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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APPENDIX A

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 17-30052

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ELZIE BALL; NATHANIEL CODE;

JAMES MAGEE, Plaintiffs–Appellees,

JAMES M. LEBLANC, Secretary, Department of

Public Safety and Corrections; DARREL VANNOY,

Warden, Louisiana State Penitentiary;

LOUISIANA DEPARTMENT OF PUBLIC SAFETY

AND CORRECTIONS; Warden JAMES CRUZ,

Defendants–Appellants.

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Appeal from the United States District Court

for the Middle District of Louisiana

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FILED

January 31, 2018

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Before SMITH, BARKSDALE, and HIGGINSON,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Elzie Ball, Nathaniel Code, and James Magee are

death row inmates in the Louisiana State Penitentiary

(“LSP”) and are housed in cells without air

conditioning. The three sued in 2013, claiming a

violation of the Eighth Amendment. Their case comes

to us for the second time, after a different panel found

that an Eighth Amendment violation had occurred

and that injunctive relief was appropriate but that the

district court had exceeded the bounds of the Prison

Litigation Reform Act (“PLRA”) and Gates v. Cook, 376

F.3d 323, 339-40 (5th Cir. 2004), by mandating

facility-wide air conditioning and setting a maximum

heat index. See Ball v. LeBlanc, 792 F.3d 584, 596,

598-600 (5th Cir. 2015) (“Ball I”). Because the district

court did not adhere to the mandate, we reverse and

remand.

The basis of the complaint is that plaintiffs have

pre-existing medical conditions that render them

vulnerable to heat-related injury. A detailed

description of the death-row facility, located in Angola,

Louisiana, can be found in Ball I, id. at 589-91. Most

relevant here, the cells are without air conditioning,

which has resulted in heat indices of over 100 degrees.

Moreover, before suing, plaintiffs had only limited

access to ice and could take only hot showers. The

Ball I panel agreed with the finding of a constitutional

violation: “[W]e affirm the district court’s conclusion

that 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, violates the Eighth Amendment.” Id. at 596.

The Ball I panel also concluded, however, that the

initial injunction (the “First Plan”) violated the PLRA.

Id. at 598-600. Under the First Plan, the court

effectively required the state “to install air

conditioning throughout death row housing” by

developing “a plan to reduce and maintain the heat

index in the Angola death row tiers at or below 88

degrees Fahrenheit.” Id. at 598 (quoting Ball v.

LeBlanc, 988 F. Supp. 2d 639, 698 (M.D. La. 2013)).

“The PLRA greatly limits a court’s ability to fashion

injunctive relief.” Id. Courts may order only relief that

“extends no further than necessary to correct the

violation of the Federal right, and is the least intrusive

means necessary to correct the violation.” Id. (quoting

18 U.S.C. § 3626(a)(1)(A)).

Accordingly, the First Plan violated the PLRA, in

part because air conditioning was “unnecessary to

correct the Eighth Amendment violation.” Id. at 599.2

The panel also reasoned that the First Plan violated the

PLRA by requiring facility-wide relief, which ran counter to the

PLRA’s requirement that relief be limited to the particular

plaintiffs. Ball I, 792 F.3d at 599-600; 18 U.S.C. § 3626(a)(1)(A).

On remand, the district court manifestly adhered to that part of

the mandate, which is not at issue in this appeal.

In Ball I, this court closed the door to air conditioning as a

permissible remedy here: “[A]ssuming that air conditioning is an

acceptable remedy—and it is not,” the panel reasoned that any

relief must be limited to the particular plaintiffs in this case.

Ball I, 792 F.3d at 600. Plaintiffs posit, however, that Yates v.

Collier, 868 F.3d 354, 370-71 & n.8 (5th Cir. 2017), leaves open

the possibility of mandated air conditioning. Yates interpreted

Ball I as holding “that air-conditioning was not appropriate in

that case because other acceptable and less-intrusive remedies

had yet to be tried.” Id. at 370. That observation on Ball I has no

bearing on the task before us, which is to interpret and enforce

the mandate issued by a panel in this very case. Moreover, the

only relevant holding in Yate regards class certification, an issue

The panel suggested “acceptable remedies short of

facility-wide air conditioning,” such as (1) diverting

“cool air from the guards’ pod into the tiers,”

(2) allowing access to air conditioned areas during tier

time, (3) allowing “access to cool showers at least once

a day,” (4) giving “ample” cold drinking water and ice

“at all times,” (5) providing “personal ice containers

and individual fans,” and (6) installing “additional ice

machines.” Id. The panel told the district court to

“limit its relief to these types of remedies.” Id.

Additionally, the relief required under the First

Plan was far broader than that approved of in Gates.

Id. at 600. “The Gates court did not mandate a

maximum heat index . . . . It required particular heat

measures, including fans, ice water, and showers, ‘if

the heat index reaches 90 degrees or above.’” Id.

(quoting Gates, 376 F.3d at 336). The panel noted that

the First Plan required relief that was far more

extensive and expensive than what Gates allowed and

that because “Gates upheld an injunction providing

narrower relief, and there is no showing that the

Constitution mandated more relief for these prisoners

for the same prison condition in this case, on remand

the court must craft relief more closely aligned with

Gates as well as consistent with the PLRA.” Id.

On remand, the district court ordered the state to

submit a new plan in light of this court’s mandate,

whereupon the state submitted its ‘Second Heat

not present here. In any event, Ball I plainly says that air

conditioning is “not” “an acceptable remedy” and was

“unnecessary to correct the Eighth Amendment violation.” Ball I,

792 F.3d at 599-600.

Remediation Plan’ or ‘Second Plan.’” That plan

provided that plaintiffs would have cold water for their

daily, fifteen-minute showers; it gave each plaintiff ice

containers that would be regularly replenished from

newly purchased ice machines; and it provided each

plaintiff with a personal fan. Unsatisfied, plaintiffs

moved to modify, urging the court to reinstate its

initial plan—i.e., the very plan that Ball I had

explicitly rejected.

In connection with simultaneous settlement

discussions, the state implemented additional,

experimental relief measures, consistent with the

stipulation that “any discussions or actions taken

would not be admissible as evidence in this case

pursuant to . . . Federal Rule of Evidence 408(a)(2).”

These exploratory remedies, which the court termed

the “Third Plan,” are the basis for the later additional

relief mandated by the modified second injunction at

issue on this appeal. Moreover, the Special Master

informed the parties that the district court had

“advised that the implementation of any efforts or

measures, on a trial basis, in this case will not be

viewed as spoliation or destruction of evidence . . . .

[T]hese discussions are confidential and will remain so

as long as the parties so request.”

The court then held two hearings. At the first, it

heard evidence from Dr. Vassallo, who had testified in

the initial trial and substantially reiterated her

testimony. Additionally, each of the plaintiffs testified

that, even after the implementation of the Second

Plan, they experienced the same heat-related

symptoms as before. At the second hearing, the Special

Master testified about the Third Plan. Although the

state objected that such evidence was inadmissible

under Federal Rule of Evidence 408, the district court

reasoned that it would not require disclosure of “any

communications among the parties” but that it had to

learn about the changes in plaintiffs’ conditions of

confinement, which relate to a constitutional violation.

Accordingly, the court overruled the objection and

admitted evidence of the Third Plan.

The court issued an injunction in accordance with

the Third Plan, reasoning that the Second Plan did not

reduce the substantial risk of serious harm because

the plaintiffs continued to experience heat-related

symptoms even during its implementation. Ball, 223

F. Supp. 3d at 529, 545, 554-57. The court believed

that “the 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 545.

Accordingly, the district court imposed the Third

Plan, which contained the same requirements as the

Second Plan but also required 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

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. The injunction would take effect only when the

heat index exceeds 88 degrees. Moreover, the court

provided that “[i]n the event that mold growth

proliferates in the guards’ pod” caused by the Third

Plan, the state is enjoined “to seal the air vent and

provide a sufficient number of additional IcyBreeze

units to each plaintiff in order to maintain the heat

index” to “below 88 degrees Fahrenheit.” Id. at 548.

The court concluded that those measures would

sufficiently lower “the indices to which Plaintiffs are

exposed” to “below the 88-degree benchmark.” Id.

The state appealed, contending that the district

court had violated the Ball I mandate by (1) ordering

a maximum heat index and (2) requiring air

conditioning in the form of IcyBreeze machines. The

state also maintains that the court violated Federal

Rule of Evidence 408 by introducing evidence of the

Third Plan.

II.

“We review de novo a district court’s application of

[a] remand order, including whether the law-of-thecase doctrine or mandate rule forecloses the district

court’s actions on remand.” United States v. Teel, 691

F.3d 578, 583 (5th Cir. 2012) (citation omitted). In

their briefs and at oral argument, plaintiffs insist that

we should review the modified injunction for abuse of

discretion. Although modifications of injunctions are

typically reviewed for abuse of discretion, see Baum v.

Blue Moon Ventures, LLC, 513 F.3d 181, 190 (5th Cir.

2008), the issue here is whether that modification was

barred by Ball I’s mandate.3 Accordingly, we review de

Plaintiffs rightly point out that injunctions must “remain

open to appropriate modification.” See Brown v. Plata, 563 U.S.

493, 542-45 (2011). But that does not give district courts carte

blanche to ignore a mandate. Though the injunction remains open

to change, any modifications must be made within the confines of

our circuit’s decisions, subject to the few recognized exceptions to

the mandate rule. Cf. League of United Latin Am. Citizens v. City

novo whether the modified injunction violates the

mandate rule or the law-of-the-case doctrine.4

“Under the law-of-the-case doctrine, an issue of

fact or law decided on appeal may not be reexamined

either by the district court on remand or by the

appellate court on a subsequent appeal.” United States

v. Carales-Villalta, 617 F.3d 342, 344 (5th Cir. 2010)

(internal citation omitted). “The mandate rule is but a

corollary to the law of the case doctrine.” United States

v. McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006). Both

give way to three exceptions: “(1) [T]he evidence at a

subsequent trial is substantially different; (2) there

has been an intervening change of law by a controlling

authority; (3) the earlier decision is clearly erroneous

of Boerne, 675 F.3d 433, 437-39 (5th Cir. 2012) (holding that, in

deciding whether to modify a consent decree, a district court could

not ignore instructions regarding the proper procedures to follow;

Baum, 513 F.3d at 187 (indicating that injunctions may not be

modified in violation of the mandate rule).

Because, as we note below, one of those exceptions is for new

and substantially different evidence, the mandate rule

essentially dovetails with the issuing court’s authority to modify

an injunction in light of changed circumstances. See Sys. Fed’n

No. 91, Ry. Emp’t Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 647

(1961) (stating that a court “cannot be required to disregard

significant changes in law or facts” and that “[a] balance must

therefore be struck between the policies of res judicata and the

right of the court to apply modified measures to changed

circumstances’). The crucial consideration, therefore, is whether

circumstances not present at the time of Ball I justify a maximum

heat index. As we demonstrate infra, they do not.

Cf. League of United Latin Am. Citizens, 675 F.3d at 437-39;

Nat’l Airlines, Inc. v. Int’l Ass’n of Machinists & Aerospace

Workers, 430 F.2d 957, 960 (5th Cir. 1970).

and would work a manifest injustice.” Id.; Gene &

Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702 (5th

Cir. 2010). On remand, a district court must

implement “both the letter and the spirit” of the

panel’s mandate. McCrimmon, 443 F.3d at 459.

Plaintiffs suggest that the new-evidence exception

applies to override the mandate rule. We disagree. The

only new evidence plaintiffs can point to is the Third

Plan itself and allegedly new scientific testimony. But

all of the relevant testimony—especially Vassallo’s

critical testimony—was materially unchanged.5 And

the evidence of the Third Plan itself could be relevant

only in that it proved the feasibility of the Third Plan.

Because the state’s claims center on the propriety of a

maximum heat index and the potential for air

conditioning, such evidence would be irrelevant to our

application of the mandate rule.6 Accordingly, no

exception to that rule applies.

The state’s primary claim is that the district court

violated the mandate rule by effectively requiring a

maximum heat index. According to the state, Ball I

foreclosed relitigating whether the Constitution

required setting a maximum heat index. And, the

state contends, the district court misapplied Ball I by

finding that a maximum heat index was necessary to

Cf. Gene & Gene, 624 F.3d at 704-05 (requiring evidence that

was new and “substantially different” from that presented to the

panel).

Cf. Nat’l Airlines, 430 F.2d at 960 (explaining that new

evidence cannot result in reopening issues squarely foreclosed by

a previous appeal).

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remedy the constitutional violation. Cf. Nat’l Airlines,

430 F.2d at 960. Plaintiffs reply only that the specific

measures required by the district court were blessed

in Ball I.

We agree with the state. Ball I plainly foreclosed

any consideration of a maximum heat index. As that

panel explained, “The Gates court did not mandate a

maximum heat index,” and the district court had to

“limit its relief” to the kinds of measures found in

Gates. Ball I, 792 F.3d at 599-600.7 Although wellintentioned, the district court, to the contrary, both

considered and accepted the need for a maximum heat

index.8

Relying on a maximum heat index of 88 degrees,

the court concluded that the Second Plan was

inadequate because it exposed plaintiffs to heat

indices above that. And based on that same maximum,

the court adopted the Third Plan because it would

lower the heat indices to below 88 degrees.9 Moreover,

the court gave a provisional order regarding the

possibility of mold growth—in that event, the state

Indeed, Judge Reavley dissented on the basis of allowing a

maximum heat index. Ball I, 792 F.3d at 600 (Reavley, J.,

dissenting) (stating “I would affirm the injunction which in

principal only orders the heat index in the Angola death row tiers

to be maintained below 88 degrees”).

For instance, the court repeatedly found that the only way

to correct the Eighth Amendment violation would be to “lower the

temperature and heat indices to which Plaintiffs are exposed.”

Ball, 223 F. Supp. 3d at 537.

Specifically, the court reasoned that the Second Plan would

not lower the heat index but that the Third Plan would lower it

to “below the 88-degree benchmark.” Id. at 545.

11a

would have to provide enough IcyBreeze units to keep

the heat index below 88 degrees. Therefore, the court

violated the mandate by incorporating a maximum

heat index into its order. Based on that violation, we

reverse and remand the injunction.

On remand, the district court must re-evaluate

the necessity of the Third Plan even without a

maximum heat index. It may well be that parts of the

Third Plan are still necessary to redress the

constitutional violation: i.e., “housing these prisoners

in very hot cells without sufficient access to heat-relief

measures.” Id. at 596 (emphasis added).10 But the court

cannot decree whether any given plan is necessary to

lower the heat index to below a maximum, nor can it

require the state to provide an undetermined number

“[T]he Constitution does not mandate comfortable prisons,

but neither does it permit inhumane ones.” Ball I, 792 F.3d at 592

(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)) (internal

quotation marks omitted). That involves some balancing: “In

Eighth Amendment cases, plaintiffs can only obtain a remedy

that reduces the risk of harm to a socially acceptable level. Some

risk is permissible and perhaps unavoidable.” Id. at 599.

In accord with this reasoning, our precedent generally has

eschewed setting maximum temperatures for prisons. See, e.g.,

Hinojosa v. Livingston, 807 F.3d 657, 670 (5th Cir. 2015)

(explaining the Eighth Amendment right “not to be subjected to

extreme temperatures with-out adequate remedial measures”

and noting that “the provision of fans, ice water, and daily

showers can suffice”); Valigura v. Mendoza, 265 F. App’x 232, 235

(5th Cir. 2008) (per curiam) (noting that “temperatures

consistently in the nineties without remedial measures, such as

fans, ice water, and showers, sufficiently increase the probability

of death and serious illness so as to violate the Eighth

Amendment”); Gates, 376 F.3d at 339-40 (approving of fans, ice

water, and daily showers when the heat index is above 90

degrees).

12a

of IcyBreeze units or other measures to keep the heat

index below a certain point.

The district court must ensure that any 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.” Id. at 598 (quoting 18 U.S.C.

§ 3626(a)(1)(A)). And although the court is not limited

to the specific relief approved of by Gates, it may not

order measures that are more extensive or intrusive

than was the relief in Gates. See id.

It will help the district court and the parties for us

to examine whether some of the specific measures

required by the Third Plan exceed the Ball I mandate.

The state suggests that the IcyBreeze machines might

be construed as air conditioning—which Ball I, id. at

599, expressly forbade. The state posits that IcyBreeze

machines are functionally much like air conditioning

in that they produce cold air.

We disagree. As the district court rightly

explained, the IcyBreeze units are basically ice chests

with fans attached. The chest blows out cool air but

does not emit water vapor. In short, they are similar

to evaporative coolers. And Ball I specifically

approved of remedial measures such as ice chests and

fans. Id. More importantly, IcyBreeze machines are

compact and inexpensive, each costing just over five

hundred dollars.11 They therefore fit comfortably

The district court also found that the overall cost of the

Third Plan was less than $2,000. Compared to the approximately

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within Ball I’s admonition that any relief must not be

unduly intrusive and must take into account “any

adverse impact on public safety or the operation of a

criminal justice system.” Id. at 598-99 (quoting

18 U.S.C. § 3626(a)(1)(A)).

The rest of the injunction does not exceed the

Ball I mandate. For example, the Ball I court

specifically approved of requiring ice, cold showers,

and fans. Id. at 599. And it allowed diverting cool air

from the guards’ pod—provided, of course, 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.” Id. at 598 (quoting 18 U.S.C.

§ 3626(a)(1)(A)). Moreover, Ball I approved the use of

a temperature trigger. Id. at 600 (explaining that

Gates “required particular heat measures . . . if the

heat index reaches 90 degrees or above”) (internal

quotations omitted).

Indeed, a temperature trigger is necessary to

ensure that the injunction is inapplicable “during

months when there is no heat risk to the Plaintiffs.”

Id. It is by effectively requiring a temperature ceiling

that the district court went astray. Accordingly,

despite that we reverse based on the erroneous

adoption of a maximum heat index, we leave open the

possibility that, on remand, the court may require

IcyBreeze units or temperature triggers.

$100,000 that would be required to air-condition Plaintiffs’

portion of Tier C, the Third Plan is sufficiently inexpensive to

satisfy our concerns relating to the PLRA.

14a

III.

The state posits that the district court admitted

evidence of the Third Plan in violation of Federal Rule

of Evidence 408.12 Evidentiary rulings are reviewed for

abuse of discretion. Id. at 591 (citing Battle ex rel.

Battle v. Mem’l Hosp. at Gulfport, 228 F.3d 544, 550

(5th Cir. 2000)). Moreover, “[e]ven if the court abused

its discretion, this court will presume the error is

harmless.” Id. (citation omitted). “The party asserting

the error has the burden of proving that the error was

prejudicial.” Id. (citation omitted). The state asserts

that the court violated Rule 408 because the Third

Plan was regarding conduct during compromise

negotiations and was a subsequent remedial measure.

Rule 408 precludes admitting any “conduct or . . .

statement made during compromise negotiations

about the claim” “to prove or disprove the validity or

amount of a disputed claim or to impeach by a prior

inconsistent statement or a contradiction.” FED. R.

EVID. 408(a)(2). Moreover, the parties stipulated that

“any discussions or actions taken [with regard to the

Third Plan] would not be admissible as evidence in

Although the state also claims that the district court

violated Federal Rule of Evidence 407, that contention is

undermined by Rule 407’s exceptions for feasibility and

impeachment evidence. See FED. R. EVID. 407 (noting that “the

court may admit this evidence for another purpose, such as

impeachment or—if disputed—proving . . . the feasibility of

precautionary measures”). On remand, the state suggested that

at least some measures in the Third Plan were infeasible.

Accordingly, the district court could permit introduction of such

evidence to impeach that statement and demonstrate feasibility.

See, e.g., Dixon v. Int’l Harvester Co., 754 F.2d 573, 583-84 (5th

Cir. 1985); Muzyka v. Remington Arms Co., 774 F.2d 1309,

1310-13 (5th Cir. 1985).

15a

this case pursuant to . . . Federal Rule of Evidence

408(a)(2).” The district judge even communicated,

through the Special Master, that “the implementation

of any efforts or measures, on a trial basis,” would not

be “viewed as spoliation or destruction of evidence”

and that the discussions would remain confidential so

long as the parties so requested. Accordingly, the

Third Plan and any accompanying discussions were

“conduct” and “statement[s] made during compromise

negotiations.” FED. R. EVID. 408(a)(2).

Yet Rule 408 contains a broad exception: “The

court may admit this evidence for another purpose,

such as proving a witness’s bias or prejudice, negating

a contention of undue delay, or proving an effort to

obstruct a criminal investigation or prosecution.” FED.

R. EVID. 408(b). Here, the other purpose relates to the

court’s ongoing supervisory power over its injunction.

See Plata, 563 U.S. at 542-45. The district court may

have been concerned about how the Third Plan would

affect the prisoners and their constitutional rights; the

court also could have wanted to know whether the

Third Plan was more efficient than the Second Plan.13

Moreover, “Rule 408 should not exclude more than

required to effectuate its goals, which, after all, run

counter to the overarching policy favoring admission

of all relevant evidence.” Lyondell Chem. Co. v.

Occidental Chem. Corp., 608 F.3d 284, 299 (5th Cir.

2010). Courts must ensure that Rule 408 remains

See Plata, 563 U.S. at 542 (stating that “[a] court that

invokes equity’s power to remedy a constitutional violation by an

injunction . . . has the continuing duty and responsibility to

assess the efficacy and consequences of its order”).

16a

“tethered to the rationales underlying the rule.” Id. at

298. Those rationales—the irrelevancy of such

evidence and the public policy in favor of

compromise—are inapplicable here.14 The evidence

was relevant and probative. And the public policy in

favor of compromise could be satisfied by excluding

any negotiations15—which would have formed the

basis for the state to move to modify the injunction or

enter a consent decree—but still admitting conduct

affecting the prisoners’ constitutional rights (a

manifest public policy concern, see Plata, 563 U.S. at

510-11, 542-43). Accordingly, the district court did not

abuse its discretion by admitting evidence of the Third

Plan itself.16

Because the district court erroneously addressed

the propriety of a maximum heat index, found that it

was necessary, and issued a modified injunction that

in certain instances incorporated it, the order

imposing the modified injunction is REVERSED and

REMANDED. We are confident that, on remand, the

district court will conscientiously proceed in a manner

that is consistent with this opinion and Ball I.

See FED. R. EVID. 408 advisory committee’s note to 1972

proposed rule; Lyondell, 608 F.3d at 299; Kennon v. Slipstreamer,

Inc., 794 F.2d 1067, 1069 (5th Cir. 1986).

Indeed, the district court did not admit any evidence of the

parties’ statements or negotiations.

The parties would benefit from clearer notice of what is and

is not admissible. For instance, the district court could have

communicated, prospectively, that any actions would be

admissible but that statements made during negotiations would

not be admissible.

17a

STEPHEN A. HIGGINSON, Circuit Judge, concurring

in part and dissenting in part:

I agree with the majority opinion that the

injunction should be vacated to the extent it orders the

state to maintain the heat index below 88 degrees.

However, because, as the majority opinion recognizes,

“the rest of the injunction does not exceed the Ball I

mandate,” I would affirm it. The relief measures

ordered, including IcyBreeze units and diverted cool

air, are consistent with the less-intrusive remedies

suggested in Ball I and extend no further than

necessary to correct plaintiffs’ constitutional injury.

I write briefly to explain my view of the role of the

mandate rule in this case. In its application of the

mandate rule, the majority opinion reverses the

district court’s order despite concluding that most of

the relief ordered “does not exceed the Ball I

mandate.” It reasons that the district court erred by

“[r]elying on a maximum heat index”—even though

the injunction does not generally mandate one—

because “Ball I plainly foreclosed any consideration of

a maximum heat index.”

But in Ball I, our court was clear that “[t]he

district court did not abuse its discretion by admitting

evidence of or relying on the heat index.” Ball v.

LeBlanc (Ball I), 792 F.3d 584, 591 (5th Cir. 2015)

(emphasis added). And for good reason. The heat index

is the unit of measure consistently used in the medical

and scientific literature to measure and identify the

risk of heat-related illness. See id.; Ball v. LeBlanc,

223 F. Supp. 3d 529, 537 (M.D. La. 2016). To 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, see

18a

Ball I, 792 F.3d at 596, without considering its cause.

The record evidence, credited by the district court and

not substantively challenged on appeal, demonstrates

that these medically compromised plaintiffs face a risk

of serious harm when they are exposed to heat indices

above 88 degrees. See Ball, 223 F. Supp. 3d at 536-37.

That factual finding must be considered when the

district court assesses whether any heat-remediation

plan is sufficient to remedy plaintiffs’ Eighth

Amendment injury.1 See Graves v. Arpaio, 623 F.3d

1043, 1049-50 (9th Cir. 2010) (affirming injunction

requiring sheriff to house pretrial detainees taking

psychotropic medications in temperatures that do not

exceed 85 degrees based on finding that exposure to

higher temperatures presents an unreasonable risk of

harm).

This is not to say that a constitutionally sufficient heatremediation plan must maintain a heat index below 88 degrees.

The district court found that the risk of serious harm due to heat

“significantly increases when an individual is exposed to heat

indices of 88 degrees or greater.” Ball, 223 F. Supp. at 537. But

the Eighth Amendment does not protect against any and all risk

of harm; rather, it protects against “extreme” conditions, Hudson

v. McMillian, 503 U.S. 1, 9 (1992), that present an “unreasonable

risk” of harm, Helling v. McKinney, 509 U.S. 25, 35 (1993).

Determining whether “conditions of confinement violate the

Eighth Amendment requires more than a scientific and

statistical inquiry into the seriousness of the potential harm and

the likelihood that such injury to health will actually be caused.”

Id. at 36. Determining the relevant level of risk “also requires a

court to assess whether society considers the risk that the

prisoner complains of to be so grave that it violates contemporary

standards of decency to expose anyone unwillingly to such a risk.”

Id. In other words, that there is some risk of harm when the heat

index exceeds 88 degrees does not necessarily mean that the

Eighth Amendment requires a heat index below that number.

19a

Of course, if the district court truly did conclude

that the Second Plan was inadequate simply because

it failed to maintain a heat index below 88 degrees,

that might in practice be the same as mandating a

maximum heat index and thus violate our court’s

Ball I mandate (absent relevant new evidence). See

United States v. Matthews, 312 F.3d 652, 657 (5th Cir.

2002) (stating that mandate rule requires lower court

to implement “both the letter and the spirit of the

appellate court’s mandate” (quoting United States v.

Becerra, 155 F.3d 740, 753 (5th Cir. 1998))). But the

district court concluded that the Second Plan was

inadequate because of plaintiffs’ testimony that they

“continued to experience heat-related symptoms

during the implementation of Defendants’ Second

Plan” and expert testimony that cool showers, ice, and

fans, without more, did not eliminate the substantial

risk of serious harm that these plaintiffs face from

extreme heat. Ball, 223 F. Supp. 3d at 536-37, 544-45.

To be sure, the district court further concluded, based

on the testimony of plaintiffs’ expert, 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 545. But, in a facility where the heat

index frequently exceeds 100 degrees and has risen as

high as 110.3 degrees, id. at 531-32, requiring the

state to lower the heat indices to which these

medically compromised plaintiffs are exposed is not

the same as mandating that the heat index remain

below 88 degrees. It is only the latter that (absent

relevant new evidence) Ball I forbids.

20a

Contrary to the majority opinion’s assertion,

Ball I did not foreclose relitigating on remand whether

a maximum heat index, or any other form of relief,

could be necessary to remedy these plaintiffs’

constitutional injury. By explicitly noting that “Gates

upheld an injunction providing narrower relief” and

that there was “no showing that the Constitution

mandated more relief for these prisoners for the same

prison condition in this case,” 792 F.3d at 600, Ball I

contemplated the possibility that new evidence could

require other—possibly broader—relief.2 That was for

good reason. Injunctions must be open to modification

in light of new facts or changed circumstances. See

Brown v. Plata, 563 U.S. 493, 542-43 (2011) (“A court

that invokes equity’s power to remedy a constitutional

The majority opinion states that Ball I “closed the door to

air conditioning as a permissible remedy here.” I agree, but only

because plaintiffs did not produce any substantively new

evidence demonstrating that air conditioning—in the sense of

mechanical cooling—is necessary to remedy their constitutional

injuries. However, I disagree to the extent that the majority

opinion suggests that Ball I closed the door to air conditioning

regardless of any new evidence presented. I read Ball I to

narrowly say that air conditioning was not a permissible remedy

absent evidence that the more modest measures approved of in

Gates were insufficient for these plaintiffs. In Yates v. Collier,

868 F.3d 354 (2017), two of our colleagues from the Ball I panel

confirmed that “Ball [I] held that air-conditioning was not

appropriate in that case because other acceptable and lessintrusive remedies had yet to be tried—not that air-conditioning

was necessarily an impermissible remedy.” Id. at 370. Yates is a

clarification of, and consistent with, Ball I. See 792 F.3d at 600

(noting absence of evidence that plaintiffs in this case require

more extensive relief than plaintiffs in Gates). Furthermore, as

the majority opinion recognizes, some form of cooled air—be it

from an IcyBreeze unit or diverted cool, i.e., air-conditioned, air—

can be a permissible remedy.

21a

violation by an injunction mandating systemic

changes to an institution has the continuing duty and

responsibility to assess the efficacy and consequences

of its order. . . . [A] court must remain open to a

showing . . . that the injunction should be altered to

ensure that the rights and interests of the parties are

given all due and necessary protection.”). No mandate

can change that. See Baum v. Blue Moon Ventures,

LLC, 513 F.3d 181, 190 (5th Cir. 2008) (stating, in

context of a law-of-the-case challenge, that

“[m]odification of an injunction is appropriate when

the legal or factual circumstances justifying the

injunction have changed” (quoting ICEE Distribs., Inc.

v. J&J Snack Foods Corp., 445 F.3d 841, 850 (5th Cir.

2006))); Amado v. Microsoft Corp., 517 F.3d 1353, 1360

(Fed. Cir. 2006) (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”); Matthews, 312 F.3d at 657 (stating

that the law of the case doctrine, which includes the

mandate rule, “merely expresses the practice of courts

generally to refuse to reopen what has been decided,

[it is] not a limit to their power” (quoting Messinger v.

Anderson, 225 U.S. 436, 444 (1912))).

While it is true, as the majority opinion notes, that

the new-evidence exception to the mandate rule is

inapplicable to issues squarely foreclosed by a

previous appeal, whether a different remedy could be

necessary under unaddressed new facts is not an issue

that can be squarely foreclosed. Ball I held only that

the evidence then in the record was insufficient to

establish the necessity of facility-wide air conditioning

and/or a maximum heat index of 88 degrees. To

suggest, as I think the majority opinion does, that

22a

Ball I’s record-specific holding forecloses future

litigation of the necessity of those remedies is to imply

that the mandate rule restricts a district court’s

authority, and indeed duty, to modify an injunction in

light of changed circumstances. But that is contrary to

established law. See, e.g., Baum, 513 F.3d at 190.

The static quality that I fear the majority’s

opinion may inject into our Eighth Amendment

jurisprudence is also inconsistent with the nature of

Eighth Amendment rights. Gates does not set a ceiling

for permissible heat-relief measures in prisons. “No

static ‘test’ can exist by which courts determine

whether conditions of confinement are cruel and

unusual, for the Eighth Amendment ‘must draw its

meaning from the evolving standards of decency that

mark the progress of a maturing society.’” Rhodes v.

Chapman, 452 U.S. 337, 346 (1981) (quoting Trop v.

Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)).

Whether conditions of confinement amount to an

Eighth Amendment violation necessarily depends on

the context-specific “totality of the circumstances.” Id.

at 362-63. Courts must be free to consider those

circumstances, as they change, and in light of evolving

standards of decency, when determining what relief

the Eighth Amendment requires.

Because there was no new evidence submitted

relevant to the necessity of an 88 degree maximum

heat index, I would vacate just that single provision of

the injunction mandating such a maximum heat

index. The rest of the injunction, ordering remedies

previously approved of by us, is consistent with Ball I

and the PLRA, particularly given the evidence

presented that the Gates remedies alone were

23a

insufficient to remedy plaintiffs’

injuries. I would therefore affirm it.

constitutional

24a

APPENDIX B

________________________________

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

________________________________

Civil Action No. 13-00368-BAJ-EWD

________________________________

ELZIE BALL, ET AL.

JAMES M. LEBLANC, ET AL.

________________________________

[FILED

Dec. 22, 2016]

________________________________

RULING AND ORDER

Before the Court is the Motion to Modify

Injunctive Relief (Doc. 315) filed by Plaintiffs.

Plaintiffs – three seriously ill death-row inmates who

are currently incarcerated at the Louisiana State

Penitentiary in Angola, Louisiana (“Angola”) – seek an

order compelling Defendants – the Louisiana

Department of Public Safety and Corrections and its

Secretary, the Warden of Angola, and the Assistant

Warden in charge of the death-row facility at Angola –

to implement Defendants’ initial Heat Remediation

Plan (Doc. 118), which proposed the installation of airconditioning throughout the death-row facility as a

remedy to the constitutional violations found by this

Court following a non-jury trial on the merits.

Defendants oppose the Motion. (See Doc. 318). On

25a

June 15, 2016, the Court held an evidentiary hearing

on this matter, and the parties filed post-hearing

briefs. (See Docs. 353, 354). Subsequently, the Court

held two additional evidentiary hearings. For reasons

explained herein, Plaintiffs’ Motion to Modify

Injunctive Relief (Doc. 315) is GRANTED IN

PART and DENIED IN PART.

BACKGROUND

Plaintiffs Elzie Ball (“Ball”), Nathaniel Code

(“Code”), and James Magee (“Magee”) (collectively,

“Plaintiffs”) filed this lawsuit on June 10, 2013,

pursuant to 42 U.S.C. § 1983; the Eighth Amendment

to the United States Constitution, U.S. Const. amend.

VIII; the Fourteenth Amendment to the United States

Constitution, U.S. Const. amend. XIV, § 1; Title II of

the Americans with Disabilities Act, 42 U.S.C. § 12101

et seq., as modified by the Americans with Disabilities

Act Amendments Act, 42 U.S.C. § 12131 et seq.; and

section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794. (Doc. 1). Plaintiffs alleged that Defendants had

violated their rights by subjecting them to excessive

heat, thereby endangering their health and safety. (Id.

at ¶ 12). Plaintiffs sought declaratory and injunctive

relief from this Court, requesting that Defendants be

required to, among other things, develop and

implement a long-term plan to maintain the heat

index in Angola’s death-row tiers at or below 88

degrees Fahrenheit.1 (Doc. 12 at p. 4). Defendants

denied all liability. (See Doc. 38).

Any subsequent reference to a measurement of degrees in

this Ruling and Order, unless otherwise noted, utilizes the

Fahrenheit scale.

26a

Following a non-jury trial on the merits, this

Court found that the extreme heat that Plaintiffs

endured in the death-row tiers at Angola subjected

Plaintiffs to a substantial risk of serious harm and

that Defendants acted with deliberate indifference to

that substantial risk of serious harm, in violation of

Plaintiffs’ Eighth Amendment right to be free from

cruel and unusual punishment.2 See Ball v. LeBlanc,

988 F. Supp. 2d 639 (M.D. La. 2013), aff’d in part,

vacated in part, remanded, 792 F.3d 584 (5th Cir.

2015). The Court found that the uncontroverted

evidence established that “inmates housed in each of

the death row tiers were frequently subjected to heat

indices above 100 degrees,” id. at 664, and that “the

temperature, humidity, and heat index recorded

inside the death row tiers was, more often than not,

the same or higher than the temperature, humidity,

and heat index recorded outside of the death row

tiers,” id. at 653. Further, the Court found that

“inmates housed in . . . two tiers were subjected to heat

indices as high as 110.3 degrees.” Id. at 664. Even

healthy individuals are at risk of serious harm in such

conditions of extreme heat, but according to expert

testimony, the risk of harm to Plaintiffs is exacerbated

because their various medical conditions and the

pharmaceuticals prescribed to them to treat those

illnesses inhibit Plaintiffs’ abilities to thermoregulate

The Court denied Plaintiffs’ claims under the Americans

with Disabilities Act, as modified by the Americans with

Disabilities Act Amendments Act, and the Rehabilitation Act. See

Ball v. LeBlanc, 988 F. Supp. 2d 639, 687 (M.D. La. 2013), aff’d

in part, vacated in part, remanded, 792 F.3d 584 (5th Cir. 2015).

The denial of those claims was affirmed on appeal. See Ball,

792 F.3d at 598.

27a

(i.e., regulate their body temperatures). Id. at 666. The

evidence established that Defendants had knowledge

of the substantial risk of serious harm that the

extreme heat posed to Plaintiffs and that Defendants

nevertheless failed to take any remedial action to

protect them, thereby disregarding the substantial

risk of serious harm to Plaintiffs’ health and safety. Id.

at 672-73, 679. Accordingly, the Court enjoined

Defendants to “immediately develop a plan to reduce

and maintain the heat index in the Angola death row

tiers at or below 88 degrees.” Id. at 689. Defendants’

initial Heat Remediation Plan proposed that, in

addition to providing Plaintiffs with a daily cold

shower and access to ice and cold drinking water, airconditioning systems would need to be installed in

each of the death-row facility’s eight tiers in order to

maintain the heat indices in all of the tiers at or below

88 degrees. (Doc. 118).

Defendants appealed. (See Doc. 176). The United

States Court of Appeals for the Fifth Circuit affirmed

this Court’s finding that Defendants had subjected

Plaintiffs to conditions of confinement that violate 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.” Ball, 792 F.3d at 596. The

Court of Appeals, however, held that the scope of the

Court’s injunction violated the Prison Litigation

Reform Act (“PLRA”), 18 U.S.C. § 3626. Ball, 792 F.3d

at 598. The Court of Appeals held that this Court

erred, first, by “order[ing] a type of relief – air

conditioning – that is unnecessary to correct the

Eighth Amendment violation” and, second, by

28a

“award[ing] relief facility-wide, instead of limiting

such relief to Ball, Code, and Magee.” Id. at 599. The

Court of Appeals held that under the PLRA, a district

court may only order injunctive relief that “extend[s]

no further than necessary to correct the violation of

the Federal right of a particular plaintiff or plaintiffs,”

suggesting that “there are many acceptable remedies

short of facility-wide air conditioning”:

For example, the Defendants could divert cool

air from the guards’ pod into the tiers[,] allow

inmates to access air conditioned areas

during their tier time[,] allow access to cool

showers at least once a day[,] provide ample

supply of cold drinking water and ice at all

times[,] supply personal ice containers and

individual fans[,] and install additional ice

machines. Id.

Accordingly, the Court of Appeals vacated this Court’s

injunction, id. at 600, and remanded the proceedings,

instructing the Court to “limit its relief to these types

of remedies,” id. at 599.

As a result, the Court ordered Defendants to

submit a new plan to ameliorate the Eighth

Amendment violation that would be consistent with

the opinion of the Court of Appeals. Defendants

submitted their Second Heat Remediation Plan on

October 23, 2015, (Doc. 251), which subsequently was

revised on April 8, 2016, (Doc. 299) (collectively,

“Second Plan”). Under the Second Plan, Defendants

(1) installed two water-valve controllers in the

showers on each tier, which allow inmates to select

between hot and cold water for their daily, fifteenminute showers; (2) provided one three-gallon ice

container and a smaller ice container that is designed

29a

to hold six twelve-ounce cans, both of which were

replenished with ice by staff or orderlies during their

shifts from the death-row facility’s existing ice

machine and/or an additional ice machine that

Defendants subsequently purchased and installed;

and (3) installed additional fans to ensure that each

Plaintiff was provided a fan of his own. (See Docs. 251,

299). In response to the suggestion of the Court of

Appeals that conditioned air be diverted from the

guards’ pod to a tier in which Plaintiffs are confined,

Defendants asserted that doing so would cause the

premature mechanical failure of the death-row

facility’s air-conditioning system due to the system’s

inability to handle such an increased load. (Doc. 251 at

p. 2). Additionally, Defendants asserted that diverting

conditioned air from the guards’ pod would cause the

humid, outdoor air to be pulled into the pod due to the

resulting negative air balance, thereby causing water

damage to the pod and rendering the building

susceptible to mold growth. (Id. at p. 3). Finally,

Defendants claimed that in order to divert the

conditioned air from the guards’ pod to the tier – as

suggested by the Court of Appeals – the door

connecting the two areas of the structure would be

required to remain open, creating security concerns.

(Id.).

On May 16, 2016, Plaintiffs filed the present

Motion to Modify Injunctive Relief, urging the Court

to enjoin Defendants to implement their initial Heat

Remediation Plan, which called for the installation of

a facility-wide air-conditioning system to maintain the

heat indices in the death-row tiers at or below 88

degrees. (Doc. 315). Plaintiffs argue that because the

heat indices in the death-row tiers rose above 88

30a

degrees in spite of the measures implemented

pursuant to Defendants’ Second Plan, Plaintiffs

remain exposed to a substantial risk of serious harm

due to the conditions of extreme heat, and the Second

Plan thus has proven to be insufficient to remedy the

Eighth Amendment violation found by this Court and

affirmed on appeal. (Id.). Plaintiffs assert that

“Defendants’ failure to propose an effective remedy,”

after being given wide latitude and a full opportunity

to do so, demonstrates that “this Court’s original

injunction was a necessary, narrowly-tailored, and

non-intrusive remedy.” (Doc. 315-1 at p. 7).

Defendants oppose the Motion, arguing that the Court

of Appeals vacated this Court’s finding that exposing

Plaintiffs to heat indices in excess of 88 degrees places

them at substantial risk of serious harm. (Doc. 318 at

p. 4). Defendants assert that because the Court of

Appeals held that air-conditioning was an

unnecessary remedy to ameliorate the Eighth

Amendment violation and the only mechanism to

lower the heat indices in the death-row tiers below 88

degrees is mechanical air-conditioning, the 88-degree

benchmark was vacated by the Court of Appeals. (Id.).

Thus, Defendants contend, the only remedies that are

necessary to correct the Eighth Amendment violation

are those endorsed by the Court of Appeals in Gates v.

Cook, 376 F.3d 323 (5th Cir. 2004), namely, the

provision of cold showers, ice, and additional fans. (Id.

at p. 6). Because Defendants have provided such

“Gates-type” remedies, Defendants’ argument follows,

the Eighth Amendment violation has been sufficiently

remedied. (Id. at pp. 6-7).

31a

II. FINDINGS OF FACT

The following findings of fact are uncontroverted

or supported by the evidence in the record. If a

particular fact was controverted, the Court weighed

the evidence and determined that the evidence

presented by the party supporting that fact was more

persuasive.

A. Defendants’ Second Plan

1. Defendants’ Second Plan consists of (1) the

installation of two water-valve controllers in the

showers on each tier, which allow inmates to select

between hot and cold water for their daily, fifteenminute showers; (2) the provision to each Plaintiff of

one three-gallon ice container and a smaller ice

container that is designed to hold six twelve-ounce

cans, both of which are to be replenished with ice by

staff or orderlies during their shifts from the deathrow facility’s preexisting ice machine and/or an

additional ice machine that Defendants subsequently

purchased and installed; and (3) the installation of

additional fans to ensure that each Plaintiff is

provided a fan of his own. (Docs. 251, 299).

2. The provision of a daily, fifteen-minute cold

shower, standing alone, does not sufficiently reduce

the substantial risk of serious harm to Plaintiffs. A

brief cold shower may provide temporary relief to

Plaintiffs, but such relief is limited to the time that

Plaintiffs spend in the shower and a brief period

afterward. Once Plaintiffs exit the shower, they are

again exposed to a substantial risk of serious harm due

to the conditions of extreme heat present in the deathrow tiers. The Court heard compelling, uncontroverted

testimony from Dr. Susan Vassallo, M.D. – who has

32a

been on the faculty of the New York University School

of Medicine since 1983; is an attending physician in

emergency medicine at Bellevue Hospital Center in

New York, New York; is a certified correctional health

professional; and is an expert on the effects of drugs

and illness on an individual’s ability to

thermoregulate – regarding the effectiveness of the

measures implemented under Defendants’ Second

Plan. Regarding the provision of a daily, fifteenminute cold shower to Plaintiffs, Dr. Vassallo testified

that “a fifteen-minute shower out of twenty-four hours

a day, in these temperatures, [is] absolutely not a

safety measure.” (Doc. 346, Hr’g Tr. at p. 141, ll. 1-3).

Citing scholarly studies, which reported that there is

no statistically significant value to providing a brief

cold shower under similar conditions, Dr. Vassallo

explained that as the cold shower water on Plaintiffs’

skin evaporates following their showers, “to the extent

that [their skin] is able to cool, given the humidity in

the air, the individuals for that period of time will feel

cooler.” (Id. at p. 87, l. 25; id. at p. 88, ll. 1-3). However,

Dr. Vassallo continued: “[B]y the time the evaporative

cooling is completed, the story is over. The [cooler]

temperature is no longer and that individual will be

. . . subjected for another twenty-three hours and

forty-five minutes to the heat ind[ices] that are

existing at the Louisiana State [Penitentiary] cells

where these folks here are being confined.” (Id. at

p. 140, ll. 19-25).

3. Plaintiffs similarly testified, from a layman’s

perspective, regarding the ineffectiveness of cold

showers. Plaintiff Code testified that because it is

“very hot” in the showers, the cold showers offer the

limited benefit of providing him time to dry and clothe

33a

himself before his body begins to perspire again due to

the extreme heat. (Id. at p. 47, l. 5). Plaintiff Magee

testified that the cold showers help relieve some of his

heat-related symptoms, but merely while he is taking

a shower. (Id. at p. 58, l. 8).

4. The provision of a cold shower for as long as

one hour, standing alone, is similarly ineffective at

reducing the substantial risk of serious harm to

Plaintiffs. Even if Plaintiffs were permitted to remain

in the shower for one hour, the conditions of extreme

heat present in the death-row tiers continue to place

Plaintiffs at risk during the remaining twenty-threehour period of the day after the evaporative cooling

from the showers has ceased. Dr. Vassallo testified

that an hour-long cold shower would not reduce the

risk of heat stress to Plaintiffs: “The reason is . . . that

the other twenty-three hours where they’re sitting

under those conditions, environmental conditions

[that] have been well described, are long and

dangerous. One hour outside of that condition [by

providing a one-hour cold shower] is insufficient to

protect – to be protective.” (Id. at p. 167, ll. 1-7).

5. The use of fans in conditions of extreme heat

such as those present in the death-row tiers, standing

alone, does not sufficiently reduce the substantial risk

of serious harm to Plaintiffs. Dr. Vassallo testified to

a clear scientific consensus “that fans are not

protective” when they are utilized in “the kinds of heat

indices that we see on death row where these

gentlemen are . . . incarcerated.” (Id. at p. 77,

ll. 17-19). For example, Dr. Vassallo cited a clear

scientific consensus that at temperatures of 90 degrees

with humidity of 35%, “there was absolutely no

protection from fans.” (Id. at p. 79, ll. 5-6). On the

34a

contrary, the use of fans in such conditions may

increase the risk of harm to Plaintiffs because,

according to Dr. Vassallo, “there is a temperature at

which when you start to blow hot air across the skin,

there’s simply an increase in heat stress.” (Id. at p. 78,

ll. 17-20).

6. The regular provision of ice in the ice

containers provided to Plaintiffs, standing alone, does

not sufficiently reduce the substantial risk of serious

harm to Plaintiffs. Dr. Vassallo testified that in her

thirty years of experience as a clinician, she had never

seen evidence that a heat stroke was prevented by a

person’s having “ice in their drink or ice in their

cooler.” (Id. at p. 95, l. 25).

7. Additionally, the provision of an unlimited

amount of ice, coupled with a container that would

permit Plaintiffs to lie down in and become encased in

the ice, is not a workable remedy. Although such a

configuration is used by medical professionals to treat

patients who already have suffered a heat stroke, Dr.

Vassallo testified that because of the “degree of pain

and discomfort associated with that . . . as soon as our

[heat stroke patients are] conscious, they have to come

out of that ice bath.” (Id. at p. 161, ll. 3-8). Further, Dr.

Vassallo testified that the benefits of such an ice bath

would “only last[] for the period” in which a person is

immersed in the ice, (id. at p. 161, l. 23), and that a

configuration in which Plaintiffs were immersed in an

ice bath for twenty-three to twenty-four hours a day

“would be intolerable for them . . . and, also, absolutely

unimaginable,” (id. at p. 162, ll. 1-2).

8. During

the

implementation

the

Defendants’ Second Plan, the heat indices in each tier

in which Plaintiffs were confined rose above 88

35a

degrees. During the implementation of the Second

Plan, Plaintiffs were confined on Tiers B, F, and G.

(Doc. 339 at p. 1). In the period between May 12, 2016,

and June 10, 2016 – during which Defendants had

implemented the measures under the Second Plan –

heat indices exceeded 88 degrees on three days in Tier

B, eight days in Tier F, and five days in Tier G. (See

Doc. 328 at p. 2; Doc. 339-2; Doc. 339-6; Doc. 339-7).

9. Plaintiffs suffer from certain medical

conditions and take certain prescription medications

that place them at an increased risk for heat-related

illness. Plaintiff Ball suffers from diabetes,

hypertension,

venous

insufficiency,

and

hyperlipidemia; regarding medication, Ball takes

Lasix, Claritin, potassium, Keppra, Tenormin, Cozaar,

Norvasc, metformin, insulin, and Zocor. (Doc. 346,

Hr’g Tr. at p. 19, ll. 11-20). Plaintiff Code suffers from

hypertension, Hepatitis C, and hypothyroidism;

regarding medication, Code takes Synthroid, Cozaar,

and amlodipine. (Id. at p. 19, ll. 21-25). Plaintiff Magee

suffers from depression, Hepatitis C, and

hyperlipidemia; regarding medication, Magee takes

Remeron, Catapres, fluoxetine, Norvasc, and

cholestyramine. (Id. at p. 20, ll. 1-5; see id. at p. 223,

ll. 16-18). Dr. Vassallo, who had reviewed the medical

records of all Plaintiffs and was familiar with all of

Plaintiffs’ medical conditions, (id. at p. 100, ll. 8-12),

testified that “the conditions and the . . . medication

that [Plaintiffs are] receiving for those conditions

interfere with the ability to respond to heat,” (id. at

p. 126, ll. 20-23).

10. Plaintiffs continued to experience heatrelated symptoms during the implementation of

Defendants’ Second Plan. Plaintiff Code testified that

36a

during the implementation of the Second Plan, he

continued to experience periods of prolonged dizziness

and “profuse perspir[ation].” (Id. at p. 43, l. 8).

Plaintiff

Magee

testified

that

during

the

implementation of the Second Plan, he experienced

the “same [symptoms] that [he] had before,” namely,

dizziness, nausea, and perspiration. (Id. at p. 54, l. 23).

Plaintiff Ball testified that during the implementation

of the Second Plan, he experienced the “normal every

year symptoms that [he experiences] when it start[s]

to get hot.” (Id. at p. 60, ll. 18-19). Specifically, Ball

testified that he continued to experience “headaches,”

which resemble “passing out almost,” (id. at pp. 61,

ll. 4-5), as well as “tingling” and “pain” in his fingers

and his feet, a sensation that Ball described as “like

. . . someone was beating [his finger] with a hammer,”

(id. at p. 60, ll. 18-23).

11. The measures implemented pursuant to

Defendants’ Second Plan do not, either individually or

in combination, 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. When asked whether the

measures implemented pursuant to the Second Plan –

the installation of additional fans, the provision of two

ice containers so that Plaintiffs have increased access

to ice, and the availability of a fifteen-minute cold

shower – removed the substantial risk of serious harm

to Plaintiffs as a result of the conditions of extreme

heat to which they are exposed in the death-row tiers,

Dr. Vassallo unequivocally answered, “Absolutely

not.” (Id. at p. 96, l. 24). When asked whether the

measures implemented pursuant to the Second Plan

can be used to lower an individual’s elevated body

37a

temperature, Dr. Vassallo responded: “I completely

disagree with that. And I have thirty years of clinical

experience trying to lower a body temperature. And I

can tell you 100 percent that will not work.” (Id. at

p. 162, ll. 14-17).

12. The 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 death-row tiers is to lower the

temperature and heat indices to which Plaintiffs are

exposed. According to Dr. Vassallo: “The temperature

and the heat index [are] the risk here. That is the

cause of risk. To remove the risk, the temperature has

to be lowered.” (Id. at p. 97, ll. 3-5). Dr. Vassallo

testified unequivocally that “in [her] expert opinion,

[she did] not have any other idea . . . how to protect

these prisoners other than to reduce the temperature,”

(id. at p. 147, ll. 9-12), and that the “[Second P]lan does

not do that,” (id. at p. 74, ll. 15-16).

13. The risk of serious harm due to exposure to

conditions of extreme heat significantly increases

when an individual is exposed to heat indices of 88

degrees or greater. Dr. Vassallo testified that,

according to the findings of a recent study published

in February 2016, “hospitalizations [due to heatrelated illnesses] take a rather abrupt increase at the

[mean] heat index . . . of 32 degrees [Celsius].” (Id. at

p. 121, ll. 5-7). Thirty-two degrees Celsius equates to

89.6 degrees Fahrenheit. (Id. at p. 123, ll. 22-23).

Given the information contained in that study, along

with her previous findings, Dr. Vassallo concluded

that the “number of 88 degree[s] is a reasonable and

scientifically . . . substantiated number” as a

benchmark for the heat index at which individuals are

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subjected to a substantial risk of serious harm due to

heat-related illness, (id. at p. 124, ll. 20-22), the same

benchmark that the National Weather Service sets as

the “top number in caution range,” (id. at p. 129,

ll. 14-15).

B. Defendants’

Additional

Remedial

Measures Implemented Subsequent to

the Implementation of the Second

Plan (Defendants’ “Third Plan”)

1. At some time around June 26, 2016,

Defendants implemented remedial measures in

addition to those implemented pursuant to

Defendants’ Second Plan (collectively, “Third Plan”).

(Doc. 369, Hr’g Tr. at p. 15, ll. 8-10).

2. Under the Third Plan, Defendants (1) moved

Plaintiffs to Tier C, which was otherwise unoccupied;

(2) assigned Plaintiffs to the three cells closest to the

door that connects the tier to the guards’ pod (e.g., cells

C-1, C-2, and C-3); (3) installed a 27” x 34” air vent in

the door that connects Tier C to the guards’ pod,

allowing conditioned air from the guards’ pod to flow

into Tier C; (4) installed a “curtain” constructed of

heavy plastic between cells C-4 and C-5, in an attempt

to keep the newly diverted cool air from escaping to

the areas of Tier C in which neither Plaintiffs nor any

other inmates were confined; (5) provided each

Plaintiff with an individual cooling mechanism,

commonly referred to as an “IcyBreeze unit” or a

“Cajun cooler,” which essentially consists of an ice

chest, a fan, and a duct that – when the ice chest is

filled with ice and the fan is powered on – emits cool

air; (6) installed a water-valve controller in the

showers on Tier C, which allowed Plaintiffs to select

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between hot and cold water for their daily, fifteenminute showers (a continued measure from the Second

Plan); (7) provided to each Plaintiff one three-gallon

ice container and a smaller ice container that is

designed to hold six twelve-ounce cans, both of which

were replenished with ice by staff or orderlies during

their shifts from the death-row facility’s preexisting

ice machine and/or an additional ice machine that

Defendants subsequently purchased and installed (a

continued measure from the Second Plan); and

(8) installed additional fans to ensure that each

Plaintiff was provided a fan of his own (a continued

measure from the Second Plan). (Doc. 360 at p. 3). The

Court only learned of the additional measures

implemented under the Third Plan through

communication with the Special Master appointed in

this case, Paul J. Hebert. Although both parties

expressed to Special Master Hebert their desire to

withhold from the Court the details regarding the

specific measures implemented pursuant to the Third

Plan, in spite of the fact that those measures were

apparently successful in remedying the constitutional

violation, Special Master Hebert disclosed to the Court

the additional remedial actions that were

implemented by Defendants, testifying that he “felt it

was an obligation on [his] part to advise the Court that

the prisoners were in a situation that did not continue

to . . . subject [them] to the conditions which amounted

to the constitutional violation.” (Doc. 369, Hr’g Tr. at

p. 18, ll. 7-12).

3. The IcyBreeze units emit air that measures

approximately 57.8 degrees in temperature. (Doc. 374

at p. 2).

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4. In order to maintain the temperature of the

air emitted from the IcyBreeze units at a cool level, the

ice-chest portion of the unit must be filled with ice and

the ice must be replenished regularly. (Doc. 375, Hr’g

Tr. at p. 20, ll. 11-15).

5. The IcyBreeze units were positioned in the

corridor outside of each Plaintiff’s cell, approximately

twelve inches from the bars of each cell.3 (Id. at p. 12,

ll. 22-23). According to the testimony of Shane

M. Hernandez – a professional engineer who, in

conjunction with Special Master Hebert, was retained

by the Court to evaluate the measures implemented

pursuant to Defendants’ Third Plan – a person who is

in “close proximity” to the IcyBreeze unit is able to feel

the cool air being emitted, but a person who is “more

than . . . five feet away” cannot. (Id. at p. 27, ll. 18-20).

6. IcyBreeze units are effective at lowering the

temperature of a small space, but do not reduce the

humidity level in that space. (Id. at p. 29, ll. 11-14).

7. The installation of the 27” x 34” air vent in the

door connecting Tier C to the guards’ pod permitted

the conditioned air in the guards’ pod to flow into Tier

C. According to Mr. Hernandez’s testimony, Tier C is

a “highly negative space” in terms of air pressure,

which caused the conditioned air in the guards’ pod to

flow through the air vent and into the space in which

Plaintiffs were confined. (Id. at p. 16, ll. 13-15). The

As of the date of this Ruling and Order, the Court does not

possess information regarding the locations and cell assignments

of Plaintiffs. The Court proceeds under the assumption that

Plaintiffs are no longer being confined in Tier C and are not being

availed of the remedial measures implemented under

Defendants’ Third Plan due to the seasonal changes in weather.

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conditioned air subsequently exited the structure

through the tier’s exhaust system. (Id. at p. 16,

ll. 18-19).

8. The conditioned air that flowed into Tier C

from the guards’ pod via the air vent reduced the

humidity in the area in which Plaintiffs were confined.

Mr. Hernandez testified that when he inspected the

death-row facility, he did not take any humidity

measurements, but noticed that when comparing Tier

C – which had conditioned air flowing into it from the

guards’ pod through the air vent – to Tier H – which is

located on the opposite side of the death-row facility

and did not have an air vent connecting it to the

guards’ pod – the difference between “the humidity

levels w[as] very drastic.” (Id. at p. 10, ll. 23).

Mr. Hernandez testified that he “could tell that the

relative humidity was probably somewhere in the 60

percent range” in Tier C; in contrast, Mr. Hernandez

estimated that the humidity level in Tier H was

between 70% and 90%, which roughly “matched [the

humidity level] outside.” (Id. at p. 10, ll. 24-25; id. at

p. 11, ll. 2-4). In sum, Mr. Hernandez testified that

“Tier C was much more comfortable.” (Id. at p. 10,

ll. 23-24).

9. While all of the measures of the Third Plan

were implemented, the temperature inside the control

center in the air-conditioned guards’ pod was

measured to be 73.1 degrees. (Doc. 374 at p. 2).

10. While all of the measures of the Third Plan

were implemented, the temperature inside the

corridor in the air-conditioned guards’ pod was

measured to be 76.2 degrees. (Id.).

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11. While all of the measures of the Third Plan

were implemented, the temperature in front of cell C-3

– in which one of the Plaintiffs was confined – was

measured to be 78.5 degrees. (Id.).

12. While all of the measures of the Third Plan

were implemented, the heat index in the portion of

Tier C in which Plaintiffs were confined remained

below 80 degrees. Special Master Hebert testified that

aside from the first two days in which the Third Plan

was implemented, the heat indices in the portion of

Tier C in which Plaintiffs were confined “hardly

approach[ed] 80 degrees.” (Doc. 369, Hr’g Tr. at p. 23,

l. 5).

13. In the period between July 7, 2016, and

August 31, 2016 – during which the heat index

remained below 80 degrees in the portion of Tier C in

which plaintiffs were confined – the heat index

reached or exceeded 100 degrees in each of the other

tiers of the death-row facility on at least six, and as

many as thirty, days. The heat index reached or

exceeded 100 degrees on twenty days in Tier A, six

days in Tier B, twenty-three days in Tier D, thirty

days in Tier E, twenty-three days in Tier F, nineteen

days in Tier G, and eighteen clays in Tier H. (Doc.

376).

14. Although the fans installed by Defendants in

the portion of Tier C in which Plaintiffs are confined,

standing alone, do not reduce the substantial risk of

serious harm to Plaintiffs because the fans do not

reduce the temperature of the space, when used in

conjunction with the IcyBreeze units, the fans help

circulate the cool air that the IcyBreeze units emit.

Frank Thompson, a professional engineer who

specializes in HVAC systems and is the designer of

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record for the death-row facility, testified that the fans

provided to Plaintiffs do not lower the temperature,

but rather “are just circulating air in the space.” (Doc.

346, Hr’g Tr. at p. 244, ll. 13-14). Given the testimony

of Mr. Hernandez that a person who is “more than . . .

five feet away” cannot feel the cool air being emitted

from the IcyBreeze units, (Doc. 375, Hr’g Tr. at p. 27,

l. 19), and the fact that Plaintiffs’ cells measure more

than five feet in depth, (see id. at p. 27, l. 24), the fans

provided to Plaintiffs aided in circulating the cool air

that is emitted from the IcyBreeze units to broader

areas of Plaintiffs’ cells in Tier C.

15. Providing ice to Plaintiffs, when it is provided

in conjunction with the other measures implemented

under Defendants’ Third Plan, is a humane measure.

Dr. Vassallo described the desire for ice as a matter of

human instinct when an individual is hot: “It’s about

being humane . . . . We want ice when we’re hot.” (Doc.

346, Hr’g Tr. at p. 153, ll. 8-9).

16. Providing Plaintiffs access to daily cold

showers reduces the substantial risk of serious harm

to Plaintiffs while they are in the shower area,

removed from their individual IcyBreeze units. The

individual IcyBreeze units were positioned in the

corridor outside of each Plaintiffs cell, approximately

twelve inches from the bars of each cell. (Doc. 375, Hr’g

Tr. at p. 12, ll. 22-23). Plaintiffs thus did not have

access to the IcyBreeze units in the shower area

because the units were located directly in front of their

cells. (See id.). A cold shower, however, can produce

evaporative cooling during the shower and the brief

time following the shower, (see Doc. 346, Hr’g Tr. at

p. 140, ll. 18-21), which can protect Plaintiffs from the

substantial risk of serious harm while they are

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removed from the IcyBreeze units for the purpose of

bathing themselves.

17. The measures implemented pursuant to

Defendants’ Third Plan sufficiently reduce the

substantial risk of serious harm to Plaintiffs due to the

conditions of extreme heat to which they are exposed

in the death-row tiers at Angola. Expert testimony

established that the risk of serious harm due to heatrelated illness dramatically increases when the heat

index exceeds 88 degrees, (see id. at p. 124, ll. 20-22),

and that the only way to remove the risk is to lower

the temperature and heat index, (see id. at p. 97,

ll. 3-5). The measures implemented under the Third

Plan, collectively, lowered the heat index in the

portion of Tier C in which Plaintiffs were confined

below 80 degrees, (Doc. 369, Hr’g Tr. at p. 23, ll. 3-5),

while the tiers that did not benefit from the remedial

measures exhibited heat indices of over 100 degrees on

multiple days, (Doc. 376). This reduction of the heat

indices to levels below 88 degrees sufficiently reduces

the substantial risk of serious harm to Plaintiffs. (See

Doc. 346, Hr’g Tr. at p. 124, ll. 20-22).

18. The total cost of implementing all of the

measures pursuant to the Third Plan was less than

$2,000. (Doc. 369, Hr’g Tr. at p. 23, ll. 19-21).

Specifically, the cost of the plastic “curtain” was

$785.40, and the cost of the IcyBreeze units was

$519.95. (Id. at p. 26, ll. 15-17). Testimony established

that the total cost of implementing all of the measures

was less than $2,000. (Id. at p. 23, ll. 19-21).

19. The costs of alternatives to the Third Plan

vastly exceed $2,000. The cost of installing a

mechanical system that would provide “neutral air”

solely in the portion of Tier C in which Plaintiffs were

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confined, in order to create balanced air pressure

between that portion of Tier C and the guards’ pod,

would be approximately $75,000 to $100,000. (Doc.

375, Hr’g Tr. at p. 22, l. 24). The cost of installing a

mechanical system that would provide “neutral air” in

the entirety of Tier C, in order to create balanced air

pressure between Tier C as a whole and the guards’

pod, would be approximately $250,000 to $300,000.

(Id. at p. 22, ll. 8-10).

C. Potential for Mold Growth as a Result

of Defendants’ Third Plan

1. Due to the design of the IcyBreeze units, the

cool air that is emitted from the units does not contain

any water vapor, and therefore the IcyBreeze units do

not contribute to any moisture- or condensationrelated problems in the portion of Tier C in which

Plaintiffs were confined. It appears that, according to

Mr. Hernandez’s testimony, “the IcyBreeze unit is a

sealed heat exchanger,” and thus the unit’s fan is not

“able to capture . . . liquid.” (Id. at p. 13, ll. 7-10). Upon

inspecting the IcyBreeze units and Plaintiffs’ cells,

Mr. Hernandez did not observe any moisture at the

base of the unit, on the steel bars of Plaintiffs’ cells, or

on any of Plaintiffs’ belongings inside their cells. (Id.

at p. 12, ll. 19-25; id. at p. 13, ll. 1-2). There was some

condensation around the ducts that emit cool air from

the IcyBreeze units, “but not much.” (Id. at p. 12,

ll. 17-19).

2. Because the materials from which Tier C was

constructed are not conducive to mold growth, moldrelated problems are not likely in the portion of the

tier in which Plaintiffs were confined. The tier was

constructed from nonorganic materials, such as steel

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and concrete, upon which it would be “very, very

difficult” for mold to grow because, according to

Mr. Hernandez, such materials do not “act as food.”

(Id. at p. 14, ll. 12-13).

3. Due to the installation of the air vent in the

door connecting Tier C to the guards’ pod – and the

consequential flow of conditioned air from the guards’

pod to Tier C through the air vent – humid, outdoor air

had begun to infiltrate the guards’ pod during the

implementation of the Third Plan. According to

Mr. Hernandez, the “sucking action” created as a

result of the conditioned air’s flowing from the guards’

pod to Tier C through the air vent “cause[s] humid air

to go through the exterior walls of the air conditioned

area.” (Id. at p. 16, l. 25; id. at p. 17, ll. 1-2).

4. The infiltration of humid, outdoor air

increases the potential for mold growth in the guards’

pod, and the areas behind the walls of the guards’ pod

are at the highest risk for mold growth. According to

Mr. Hernandez, the “potential for mold growth would

probably be in concealed spaces behind the walls.” (Id.

at p. 26, ll. 10-11).

5. Organic materials, which are conducive to

mold growth, were utilized to construct the guards’

pod. Mr. Hernandez testified that such organic

material acts as “food for the mold.” (Id. at p. 41, l. 6).

6. There is no certainty that mold growth will

result from the infiltration of humid, outdoor air into

the guards’ pod. According to Mr. Hernandez, “it’s

questionable whether or not [mold growth] would

happen or occur.” (Id. at p. 17, ll. 4-5). Mr. Hernandez

reiterated that he could not “guarantee that there’ll be

mold growth,” (id. at p. 39, ll. 17-18), and testified that

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there simply was a “potential for mold growth,” (id. at

p. 39, ll. 21-22).

7. The death-row facility currently exhibits no

evidence of mold growth. Mr. Hernandez testified that

he “did not observe any kind of mold growth . . . at all

in the facility” during his investigation, (id. at p. 26,

ll. 15-16), and repeated later that he “did not see any

evidence whatsoever of mold,” (id. at p. 39, l. 25).

D. Potential Alterations to Defendants’

Third Plan in the Event of Mold Growth

Sealing the Air Vent in the Door

Connecting Tier C to the Guards’ Pod

1. If prison officials sealed the air vent in the

door connecting Tier C to the guards’ pod, the potential

for mold growth in the guards’ pod would be reduced

or perhaps eliminated. Sealing the air vent would

return the death-row facility “to the original

condition,” according to Mr. Hernandez, in which no

conditioned air from the guards’ pod would be diverted

to Tier C, and humid, outdoor air thus would not

infiltrate the guards’ pod. (Id. at p. 17, ll. 11-12).

2. If officials sealed the air vent, however, the

heat indices in the portion of Tier C in which Plaintiffs

were confined would rise. Mr. Hernandez testified that

if officials sealed the air vent, the lower heat indices in

the portion of Tier C in which Plaintiffs were confined

could not be maintained without an additional cooling

mechanism. (Id. at p. 20, ll. 8-10).

3. In the event that officials sealed the air vent,

additional IcyBreeze units could be installed in the

portion of Tier C in which Plaintiffs were confined in

order to attempt to maintain the heat indices at the

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same levels that prevailed with the air vent open. “If

you add additional IcyBreeze units,” Mr. Hernandez

testified, “I think you can overcome the cooling from

the ventilation.” (Id. at p. 37, ll. 20-21).

4. Even if additional IcyBreeze units were

introduced into the portion of Tier C in which

Plaintiffs were confined in the event that officials

sealed the air vent, the humidity in the space would

rise because the IcyBreeze units have no effect on the

humidity level of a space. Mr. Hernandez testified that

in the event that officials sealed the air vent and

additional IcyBreeze units were installed, “the

temperature would come down,” but “the humidity

would rise.” (Id. at p. 45, ll. 19-20). The elevated

humidity would necessitate the installation of

additional IcyBreeze units to lower the temperature to

a level that, after factoring in the elevated humidity,

resembled the heat-index level of the space prior to the

sealing of the air vent. Mr. Hernandez testified that in

order to maintain the heat indices at the levels that

prevailed with the air vent open, “you would [have to]

attack[] or address[] the temperature to try to get the

temperature down to where . . . your perceived

temperature wouldn’t be as hot.” (Id. at p. 45,

ll. 21-24).

5. Although the precise number of IcyBreeze

units that would be necessary to maintain the lower

heat-index levels in the portion of Tier C in which

Plaintiffs were confined in the event that officials

sealed the air vent cannot be determined, the number

that would be required does not appear to be

impracticable. In the estimation of Mr. Hernandez, it

would not “take that many” additional IcyBreeze units

to achieve the desired result. (Id. at p. 38, l. 2).

49a

6. Additionally, an existing louver on the far end

of Tier C, as far away as possible from the portion of

Tier C in which Plaintiffs were confined, could be

opened in an attempt to limit the amount of cool air

emitted by the IcyBreeze units that exits the tier

through the tier’s exhaust system. This action would

consist of merely opening an existing window. (Id. at

p. 18, ll. 18-22).

7. If officials sealed the air vent in the door

connecting Tier C to the guards’ pod due to the

proliferation of mold growth in the guards’ pod, it

nevertheless is probable that the substantial risk of

serious harm to Plaintiffs could sufficiently be reduced

by the introduction of additional IcyBreeze units and

the opening of a louver in Tier C as far as possible from

the portion of the tier in which Plaintiffs were

confined. Such a configuration, according to Mr.

Hernandez, “has a high potential of success.” (Id. at

p. 19, ll. 9-10).

Decreasing the Size of the Air Vent

in the Door Connecting Tier C to

the Guards’ Pod

1. Decreasing the size of the air vent in the door

connecting Tier C to the guards’ pod would not

appreciably reduce the potential for mold growth in

the guards’ pod. Mr. Hernandez testified that initially,

reducing the size of the air vent merely will “increase

the velocity of the air coming through.” (Id. at p. 23,

l. 25; id. at p. 24, l. 1). While the flow of air through

the air vent eventually may decrease if officials

reduced the size of the air vent, Mr. Hernandez

testified that the “negative effect” in the guards’ pod

would remain and that the humid, outdoor air would

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continue to infiltrate the guards’ pod, thereby

presenting a potential for mold growth. (Id. at p. 24,

ll. 9-11).

III. DISCUSSION

The measures implemented pursuant to

Defendants’ Second Plan fail to remedy the Eighth

Amendment violation, and Fifth Circuit precedent

does not limit this Court solely to those measures

when fashioning injunctive relief. The measures

implemented pursuant to Defendants’ Third Plan,

however, sufficiently remedy the constitutional

violation, and an injunction requiring that Defendants

continue to implement those measures complies with

the limitations on injunctive relief imposed by both the

PLRA and the Court of Appeals. Although Defendants

voluntarily implemented the measures under the

Third Plan and those voluntary measures remedy the

constitutional violation, the Court finds that the

issuance of an injunction nevertheless is necessary

because there is a cognizable danger that Defendants,

in the absence of an injunction, may revert to

measures that will cause the recurrence of the

constitutional violation.

A. Defendants’

Third

Plan

Sufficiently

Reduces the Substantial Risk of Serious

Harm to Plaintiffs, Is Narrowly Drawn, and

Is the Least Intrusive Means to Correct the

Eighth Amendment Violation

Pursuant to the PLRA, the Court may order

injunctive relief to remedy a constitutional violation

“with respect to prison conditions,” but the injunctive

relief that this Court fashions “shall extend no further

than necessary to correct the violation of the Federal

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right of a particular plaintiff or plaintiffs.” 18 U.S.C.

§ 3626(a)(1)(A). Additionally, the Court must find that

the injunctive 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.”

Id. Further, this Court must “give substantial weight

to any adverse impact on public safety or the operation

of a criminal justice system caused by the relief,” id.,

but “[c]ourts 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). Although

“plaintiffs are not entitled to the most effective

available remedy[,] they are entitled to a remedy that

eliminates the constitutional injury.” Ball, 792 F.3d at

599.

The constitutional injury in this case is the

“housing [of] these prisoners in very hot cells without

sufficient access to heat-relief measures,” id. at 596,

which was found by this Court and the Court of

Appeals to place “these prisoners . . . at a substantial

risk of serious harm,” id. at 594. Defendants suggest

that the measures implemented pursuant to their

Second Plan – the installation of additional fans, the

provision of two ice containers so that Plaintiffs have

increased access to ice, and the availability of a fifteenminute cold shower – are all that is required in order

to remedy the constitutional violation and to remove

that substantial risk. The Court heard compelling and

uncontroverted expert testimony, however, that these

measures, whether standing alone or in combination,

“absolutely” do not reduce the substantial risk of

serious harm to Plaintiffs due to the conditions of

52a

extreme heat present in Angola’s death-row tiers.

(Doc. 346, Hr’g Tr. at p. 96, l. 24). The measures

implemented pursuant to the Second Plan are not

remedies because Plaintiffs remain at substantial risk

of serious harm in spite of those measures; the

measures do not “eliminate[] the constitutional

injury.” Id. at 599. On the contrary, this Court heard

expert testimony that one of the remedies – providing

each Plaintiff with an individual fan – may even

exacerbate the constitutional injury because of the

increased heat stress on the body that results from

“blow[ing] hot air across the skin.” (Id. at p. 78, ll. 1819). This expert testimony is bolstered by the

testimony of Plaintiffs themselves, who all testified

that they continued to experience heat-related

symptoms during the implementation of Defendants’

Second Plan. (See id. at p. 43, ll. 2-8; id. at p. 54, ll. 2325; id. at p. 60, ll. 18-24; id. at p. 61, ll. 4-6).

Nor, as Defendants suggest, is this Court limited

in fashioning injunctive relief to the measures

implemented pursuant to the Second Plan as a result

of Fifth Circuit precedent. Defendants argue that

because the measures implemented pursuant to the

Second Plan are the same measures that the Court of

Appeals endorsed in Gates, these Gates-type measures

are all that Defendants are required to implement,

and Defendants assert that any additional measures

thus are foreclosed by Fifth Circuit precedent. That

argument is misplaced, however. The Court of

Appeals, in the opinion remanding this case back to

this Court, suggested several potential remedial

measures that exceed the measures ordered to be

implemented in Gates, including “divert[ing] cool air

from the guards’ pod into the tiers” and “allowing

53a

inmates to access air conditioned areas during their

tier time.” Id. The Court of Appeals opined that

“[t]hese are precisely the types of remedies that this

court endorsed in Gates and that the PLRA requires.”

Id. Thus, the interpretation of the Court of Appeals

itself is that remedial measures beyond the provision

of fans, ice, and cold showers do not conflict with Fifth

Circuit precedent.

In sum, based on compelling expert testimony, the

measures implemented under Defendants’ Second

Plan “absolutely” do not reduce the substantial risk of

serious harm to Plaintiffs, (id. at p. 96, l. 24), and

Plaintiffs continued to experience heat-related

symptoms during the implementation of the Second

Plan, (see id. at p. 43, ll. 2-8; id. at p. 54, ll. 23-25; id.

at p. 60, ll. 18-24; id. at p. 61, ll. 4-6). The 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 p. 97, ll. 3-5; id. at p. 147, ll. 10-12).

Defendants’ Second Plan, according to expert

testimony, “does not do that.” (Id. at p. 74, ll. 15-16).

Defendants’ Third Plan, on the other hand, lowers

the heat indices to which Plaintiffs are exposed –

thereby sufficiently reducing the substantial risk of

serious harm to Plaintiffs and remedying the Eighth

Amendment violation – and is consistent with both the

limits that the PLRA places on injunctive relief and

the suggestions of the Court of Appeals.

As a result of the measures implemented

pursuant to the Third Plan, both the temperatures

and heat indices to which Plaintiffs were exposed

remained below 80 degrees. According to the

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testimony of Special Master Hebert, the heat indices

to which Plaintiffs were exposed “hardly approach[ed]

80 degrees.” (Doc. 369, Hr’g Tr. at p. 23, l. 5). These

heat indices were below the 88-degree benchmark at

which, as established through expert testimony, the

risk of serious harm due to heat-related illness

dramatically increases. (Doc. 346, Hr’g Tr. at p. 124,

ll. 20-22). Thus, the implementation of the Third Plan,

as Special Master Hebert testified, placed the

“prisoners . . . in a situation that did not continue to

. . . subject [them] to the conditions which amounted to

the constitutional violation.” (Doc. 369, Hr’g Tr. at

p. 18, ll. 9-12).

Not only do the measures implemented pursuant

to Defendants’ Third Plan remedy the constitutional

violation, they are also consistent with the limitations

of the PLRA and the suggestions of the Court of

Appeals. First, the measures implemented under the

Third Plan only afford relief to Plaintiffs and no other

portion of the death-row population at Angola. See

18 U.S.C. § 3626(a)(1)(A) (“Prospective relief . . . shall

extend no further than necessary to correct the

violation of the Federal right of a particular plaintiff

or plaintiffs.”). Plaintiffs have been isolated in Tier C,

which is otherwise unoccupied, and the measures

implemented pursuant to the Third Plan only lower

the heat indices in the portion of Tier C in which

Plaintiffs were confined.

Second, the measures implemented under the

Third Plan are consistent with the suggestions of the

Court of Appeals, rendering the measures “narrowly

drawn [and] extend[ing] no further than necessary to

correct the violation of the Federal right.” Id. The

Third Plan involves diverting cool air from the guards’

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pod to the portion of Tier C in which Plaintiffs were

confined, see Ball, 792 F.3d at 599 (“Defendants could

divert cool air from the guards’ pod into the tiers

. . . .”); providing a cooling mechanism that is

essentially an ice chest with an attached fan, see id.

(“Defendants could . . . supply personal ice containers

and individual fans . . . .”); and providing daily cold

showers, access to ice, and individual fans, see id.

(“Defendants could . . . allow access to cool showers at

least once a day[,] provide ample supply of . . . ice at

all times[, and] supply . . . individual fans . . . .”). The

Court of Appeals held that all of these remedies “are

precisely the types of remedies this court endorsed in

Gates . . . and that the PLRA requires,” instructing

this Court to “limit its relief to these types of

remedies.” Id. The remedies implemented pursuant to

the Third Plan are in fact so limited, and thus they are

consistent with the limitations of the PLRA.

Third, the measures implemented pursuant to the

Third Plan are “the least intrusive means necessary to

correct the violation of the Federal right.” 18 U.S.C.

§ 3626(a)(1)(A). This Court, by enjoining Defendants

to implement the measures pursuant to their Third

Plan, is not intruding upon the province of prison

officials, but rather ordering Defendants merely to

implement a Plan of their own creation.

Fourth, this Court has “give[n] substantial weight

to any adverse impact on public safety or the operation

of a criminal justice system caused by the relief.” Id.

Although there presently is no evidence of mold

growth in the guards’ pod as a result of the

implementation of the measures under the Third Plan,

this Court has identified alternative measures that

could be implemented in the event that mold growth

56a

is detected, taking due account of the potential adverse

effects that this injunction may have on prison officials

due to their possible exposure to mold spores.

Additionally, the total cost of the implementation of

the Third Plan was less than $2,000 – far below the

costs of alternative remedial measures – which is an

amount that will neither unduly burden Angola’s

budget nor have any “adverse impact on . . . the

operation of a criminal justice system.” Id.

Therefore, the measures implemented pursuant

to Defendants’ Third Plan remedy the constitutional

violation found by this Court and affirmed by the

Court of Appeals by lowering the heat indices in the

area in which Plaintiffs were confined, which is the

only means of sufficiently reducing the substantial

risk of serious harm to Plaintiffs, and those measures

are consistent with both the PLRA and the limitations

that the Court of Appeals set on this Court in

fashioning relief.

B. The Court Must Enjoin Defendants to

Implement the Measures of the Third

Plan Because Without an Injunction,

There Exists a Danger that Defendants

Will Revert to the Insufficient

Measures of the Second Plan

“[T]he court’s power to grant injunctive relief

survives discontinuance of the illegal conduct.” United

States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).

When a party has voluntarily discontinued illegal

conduct, “[t]he necessary determination is that there

exists some cognizable danger of recurrent violation,

something more than the mere possibility which

serves to keep the case alive.” Id.

57a

Although Defendants voluntarily implemented

the measures under the Third Plan in June 2016, they

continue to assert that those measures are “temporary

and experimental,” (Doc. 375, Hr’g Tr. at p. 47, ll. 1213), and that the measures implemented pursuant to

the Second Plan “are sufficient,” (id. at p. 46, l. 22).

The Court has found that the measures implemented

under the Second Plan are insufficient to remedy the

Eighth Amendment violation in this case, and thus if

Defendants were to revert to those measures, a

recurrent constitutional violation would result.

Therefore, given the Defendants’ characterization of

the measures voluntarily implemented pursuant to

the Third Plan as “temporary and experimental” and

Defendants’

insistence

that

the

measures

implemented under the Second Plan are sufficient to

remedy the Eighth Amendment violation – which they

are not – the Court finds that there is a “cognizable

danger of recurrent violation” and that it is necessary

to issue an injunction. Id.

IV. CONCLUSION

Based on the foregoing,

IT IS ORDERED that Plaintiffs’ Motion to

Modify Injunctive Relief (Doc. 315) is GRANTED

IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Defendants

are ENJOINED 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. Specifically, when the heat index in the

death-row tiers in which Plaintiffs are confined

exceeds 88 degrees Fahrenheit:

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Defendants are enjoined to relocate Plaintiffs

to Tier C, which otherwise is to remain

unoccupied during the time of such relocation;

Defendants are enjoined to assign Plaintiffs

to cells C-1, C-2, and C-3;

Defendants are enjoined to install and/or

unseal a 27” x 34” air vent in the door that

connects Tier C to the guards’ pod, which will

divert conditioned air from the guards’ pod to

the portion of Tier C in which Plaintiffs are

confined;

Defendants are enjoined to install a “curtain”

constructed of heavy plastic between cells C-4

and C-5, in order to keep the newly diverted

cool air inside the portion of Tier C in which

Plaintiffs are confined;

Defendants are enjoined to provide to each

Plaintiff an IcyBreeze unit, the front of which

is to be located no more than twelve inches

from Plaintiffs’ cells;

Defendants are enjoined to fill Plaintiffs’

IcyBreeze units with ice and replenish that

ice regularly so that the IcyBreeze units

function properly and emit cool air;

Defendants are enjoined to install or

maintain a water-valve controller in the

showers in Tier C that allows Plaintiffs to

select between hot and cold water for their

showers;

Defendants are enjoined to permit Plaintiffs

to take one daily shower;

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Defendants are enjoined to provide to each

Plaintiff an ice container;

10) Defendants are enjoined to fill those ice

containers with ice and replenish that ice

regularly;

11) Defendants are enjoined to provide to each

Plaintiff a fan;

12) In the event that mold growth proliferates in

the guards’ pod of the death-row facility due

to the measures prescribed by this injunction,

Defendants are enjoined to seek leave from

this Court, and upon receiving such leave,

Defendants are enjoined to seal the air vent

and provide a sufficient number of additional

IcyBreeze units to each Plaintiff in order to

maintain the heat index of the portion of Tier

C in which Plaintiffs are confined below 88

degrees Fahrenheit; and

13) Defendants are enjoined to regularly monitor

the heat index of the portion of Tier C in

which Plaintiffs are confined.

Baton Rouge, Louisiana, this 22nd day of December, 2016.

BRIAN A. JACKSON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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APPENDIX C

________________________________

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________________

No. 14-30067

________________________________

ELZIE BALL; NATHANIEL CODE;

JAMES MAGEE, Plaintiffs–Appellees

Cross-Appellants,

JAMES M. LEBLANC, Secretary, Department of

Public Safety and Corrections; BURL CAIN, Warden,

Louisiana State Penitentiary; ANGELA NORWOOD,

Warden of Death Row; LOUISIANA DEPARTMENT

OF PUBLIC SAFETY AND CORRECTIONS,

Defendants–Appellants Cross-Appellees.

________________________________

Appeals from the United States District Court

for the Middle District of Louisiana

________________________________

FILED

July 8, 2015

________________________________

Before REAVLEY, JONES and ELROD, Circuit

Judges.

EDITH H. JONES, Circuit Judge:

In 2006, Louisiana built a new state-of-the-art

prison facility to house death-row inmates. The cells in

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that facility, located in Angola, Louisiana, lack air

conditioning. Three inmates sued the Louisiana

Department of Corrections (the “State”) and various

prison officials in their official capacities,1 claiming

that the heat they endure during the summer months

violates the Eighth Amendment because of their preexisting medical problems. They also assert that the

failure to provide air conditioning violates the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12132, and the Rehabilitation Act (“RA”), 29 U.S.C.

§ 794. After a bench trial, the district court sustained

the prisoners’ Eighth Amendment claims, rejected

their disability claims, and issued an injunction

effectively ordering the Defendants to install air

conditioning throughout death row.

Although the trial court’s findings of deliberate

indifference by prison officials to these particular

inmates’ serious heat-related vulnerability suffice to

support a constitutional violation, the scope of its

injunctive relief exceeds our prior precedent, Gates v.

Cook, 376 F.3d 323, 339 (5th Cir. 2004), and the Prison

Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626.

Despite an oversight concerning applicable law, the

court did not err in rejecting the prisoners’ disability

The officials include James M. LeBlanc, Secretary of the

Louisiana Department of Public Safety and Corrections; Nathan

Burl Cain, Warden of the Louisiana State Penitentiary in Angola;

and Angela Norwood, Assistant Warden in charge of death row.

We refer to all appellants collectively as “the State” because suit

against officials in their official capacity only is essentially

against the State of Louisiana.

62a

claims. We affirm in part, but vacate and remand the

court’s injunction for further consideration.2

BACKGROUND

Angola’s 25,000 square-foot death-row facility3

consists of a pod surrounded by four housing wings.

Inside the pod are administrative offices, visitation

rooms, a medical and dental clinic, a control center,

and an execution chamber. Within each of the four

housing wings, two tiers of cells sit back-to-back. Each

tier is lettered A through H. None of the housing tiers

are air conditioned, but the rest of the facility is. To

alleviate the summer heat, windows (which can be

opened) line the exterior wall of each housing tier.

Next to the windows are 30-inch fans, which serve two

adjoining cells. Inside each cell is a six-by-eight-inch

vent that draws air into the cell from the window

across the tier and vents outside.

Although death-row inmates spend twenty-three

hours a day in their cells, in-cell sinks provide

unlimited access to potable water. Inmates also enjoy

access to ice. Each housing tier has an ice chest, which

the Angola staff maintains. Inmates can only access

the chest themselves during the one hour a day they

are allowed to walk the tiers. The rest of the time

inmates depend on guards or other inmates for ice.4

Our issuance of this ruling renders moot the Plaintiffs’

request that we lift the stay pending appeal.

The death row unit is one of several buildings collectively

known as the “Louisiana State Penitentiary” or “Angola.” Only

the death-row facility is implicated here, however.

Inmates can distribute ice to other inmates during the one

hour they are allowed to walk the tiers. If, however, those

63a

The uncontroverted evidence shows that the ice chests

run out from time to time, either because the lone ice

machine cannot generate enough ice or it breaks.

The three plaintiffs here, Elzie Ball, Nathaniel

Code, and James Magee, are long-time residents of

Angola’s death-row facility. Magee lives on tier A,

while Ball and Code live on tier H. Each suffers from

various conditions: all three prisoners have

hypertension; Ball has diabetes and is obese; Code is

also obese and has hepatitis; and Magee is depressed

and has high cholesterol. They take a variety of

medications to control their ailments. According to the

inmates, the extreme heat, not ameliorated by air

conditioning, exacerbates their ailments, causing

dizziness, headaches, and cramps.

Each inmate filed administrative complaints

explaining that the heat was exacerbating his

conditions and requesting air conditioning. The

Defendants denied their requests. Internal appeals of

the rulings were unsuccessful. Consequently, in June

2013, the inmates sued the Louisiana Department of

Corrections and prison officials asserting claims under

the Eighth Amendment’s ban on cruel and unusual

punishment and violations of the ADA and RA. As

relief, the prisoners sought an injunction requiring the

state to keep the heat index at or below 88º F.

A month later, the district court appointed United

States Risk Management (“USRM”) to monitor the

temperature at the facility. During the monitoring

inmates spend their free hour in recreation or showering, then

the other inmates may not receive ice.

64a

period, July 15 to August 5, the temperature on tiers

A and H ranged from 78.26º to 92.66º F.5 Meanwhile,

the heat index ranged from 81.5º to 107.79º F. On five

separate days the heat index on tier A surpassed

100º F. On tier H, the heat index surpassed 100º F on

seven days.

After the data collection period, the district court

held a three-day bench trial. Experts testified about

the Plaintiffs’ medical conditions, the conditions on

death row, the design and construction of the facility,

and the effectiveness of current practices and

procedures. The judge personally toured the facility to

observe the conditions first-hand. Several months

later, the district court issued a 100-page ruling that

concluded the conditions on death row are cruel and

unusual because of extreme heat during parts of the

year. The court denied the prisoners’ ADA and RA

claims because they are not disabled. Based on the

constitutional violation, the court issued a permanent

injunction, requiring the state to develop a plan to

keep the heat index at or below 88º F. Effectively, the

district court ordered Louisiana to install air

conditioning. Both sides now appeal.

DISCUSSION

The parties present four issues. The Defendants

assert that the district court made several erroneous

evidentiary rulings, wrongly found a constitutional

violation, and issued an overbroad injunction contrary

to the PLRA, 18 U.S.C. § 3626, and Gates v. Cook,

USRM monitored the temperature on all the tiers. But

because the Plaintiffs only reside on tiers A and H, and because

this is not a class-action, only readings from those tiers are

relevant to this appeal.

65a

376 F.3d 323 (5th Cir. 2004). The inmates’ crossappeal contends that the district court used a

superseded definition to determine whether they are

disabled under the ADA and RA. We review the

liability issues first, then the scope of the injunction.

I. Evidence

The State’s evidentiary objections are easily

resolved. It contends that the heat index, on which the

district court based its ruling, is inherently unreliable

and inappropriate in prison settings. It also contends

that the court should not have taken judicial notice of

other facts without providing the State an opportunity

to respond. The objections are meritless.

We review evidentiary rulings for abuse of

discretion. Battle ex rel. Battle v. Mem’l Hosp. at

Gulfport, 228 F.3d 544, 550 (5th Cir. 2000) (citing JonT Chemicals, Inc. v. Freeport Chem. Co., 704 F.2d

1412, 1417 (5th Cir. 1983)). Even if the court abused

its discretion, this court will presume the error is

harmless. See FED. R. CIV. P. 61; Bocanegra v. Vicmar

Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). The

party asserting the error has the burden of proving

that the error was prejudicial. See Dietz v. Consol. Oil

& Gas, Inc., 643 F.2d 1088, 1093 (5th Cir. 1981)

(quoting Liner v. J.B. Talley and Co., Inc. 618 F.2d

327, 329 (5th Cir. 1980)).

The district court did not abuse its discretion by

admitting evidence of or relying on the heat index. The

thrust of the State’s argument is that because heat

index is a derived number, courts cannot use it as a

basis for ruling. Although the State’s expert

meteorologist, Jay Grymes, testified that the heat

index is “not a real number,” the rest of his testimony

66a

bolsters the use of the heat index. For example,

Grymes testified that the heat index is a “guideline

number” and that he “provide[s] heat index as a guide

to [his] viewers to make better decisions.” Dr. Susi

Vassallo, the Plaintiffs’ expert, testified that peer

reviewed scientific articles measure the correlation

between heat index and morbidity and mortality. This

court also has relied on the heat index before. See

Gates, 376 F.3d at 339 (upholding increased access to

ice, water, and showers when the heat index exceeds

90º F.). In the absence of further proof, the court did

not abuse its discretion.

The State’s complaint about the court’s taking

judicial notice of publicly available evidence is

similarly weak. The court cited an article from the

National Weather Service’s website called Heat: A

Major Killer and referred to temperature readings

from the Baton Rouge Regional Airport.

Because the district court did not warn the State

that it would be taking judicial notice of these

materials, the State complains it was “deprived of the

opportunity to request an opportunity to be heard

regarding the data.” Rule 201, however, expressly

contemplates courts’ taking judicial notice without

prior warning. See FED. R. EVID. 201(e) (“If the court

takes judicial notice before notifying a party, the party,

on request, is still entitled to be heard.” (emphasis

added)); 21B KENNETH W. GRAHAM, JR., FED. PRAC. &

PROC. EVID. § 5109 (2d ed.) (Rule 201 does “not require

any notice to the parties that judicial notice [is] about

to be taken,” and “a party might get no advance notice

at all”). The State, moreover, did not avail itself of the

Rule’s provision requiring the court to provide an

opportunity to be heard. See FED. R. EVID. 201(e); See

67a

also FED. R. CIV. P. 59(a)(2) (“After a nonjury trial, the

court may, on motion for a new trial, open the

judgment if one has been entered, take additional

testimony, amend findings of fact and conclusions of

law or make new ones, and direct the entry of a new

judgment.”). In any event, the State’s explanation of

prejudice is vague, cursory and unpersuasive. It

makes no showing that the district court’s

consideration of the National Weather Service article

or Baton Rouge temperature readings altered the

outcome. See Dietz, 643 F.2d at 1093. The judicial

notice objections fail as well as the heat index

objection.

II. Eighth Amendment

Turning to the Plaintiffs’ Eighth Amendment

claims, the Constitution “‘does not mandate

comfortable prisons,’ but neither does it permit

inhumane ones.” Farmer v. Brennan. 511 U.S. 825,

832, 114 S. Ct. 1970, 1976 (1994) (quoting Rhodes v.

Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400

(1981)). Extreme cell temperatures, therefore, can

violate the Eighth Amendment. To be tantamount to

the infliction of cruel and unusual punishment, prison

conditions must pose “an unreasonable risk of serious

damage” to a prisoner’s health – an objective test – and

prison officials must have acted with deliberate

indifference to the risk posed—a subjective test.

Helling v. McKinney, 509 U.S. 25, 33-35, 113 S. Ct.

2475, 2481-82 (1993) (holding exposure to an

“unreasonable risk of damage to [a plaintiff’s] health”

actionable under the Eighth Amendment); see also

Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321,

2327 (1991) (postulating that “a low cell temperature

at night combined with a failure to issue blankets” can

68a

violate the Eighth Amendment); Gates, 376 F.3d at

339. Without the requisite proof of both subjective and

objective components of an Eighth Amendment

violation, however, merely “uncomfortable” heat in a

prisoner’s cell does not reflect “a basic human need

that the prison has failed to meet” and is not

constitutionally suspect. Woods v. Edwards, 51 F.3d

577, 581 (5th Cir. 1995).

The predicate findings of a substantial risk of

serious harm and officials’ deliberate indifference to

the risk are factual findings reviewed for clear error.

Gates, 376 F.3d at 333; Thomas v. Bryant, 614 F.3d

1288, 1312 (11th Cir. 2010) (citing Farmer, 511 U.S. at

842, 114 S. Ct. at 1981). “‘A finding is clearly

erroneous if it is without substantial evidence to

support it, the court misinterpreted the effect of the

evidence, or this court is convinced that the findings

are against the preponderance of credible testimony.’”

Petrohawk Props., L.P. v. Chesapeake La., L.P., 689

F.3d 380, 388 (5th Cir. 2012) (quoting French v.

Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir. 2011)).

This court reviews de novo whether the facts so found

violate the Eighth Amendment. Gates, 376 F.3d. at

333.

For various reasons, the State asserts that the

Plaintiffs are not at substantial risk of serious harm

and its officials were not deliberately indifferent to

this risk. Further, the State contends that, because it

provides the remedies this court mandated in Gates,

there can be no Eighth Amendment violation as a

matter of law. We reject these challenges to the trial

court’s findings.

Based mainly on Dr. Vassallo’s testimony, the

district court found that the heat puts these plaintiffs

69a

at substantial risk of serious harm. According to

Dr. Vassallo, the cardiovascular system is critical for

maintaining normal body temperature. Dr. Vassallo

testified that both hypertension and diabetes can

adversely affect this critical system. “The heart has to

be able to pump very hard to meet the demands of

heat.” Hypertension generally can decrease “the

ability of the blood vessels to open and close.” As a

result, those vessels are “not as compliant as they

should be,” “they can’t open like they should and have

to in response to heat,” and blood therefore cannot

circulate to cool the body. Therefore, people with

hypertension generally can have a hard time

controlling their body temperature. The same is true

for people with diabetes. Cardiovascular disease,

which can result from diabetes, can harden the

arteries and blood vessels, thus inhibiting circulation.

As a result, diabetics can lose ability to circulate blood

properly and thus the ability to maintain normal body

temperature.

The treatments for hypertension can further

inhibit these prisoners’ ability to regulate body

temperature. Specifically, beta blockers, which help

control blood pressure, can compound the effects

hypertension has on the cardiovascular system. Beta

blockers prevent blood vessels from dilating properly

while at the same time “decreas[ing] the heart’s ability

to pump as hard and to meet the requirements of heat

or exercise.” Likewise, diuretics decrease the total

amount of water and salt in the body, resulting in less

fluid around which the heart can contract. According

to Dr. Vassallo, without sufficient fluid to contract, the

heart is unable to meet the increased demands heat

places on the cardiovascular system. Therefore, even

70a

if prisoners receive proper care for their ailments, they

may be at increased risk of heat stroke. This evidence

of the Plaintiffs’ heightened vulnerability to high

temperatures, combined with the USRM temperature

data showing the high temperatures on tiers A and H,

led the court to find that the Plaintiffs are at

substantial risk of serious harm.

The State argues that the totality of the record

evidence refutes Dr. Vassallo’s opinion. Specifically,

the district court discounted the State’s arguments

that no death-row prisoner has ever suffered a heatrelated incident; these prisoners’ medical records show

no signs of heat-related illness; the prisoners’ poor

dietary choices and failure to exercise caused their

health problems; and the prisoners’ suffer high blood

pressure all year, not just in the summer months.

Thus, the State contends, the prisoners do not suffer

an unreasonable risk of serious heat-related injury at

all.

These facts fail to show that the district court

clearly erred. First, that no one at Angola, including

these plaintiffs, has ever had a heat-related incident

and that these prisoner’s medical records do not show

signs of heat-related illness are insufficient. To prove

unconstitutional prison conditions, inmates need not

show that death or serious injury has already

occurred. See Helling, 509 U.S. at33, 113 S. Ct. at 2481

(“That the Eighth Amendment protects against future

harm to inmates is not a novel proposition.”). They

need only show that there is a “substantial risk of

serious harm.” Gates, 376 F.3d at 333. Further,

Dr. Vassallo provided a reasonable explanation for the

lack of past harm to these plaintiffs: “heat stroke is a

failure of thermoregulation which is dramatic and

71a

catastrophic. It occurs suddenly . . . . People can suffer

suddenly from heat stroke without ever having

complained about the weather.” As a result, the

district court plausibly concluded that the Plaintiffs

here are at a substantial risk of serious harm.6

Second, because the Plaintiffs forego exercise and

overeat junk food, the State asserts that their ailments

and any accompanying risk are their own creation.

Prison canteen records confirm these inmates’

consumption of unhealthy foods with high sugar and

salt content. Although this may be true, the evidence

is at best conjectural about the connection between

these plaintiffs’ conditions and their lifestyle. We are

constrained to agree with the district court’s finding

that, canteen food comprises only part of the prisoners’

diets, and their medical conditions arise from a

combination of factors, many of which are outside their

control. Thus, the district court did not clearly err

when, in the face of conflicting evidence, it found that

these prisoners are at substantial risk of serious harm.

Finally, that the prisoners suffer year-round high

blood pressure is simply irrelevant to the district

court’s substantial-risk finding. The prisoners’

complaint is that their high blood pressure places

them at an abnormally high risk of heat stroke during

Louisiana’s extended hot season. The lower risk in

other months does not offset their vulnerability during

the summer any more than an allergy to insect bites

ceases to exist when the bugs are dormant in winter.

We emphasize, however, that the finding of substantial risk

regarding a heat-related injury is tied to the individual health

conditions of these inmates.

72a

The second element for Eighth Amendment

liability requires “prison official[s] [to] have a

‘sufficiently culpable state of mind.’” Farmer, 511 U.S.

at 834, 114 S. Ct. at 1977 (quoting Wilson, 501 U.S. at

297, 111 S. Ct. at 2323). “In prison conditions cases

that state of mind is one of ‘deliberate indifference’ to

inmate health or safety.” Id. (quoting Wilson, 501 U.S.

at 302-303, 111 S. Ct. at 2326). Deliberate indifference

is itself a two-prong inquiry. An official must both be

“aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists”

and “he must also draw the inference.” Id. at 837, 114

S. Ct. at 1979. “Whether a prison official had the

requisite knowledge of a substantial risk is a question

of fact subject to demonstration in the usual ways,

including inference from circumstantial evidence, and

a factfinder may conclude that a prison official knew

of a substantial risk from the very fact that the risk

was obvious.” Id. at 842, 114 S. Ct. at 1981 (internal

citations and quotation marks omitted).

The district court relied on a variety of evidence

showing that the State knew of and disregarded a

substantial risk to the Plaintiffs. Medical personnel

routinely monitor prisoners and administer

medication daily. Correctional officers “closely

monitor” the temperature on death row, recording the

temperature every two hours. Defendant Norwood,

moreover, testified that the prison maintains a list of,

and monitors more closely, inmates particularly

susceptible to heat-related illness. None of the

Plaintiffs was on the list, although Norwood

personally reviewed the ARPs for each prisoner,

inspected each prisoner’s medical records, interviewed

both Ball and Code, and admits Magee should have

73a

been on the list. Defendant Cain admitted that he was

always thinking about “how to overcome the heat” and

that he considered adding extra fans and ice on the

tiers. Most strikingly, after this suit was filed, and

during the court-ordered monitoring period the

Defendants surreptitiously installed awnings and

began soaking some of the tiers’ exterior walls with

water in an attempt to reduce the interior

temperature. Their trick backfired. Based on these

facts, the district court reasonably inferred that the

Defendants knew of a substantial risk of serious harm

to the Plaintiffs.

Yet the State complains that the deliberate

indifference finding is fundamentally flawed because

the district court relied solely on the prisoners’

administrative remedy requests, which are required

under the PLRA. See 42 U.S.C. § 1997e(a). If that is

sufficient to prove deliberate indifference, the State

continues, then there is no need for a court to

separately analyze the deliberate indifference prong.

As a statutory necessity, see Gonzalez v. Seal, 702 F.3d

785, 788 (5th Cir. 2012), every case includes an

administrative remedy request. Whenever a court

finds that a prisoner’s complaint was justified—i.e.,

that there is a substantial risk of harm—the

defendant will be guilty of violating the Eighth

Amendment.

We agree with the Defendants’ premise—a

request for administrative relief cannot alone prove

deliberate indifference. A request for administrative

relief is at best only circumstantial evidence that a

prison official is aware of facts from which he can

deduce a risk of harm; it is not even particularly strong

evidence of that. Because grievances are essentially

74a

pleadings, not evidence, they must have independent

verification before they become probative. Separating

the few meritorious complaints from the mountain of

frivolous complaints is as difficult work for prison

officials as for federal courts. A legitimate complaint

can go unrecognized by even the most diligent official.

As a result, a prison administrator who has received

an administrative remedy request is not necessarily

made aware, without factual corroboration, that there

is a substantial risk of serious harm.

Although the State’s premise is correct, its

conclusion that the district court’s deliberate

indifference finding is erroneous does not follow. The

district court did not base its finding solely on the

prisoners’ administrative requests, but on the totality

of the record evidence. There is more than enough,

particularly in light of the State’s attempt to cool down

the cells with awnings and misting without telling the

court, to prove subjective awareness of a substantial

risk of serious harm. Therefore, the district court’s

deliberate indifference finding is not clearly

erroneous.

Even if it cannot overcome the district court’s

factual findings, the State argues that this court’s

decision in Gates v. Cook precludes liability. Gates

upheld an injunction requiring Mississippi to equip

each cell with fans, provide inmates with additional

access to ice water, and allow daily showers when the

heat index in the cells exceeded 90º F. 376 F.3d at 339.

The State claims to offer these exact remedies yearround.

The district court, however, demonstrated that

Gates is distinguishable. Where Gates approved fans

for each cell, each fan in Angola’s death row serves two

75a

cells. Ball v. LeBlanc, 988 F. Supp. 2d 639, 680 n.100

(M.D. La. 2013). Although a seemingly minor

difference, the district court found that “the fans [at

Angola] [do] not provide equal amounts of air flow to

each cell, nor [do] the fans provide a detectable cooling

effect.” Id. The district court in Gates also ordered

increased in-cell access to ice. 376 F.3d at 339. Here,

by contrast, inmates have unfettered access to ice only

during the one hour a day they can walk the tiers.7

Ball, 988 F. Supp. 2d at 680 n.100. When the prisoners

are in their cells, they depend on other inmates or

guards for ice. Id. And while the State allows prisoners

to shower once a day, as approved in Gates, the water

temperature is maintained between 100 and 120º F.

for sanitation purposes, thus providing little relief

from the heat. Id. Given these material differences,

Gates does not preclude holding that the State violated

the Eighth Amendment.

Based on its findings of fact, we affirm the district

court’s conclusion that 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, violates the Eighth

Amendment.

III. Disability Claims

The inmates assert that the State’s failure to

alleviate the heat violates their rights to a reasonable

Even then, obtaining ice is no guarantee. The record suggests

that the ice machine occasionally breaks down leaving the tier ice

chests empty.

76a

accommodation for their “disabilities” under the ADA

and RA.8 The district court rejected the prisoners’

claims because they presented no evidence that they

are disabled.9 Ball, 988 F. Supp. 2d at 687. The

prisoners argue that the district court’s conclusion

rests on an abbreviated definition of disability and

superseded case law. Although the prisoners are

correct, there is still no evidence that the prisoners are

disabled under the correct definition, so any error was

harmless.

We review the district court’s conclusions of law

de novo, and its factual findings for clear error.

Lightbourn v. Cnty. Of El Paso, Tex., 118 F.3d 421, 426

(5th Cir. 1997). If the district court made a legal error

that affected its factual findings, “remand is the

proper course unless the record permits only one

On appeal, the prisoners also assert a disparate-impact claim.

But the prisoners’ complaint does not allege a disparate-impact

claim and, as far as we can tell, this appeal is the first time the

prisoners have asserted such a claim. “It is a bedrock principle of

appellate review that claims raised for the first time on appeal

will not be considered.” Stewart Glass & Mirror, Inc. v. U.S. Auto

Glass Disc. Ctr., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).

Accordingly, we will not address the prisoners’ disparate-impact

claim.

To succeed on a failure-to-accommodate claim, a plaintiff

must prove: (1) he is a qualified individual with a disability;

(2) the disability and its consequential limitations were known by

the covered entity; and (3) the entity failed to make reasonable

accommodations. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242,

247 (5th Cir. 2013). The ADA applies to prisoners. Pa. Dep’t of

Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952, 1956 (1998).

The district court found each prisoner failed to prove the first

prong—i.e., that they are disabled.

77a

resolution of the factual issue.” Pullman-Standard v.

Swint, 456 U.S. 273, 292, 102 S. Ct. 1781, 1792 (1982);

see also Aransas Project v. Shaw, 775 F.3d 641, 658

(5th Cir. 2014), cert. denied, No. 14-1138, 2015 WL

1255228, at *1 (June 22, 2015).

Under both the ADA and RA,10 a person is

disabled if he has “a physical or mental impairment

that substantially limits one or more major life

activities.” 42 U.S.C. § 12102(1)(A). The statute

defines a major life activity in two ways. First, major

life activities include, but are not limited to:

caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking,

standing,

lifting,

bending,

speaking,

breathing, learning, reading, concentrating,

thinking, communicating, and working.

Id. § 12102(2)(A). Second, a major life activity includes

“the operation of a major bodily function.” Id.

§ 12102(2)(B). Such functions include, but are not

limited to:

the immune system, normal cell growth,

digestive, bowel, bladder, neurological, brain,

respiratory, circulatory, endocrine, and

reproductive functions.

Id. The prisoners can prove themselves disabled if

their ailments substantially limit either a major life

activity or the operation of a major bodily function.

The prisoners point out that the district court

considered whether they are disabled only under the

The RA incorporates the ADA definition of disability by

reference. See 29 U.S.C. § 705(20)(B). Accordingly, if the

prisoners are disabled, they are disabled under both statutes.

78a

first definition of major life activities; it did not

consider whether their impairments affect a major

bodily function. We agree. The district court quoted

only the first definition of a disability, but it

overlooked that “a major life activity also includes the

operation of a major bodily function.” Id.

§ 12102(2)(B). The district court also partially relied

on Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, 197, 122 S. Ct. 681 (2002), which Congress

superseded in the Americans with Disabilities

Amendments Act of 2008 (“ADAAA”). Neely v. PSEG

Tex., Ltd. P’ship, 735 F.3d 242, 245 (5th Cir. 2013).

Although this error may have affected the district

court’s determination, the question remains whether

any evidence supports the prisoners’ disability claims.

The prisoners argue that “thermoregulation” is a

major life activity, there is ample evidence in the

record showing their thermoregulatory functions are

impaired, and therefore they are disabled.

Assuming arguendo that thermoregulation is a

major life activity,11 there is no evidence that these

prisoners’ thermoregulatory systems are actually

The prisoners urge this court to hold that thermoregulation

is a major bodily function (and thus a major life activity) because

the ADA’s list is non-exhaustive. See 42 U.S.C. § 12102(2)(B).

Before the passage of the ADAAA, this court left undecided

whether “the regulation of body temperature constitutes a major

life activity under the ADA.” EEOC v. Argo Distribution, LLC,

555 F.3d 462, 469 n.8 (5th Cir. 2009). Post-ADAAA, no court has

held that thermoregulation is a major bodily function, nor do

EEOC regulations list thermoregulation as a major bodily

function. 29 C.F.R. § 1630.2(i)(1)(ii). Accordingly, we take the

cautious route and assume without deciding that

thermoregulation is a major life activity.

79a

impaired. According to Dr. Vassallo, thermoregulation

is “the capacity of the body to maintain the

temperature of 98.6 within half a degree or so.” There

is no evidence that the prisoners’ ailments have ever

caused their body temperatures to rise above 98.6º F.

In fact, Dr. Vassallo testified that the prisoners’

symptoms are consistent with normal body

temperatures, there is no indication that these

prisoners have ever had elevated body temperatures,

and there is no evidence that these prisoners ever

experienced difficulty in thermoregulating.

That the record is devoid of such evidence is

unsurprising. Over the course of the three-day trial,

there is hardly any mention of the prisoners’ disability

claims. The overwhelming majority of the testimony

related to the future risk of heatstroke, not the

prisoners’ present inability to maintain regular body

temperature. As a result, the medical testimony

focused generally on the risks to individuals with the

same ailments as these prisoners, not on any

limitations the prisoners presently experience. The

prisoners’ counsel, moreover, never asked the three

medical

experts

whether

the

prisoners’

thermoregulatory systems are actually impaired,

probably because evidence in the record precludes any

such assertion. This lapse is fatal to their disability

claims. As this court has said before, although the

current definition of disability “expresses Congress’s

intention to broaden the definition and coverage of the

term ‘disability,’ it in no way eliminated the term from

the ADA or the need to prove a disability on a claim of

80a

disability discrimination.” Neely, 735 F.3d at 245.12

The disability claims are insupportable as a matter of

law even under the expanded legal definition of

disability.

IV. The Injunction

To remedy the Eighth Amendment violation, the

district court ordered Louisiana to “develop a plan to

reduce and maintain the heat index in the Angola

death row tiers at or below 88 degrees Fahrenheit.”

Ball, 988 F. Supp. 2d at 689. Effectively, the plan

requires the State to install air conditioning

throughout death row housing. The State attacks the

district court’s order in two ways. First, it contends

that the requirements for injunctive relief are not

present here. Second, it argues that the injunction is

overbroad because air conditioning is beyond the

measures endorsed in Gates v. Cook and facility-wide

relief violates the PLRA.

This court reviews permanent injunctions for

abuse of discretion. Symetra Life Ins. Co. v. Rapid

Settlements, Ltd., 775 F.3d 242, 254 (5th Cir. 2014)

(citing N. Alamo Water Supply Corp. v. City of San

Juan, Tex., 90 F.3d 910, 916-17 (5th Cir. 1996)). An

abuse of discretion occurs when the district court

“‘(1) relies on clearly erroneous factual findings when

Ball also argues that he is disabled because diabetes impairs

his endocrine system and his sight. Although this might be true,

that Ball’s endocrine system and sight are impaired does not

entitle him to relief from the heat. Only if Ball’s diabetes limits

his ability to thermoregulate, can Ball get the only relief he

requested—an order requiring Louisiana to keep the prison at or

below 88 degrees. As for that claim—that Ball’s diabetes impairs

thermoregulation—there is no evidence in the record.

81a

deciding to grant or deny the permanent injunction[,]

(2) relies on erroneous conclusions of law when

deciding to grant or deny the permanent injunction, or

(3) misapplies the factual or legal conclusions when

fashioning its injunctive relief.’” Id. (quoting N. Alamo

Water Supply Corp., 90 F.3d at 916-17).

The court did not abuse its discretion by deciding

to issue an injunction. The State’s first argument is

that an injunction is improper because conditions to

which these prisoners were subjected do not violate

the Eighth Amendment. This contention fails in light

of our sustaining the district court’s Eighth

Amendment analysis. Moreover, in Gates as in other

cases, courts have upheld injunctions in Eighth

Amendment cases alleging unreasonably risky

exposure to extreme temperatures. See Graves v.

Arpaio, 623 F.3d 1043, 1045 (9th Cir. 2010) (per

curiam) (leaving an injunction in place requiring a

prison to keep inmates on certain medications in cells

with temperatures below 85 degrees); Jones-El v.

Berge, 374 F.3d 541, 542 (7th Cir. 2004) (upholding

order to install air conditioning in Wisconsin’s

“supermax” prison).

The scope of the injunction is another matter. The

PLRA greatly limits a court’s ability to fashion

injunctive relief. Before a district court can award

such relief, 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.”

18 U.S.C. § 3626(a)(1)(A). The court must also “give

substantial weight to any adverse impact on public

safety or the operation of a criminal justice system

caused by the relief.” Id. If, after making the necessary

82a

findings and weighing the adverse impact on the

criminal justice system, the court still feels injunctive

relief is required, such relief “shall extend no further

than necessary to correct the violation of the Federal

right of a particular plaintiff or plaintiffs.” Id.

The district court’s injunction violates the PLRA

in two ways. First, the district court ordered a type of

relief—air conditioning—that is unnecessary to

correct the Eighth Amendment violation. Under the

PLRA, plaintiffs are not entitled to the most effective

available remedy; they are entitled to a remedy that

eliminates the constitutional injury. See Westefer v.

Neal, 682 F.3d 679, 683-84 (7th Cir. 2012) (vacating an

injunction under the PLRA because it exceeded what

was required under the Due Process Clause). In

Eighth Amendment cases, plaintiffs can only obtain a

remedy that reduces the risk of harm to a socially

acceptable level. Some risk is permissible and perhaps

unavoidable. Here Plaintiffs’ own expert, Dr. Vassallo,

explained that there are many acceptable remedies

short of facility-wide air conditioning. For example,

the Defendants could divert cool air from the guards’

pod into the tiers; allow inmates to access air

conditioned areas during their tier time; allow access

to cool showers at least once a day; provide ample

supply of cold drinking water and ice at all times;

supply personal ice containers and individual fans;

and install additional ice machines. These are

precisely the types of remedies this court endorsed in

Gates v. Cook and that the PLRA requires. See 376

F.3d at 339-40. Accordingly, on remand the district

court must limit its relief to these types of remedies.

The district court also erred because it awarded

relief facility-wide, instead of limiting such relief to

83a

Ball, Code, and Magee. The district court apparently

understood that it could not order facility-wide relief.

At the start of trial, the district court said:

This is not, contrary to widespread belief, an

effort to require the state to install airconditioning for all of the tiers that house all

death row inmates. I think the application for

injunctive relief made clear that it’s only

these three inmates that are of issue. And so,

of course, the evidence in this case will

pertain to any facts that are relevant as to

these three . . . . plaintiffs and these three

plaintiffs only. This is not a class action

lawsuit. This is not, again, an effort to seek

relief for anyone other than these three

inmates.

It is unclear why the district court changed its mind

when it fashioned the injunction. The PLRA limits

relief to the particular plaintiffs before the court.

18 U.S.C. § 3626(a)(1)(A). This is not a class action;

Ball, Code, and Magee are the only plaintiffs before

the court. As a result, any relief must apply only to

them, if possible. Brown v. Plata, --- U.S. ---, 131 S. Ct.

1910, 1940 (2011) (holding that “the scope of the order

must be determined with reference to the

constitutional violations established by the specific

plaintiffs before the court”); Gates, 376 F.3d at 339

(vacating an injunction that purportedly applied to

prisoners outside the class of plaintiffs because “it

exceeds the scope of the litigation”); see also Graves,

623 F.3d at 1049-50 & n.2 (noting that if the district

court can limit relief to an affected class-member, it

must do so under the PLRA).

84a

Nevertheless, the district court ordered relief to

all 85 death-row inmates because “the Defendants

may move any death row inmate to a different tier

and/or cell at any time.” Ball, 988 F. Supp. 2d at

688-89. Essentially, it felt the only way to provide

effective relief to these three plaintiffs is to provide

facility-wide relief. The district court’s determination,

however, is erroneous. Even assuming that air

conditioning is an acceptable remedy here—and it is

not—it is possible to provide air conditioning solely to

these three inmates. As the Defendants acknowledged

at oral argument, Plaintiffs could be placed in cells

next to the officers’ pod, which are cooler than those

farther down the tiers. Louisiana could also air

condition one of the four tiers for the benefit of

prisoners susceptible to heat-related illness. When

coupled with an order not to move the Plaintiffs from

these cells unless certain conditions are met, these

options could adequately remedy the Plaintiffs’

constitutional violation. Moreover, the Gates-type

remedies available on remand—increased access to

water, ice, cold showers, etc.—ought to (and must) be

tailored to these three prisoners.

Because the district court’s injunction provides an

unnecessary type of relief and applies beyond these

three Plaintiffs, it violates the PLRA. Accordingly, the

district court abused its discretion.

Finally, we note the substantial disparity between

the relief ordered in Gates and the scope of the

injunction in this case. The Gates court did not

mandate a maximum heat index applicable in the

Mississippi prison. It required particular heat

measures, including fans, ice water, ice, and showers,

“if the heat index reaches 90 degrees or above.” Gates,

85a

376 F.3d at 336. The injunction here requires relief

that is far more extensive, applies even during months

when there is no heat risk to the Plaintiffs, covers the

entire facility, and of course is expensive. Since Gates

upheld an injunction providing narrower relief, and

there is no showing that the Constitution mandated

more relief for these prisoners for the same prison

condition in this case, on remand the court must craft

relief more closely aligned with Gates as well as

consistent with the PLRA.

CONCLUSION

For the foregoing reasons, we AFFIRM the

district court’s resolution of the Eighth Amendment

and disability claims, but VACATE and REMAND

the district court’s injunction for reconsideration

under the principles stated here.

REAVLEY, Circuit Judge, dissenting.

I agree with almost all of the opinion, but I would

affirm the injunction which in principal only orders

the heat index in the Angola death row tiers to be

maintained below 88 degrees.

86a

APPENDIX D

________________________________

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

________________________________

Civil Action No. 13-00368-BAJ-SCR

________________________________

ELZIE BALL, ET AL.

JAMES M. LEBLANC, ET AL.

________________________________

[FILED

Dec. 19, 2013]

________________________________

RULING AND ORDER

INTRODUCTION

On August 5, 2013, this matter came before the

Court for a non-jury trial on the merits and a hearing

on Plaintiffs’ Motion for a Preliminary Injunction (Doc.

12).1 Having considered the parties pretrial and posttrial submissions, the evidence introduced at the trial,

and the arguments presented by counsel, the Court

finds that Plaintiffs have satisfied their burden of

The Court initially heard Plaintiffs’ Motion for a

Preliminary Injunction with oral argument on July 2, 2013. (Doc.

24.) At the conclusion of the hearing, the Court deferred its ruling

on the motion, pending the collection of essential data by a

neutral third-party expert, re-set the motion hearing to August 5,

2013, and set the trial on the merits to August 5, 2013.

87a

proving that Defendants have subjected them to cruel

and unusual punishment, in violation of the Eighth

Amendment to the United States Constitution. The

Court finds, however, that Plaintiffs did not introduce

sufficient evidence to establish that Defendants have

violated the Americans with Disabilities Act, as

modified by the Americans with Disabilities Act

Amendment Act, and Section 504 of the Rehabilitation

Act of 1973. Accordingly, Plaintiffs’ request for

declaratory and injunctive relief is GRANTED IN

PART and DENIED IN PART, as outlined below.

Further, Plaintiffs’ Motion for a Preliminary

Injunction (Doc. 12) is DENIED AS MOOT.2 The

Court’s credibility findings, findings of fact and

conclusions of law are set forth below, as required by

Federal Rule of Civil Procedure (“Rule”) 52(a).

II. JURISDICTION

It is uncontested that this Court has jurisdiction

pursuant to 28 U.S.C. §§ 1331, 1343, and 2201.

Whether to grant or deny a request for a preliminary

injunction is within the sound discretion of the district court. See

Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d

806, 809 (5th Cir. 1989). However, the purpose of a preliminary

injunction is to prevent irreparable injury so as to preserve the

Court’s ability to render a meaningful decision on the merits.

Mississippi Power & Light Co. v. United Gas Pipe Line Co.,

760 F.2d 618, 627 (5th Cir. 1985) (citing Canal Authority of

Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)). Because

the Court now issues its ruling and order on the merits, a

preliminary injunction is no longer necessary. Therefore,

Plaintiffs’ request is denied as moot.

88a

III. BACKGROUND

A. Plaintiffs’ Claims

Plaintiffs Elzie Ball (“Ball”), Nathaniel Code

(“Code”), and James Magee (“Magee”) (collectively

“Plaintiffs”) are death row inmates, who are currently

incarcerated at the Louisiana State Penitentiary in

Angola, Louisiana (“Angola”). Plaintiffs filed this

lawsuit against Defendants James M. LeBlanc3

(“LeBlanc”), Nathan Burl Cain4 (“Cain”), Angelia5

Norwood6 (“Norwood”), and the Louisiana Department

of Public Safety and Corrections (collectively

“Defendants”) pursuant to 42 U.S.C. § 19837 (“Section

1983”); the Eighth Amendment to the United States

Constitution, U.S. Const. amend. VIII; Fourteenth

Amendment to the United States Constitution, U.S.

Defendant LeBlanc is the Secretary of the Louisiana

Department of Public Safety and Corrections. (Doc. 1, ¶ 10.)

LeBlanc is sued in his official capacity for declaratory and

injunctive relief.

Defendant Cain is the Warden of the Louisiana State

Penitentiary in Angola, Louisiana. (Doc. 1, ¶ 8.) Cain is sued in

his official capacity for declaratory and injunctive relief.

Plaintiffs identified Defendant Norwood at “Angela” in their

complaint. However, Defendant Norwood’s testimony at trial was

that her first name is spelled as above.

Defendant Norwood is the Assistant Warden in charge of

death row at the Louisiana State Penitentiary in Angola,

Louisiana. (Doc. 1, ¶ 9.) Norwood is sued in her official capacity

for declaratory and injunctive relief.

As discussed below, the gravamen of Plaintiffs’ Section 1983

claim is that Defendants have subjected them to cruel and

unusual punishment, in violation of the Eighth Amendment,

made applicable to the States by the Fourteenth Amendment.

89a

Const. amend. XIV, § 1; Title II of the Americans with

Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq.,

as modified by the Americans with Disabilities Act

Amendment Act (the “ADAAA”), 42 U.S.C. § 12131,

et seq.; and Section 504 of the Rehabilitation Act of

1973 (the “Rehabilitation Act”), 29 U.S.C. § 794. (Doc.

1.) Plaintiffs allege that Defendants have violated, and

continue to violate, their rights under the Eighth

Amendment, ADA, ADAAA, and Rehabilitation Act by

subjecting them to excessive heat, acting with

deliberate indifference to their health and safety, and

discriminating against them on the basis of their

disabilities.

Plaintiffs seek a ruling and order from this Court

granting their Motion for a Preliminary Injunction

(Doc. 12), and requiring Defendants to take action to

decrease and maintain the heat index in the Angola

death row tiers at or below 88 degrees Fahrenheit.8

Plaintiffs request that Defendants be required to decrease

and maintain the heat index at or below 88 degrees Fahrenheit

based on the recommendations of their expert, Dr. Susan

Vassallo, M.D.:

BY MR. KAMIN:

And do you have an opinion, Dr.

Vassallo, on the heat index thresholds

that you would recommend for

creating a safer environment for the

Plaintiffs on death row?

BY DR. VASSALLO: Well, in my report, I have put that

temperature at 88 degrees. That is

probably towards the warmer side . . .

none of us would tolerate being in a

setting at 88 degrees heat index . . . we

would get out of that and we would go

into some cooler setting. . . . I

90a

Plaintiffs further seek a ruling and order: (1) declaring

that Defendants have violated Plaintiffs’ rights;

(2) requiring Defendants to develop and implement a

long-term plan to maintain the heat index in the

Angola death row tiers at or below 88 degrees

Fahrenheit; (3) appointing a monitor to oversee

Defendants’

implementation

such

plan;

(4) requiring Defendants to provide Plaintiffs clean,

uncontaminated ice and drinking water at regular

intervals during the summer months; (5) requiring

Defendants to lower the shower temperature during

the summer months; and (6) enjoining Defendants

from retaliating against Plaintiffs.9 Plaintiffs also seek

attorneys’ fees, pursuant to 42 U.S.C. §§ 1988 and

12205.

Defendants oppose Plaintiffs’ Motion for a

Preliminary Injunction and deny all liability. (Docs.

15, 38.) Defendants contend that Plaintiffs have not

derive[d] that based on the [National

Oceanic

and

Atmospheric

Administration] charts, as well as the

literature, which I have at least five or

six articles behind that statement,

that show this sort of a U-shape that

when it’s 88, 90 degrees, the morbidity

and mortality from heat rises

exponentially. And those are all [in]

peer review scientific articles.

Trial Transcript, Testimony of Dr. Susan Vassallo, Aug. 6, 2013.

At the conclusion of the trial on the merits, the Court denied

Plaintiffs’ request that the Court enjoin Defendants from

retaliating against Plaintiffs. Trial Transcript, Aug. 7, 2013.

Accordingly, this request for injunctive relief was denied, as

Plaintiffs failed to present evidence that Defendants were likely

to retaliate against them.

91a

suffered, nor are they likely to suffer, adverse health

effects due to the conditions of confinement at Angola’s

death row facility. Defendants further contend that

they have not violated Plaintiffs’ rights under the

ADA, ADAAA, or Rehabilitation Act. Thus,

Defendants request that the Court deny Plaintiffs’

motion, rule in Defendants’ favor, and deny Plaintiffs

all requested relief.

B. Procedural History

The instant litigation was filed on June 10, 2013.

(Doc. 1.) Eight days later, Plaintiffs filed a Motion for

a Preliminary Injunction. (Doc. 12.)

On July 2, 2013, Plaintiffs’ Motion for a

Preliminary Injunction was heard with oral argument.

(Doc. 24.) After considering the parties’ arguments,

the Court determined that it was necessary to obtain

current, accurate temperature, humidity, and heat

index data from Angola’s death row facility before

ruling on Plaintiffs’ motion. Accordingly, the Court

deferred its ruling, pending the collection of such data

by a neutral third-party expert. (Doc. 24.) The Court

also issued a scheduling order, and set the trial on the

merits to begin on August 5, 2013. (Docs. 24, 28.)

Subsequently, the Court ordered the parties to retain

a neutral third-party expert to install the necessary

equipment, and record, collect, and disseminate the

required data, beginning on July 15 and ending on

August 5, 2013. (Doc. 36.)

From August 5 through August 7, 2013, the Court

conducted a hearing on Plaintiffs’ Motion for a

Preliminary Injunction and the trial on the merits.

Fed.R.Civ.P. 65(a)(2). During the trial, the parties

jointly submitted the temperature, heat index, and

92a

humidity data collected and analyzed by the neutral

third-party expert, United States Risk Management,

L.L.C. (“USRM”), to the Court. During the trial, the

parties also presented testimonial evidence regarding

the conditions at Angola’s death row facility, and

Plaintiffs’ underlying medical conditions and

medications. Following the trial, the undersigned

toured the death row facility and observed the

conditions first-hand. As a result, the Court makes the

following credibility findings, findings of fact, and

conclusions of law.

IV. CREDIBILITY FINDINGS

1. “In a non-jury trial, credibility choices and the

resolution of conflicting testimony are the province of

the judge, subject only to Rule 52(a)’s clearly

erroneous standard.” Justiss Oil, Co., Inc. v. KerrMcGee Refining Corp., 75 F.3d 1057, 1067 (5th Cir.

1996) (citation omitted); Reich v. Lancaster, 55 F.3d

1034, 1045 (5th Cir. 1995) (“The trial judge’s ‘unique

perspective to evaluate the witnesses and to consider

the entire context of the evidence must be respected.’”)

(citation omitted).

2. In making its findings of fact, the

undersigned relied on the parties’ written

submissions, the oral testimony presented at trial, and

the evidence introduced at trial. Due to the number of

disputed facts, it was necessary to consider the

demeanor of each witness, his or her interests in the

case, and the internal consistency of his or her

testimony. See Justiss Oil, 75 F.3d at 1067.

3. The following are the Court’s credibility

findings as to Defendant Norwood.

93a

4. On July 15, 2013 at 4:45 p.m., Defendant

Norwood issued an email to all of the death row

supervisors regarding the monitors that were installed

in the death row tiers by USRM. Norwood’s email

ordered the following:

In order to ensure accurate and

consistent temperature recording, all fans

and windows are not to be adjusted in any

manner. In addition, no offender and/or

employee is to tamper with the recording

devices placed on each tier. Only authorized

persons will be allowed inside the cells with

the recording devices.

5. Despite Norwood’s issuance of the hold order,

Defendants installed awnings over the windows in

tiers C and G on or about July 26, 2013. Such awnings

remained on the windows from that date until the end

of the data collection period. Defendants also

attempted to wet and/or mist the ceiling and/or outside

walls of certain housing tiers using water hoses.

Defendants took such actions without seeking the

permission of the Court.

6. When asked by counsel for Plaintiffs about

her understanding as to the purpose of the data

collection, Norwood testified as follows:

BY MR. VORA:

Ms. Norwood, what was

your understanding as to

why USRM was installing

those monitors?

BY MS. NORWOOD: Because the Judge wants a

fair and impartial, objective

reading of the temperatures.

94a

BY MR. VORA:

And you understood that it

was important for you to

make sure that he did get

fair and impartial readings

of the temperatures inside

of the death row tiers,

correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

In fact, you understood it

and you even advised the

other death row supervisors

ensure

that

the

correctional officers also

understood that they were

to ensure that the Judge

received fair and impartial

numbers for the USRM

monitors, correct?

BY MS. NORWOOD: Yes.

...

BY MR. VORA:

The reason that you asked

for all the fans and windows

not to be adjusted in any

manner was to ensure, in

your words, accurate and

consistent

temperature

recordings, correct?

BY MS. NORWOOD: Yes.

Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

7. Later, Norwood testified that she understood

that: (1) the data was being collected pursuant to a

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court order; (2) she had an obligation to obey the

Court’s order; and (3) she had an obligation not to

engage in any actions that could possibly interfere

with the collection of such data.

BY MR. VORA:

And you understand that

the USRM data was also

being collected pursuant to

the Court’s order, correct?

BY MS. NORWOOD: Yes.

BY MR. VORA:

And you understood that

you had a duty to obey the

Court’s order and to not

engage in any action that

might interfere with the

Court’s collection of that

data, correct?

BY MS. NORWOOD: Yes.

...

BY MR. VORA:

You understood that the

Court wanted accurate and

consistent

temperature

recordings, correct?

BY MS. NORWOOD: Yes.

Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

8. Despite this testimony, Norwood proceeded to

testify that it “didn’t occur” to her that Defendants’

installation of window awnings and use of “soaker”

hoses might interfere with the data collection. Trial

Transcript, Testimony of Angelia Norwood, Aug. 5,

2013.

96a

BY MR. VORA:

. . . [D]id it ever cross your

mind that the awnings

might interfere with this

Court’s order that the temperature be accurately

consistently recorded and

collected?

BY MS. NORWOOD: No, it did not.

Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

9. Norwood further added that she did not see a

problem with Defendants’ installation of the awnings

or use of the “soaker” hoses. Thus, she did not question

her superiors, nor did she attempt to prevent the

installation or use of such devices, after Defendant

Cain ordered the installation and use of such.

10. Norwood’s

credibility

was

further

undermined by her testimony that it “didn’t occur” to

her that Defendants’ installation and use of such

devices was inconsistent with her July 15, 2013 email.

Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

11. When questioned by the Court, Norwood

testified as follows:

BY THE COURT:

. . . it didn’t dawn on you

that [Defendants’] activity

was completely inconsistent with your email, the

message in your email? . . .

and now you are testifying

– you’re telling the Court

that somehow you didn’t

think there was any

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problem

with

the

installation, even after you

issued this email message

to all [of] the supervisors on

death row? You saw

nothing wrong, no problem

with the installation of the

awnings? You saw no

problem with the use of the

misters or soaker hoses or

anything else? Is that what

you are telling me?

BY MS. NORWOOD: Yes, sir. It is.

Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

12. When further questioned by the Court,

Norwood testified that she did not believe that the

awnings or “soaker” hoses would affect the

temperature readings.

13. That testimony, however, was wholly

inconsistent with Norwood’s later testimony, in which

she admitted that the purpose of the awnings and

“soaker” hoses was to attempt to lower the

temperatures inside the death row housing tiers:

BY MR. VORA:

Why were the awnings

installed on the death row

tiers?

BY MS. NORWOOD: To see if it would make a

difference

far

providing shade over the

windows, to see if it would

cool – to see if it would

make a difference, as far as

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the temperature, to bring it

down.

...

BY MR. VORA:

Are you ever in a position to

ask

Warden

Venoit

questions?

BY MS. NORWOOD: Yes.

BY MR. VORA:

Did you ask him whether

installing soaker hoses

would affect the gathering

of the data consistently and

accurately pursuant to this

Court’s order?

BY MS. NORWOOD: Not in so many words.

BY MR. VORA:

Did you ask him in any

words?

BY MS. NORWOOD: Yes.

BY MR. VORA:

What did you ask him?

BY MS. NORWOOD: I asked him if he seriously

thought that wetting the

outside of that building

would impact the interior

temperature.

BY MR. VORA:

Why did you ask him about

impacting the interior temperature, but you didn’t ask

him about whether or not

that would be consistent

with this Court’s order that

accurate and consistent

data be recorded?

99a

BY MS. NORWOOD: It didn’t occur to me.

...

BY MR. VORA:

But your understanding as

to why any of these actions

with respect to soaker hoses

or awnings, your understanding was that it was in

order

further

the

settlement, correct?

BY MS. NORWOOD: No.

BY MR. VORA:

What was your understanding as to why that was

happening?

BY MS. NORWOOD: My understanding was to –

to see if there was anything

that would work to reduce

the temperature.

Trial Transcript, Testimony of Angelia Norwood, Aug.

5, 2013.

14. As highlighted above, Norwood’s testimony

was illogical and riddled with contradictions and

inconsistencies. For example, despite instructing her

subordinates to not tamper with the tier windows “to

ensure accurate and consistent temperature

recording[s],” Norwood attempted to convince the

Court that it “didn’t occur” to her that Defendants’

installation of the window awnings and use of “soaker”

hoses may interfere with the data collection.

15. In another example, Norwood testified that

she understood that the purpose of the twenty-one day

data collection period was to collect accurate and

consistent data. Yet, she testified that she never

100a

questioned Defendants’ attempts

temperature, and thus, the data.

alter

the

16. In another example, despite testifying that it

“didn’t occur” to her that Defendants’ actions may

alter the temperature, and thus, the data, Norwood

subsequently testified that the purpose of the window

awnings and “soaker” hoses was to alter the

temperature inside the death row tiers.

17. In sum, the Court finds that Norwood’s

testimony on this issue lacked the ring of truth.

Accordingly, this Court does not consider Norwood to

be a credible witness, particularly as it relates to

Defendants’ actions during the data collection period.

Accordingly,

Norwood’s

testimony

regarding

Defendants’ actions during the data collection period

were not relied on by the undersigned.

V. FINDINGS OF FACT

The following findings of fact are uncontroverted

or supported by the evidence in the record. Where a

particular fact was controverted, the Court weighed

the evidence and determined that the evidence

presented by the party supporting that fact was more

persuasive.

A. Angola’s Death Row

1. In 2006, the Louisiana Department of Public

Safety and Corrections constructed a new facility at

Angola to house inmates who have been sentenced to

death (“death row” or “death row facility”). The 25,000

square foot death row facility features four housing

wings, each of which contains two housing tiers;

(2) administrative offices; (3) visitation rooms; (4) a

medical clinic; (5) a dental clinic; (6) a control center

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where the correctional officers are stationed; and

(7) an execution chamber. Air conditioning is provided

in the administrative offices, visitation rooms, medical

clinic, dental clinic, control center, and execution

chamber. Air conditioning is not provided in the tiers

where the inmates are housed.

2. Each of the four housing wings extend from

the control center like spokes on a wheel. Each wing

contains two housing tiers, for a total of eight tiers.

Each tier is assigned a letter name: A, B, C, D, E, F,

G, and H. Currently, only tiers A, B, C, F, G, and H

house death row inmates.

3. Between the housing tiers, which sit back-toback, are a series of pipes, in which are encased the

plumbing, electrical wires, and duct work for the

entire wing.

4. Each tier contains between twelve

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