Bailey et al v. Livingston et al

Filing 276

MEMORANDUM AND ORDER DENYING 158 MOTION to Dismiss Pursuant to Rule 12(c) (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAVID BAILEY, et al.,
Plaintiffs,
VS.
BRAD LIVINGSTON, et al.,
Defendants.

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§ CIVIL ACTION NO. 4:14-CV-1698
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MEMORANDUM AND ORDER
Defendant Robert Herrera has filed before this Court a Motion to Dismiss Pursuant to
Rule 12(c). Herrera is the Senior Warden of the Wallace Pack Unit, a medical and geriatric
prison unit operated by the Texas Department of Criminal Justice (TDCJ), where Plaintiffs are
housed as inmates. He argues that Plaintiffs lack standing to assert their claims against him
because Herrera does not have the authority to carry out the injunctive relief that Plaintiffs
request. After considering the submissions of the parties and the applicable law, the Court
DENIES Defendant Herrera’s Motion to Dismiss (Doc. No. 158).
I. BACKGROUND
Plaintiffs are four inmates with disabilities that make them especially sensitive to extreme
heat. They have brought this case on behalf of themselves and those similarly situated, claiming
that TDCJ “knowingly subjects Plaintiffs and the Class to extremely hot temperatures inside
prisoners’ housing areas in violation of the Eighth and Fourteenth Amendments to the
Constitution,” and that “TDCJ refuses to make reasonable accommodations for . . . prisoners

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with disabilities, in violation of the Americans with Disabilities Act and Rehabilitation Act.”
Compl. ¶¶ 3–4 (Doc. No. 1).
Plaintiffs allege that “sweltering temperatures inside buildings where [TDCJ] houses
inmates”—including the Wallace Pack Unit—have caused at least twelve prisoners to die from
heat stroke and hundreds more to suffer heat-related illnesses. Compl. 1. They allege that
Defendants have done nothing to lower the temperatures inside the housing areas. Id. They ask
the Court to “[r]emedy ongoing violations of the law and the Constitution by granting
declaratory and injunctive relief, as set out in [the] Complaint, on behalf of Plaintiffs, and the
class” and to “[p]ermanently enjoin Defendants to abate the risk of serious harm described above
by taking steps including, but not limited to, maintaining a heat index of 88 degrees or lower
inside the Pack Unit’s housing areas.” Compl. 35.
Defendant Herrera is the Senior Warden of the Wallace Pack Unit, and an employee of
TDCJ. Herrera Aff. 2 (Doc. No. 158-1). He is sued in his official capacity for declaratory and
injunctive relief. Compl. ¶ 13. Brad Livingston, who is the executive director of TDCJ, is also a
defendant in his official capacity. TDCJ is a defendant as well.
In an affidavit filed along with his Motion to Dismiss, Defendant Herrera lists his official
duties as the Senior Warden of the Wallace Pack Unit. Among other duties, Herrera
“administer[s] policies and procedures to include custody, discipline, and welfare of offenders in
the facility”; “direct[s] facility operations in the overall management and administration of staff,
offenders, equipment, permanent improvements, and property of the correctional facility”;
“direct[s] inspections of the living accommodations of offenders for proper sanitation and
determine[s] whether improvements are necessary”; “oversee[s] the overall maintenance of

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buildings and permanent improvements of the facility”; and “direct[s] and approve[s]
requisitions, inventory, and issuance of supplies, materials, and equipment.” Herrera Aff. 2–3.
Defendant Herrera states in his affidavit: “My duties do not include the authority to
institute major structural changes to the Wallace Pack Unit. I do not have the authority to
institute major policy changes within the TDCJ, or to order major equipment and structural
changes to maintain a constant heat index of 88 degrees or lower inside each of of the Wallace
Pack Unit’s housing areas.” Herrera Aff. 3. Herrera argues that, because he lacks such
authority, Plaintiffs cannot establish the redressability component of Article III standing, and he
therefore asks this Court to dismiss the claims against him. Mot. to Dismiss 2-3.
II. LEGAL STANDARD
Article III restricts the federal judicial power to “Cases” and “Controversies.” U.S. Const.
art. III, § 2. The constitutional requirement of standing is used to identify cases and
controversies that are “justiciable,” that is, “those disputes which are appropriately resolved
through the judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal
quotation omitted). Under Article III, “the irreducible constitutional minimum of standing
contains three elements.” Id. These elements are “(1) an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent; (2) a causal connection between the injury and the
conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.”
Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) (citing Lujan, 504 U.S. at 560–
61). As “the party invoking federal jurisdiction,” the plaintiffs “bear[ ] the burden of establishing
these elements.” Lujan, 504 U.S. at 561. They must meet this burden “ ‘with the manner and
degree of evidence required at the successive stages of the litigation,’ ” which means that “on a
motion to dismiss, plaintiffs must allege facts that give rise to a plausible claim of [ ] standing.”

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Cornerstone Christian Schools v. Univ. Interscholastic League, 563 F.3d 127, 133–34 (5th Cir.
2009) (quoting Lujan, 504 U.S. at 561).
III. ANALYSIS
Defendant Herrera cites Okpalobi v. Foster, 224 F.3d 405 (5th Cir. 2001) (en banc), for
the proposition that “a state official cannot be enjoined to act in any way that is beyond his
authority to act in the first place.” Mot. to Dismiss 2. In Okpalobi, plaintiffs sued Louisiana’s
Governor and Attorney General to challenge the constitutionality of a statute that provided a
private cause of action against medical doctors performing abortions. The District Court found
the statute unconstitutional and issued an injunction against the Governor and Attorney General,
enjoining enforcement of the statute. The Fifth Circuit Court of Appeals reversed and vacated
the injunction for lack of jurisdiction under Article III.
The Fifth Circuit noted that the Okpalobi defendants had “no ability to enforce [the Act],
a purely private tort statute, which can be invoked only by private litigants. . . . The plaintiffs
have never suggested that any act of the defendants has caused, will cause, or could possibly
cause any injury to them. . . . In fact, under [the Act], no state official has any duty or ability to
do anything. The defendants have no authority to prevent a private plaintiff from invoking the
statute in a civil suit. Nor do the defendants have any authority under the laws of Louisiana to
order what cases the judiciary of Louisiana may hear or not hear.” Okpalobi, 224 F.3d at 422,
426-427.
Unlike the defendants in Okpalobi, Defendant Herrera does not argue that he has no
authority to remedy Plaintiffs’ complaints in any way. He simply asserts that he does not have
the authority to “maintain a heat index of 88 degrees or lower inside each of the Pack Unit’s
housing areas.” Mot. to Dismiss 2. Even if that statement were true—a factual finding which

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the Court declines to make at this point in the proceedings—Plaintiffs would still have standing
to assert their claims against Defendant Herrera. While the heat index injunction is admittedly
the “backbone” of the relief that Plaintiffs seek, it is not the only relief they seek. Pls.’ Resp. to
Def. Herrera’s Mot. to Dismiss 1 (Doc. No. 176). They have asked this Court to “[p]ermanently
enjoin Defendants to abate the risk of serious harm described [in the Complaint] by taking steps
including, but not limited to, maintaining a heat index of 88 degrees or lower” inside the housing
areas. Compl. 35 (emphasis added). Plaintiffs have complained of the health risks caused by
exposure to extreme heat; at the very least, it is plausible that Defendant Herrera is capable of
mitigating those health risks through the exercise of his official duties. Defendant Herrera does
not maintain otherwise.
IV. CONCLUSION
Because it is plausible that Defendant Herrera can redress at least some of Plaintiffs’
alleged injuries, the Motion to Dismiss is DENIED.
IT IS SO ORDERED.
SIGNED on this the 19th day of August, 2015.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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