Bailey et al v. Livingston et al
Filing
348
MEMORANDUM AND ORDER granting 272 Amended MOTION to Certify Class, Class action certified(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
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.
BRAD LIVINGSTON, et al.,
Defendants.
January 22, 2016
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 4:14-CV-1698
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MEMORANDUM AND ORDER
Inmates in the Wallace Pack Unit, operated by the Texas Department of Criminal Justice
(TDCJ), bring this lawsuit to challenge TDCJ’s alleged policies and practices of exposing the
inmates to extreme heat conditions in their housing areas during the summer months. Plaintiffs
contend that, without climate control or adequate mitigation measures, Defendants are failing to
protect the inmates from the harmful and potentially fatal effects of prolonged exposure to such
high temperatures. Before the Court is Plaintiffs’ Amended Motion for Class Certification.
(Doc. No. 272.) Plaintiffs have asked the Court to certify one General Class and two subclasses.
For the reasons stated below, this Court finds that the Motion for Class Certification should be
granted.
I.
BACKGROUND
The named Plaintiffs are seven inmates who live in the Wallace Pack Unit, a medical and
geriatric prison operated by the Texas Department of Criminal Justice. Plaintiffs claim that the
conditions inside the Pack Unit—in particular, the lack of climate control leading to the
prisoners’ prolonged exposure to extreme heat during the summer months—violate their Eighth
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and Fourteenth Amendment rights to be free from cruel and unusual punishment. They also
bring claims under the Americans with Disabilities Act and the Rehabilitation Act, alleging that
TDCJ has refused to make reasonable accommodations for prisoners with disabilities that make
them especially vulnerable to the effects of extreme heat. Defendants are Brad Livingston, the
executive director of TDCJ; Roberto Herrera, the warden of the Pack Unit; and TDCJ itself.
Plaintiffs allege that “sweltering temperatures inside buildings where [TDCJ] houses
inmates,” including the Wallace Pack Unit, have caused at least twelve prisoners in the Texas
prison system to die from heat stroke and hundreds more prisoners to suffer from heat-related
illnesses since 2011. (Compl., Doc. No. 1 at 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.)
Plaintiffs seek to certify a class and two subclasses for injunctive and declaratory relief
under the Eighth and Fourteenth Amendments. Plaintiffs also seek to certify one of the two
subclasses for injunctive and declaratory relief under the Americans with Disabilities Act and the
Rehabilitation Act. The proposed General Class is defined as:
All inmates who currently are, or in the future will be, incarcerated at the Pack
Unit, and who are subjected to TDCJ’s policy and practice of failing to regulate
high indoor heat index temperatures in the housing areas.
The first proposed subclass is the “Heat-Sensitive Subclass,” defined as:
All people who are incarcerated at the Pack Unit, or in the future will be, that are
subjected to TDCJ’s policy and practice of failing to regulate high indoor heat index
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temperatures in the housing areas, and either: (1) have a physiological condition
that places them at increased risk of heat-related illness, injury, or death (including,
but not limited to, suffering from obesity, diabetes, hypertension, cardiovascular
disease, psychiatric conditions, cirrhosis of the liver, chronic obstructive pulmonary
disease, cystic fibrosis, asthma, sweat gland dysfunction, and thyroid dysfunction);
or, (2) are prescribed an anticonvulsant, anticholinergic, antipsychotic,
antihistamine, antidepressant, beta blocker, or diuretic; or (3) are over age 65.
The second proposed subclass is the “Disability Subclass,” defined as:
All people incarcerated at the Pack Unit, or who will be in the future, that are
subjected to TDCJ’s policy and practice of failing to regulate high indoor heat index
temperatures in the housing areas and suffer from a disability that substantially
limits one or more of their major life activities and who are at increased risk of heatrelated illness, injury, or death due to their disability or any medical treatment
necessary to treat their disability.
(Am. Mot. to Certify Class, Doc. No. 272 at 2.)
The named plaintiffs are Keith Cole, Ray Wilson, Jackie Brannum, Dean Mojica, Richard
King, Fred Wallace, and Marvin Ray Yates. Keith Cole is a 60-year-old inmate who has Type II
diabetes, coronary arterial disease, high blood pressure, and high cholesterol. (Doc. No. 272 at
30.) According to TDCJ records, Mr. Cole experienced an episode of heat exhaustion in June
2012. (Doc. No. 272-22 at 3.) Ray Wilson is a 78-year-old inmate who has chronic obstructive
pulmonary disease (COPD), hypertension, coronary artery disease, emphysema, chronic
bronchitis, and degenerative arthritis. (Doc. No. 272-15 at 1.) Jackie Brannum is a 61-year-old
inmate who has hypertension, high cholesterol, type II diabetes, schizoaffective disorder, and
chronic pain. (Doc. No. 272-14 at 1.) Dean Mojica is a 49-year-old inmate who has no medical
conditions that would affect his sensitivity to extreme heat. (Doc. No. 272-3 at 25; Doc. No.
272-17 at 1.) Richard King is a 68-year-old inmate who has hypertension, obesity, and diabetes.
(Doc. No. 272-16 at 1.) Fred Wallace is a 72-year-old inmate who is obese and has depression
and high blood pressure. (Doc. No. 272-13 at 1.) Marvin Ray Yates is a 69-year-old inmate who
has hypertension and COPD with emphysema and bronchitis. (Doc. No. 272 at 30.)
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II.
LEGAL STANDARDS
The requirements for class certification under Rule 23(a) are:
(1) the class is so numerous that joinder of all members is impracticable [numerosity];
(2) there are questions of law or fact common to the class [commonality];
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class [typicality]; and
(4) the representative parties will fairly and adequately protect the interests of the class
[adequacy of representation].
Fed. R. Civ. P. 23(a). “To obtain class certification, parties must satisfy Rule 23(a)’s four
threshold requirements, as well as the requirements of Rule 23(b)(1), (2), or (3).” M.D. ex rel.
Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012) (citing Maldonado v. Ochsner Clinic
Found., 493 F.3d 521, 523 (5th Cir. 2007)). Plaintiffs seek certification under Rule 23(b)(2),
which allows for certification if “the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
Plaintiffs, as the party seeking certification, bear the burden of proving that the proposed
class satisfies the requirements of Rule 23. Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131
S.Ct. 2541, 2551 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking
class certification must affirmatively demonstrate his compliance with the Rule—that is, he must
be prepared to prove that there are in fact sufficiently numerous parties, common questions of
law or fact, etc.”). It is well established that a federal district court must conduct a rigorous
analysis of the Rule 23(a) prerequisites before certifying a class. Castano v. Am. Tobacco Co.,
84 F.3d 734, 740 (5th Cir. 1996). Currently, the courts must follow the enhanced contours of
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“rigorous analysis” as announced by the Supreme Court in Wal–Mart. Perry, 675 F.3d at 837.
Under Wal–Mart, “[w]hat matters to class certification . . . is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.” 131 S.Ct. at 2551 (emphasis in
original). The Supreme Court requires the district court to look to the dissimilarities among the
proposed class members, as these “are what have the potential to impede the generation of
common answers.” Wal–Mart, 131 S.Ct. at 2551. Thus, as noted in Perry, the commonality test
is no longer met when the proposed class does nothing more than establish that there is “at least
one issue whose resolution will affect all or a significant number” of the putative class members.
Perry, 675 F.3d at 840. Instead, Rule 23(a)(2) requires that all of the class members’ claims
depend on a common issue of law or fact whose resolution “will resolve an issue that is central
to the validity of each one of the class member’s claims in one stroke.” Id. (citing Wal–Mart,
131 S.Ct. at 2551) (original emphasis).
This heightened analysis under Wal–Mart will “[f]requently . . . entail some overlap with
the merits of the plaintiff’s underlying claim.” Id. However, Rule 23 does not require a showing
that the questions common to the class “will be answered, on the merits, in favor of the class.”
Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013). “Rule 23
grants courts no license to engage in free-ranging merits inquiries at the certification stage.
Merits questions may be considered to the extent—but only to the extent—that they are relevant
to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at
1194–95.
III.
PRELIMINARY MATTERS
Before analyzing the Rule 23 prerequisites, the Court must consider Defendants’
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preliminary arguments regarding (1) ascertainability and (2) the limitations imposed by the
Prison Litigation Reform Act.
A. Ascertainability
“The existence of an ascertainable class of persons to be represented by the proposed
class representative is an implied prerequisite of Federal Rule of Civil Procedure 23.” John v.
Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007). A “precise class definition is
necessary to identify properly those entitled to relief, those bound by the judgment, and those
entitled to notice.” In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004).
Defendants do not dispute the ascertainability of the General Class, but they dispute the
existence of ascertainable subclasses. Defendants argue that “[b]y including the catchall ‘but not
limited to’ language, the [heat sensitive] sub-class definition is expanded with unknown dimensions
to include unknown medical conditions.
Further, the [heat sensitive] sub-class definition is
contingent on the physiological condition actually placing the inmate at increased risk of heat-related
illness, injury, or death.” (Defs.’ Resp., Doc. No. 307 at 40.) Defendants also claim that “[t]he
disability sub-class is defined by the subjective and fact based inquiry of whether a condition is
substantially limiting a major life activity and at the same time placing the inmate at increased heatrelated risk. Either inquiry would once again devolve into a person-by-person inquiry to determine
who is in or out of the sub-class because it is based on subjective criteria that only a medical provider
could define.” (Id.)
Defendants’ arguments are not frivolous. However, with regard to the heat-sensitive
subclass, the Court finds it significant that TDCJ itself uses similar criteria to determine work
assignments and other restrictions. (Correctional Managed Health Care Policy Manual, Doc. No.
272-9 at 7–9.) The fact that “only a medical provider” could determine which conditions place
people at increased risk for heat-related illness, injury, or death does not make the subclass
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unascertainable. For an inmate to belong in the heat-sensitive subclass, he must (1) have a
diagnosed physiological condition that medical providers understand may negatively “affect heat
tolerance” (Doc. No. 272-9 at 9); or (2) be prescribed a drug that medical providers—including
the University of Texas Medical Branch (UMTB), TDCJ’s healthcare provider—consider to be
“associated with heat stress,” namely, an anticonvulsant, anticholinergic, antipsychotic,
antihistamine, antidepressant, beta blocker, or diuretic (Doc. No. 272-9 at 7); or (3) be over the
age of 65. In the Health Care Policy Manual, the University of Texas Medical Branch lists the
following physiological conditions as possibly affecting heat tolerance: “Cardiovascular Disease;
Cirrhosis of the Liver; Chronic Obstructive Pulmonary Disease/Asthma; Cystic fibrosis;
Diabetes; Psychiatric conditions; Sjogren’s syndrome; Sweat gland dysfunction; Thyroid
dysfunction; Age > 65.” The Court is hesitant, however, to limit the qualifying physiological
conditions to those on the UTMB list. As Dr. Vassallo explains in her expert report, spinal cord
injuries, which are not on the list, may affect the ability to thermoregulate by impairing signals
sent from the brain to the body. (Doc. No. 272-3 at 15.) Moreover, both Plaintiffs’ and
Defendants’ experts agree that obesity can increase a person’s sensitivity to extreme heat, but
obesity is not on the UMTB list. (Id. at 9; Doc. No. 309 at 16.)
As TDCJ already keeps an only slightly more limited list of inmates who are heat
sensitive and thus subject to certain restrictions, and the subclass is defined by an inmate’s
diagnosed physiological condition, prescribed medication, or age, rather than the inmate’s
individual sensitivity to heat, the Court finds that the heat-sensitive subclass is ascertainable for
the limited purpose of injunctive relief. It should be emphasized that, with regard to the first of
the three prongs, the inquiry need not and should not involve an examination of the inmate’s
actual risk of heat-related illness—it is only necessary for an inmate to establish that the inmate
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has a physiological condition that is known in the medical community to negatively affect
thermoregulation, thereby making the inmate’s risk higher than it would be without the medical
condition. Any inmate with obesity is a member of this subclass, as is any inmate with sweat
gland dysfunction or any of the other conditions listed. According to both parties’ experts,
holding all other factors equal, a person who has sweat gland dysfunction is at higher risk of
heat-related illness than that person would be without sweat gland dysfunction. An inmate with
a spinal cord injury would likewise be a member of the subclass, as he would “have a
physiological condition that places [him] at increased risk of heat-related illness, injury, or
death.”
The disability subclass is also ascertainable. Courts regularly certify classes of inmates
who are disabled, even if they do not have the same disability. See, e.g., Hernandez v. County of
Monterey, 305 F.R.D. 132, 149 (N.D. Cal. 2015) (certifying a subclass of inmates with
disabilities, defined as “all individuals who are now or will be in the future in the Jail and who
have a disability, as defined by federal and California law”); Bumgarner v. NCDOC, 276 F.R.D.
452, 454 (E.D.N.C. 2011) (certifying class of prisoners who are disabled under the Americans
with Disabilities Act and the Rehabilitation Act). As in the heat-sensitive subclass, the inquiry
regarding the disability subclass will focus not on the individual risk of heat-related illness, but
on whether the inmate has a type of disability that is known to affect thermoregulation or takes a
type of medication that is known to affect thermoregulation in order to treat the inmate’s
disability.
B. The Prison Litigation Reform Act
One of Defendants’ primary arguments as to why this Court should deny class
certification—that “[the Prison Litigation Reform Act (PLRA)] and binding precedent preclude
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Plaintiffs’ primary claim for relief[,] . . . across the board air-conditioning”—should also be
addressed before the Court reaches the Rule 23(a) requirements. (Doc. No. 307, at 6.) Even if it
that statement were true, and the PRLA did in fact preclude an injunction requiring across the
board air-conditioning, that would not defeat class certification for two reasons.
First, as this Court noted in its Memorandum and Order denying Defendant Herrera’s
Motion to Dismiss, “[w]hile the heat index injunction is admittedly the ‘backbone’ of the relief
that Plaintiffs seek, it is not the only relief they seek.” (Doc. No. 276, at 5.) It would be
premature for this Court to decide now, before trial, which remedies would be available to
Plaintiffs if a Fourteenth Amendment violation were found in the conditions of the Pack Unit.
But, under Gates v. Cook, 376 F.3d 323 (5th Cir. 2004), it is clear that some remedy would
indeed be available to address unconstitutional conditions of confinement. In Gates, a prisoner
class action, the Fifth Circuit upheld an injunction directing the Mississippi Department of
Corrections “to provide fans, ice water, and daily showers when the heat index is 90 degrees or
above, or alternatively to make such provisions during the months of May through September.”
Id. at 339. Gates does not define the maximum relief available for inmates complaining of
exposure to extreme heat; it does, however, indicate that comparable types of relief could be
available to Plaintiffs even if air-conditioning were not.
Second, class certification is not dependent on Plaintiffs’ future success on the merits of
their claim. Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013).
There may be no Eighth or Fourteenth Amendment violations in this case. The PLRA may
preclude some or all of the Plaintiffs’ requested remedies. However, as in Gates, the policies
and practices that create the conditions in the Pack Unit are either constitutional or not, and the
remedies are either precluded by the PLRA or not. The class of inmates in the Pack Unit “will
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prevail or fail in unison.” Amgen, 133 S. Ct. at 1191. To deny class certification based on the
speculative availability or unavailability of a remedy—to the class as a whole—would be
unfounded.
IV.
RULE 23(a) REQUIREMENTS
Because Defendants’ arguments regarding ascertainability and the PRLA do not bar class
certification, the Court will now address each of the Rule 23(a) requirements.
A. Numerosity
To satisfy the numerosity requirement under Rule 23(a)(1), the proposed class must be
“so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The
proposed General Class contains over 1,400 members, and there is “a constant flux of inmates
into and out of the Pack Unit,” so joinder of all the proposed class members would be
impracticable if not impossible. (Doc. No . 272, at 4-5.) The proposed heat-sensitive subclass
contains over 400 members, as identified by TDCJ on the “Medical Heat Restriction List” (Doc.
No. 272 at 5; Doc. No. 272-8, at 25-47).
Plaintiffs do not estimate how many members might fit into the disability subclass, but
they note that “there are 728 inmates at the Pack Unit diagnosed with hypertension, each of
whom is likely taking a diuretic or other medication identified by TDCJ’s medical policy as
putting inmates at risk of heat-related illness. There are similarly unwieldy numbers for each of
the conditions that TDCJ identifies as putting inmates at risk of heat-related illness—212 patients
with diabetes, 142 with coronary artery disease, 111 with obesity, 53 with a psychiatric condition,
22 with cirrhosis of the liver, 84 with COPD, 113 with asthma, and 189 with thyroid
dysfunction.” (Doc. No. 272, at 13.) While Defendants challenge the subclass’s ascertainability
(see infra Part III.A), they do not contend that the disability subclass is too small to fulfill the
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numerosity requirement.
Defendants argue that “Plaintiffs fail to satisfy the elements of numerosity in light of the
PLRA’s exhaustion requirement and there is no significant history of serious heat related
illnesses.” (Doc. No. 307 at 38.) It is not, however, necessary for each class member to have
satisfied the exhaustion requirement. See Gates, 376 F.3d at 330 (“Russell was the only class
member who had [exhausted the administrative remedy]. . . . [T]his is enough to satisfy the
requirement for the class.”). Defendants’ argument regarding “no significant history of serious
heat related illnesses” is unclear, but the Court finds as a factual matter that there is such a
history within the Pack Unit, and that it is not necessary for each member of the class actually to
have experienced a heat related illness—the class is defined by exposure to risk, not by past
illnesses. The Court finds that the General Class and both subclasses are sufficiently numerous
to satisfy Rule 23(a)(1).
B. Commonality
“To satisfy the commonality requirement under Rule 23(a)(2), class members must raise
at least one contention that is central to the validity of each class member’s claims.” In re
Deepwater Horizon, 739 F.3d 790, 810 (5th Cir. 2014). As the Fifth Circuit has explained,
however, “this contention need not relate specifically to the damages component of the class
members’ claims. Even an instance of injurious conduct, which would usually relate more
directly to the defendant’s liability than to the claimant’s damages, may constitute ‘the same
injury.’” Id.
Plaintiffs claim that the actions and inactions of TDCJ in subjecting the class and
subclass members to extremely high temperatures provide the basis for satisfying the 23(a)(2)
requirement.
(Doc. No. 272, at 20.) According to Plaintiffs, excessive heat constitutes a
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condition of confinement that poses a substantial risk of serious harm to the health of all the
inmates. (Id. at 21-22.) Furthermore, to prove an Eighth Amendment violation, Plaintiffs will
need to prove that officials were deliberately indifferent to the risk posed to the prisoners; the
issue of deliberate indifference can be resolved, Plaintiffs contend, “in one stroke.” (Doc. No.
272, at 22.)
In support of their contention that all Pack Unit inmates are subjected to a
substantial risk of harm by TDCJ policies, Plaintiffs submit evidence of the summer
temperatures inside the Pack Unit as well as copious evidence of the effects that such high
temperatures have on the well-being of both healthy individuals and individuals with heat
sensitivity.
Defendants respond by arguing that Plaintiffs have “failed to prove that even the
healthiest and most acclimatized offenders at the Pack Unit are at substantial risk of harm of heat
related illness.” (Doc. No. 307, at 23.) On this point, Plaintiffs’ and Defendants’ experts
disagree. Plaintiffs’ experts assert that above a certain heat index, “[a]ll of the inmates at the
Wallace Pack Unit, including young healthy men with no known medical problems, are at
substantial risk for serious heat-related disorders during periods of persistent exposure.” (Report
of Dr. Vassallo, Doc. No. 272 Exh. 3, at 10; Report of Dr. Michael A. McGeehin, Doc. No. 272
Exh. 4, at 20.) Defendants’ experts say, on the other hand, that there is “[n]o problem at [the]
Pack Unit with regard to summer heat conditions.” (Report of Dr. Means, Doc. No. 39 at 35.)
Dr. Means, who was employed by TDCJ between 2009 and 2015, bases her opinion in
large part upon a logical fallacy. She emphasizes the fact that “there were no statistically
significant variations in the TDCJ mortality rate by temperature related period (i.e. summer or
winter) from 2004 to 2014.” (Report of Dr. Means, Doc. No. 309 at 35; see also id. at 27.)
Given the total number of deaths each year in the Texas prison system—over 219,000—there
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would have to be a staggering number of heat-related deaths in order to cause a statistically
significant variation between the seasons. Perhaps even more disturbing, however, is the fact
that the table in Dr. Mean’s expert report compares the number of deaths per 1,000 people in a
five-month long “summer” period to the number of deaths per 1,000 people in a seven-month
long “winter” period. (Id. at 27.) One would expect to see significantly more deaths in a sevenmonth period than in a five-month period, if temperature variations were in fact unimportant.
But, according to Dr. Means, there is no such disparity between the two unequal periods. The
fact that no statistically significant variation is shown in the table does nothing to support
Defendants’ contentions; but the fact that Dr. Means relies on such data dampens her credibility
as an expert in the eyes of this Court.
Defendants’ experts also appear to believe that a determination of risk is necessarily an
individual inquiry, no matter what external conditions exist. According to Dr. Puerini, even
inmates with the same medical diagnosis do not have the same exact level of risk when exposed
to extreme heat. (Report of Dr. Puerini, Doc. No. 309 at 169.) “Similarly, those with treated
chronic illness, including hypertension, cardiovascular disease, and obesity are not at nearly
equal risk of harm from heat sensitivity. . . . Everyone is not at equal risk, and so stratification is
important.” (Id. at 169–170.) By Defendants’ reasoning, no class of inmates could ever be
certified in relation to heat exposure: no two people face exactly the same amount and type of
risk from exposure to extreme heat. Gates refutes such reasoning. The law is clear that a class of
inmates can be certified despite individual differences in risk factors, so long as every inmate is
exposed to “substantial” risk due to their conditions of confinement. Gates, 376 F.3d at 340; see
also Parsons v. Ryan, 754 F.3d 657, 662 (9th Cir. 2014).
Dr. Puerini begins with the assumption that “benign” injuries caused by heat, such as heat
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cramps and syncopal episodes (fainting spells), are not serious enough to establish a substantial
risk of harm and are therefore “not relevant” to his analysis. (Report of Dr. Puerini, Doc. No.
309 at 162.) The Fifth Circuit has held, however, that minor heat-related injuries or illnesses
caused by extreme temperatures can be enough to demonstrate an Eight Amendment violation.
Blackmon v. Garza, 484 F. App’x 866, 872 (5th Cir. 2012) (holding that plaintiff’s headaches,
dizziness, nausea, difficulty breathing, and blurred and dimmed vision could demonstrate
substantial risk of harm). Dr. Puerini’s opinions are based on a false assumption, and they
improperly discount much of Plaintiffs’ evidence.
By contrast, the Court finds Dr. Vassallo’s report, offered by Plaintiffs, to be wellreasoned and persuasive. (Doc. No. 272 Exh. 3.) Dr. Vassallo is an expert in heat-related
disorders and thermoregulation. Her report explains the harmful effects of persistent exposure to
extreme heat on all the inmates at the Pack Unit. (Id. at 10.) The conclusions in Dr. Vassallo’s
report are corroborated by the report of epidemiologist Michael A. McGeehin, as well as by the
anecdotal affidavits of the named Plaintiffs themselves. (Doc. No. 272 Exh. 4, 7, 11-18.)
Furthermore, the Court finds it significant that TDCJ policies regarding heat stress use a
“Heat and Humidity Index” table provided by the U.S. National Weather Service, which applies
to all inmates—and, in fact, all people— regardless of their health conditions. (Doc. No. 272
Exh. 9, at 5.) The table charts the danger of heat exhaustion and heat stroke at varying air
temperatures and humidity levels. The cells in the table are color-coded to show when “heat
exhaustion [is] possible,” “heat stroke [is] possible,” and “heat stroke [is] imminent.” For
example, at 95 degrees and 80% humidity, heat stroke is “imminent.”
Plaintiffs’ expert Dr. Thomas W. Sager, a professor of statistics at the University of
Texas at Austin, graphed the temperatures and humidity levels in three housing areas of the
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Wallace Pack Unit from August 27, 2014 through October 8, 2014 and estimated the
temperatures and humidity levels from June 17, 2014 through August 26, 2014 (when actual data
was unavailable). Even in late August and September, when the temperature and humidity levels
were measured instead of estimated, the graphs show that the temperatures and humidity
combinations (“the heat index”) more than once put all the inmates in danger of imminent heat
stroke, according to the National Weather Service table.
The Court finds that Plaintiffs have demonstrated commonality with regard to the
General Class. They raise the common contentions that excessive heat constitutes a condition of
confinement that poses a substantial risk of serious harm to the health of all the inmates, and that
TDCJ officials were deliberately indifferent to the risk posed to the inmates. The Court also
finds that commonality has been established with regard to the subclasses. The heat-sensitive
subclass has the same common contentions as the General Class, but the subclass must only
prove a substantial risk of serious harm, and deliberate indifference, to the inmates with heat
sensitivity. One additional common contention of the disability subclass is that TDCJ officials
failed to provide reasonable accommodations to inmates suffering from disabilities that may
impact (or that cause the inmates to take medication that may impact) their ability to withstand
extreme heat.
C. Typicality
“Rule 23(a) requires that the named representatives’ claims be typical of those of the
class.” Langbecker v. Electronic Data Systems Corp., 476 F.3d 299, 314 (5th Cir. 2007). The
analysis focuses on whether the named representative’s claims are typical, not whether the
representative is. See Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002). Before Wal–
Mart, the test for typicality was “not demanding.” Mullen v. Treasure Chest Casino, LLC, 186
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F.3d 620, 625 (5th Cir. 1999). The analysis was “less on the relative strengths of the named and
unnamed plaintiffs’ cases than on the similarity of the legal and remedial theories behind their
claims.” Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir.1986). The extent to which
Wal–Mart changed the threshold for typicality is unclear.
The Court noted that “[t]he
commonality and typicality requirements of Rule 23(a) tend to merge.” 131 S.Ct. at 2551 n.5.
As this Court has described it,
“typicality is commonality addressed from the perspective of the named plaintiffs.
Commonality requires showing that, in fact, all members of the proposed class share a
common claim, the validity of which can be determined on a classwide basis. Typicality
requires showing that, in fact, the proposed representatives have that claim.”
M.D. v. Perry, 294 F.R.D. 7, 29 (S.D. Tex. 2013). The typicality requirement also overlaps with
the adequacy requirement. See In re American Medical Sys., 75 F.3d 1069, 1083 (“The adequate
representation requirement overlaps with the typicality requirement because in the absence of
typical claims, the class representative has no incentive to pursue the claims of the other class
members.”). The claims of all class members need not be identical. James v. City of Dallas,
Tex., 254 F.3d 551, 571 (5th Cir. 2001). But typicality demands that claims “arise from a similar
course of conduct and share the same legal theory.” Id.
The TDCJ policies and practices related to heat exposure affect all the inmates in the
Wallace Pack Unit, including the named Plaintiffs. The named Plaintiffs’ claims arise from the
same conduct of TDCJ and share the same legal theory as the rest of the class. In addition,
Plaintiffs Cole, Wilson, King, Brannum, Wallace, and Yates bring claims that are typical of both
the heat-sensitive subclass and the disability subclass. This Court finds that Plaintiffs have met
the typicality requirement for both the General Class and the subclasses.
D. Adequacy of Representation
“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest
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between named parties and the class they seek to represent.” Amchem Products, Inc. v. Windsor,
521 U.S. 591, 625 (1997). To meet the adequacy requirement, “the court must find that class
representatives, their counsel, and the relationship between the two are adequate to protect the
interests of absent class members.” Unger v. Amedisys Inc., 401 F.3d 316, 321 (5th Cir. 2005).
Counsel must be both competent and zealous in representing class interests. See, e.g., Feder v.
Elec. Data Sys. Corp., 429 F.3d 125, 130 (5th Cir. 2005).
Defendants do not contend that there is a conflict of interest between the named Plaintiffs
and the other members of the General Class or subclasses. Nor do they challenge the adequacy
of class counsel who, collectively, have extensive experience litigating class actions, prisoner
civil rights, and conditions of confinement claims and who have shown themselves to be both
competent and zealous in this case. Defendants do, however, contend that the named Plaintiffs
are insufficiently involved in the litigation to be adequate representatives. They rely on a line of
class action securities cases beginning with Berger v. Compaq Computer Corp., 257 F.3d 475
(5th Cir. 2001). In Berger, the Fifth Circuit held that “in complex class action securities cases
governed by the [Private Securities Litigation Reform Act (PSLRA)], the adequacy standard
must reflect the governing principles of the Act and, particularly, Congress’s emphatic command
that competent plaintiffs, rather than lawyers, direct such cases.” Id. at 484. In Feder v. Elec.
Data Sys. Corp., 429 F.3d 125 (5th Cir. 2005), another securities case, the Fifth Circuit held that
the standard defined in Berger is broadly applicable, even to cases that are not governed by the
PSLRA:
We have identified a “generic standard” for the adequacy requirement, noting that “the
class representatives [must] possess a sufficient level of knowledge and understanding to
be capable of ‘controlling’ or ‘prosecuting’ the litigation.” Berger I, 257 F.3d at 482–83.
We have also noted that “the PSLRA raises the standard adequacy threshold” with its
“requirement that securities class actions be managed by active, able class representatives
who are informed and can demonstrate they are directing the litigation.” Id. at 483.
17
Although we noted that the PSLRA raises the adequacy threshold, we have “not,
however, created an additional requirement under rule 23(a)(4) that . . . the putative class
representative possess[ ] a certain level of experience, expertise, wealth or intellect, or a
level of knowledge and understanding of the issues, beyond that required by our longestablished standards for rule 23 adequacy of class representatives.” Berger v. Compaq
Computer Corp., 279 F.3d 313, 313–14 (5th Cir.2002) [Berger II]. The “long-established
standard” for the adequacy determination on which we principally relied in Berger I
requires “ ‘an inquiry into [1] the zeal and competence of the representative[s’] counsel
and ... [2] the willingness and ability of the representative[s] to take an active role in and
control the litigation and to protect the interests of absentees[.]’ ” Berger I, 257 F.3d at
479 (quoting Horton v. Goose Creek Independent School Dist., 690 F.2d 470 (5th
Cir.1982)). In addition to determining the proposed class counsel’s zeal and competence
and the proposed class representative’s willingness and ability, the district court’s
“adequacy inquiry also ‘serves to uncover conflicts of interest between the named
plaintiffs and the class they seek to represent.’ ” Id. at 479–80 (quoting Amchem Prods.,
521 U.S. at 625, 117 S.Ct. at 2236).
Feder, 429 F.3d at 129–30.
Thus, this Court must evaluate “the willingness and ability of the representative to take
an active role in and control the litigation and to protect the interests of absentees.” Id. at 130.
The named Plaintiffs are prisoners. Like most class representatives, they cannot be expected to
have a sophisticated understanding of the legal intricacies involved in class action lawsuits such
as this one. However, they can be expected to show a willingness take an active role in, and
control, the litigation. Although the record before this Court is limited on this point, the Court
finds that such willingness has been established.
In a deposition, named Plaintiff Keith Cole described his view of the Eighth Amendment
claim, saying: “I feel that’s an Eighth Amendment violation because of [the] extreme heat
condition[s],” which he believes constitute “cruel and unusual punishment.” (App. to Defs.’
Resp., Doc. No. 309 at 684.) Named Plaintiff Richard King, when asked what he wanted from
the lawsuit, answered that he wanted “[t]o live, you know, . . . in a safe temperature.” (Id. at
709.) Mr. King had “perused” the Complaint, after joining the lawsuit, and he understands that
the lawsuit seeks what he desires, namely, “relief from the excessive heat.” (Id. at 709, 711.)
18
Named Plaintiff Fred Wallace agreed to participate in the lawsuit because he “want[s] [the
Wallace Pack Unit] to have a safer situation. . . . [I]t’s too hot in here and . . . we need it to be
safer.” (Id. at 735.) Ray Wilson said he got involved in the lawsuit in February 2014 because “I
felt that if my time here, if I can contribute something, then I would do it.” He reviewed the
complaint multiple times.
(Id. at 747.)
Although Plaintiffs’ counsel selected the named
Plaintiffs, and not the other way around, that is not uncommon in this kind of impact litigation
nor does it negate the named Plaintiffs’ demonstrated willingness and ability to represent the
class. The Court finds that the adequacy requirement of Rule 23(a)(4) has been met.
V.
APPOINTMENT OF CLASS COUNSEL
Plaintiffs request that their current attorneys be appointed class counsel pursuant to
Federal Rule of Civil Procedure 23(g). Under this Rule, “a court that certifies a class must
appoint class counsel” and, in so doing, must consider: (1) the work counsel has done in
identifying or investigating potential claims in the action; (2) counsel’s experience in handling
class actions, other complex litigation, and the types of claims asserted in the action; (3)
counsel’s knowledge of the applicable law; and (4) the resources that counsel will commit to
representing the class. Fed. R. Civ. P. 23(g)(1)(A)(i-iv). The Rule also requires that “[c]lass
counsel must fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4).
The Court finds that counsel for the named Plaintiffs fulfill the requirements of Rule
23(g). The record shows that the attorneys currently representing Plaintiffs have investigated the
case, have engaged in voluminous discovery, and have experience litigating similar cases in this
and other jurisdictions. The proposed class counsel, which includes attorneys from Edwards
Law, the Law Offices of Mike Singley, and the Texas Civil Rights Project, have extensive
experience handling complex litigation and class actions. Plaintiffs’ counsel have demonstrated,
19
as evidenced by the pleadings before the Court, their familiarity with the applicable law. They
have also shown they will devote substantial resources to representing the classes and pursuing
this litigation. In sum, the Court concludes that counsel for named Plaintiffs will fairly and
adequately represent the interests of the class. The Court, therefore, will appoint them as class
counsel for both the general class and the subclasses certified by this order.
VI.
CONCLUSION
Plaintiffs’ Amended Motion for Class Certification is hereby GRANTED. The General
Class, the heat-sensitive subclass, and the disability subclass, as defined in Part I, are certified.
IT IS SO ORDERED.
SIGNED on this the 22nd day of January, 2016.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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