Kenneth Taylor v. Bryan Coller et al.

Filing 36

MEMORANDUM OPINION AND ORDER DENYING 32 MOTION for Special Request, DENYING 13 MOTION for Appointment MOTION to Certify as a Class, DENYING 25 MOTION for Preliminary Injunction, DENYING 35 Sealed Event, DENYING 7 MOTION for Discovery (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
KENNETH TAYLOR,
TDCJ # 00828757,
Plaintiff,
VS.
BRYAN COLLER, et al,
Defendants.

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August 06, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 3:17-CV-0358

MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Taylor, an inmate at the Texas Department of Criminal Justice–
Correctional Institutions Division (“TDCJ”), proceeds pro se and in forma pauperis. He
filed this lawsuit under 42 U.S.C. § 1983 alleging that extreme heat at TDCJ’s Terrell
Unit violates his Eighth Amendment rights. The parties have filed cross-motions for
summary judgment (Dkt. 17, 29), which are pending before the Court. Plaintiff recently
filed two motions seeking emergency relief based on the summer heat (Dkt. 25, 35). He
also has filed a motion for discovery (Dkt. 7), a motion for appointment of counsel and
class certification (Dkt. 13), and a “special request” for the undersigned to visit the
Terrell Unit “on a day when the heat is above 90 [degrees]” (Dkt. 32).
I.

BACKGROUND
In 2017, Plaintiff was transferred from the Pack Unit in Navasota to the Terrell

Unit in Rosharon. Plaintiff states that he was transferred because he is at risk for a stroke
and therefore needed to be close to UTMB in Galveston (Dkt. 1, at 4; Dkt. 34, at 3). He
states that both the Pack Unit and the Terrell Unit are medical facilities, and that “a large
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number” of Terrell inmates are sick or elderly (Dkt. 1, at 4; Dkt. 34, at 3). He also claims
that extreme heat exacerbates his medical condition and causes him to have transient
ischemic attacks, or “mini-strokes” (Dkt. 34, at 3). He provides copies of administrative
grievances he submitted about heat mitigation measures at the Terrell Unit (Dkt. 1-1).
His classification records indicate that his work assignment is limited to jobs without
temperature extremes, but that his housing assignment has no restriction (Dkt. 29-11,
Exhibit K).
Plaintiff alleges that the conditions at the Terrell Unit are equivalent to those at the
Pack Unit, which was the subject of a lawsuit resolved in 2018 by a court-approved
settlement agreement regarding heat mitigation measures. See Cole v. Collier, Civil
Action No. 4:14-cv-1698 (S. D. Tex.) (Ellison, J.). In particular, Plaintiff alleges that the
Pack Unit and the Terrell Unit “have almost identical floor plans and house the same type
of medical inmates” (Dkt. 25, at 2). He refers the Court to Judge Ellison’s 2017 opinion
granting limited injunctive relief. See Memorandum and Opinion Setting Out Findings of
Fact and Conclusions of Law, dated July 19, 2017 (Dkt. 737 in Cole).
Plaintiff requests an order requiring the Terrell Unit “and other medical related
facilities in the Texas prison system” to maintain a temperature between 65 and 85
degrees “year round” (Dkt. 1, at 4; see Dkt. 25). He also seeks an infrastructure “that will
support this system on emergency power” (Dkt. 1, at 4).
With their summary judgment motions, Defendants have presented evidence of
heat mitigation measures implemented at the Terrell Unit in 2017 and 2018, including
air-conditioned respite areas, ice water, personal fans, cooldown showers, and wellness
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checks (Dkt. 29, at 13-16; id. Exhibit A). Plaintiff claims that these heat mitigation
measures are often ineffective or unavailable. He further alleges that Defendants are
hindering inmates’ access to the cold water showers and that the “respite area” is not airconditioned (Dkt. 35).
II.

DISCUSSION
A.

Emergency Motions

Extreme cell temperatures in a prison can violate the Eighth Amendment. Ball v.
LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015); Gates v. Cook, 375 F.3d 323 (5th Cir. 2004).
“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.” Ball, 792 F.3d at 592 (internal quotation marks omitted) (affirming
holding that Eighth Amendment was violated when prisoners who were being treated for
hypertension and diabetes were held in very hot cells without sufficient access to heatrelief measures); see Webb v. Livingston, 618 F. App’x 201 (5th Cir. 2015) (affirming
holding that inmates with heat-sensitive medical conditions who were housed in cells
where the temperature exceeded 100 degrees had asserted facts that, if proven, would
overcome qualified immunity). To prove a constitutional violation, an inmate need not
show that a death or serious injury already has occurred, but rather that there is a
“substantial risk of serious harm.” Ball, 792 F.3d at 593 (citing Gates, 376 F.3d at 333).
Plaintiff seeks emergency injunctive relief.

A plaintiff seeking a preliminary

injunction must establish “(1) a substantial likelihood of success on the merits, (2) a
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substantial threat of irreparable injury if the injunction is not issued, (3) that the
threatened injury if the injunction is denied outweighs any harm that will result if the
injunction is granted, and (4) that the grant of an injunction will not disserve the public
interest.” Jones v. Texas Dep’t of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018).
Injunctive relief in the form of “superintending federal injunctive decrees directing state
officials” is an extraordinary remedy. Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir.
1985). A preliminary injunction “should not be granted unless the party seeking it has
‘clearly carried the burden of persuasion’ on all four requirements.” PCI Transportation
Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005) (citations omitted).
The first prong of the test for injunctive relief requires Plaintiff to show a
substantial likelihood of success on the merits. To make this showing, Taylor relies
entirely on the Cole case: “The plaintiff believes that this case will end in favor of the
inmates and himself at C. T. Terrell . . . because the Southern District of Texas has
already ruled in a case very, very similar in the honorable Judge Ellison’s court that
originated at the Wallace Pack Unit in Navasota, Texas, case number 4:14-CV-1698”
(Dkt. 25, at 2). This argument falls short for several reasons. First, the injunctive relief
in Cole was based on an extensive factual record regarding conditions at the Pack Unit
and specifically tailored to those conditions. Although there may be similarities between
the Pack Unit and the Terrell Unit, any such similarities are not sufficiently established
on this record to justify injunctive relief. Second, the injunctive relief in Cole was
narrower than the relief Plaintiff now seeks, which is for temperatures throughout the
Terrell Unit to be maintained between 65 and 85 degrees year-round. In fact, Judge
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Ellison’s ruling specifically declined to order the Pack Unit to lower temperatures in all
housing areas, noting that federal statute limits the court’s ability to fashion injunctive
relief and that injunctive relief must be narrowly drawn. See Memorandum and Opinion
Setting Out Findings of Fact and Conclusions of Law, dated July 19, 2017 (Dkt. 737 in
Cole), at 95. Third, Defendants have presented summary judgment evidence regarding
heat mitigation measures at the Terrell Unit in 2017 and 2018, some of which were
implemented after Judge Ellison granted injunctive relief regarding the Pack Unit. Given
these considerations, Cole in itself is insufficient to carry Plaintiff’s burden to
demonstrate a substantial likelihood of success on the merits of his claim regarding the
Terrell Unit.
The second requirement for injunctive relief is a showing that Plaintiff will face a
“substantial threat of irreparable injury” if injunctive relief is denied. Plaintiff has failed
to demonstrate or allege a substantial risk. In his emergency motion, he alleges that the
“possibility of injury is very likely to myself and other inmates with medical issues”
(Dkt. 25, at 3). However, Plaintiff has not specifically identified his medical diagnosis
making him prone to strokes, nor has he explained its connection to heat sensitivity. He
has not alleged or provided information about any specific medical episodes he has
suffered that are attributable to heat conditions at the Terrell Unit. Although he states
generally that he has had several mini-strokes, he does not provide the dates for such
episodes or any other information about them. On this record, Plaintiff has not met his
burden to show that he faces a substantial threat of irreparable injury if the requested
injunctive relief is denied.
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Given that Plaintiff is required to satisfy each of the four elements for injunctive
relief, see Jones, 880 F.3d at 759, the Court need not address the third and fourth
requirements.
Based on the holdings above, emergency relief is denied. The parties’ summary
judgment motions remain pending, and the Court will fully consider the parties’
arguments and exhibits when ruling on those motions.1
B.

Other Motions

Plaintiff’s motion for discovery (Dkt. 7), filed in December 2017, sought
information about heat-related emergencies throughout TDCJ.

The motion was

premature, filed before this Court ordered Defendants to answer, and is denied on this
basis. See Order to Answer (Dkt. 8, at 2) (“No further discovery will be allowed except
on further order of the Court”). Moreover, the motion now is stale because, since
Plaintiff filed his motion, Defendants have served Plaintiff with copies of several
disclosures (Dkt. 14, 21, and 27), and its summary judgment motion and exhibits (Dkt.
29), which include information relevant to Plaintiff’s requests. For all of these reasons,
the motion for discovery is denied.
Taylor also seeks appointment of counsel and class certification (Dkt. 13). There
is no automatic constitutional right to appointment of counsel in civil rights cases.
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982). A district court may appoint counsel to advance the proper

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Plaintiff’s motion to amend his complaint (Dkt. 31) will be considered in conjunction with the summary
judgment motions.

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administration of justice in exceptional circumstances and where an indigent litigant has
colorable claims that will not receive a meaningful hearing without counsel. See 28
U.S.C. § 1915(e)(1); Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015); Ulmer,
691 F.2d at 213. Taylor has thus far shown himself capable of self-representation and
has filed appropriate motions for relief, and his Eighth Amendment claim does not
present a novel question of law. See Baranowski, 486 F.3d at 126. Therefore, his motion
for appointment of counsel is denied at this time.
Class certification requires a showing by the plaintiff that (1) the class is so
numerous that joinder of all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class. FED. R. CIV. P. 23(a).

See M.D. ex rel

Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012). Assuming that Rule 23(a) is
satisfied, the plaintiff must also meet the requirements of Rule 23(b)(1), (2), or (3). See
id. at 837. Taylor argues that class certification is appropriate based on the class action
“defined in Judge Ellison’s courtroom in the TDCJ’s Pack Unit litigation,” asserting that
the Terrell Unit is “almost identical” to the Pack Unit because it is a “medical unit” with
ill, handicapped, and elderly inmates affected by the heat, referring to “special housing”
for certain “heat restricted” inmates (Dkt. 13, at 2). Taylor does not state whether he is a
“heat restricted” inmate, and in fact does not identify the members of the class he seeks to
certify. He fails to address any of the requirements for class actions in Rule 23(a), and

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the record does not contain evidence that the requirements are satisfied. The motion for
class certification therefore is denied.
Finally, Plaintiff’s request that the undersigned visit the Terrell Unit on a hot day
(Dkt. 32) is denied at this time. At a later stage of this litigation, if the Court finds that
this request would facilitate the development of material facts, the Court will reconsider
the request on its own motion.
III.

CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
1.

Plaintiff’s motions for emergency relief (Dkt. 25, 35) are DENIED. The
parties’ summary judgment motions remain under advisement.

2.

Plaintiff’s motion for discovery (Dkt. 7), motion for appointment of counsel
and class certification (Dkt. 13), and motion for special request (Dkt. 32)
are DENIED.

The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 6th day of August, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

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