texas Department
of Criminal Justice (TDCJ) agreed “to air-condition
the housing units in which the class members
[inmates] reside.” Cole v. Collier, 2018 WL 2766028, at
*1 (S.D. Tex. June 8, 2018). Specifically, the
settlement “requires TDCJ to air-condition the
housing areas of the Pack Unit to maintain indoor heat
indices at or below 88 degrees Fahrenheit between
April 15 and October 15 each year.” Id. at *2. The
25
settlement requires TDCJ to install temporary air
conditioning, and, subject to legislative approval,
permanent air conditioning “in all housing areas” of
the affected prison, and to maintain access to
temporary air conditioning during the relevant
months “in perpetuity” if permanent air conditioning
is not installed. Ibid. The settlement further requires
“TDCJ to house all Class members in air-conditioned
environments with heat indices at or below 88 degrees
Fahrenheit at any other prison where TDCJ may
incarcerate a Class member for the duration of the
Class member’s present term of incarceration.” Ibid.
It also imposes additional requirements on TDCJ to
provide air-conditioned transportation, air-conditioned
environments for parole-related programs, and airconditioned medical facilities. Id. at *2-3.
Thus, the relief authorized by the settlement in
Cole is substantially broader than the relief ordered by
the district court in this case. Here, the district court
gave limited relief, not including air conditioning, to
three inmates in a discrete portion of Angola’s death
row. In Cole, the district court provided relief,
including air conditioning, to a class of more than
1,285 people, that will follow them wherever they go
within the Texas prison system. See 2018 WL
2766028, at *6 n.6. Yet the court in Cole found that the
settlement was consistent with the PLRA, holding
that “absent the relief agreed to in this Settlement, the
extreme heat conditions described in the July 19, 2017
order will continue to exist every year between April
15 and October 15 in perpetuity,” such that the “relief
afforded extends no further than is necessary to
correct the constitutional harms, and the relief will not
26
adversely impact public safety or the operation of the
criminal justice system.” Id. at *12.
Importantly, the outcome in Cole is a settlement,
undertaken voluntarily by Texas even while appeals
were pending. The State in that case “concur[red] that
the Settlement meets the requirements of the PLRA.”
2018 WL 2766028, at *12. This settlement outcome
belies any suggestion that modern prisons cannot
maintain heat indices below 88 degrees, using air
conditioning if necessary.
Correctional officers, who experience the heat in
prisons firsthand, have also advocated for mechanical
cooling in prisons. Indeed, the Texas Correctional
Employees Union filed an amicus brief supporting
petitioners in the first Fifth Circuit appeal. The brief
sought to “convey to the Court that [the officers]
support the district court’s findings based on the
experience of . . . the correctional officers charged with
safeguarding and safekeeping Texas prisons.”
14-30067 Employees’ C.A. Amicus Br. ix. It argued
that “the lack of mechanical cooling and climate
control in prison facilities makes them less safe and
secure for correctional officers and inmates alike.” Id.
at 12.
The officers specifically took issue with
respondents’ claim that “any order requiring more
than” the remedies approved in Gates, supra, would
run afoul of the PLRA. 14-30067 Employees’ C.A.
Amicus Br. 7. The officers explained that whatever the
merit of the decision in Gates in 2004, “the district
court’s findings [in this case] reflect current
standards.” Id. at 9. Thus, the officers explained that:
27
Today, society knows more about the effects
of heat than it did 10 years ago when the
Court decided Gates. Public advisories about
heat-related stress and injuries have been
posted by federal agencies, non-profit groups,
and academic institutions. The American Bar
Association has published a report directly
addressing heat in prisons. Several
international reports have documented the
effects of excessive heat in jails and prison
facilities. These public sources combined
show an evolving standard when it comes to
heat in prisons.
Id. at 10 (footnotes omitted). The officers further
observed that “all Texas county and municipal jails—
maximum to minimum security—are simply not
permitted to allow temperatures to exceed 85 degrees.”
Id. at 12.
The United States also supported petitioners—
both in the district court and on appeal. Thus, the
government emphasized to the district court that it
had “broad authority to order injunctive relief to
remedy constitutional violations at Angola,” Dist. Ct.
Doc. 64, at 4, and it urged the Fifth Circuit to affirm
the district court’s finding of an Eighth Amendment
violation, 14-30067 U.S. C.A. Amicus Br. 13.
In sum, the case against the Fifth Circuit’s rule is
overwhelming. In light of the information available to
respondents and the courts today, there is no
justification for allowing the heat index in prisons to
ever reach dangerous territory. The harms are real;
the solutions are simple. The Fifth Circuit’s attempt to
place an artificial ceiling on relief from excessive heat
should be rejected, and its decision reversed.
28
IV.
This Case Is An Ideal Vehicle To
Decide The Question Presented.
Finally, certiorari should be granted because this
case is an ideal vehicle to address the Question
Presented. All of the material factual issues have been
resolved by detailed findings in the district court—and
none of those findings were deemed erroneous. Thus,
the sole question for this Court’s review is a purely
legal one: whether the Fifth Circuit incorrectly held
that the PLRA does not allow a district court to impose
a maximum heat index on a prison. And it is important
to decide that question now because the Fifth Circuit’s
decision, if allowed to stand, will only encourage
prisons not to implement remedies for excessive heat.
Petitioners anticipate two potential vehicle-based
arguments—neither of which has merit.
First, respondents may argue that the case is
interlocutory because the matter has been remanded
to the district court to fashion new relief consistent
with the Fifth Circuit’s opinion. But nothing that
happens on remand will address the crux of the case:
the district court has twice found that the only way to
cure the constitutional violation is to avoid housing
petitioners in cells where the heat index exceeds 88
degrees—and the Fifth Circuit has twice held that,
notwithstanding this finding, the PLRA does not
permit the district court to set a temperature ceiling.
The Fifth Circuit has also denied rehearing on the
question, indicating that it does not intend to change
its position.
On remand, the district court can attempt to
fashion the most effective relief available under the
Fifth Circuit’s rule—but the Fifth Circuit’s decision
29
will prevent the district court from doing the one thing
that it has found necessary to cure the constitutional
violation. Whether that limitation is appropriate is
ripe for adjudication now. Indeed, it would be
remarkably wasteful of party and judicial resources
for the district court to fashion ineffective relief, and
for petitioners to then file a doomed appeal for the
purpose of filing this petition anew.
Second, respondents may argue that the Fifth
Circuit’s most recent opinion was based on the
mandate rule—and not a de novo interpretation of the
PLRA. But nothing about the procedural posture of
the case would preclude this Court from deciding the
statutory question. It is well settled that “law of the
case cannot bind this Court in reviewing decisions
below,” and that a “petition for writ of certiorari can
expose the entire case to review.” Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 817 (1988); see
also Messenger v. Anderson, 225 U.S. 436, 444 (1912)
(holding that even when law of the case applies below,
“this court, at least, is free when the case comes here”).
Thus, when this Court grants certiorari, it “can reach
back and correct errors in the interlocutory
proceedings below, even though no attempt was made
at the time to secure review of the interlocutory
decree.” Stephen M. Shapiro et al., Supreme Court
Practice 84 (10th ed. 2013); see also Major League
Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1
(2001) (per curiam) (“[W]e have authority to consider
questions determined in earlier stages of the litigation
where certiorari is sought from the most recent of the
judgments of the Court of Appeals.”) (citing Mercer v.
Theriot, 377 U.S. 152, 153-54 (1964) (per curiam);
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240
30
U.S. 251, 258 (1916)). That makes sense, because it is
well-settled that the mandate rule, which is merely a
specific manifestation of the law-of-the-case doctrine,
is not a limitation on courts’ power—and especially not
on this Court’s power. Consequently, this Court can
ignore the mandate-rule issue on review.
In the alternative, the Court has the option to
address the issue head-on, which it may wish to do
because the Fifth Circuit’s application of the mandate
rule was clearly wrong. The Fifth Circuit determined
that the mandate rule applied because, in its view, “all
of the relevant testimony—especially Vassallo’s
critical testimony—was materially unchanged,” Pet.
App. 9a, and so there was no new evidence that would
warrant reconsideration of its prior conclusion that a
maximum heat index was impermissible. That is
wrong on its face. Prior to the district court’s first
injunction, Dr. Vassallo, as well as petitioners
themselves, testified about prison conditions as they
had been prior to the implementation of any heat
remediation plan. See id. at 142a-43a (Dr. Vassallo);
id. at 107a-12a (petitioners). Prior to the second
injunction, Dr. Vassallo and petitioners testified
specifically about the Second Plan’s failure to cure the
ongoing constitutional violation, and that testimony
was supported by additional evidence. See id. at 31a34a, 36a-37a (Dr. Vassallo testifies that the Second
Plan is ineffective, discussing each of its features in
detail); id. at 34a-36a (observational data and
petitioners’ testimony confirms that the Second Plan
was ineffective). That is material new evidence
because it showed, based on experience and expert
testimony, that the lesser remedies of the Second Plan
31
were insufficient
violation.
to
remedy
the
constitutional
As explained by the dissent, the Fifth Circuit’s
application of the mandate rule deprives district
courts of the flexibility they need to address ongoing
constitutional
violations.
Pet.
App.
17a-18a
(Higginson, J., concurring in part and dissenting in
part). That is inconsistent with a host of this Court’s
precedents, which hold that district courts have the
discretion to modify injunctions to account for factual
developments and ensure that injunctions remain
effective. See United States v. United Shoe Mach.
Corp., 391 U.S. 244, 248-49 (1968) (holding that
injunctions can be modified when they “fail[] to
accomplish” their intended result); United States v.
Swift & Co., 286 U.S. 106, 114 (1932) (Injunctions are
“subject always to adaptation as events may shape the
need.”); see also Amado v. Microsoft Corp., 517 F.3d
1353, 1360 (Fed. Cir. 2008) (stating that the mandate
rule “does not preclude the district court from
modifying, or dissolving, the injunction if it
determines that it is no longer equitable”).
Under these precedents, the Fifth Circuit was
wrong to use the mandate rule to ignore the district
court’s findings that the Second Plan had failed to cure
the constitutional violation. After the Fifth Circuit’s
first opinion, the district court considered substantial
new evidence, i.e., uncontroverted expert and lay
testimony establishing the Second Plan’s failure to
remedy the ongoing constitutional violation. It
considered those facts in light of new and
uncontroverted expert testimony that the only way to
actually remedy the constitutional violation is to lower
the heat index to 88 degrees. And it again analyzed
32
that remedy in light of the PLRA’s requirements,
issuing a narrower injunction than before, which cost
the prison all of $2,000 to implement. But again, the
Fifth Circuit reversed—for no reason other than it had
reversed before. That was error under this Court’s
precedents, and this Court can easily say so (although
it need not do so to decide this case).
CONCLUSION
This case presents an important legal question
that has divided the courts of appeals. This Court
should grant certiorari and hold that the PLRA’s
tailoring requirement does not prohibit a district court
from ordering a maximum heat index as a remedy for
Eighth Amendment violations caused by exposure to
excessive heat.
Respectfully submitted,
Mercedes Montagnes
THE PROMISE OF
JUSTICE INITIATIVE
636 Baronne St.
New Orleans, LA 70113
Tejinder Singh
Counsel of Record
Erica Oleszczuk Evans
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0636
tsingh@goldsteinrussell.com
Nilay U. Vora
THE VORA LAW FIRM, P.C.
201 Santa Monica Blvd.
Suite 300
Santa Monica, CA 90401 Steven Scheckman
SCHIFF, SCHECKMAN
& WHITE LLP
650 Poydras St., Suite 2760
New Orleans, LA 70130
August 6, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.