Bailey et al v. Livingston et al
Filing
1504
MEMORANDUM AND ORDER granting in part 1459 MOTION for Contempt, to Show Cause, and for Sanctions. (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
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United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEITH COLE, et al,
Plaintiffs,
VS.
BRYAN COLLIER, et al,
Defendants.
December 11, 2019
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 4:14-CV-1698
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MEMORANDUM & ORDER
Pending before this Court is Plaintiffs’ Motion for Contempt, to Show Cause, and for
Sanctions. (Doc. No. 1459). Plaintiffs allege that Defendants have repeatedly violated the
settlement agreement (Doc. No. 989-4) and this Court’s orders this past summer by allowing
temperatures in units housing class members to exceed 88℉, failing to notify Class Counsel of
those excessively hot temperatures, and then misrepresenting conditions and preventing Class
Counsel from discovering such violations of the agreement. Defendants have conceded that they
violated the terms of the settlement agreement by allowing the temperatures to exceed 88℉ for a
period of time in July and August 2019 in the LeBlanc Unit and then by failing to notify Class
Counsel of those temperatures. They also concede that certain misrepresentations were made to
Class Counsel and the Court regarding the temperatures in the LeBlanc Unit, the availability of
thermostat temperature readings in the LeBlanc Unit, and the availability of the LeBlanc warden
and executive administration officials during a scheduled inspection of the LeBlanc Unit.
For Defendants’ violations of the settlement agreement and misrepresentations to both
Class Counsel and this Court, Plaintiffs request that the Court find Defendants in contempt, order
a show cause hearing, and order various sanctions against Defendants, including fines, discovery,
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and attorneys’ fees. After careful consideration of all filings, evidence presented at the hearings
held on this Motion, and applicable law, the Court hereby GRANTS in part Plaintiffs’ Motion as
it relates to attorneys’ fees, discovery, and a show cause hearing. The Court DEFERS ruling on
Plaintiffs’ request for a finding of contempt and DENIES Plaintiffs’ requests for sanctions in the
form of fines.
I.
BACKGROUND
Much has been written about the course of this litigation; the Court will not recount the full
facts here. The events that are most relevant to the present Motion occurred in July and August of
2019. In mid-July 2019, Class Counsel began receiving complaints from class members about
temperatures in both the Stiles Unit and the LeBlanc Unit. (Doc. No. 1459, at 10–11). Defendants
later admitted that the Stiles Unit was having mechanical issues with its chillers beginning in June
2019, and that a temporary rental chiller was not put in place until July 24, 2019. (Doc. No. 1472,
at 6–7). However, Defendants failed to report the high temperatures to Class Counsel, as they are
required to do by the settlement agreement. (Doc. No. 1459, at 11).
The primary focus of this Motion, however, is on the events that occurred in July and
August 2019 in the LeBlanc Unit. In mid-July, Class Counsel reported to Defendants’ counsel that
class members were complaining of high temperatures in the LeBlanc Unit dorms. (Doc. No. 145941, at 2). Defendants represented through their attorneys that temperatures had been maintained at
acceptable levels, and that, although there had been a mechanical issue in mid-July, the air
conditioning had been repaired immediately. (Doc. No. 1459-41, at 2; Doc. No. 1459-46, at 2).
Defendants also provided a document that purported to list all air conditioning work and
maintenance issues at the LeBlanc Unit in July 2019, all of which were resolved immediately.
(Doc. No. 1459-47, at 3). However, Defendants later revealed that this document was not
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comprehensive, and that there were in fact long-standing problems with cooling in the LeBlanc
Unit. (Doc. No. 1488, at 8–9). It remains unknown who at the Texas Department of Criminal
Justice (TDCJ) made this document. Id. at 7.
Class Counsel continued to receive complaints from class members, so they requested a
site inspection, and one was scheduled for August 8. (Doc. No. 1459-51, at 7). However, on the
morning of August 7, Defendants’ counsel notified Class Counsel that, due to a family emergency,
the warden would not be able to attend the inspection. Id. at 3. In addition, Defendants’ counsel
stated that senior TDCJ officials were out of town for an American Correctional Association
conference. Id. Defendants’ counsel represented that, for those two reasons, the inspection had to
be moved to August 12. Id. However, Defendants later admitted that previous representations that
the warden had a family emergency, or that the warden and senior TDCJ officials were required
to be present for an inspection to take place were false. (Doc. No. 1472, at 2; Doc. No. 1472-19,
at 84:16–89:15).
Upon the Court’s order, the inspection took place as originally scheduled, on August 8.
(Minute Entry 8/7/2019). At the inspection, Class Counsel discovered temperatures that far
exceeded the 88℉ heat index maximum required by the settlement agreement. (Doc. No. 1472, at
2; Doc. No. 1459, at 14). Class Counsel also discovered that, although Defendants’ counsel had
stated that LeBlanc Unit staff had been regularly monitoring temperatures, the only thermostats in
the Unit were mounted inside the air conditioning components, and thus, were not visible to staff
members without assistance from maintenance staff. (Doc. No. 1472, at 2). Defendants have since
admitted that the LeBlanc Unit air conditioning system was malfunctioning since at least early
August and, despite maintenance conducted throughout the summer, the LeBlanc Unit was not
cooled to appropriate temperatures. (Doc. No. 1472, at 2, 8; Doc. No. 1472-23). Defendants also
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failed to notify Class Counsel about the air conditioning malfunction or elevated temperatures, in
violation of the terms of the settlement agreement. (Doc. No. 1472, at 2).
Defendants have since moved all class members out of the LeBlanc Unit. Id. at 8.
Defendants have also moved all class members who can live in the Pack Unit back to the Pack
Unit, and consolidated the remaining class members into as few units as possible. Id. at 10–11. All
housing areas where class members reside now have Kestrel thermometers mounted permanently
on the walls. 1 Id. at 11. These thermometers measure heat indices automatically and download the
data onto smart phones via an app. Id. Defendants provided Class Counsel with heat index readings
from all housing areas with class members on a weekly basis through October 15, 2019. Id. at 12.
Defendants have also set out various policy changes that will govern the processing of heat-related
grievances by class members, housing reassignments of class members, and notification of
elevated temperatures in units housing class members. Id. at 11–12. However, Defendants have
still failed to explain who was responsible for the many misrepresentations made to this Court and
to Class Counsel. (Doc. No. 1488, at 11–12, 13–14). They have also failed to reveal how long
LeBlanc Unit was out of compliance and how it remained out of compliance for so long without
any action on the part of TDCJ. Id. at 15–16.
In addition to Defendants’ violations in the Stiles and LeBlanc Units, Plaintiffs also allege
that Defendants have violated the terms of the settlement agreement by repeatedly transporting
class members in buses that are not air conditioned and by failing to provide parole-voted programs
for class members in air-conditioned facilities. (Doc. No. 1459, at 17–18). Defendants admit to
one instance of using an un-air-conditioned bus to transport class members. (Doc. No. 1472, at 8–
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Although there are class members at Hospital Galveston, no permanent devices have been
installed there because TDCJ does not own the facility. However, temperature and heat index
readings are being taken using a handheld device. (Doc. No. 1472, at 11).
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9). They claim that the delay in provision of parole-voted programs was due to personnel
resignation, not class members’ status as class members in this litigation. Id. at 10.
II.
LEGAL STANDARD
Federal courts possess inherent power “to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630–31
(1962). That power includes “the ability to fashion an appropriate sanction for conduct which
abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991). Such conduct
includes “disobedience to the orders of the Judiciary, regardless of whether such disobedience
interfered with the conduct of trial.” Id. at 44 (quoting Young v. United States ex rel. Vuitton et
Fils S.A., 481 U.S. 787, 798 (1987)). Courts must use their inherent power to sanction “with
restraint and discretion.” Id. For example, where a court orders payment of attorneys’ fees as a
sanction against a party that acted in bad faith, the fees must be compensatory, and not punitive.
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017). However, courts have the
discretion to impose even particularly severe sanctions, where necessary. See Chambers, 501 U.S.
at 44; see also Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1412 (5th Cir.
1993) (“The ultimate touchstone of inherent powers is necessity.”).
III.
ANALYSIS
There is no dispute that Defendants violated the terms of the settlement agreement, which
is enforceable as an order by this Court. Defendants have themselves admitted that they failed to
maintain indoor heat index temperatures below 88℉ in both the Stiles and LeBlanc Units, failed
to notify Class Counsel when temperatures exceeded 88℉, and transported class members on nonair-conditioned buses on at least one occasion. Additionally, Defendants have also admitted that
they had previously made several serious misrepresentations to both Class Counsel and this Court.
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Defendants’ actions not only put class members’ lives in danger, but also prevented discovery of
these dangerous conditions.
The Court is heartened that Defendants are, finally, being candid and are taking steps to
remedy the shortcomings of their internal systems. However, the Court agrees with Plaintiffs that
Defendants have yet again violated the clear terms of an agreement that Defendants themselves
helped craft. This repeated pattern of violations has serious consequences for individuals in
TDCJ’s custody. Thus, Defendants’ failure to stymie these violations over two years after the
Court’s initial preliminary injunction and over one year after the Court approved the settlement
agreement is of particular concern to the Court, and Defendants’ promises that they will do better
without intervention by this Court fall flat.
The Court is reluctant to impose fines, as the money used to pay those fines would be that
of the taxpayers, not of the individuals who have the power to act. However, the Court does agree
with Plaintiffs that further discovery is necessary. Despite numerous hearings, during which
multiple witnesses testified, it is still unclear who is responsible for Defendants’ failure to abide
by the settlement agreement. None of Defendants’ witnesses were able to say who was responsible
for the misrepresentations and misleading documents that were sent to Class Counsel.
Responsibility was too easily pushed to unnamed mid-level TDCJ officials. The Court is not
convinced that Defendants will be able to change institutional behavior if they do not first identify
why previous violations occurred in the first place. Thus, the Court grants Plaintiffs’ request for
further discovery on the violations of the settlement agreement that occurred in July and August
of 2019. Class Counsel may take five depositions of TDCJ officials of Class Counsel’s choosing
to assess the extent of the violations from this previous summer and examine the basis of
misrepresentations made to Class Counsel and the Court. Class Counsel may also make reasonable
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written discovery requests that relate to the violations of the settlement agreement in July and
August of 2019, and the related misrepresentations made by Defendants to Class Counsel and the
Court. The Court also grants Plaintiffs’ request for a show cause hearing, which will be scheduled
upon motion by Plaintiffs.
In addition, the Court finds that Class Counsel’s request for attorneys’ fees and expenses
is reasonable. Given Class Counsel’s unforeseen labor required to unearth Defendants’ violations,
as well as the additional work now required by added discovery and future monitoring, Class
Counsel is expending much more time and effort than expected at the time the settlement
agreement was drafted. The Court thus orders that Defendants compensate Class Counsel at
market-based rates for activities related to investigating conditions at TDCJ units housing class
members during July and August of 2019, activities associated with bringing the present Motion
for Sanctions, and activities associated with any discovery and monitoring that this Court orders
based on the present Motion. Because that amount is not yet set, the Court orders that Class
Counsel submit any requests for attorneys’ fees and expenses after the conclusion of discovery
stemming from the present Order.
The Court declines to decide whether to hold Defendants in contempt of court and defers
its decision until a later date.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part Plaintiffs’ Motion for Sanctions as
to sanctions in the form of discovery and attorneys’ fees. Class Counsel may take up to five
depositions of TDCJ officials of their choosing. Class Counsel may also serve written discovery
requests relating to Defendants’ violations of the settlement agreement that took place during July
and August 2019, and the ensuing misrepresentations made to Class Counsel and this Court. Class
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Counsel may also file their requests for attorneys’ fees and expenses after the close of discovery.
The Court GRANTS Plaintiffs’ Motion for Show Cause Hearing, the date of which is to be set
upon motion by Plaintiffs. The Court DEFERS decision on Plaintiffs’ Motion for Contempt. The
Court DENIES all other requests for sanctions.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 11th day of December, 2019.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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