Bailey et al v. Livingston et al
ORDER denying 599 Motion for Reconsideration.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
KEITH COLE, et al,
BRYAN COLLIER, et al,
May 16, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 4:14-CV-1698
ORDER DENYING MOTION FOR RECONSIDERATION
Pending before the Court is Plaintiffs’ Motion for Reconsideration of Plaintiffs’
Amended First Motion for Attorneys’ Fees. (Doc. No. 599.) The Court denied Plaintiffs’ motion
for attorneys’ fees on December 7, 2016. (Doc. No. 584). After considering the Motion, the
response thereto, and all applicable law, the Court determines that the motion should be denied.
On June 21, 2016, the Court partially granted Plaintiffs’ Emergency Motion for
Preliminary Injunction (Doc. No. 434), ordering the Texas Department of Criminal Justice “to
provide drinking water to the [prison] inmates at the Wallace Pack Unit [in Navasota, Texas] that
conforms with EPA maximum contaminant level requirements . . . .” (Doc. No. 477 at 15.) The
preliminary injunction was in effect until September 22, 2016, and was not renewed at that time.
Defendants appealed the injunction, and at the time the Court considered Plaintiffs’ motion for
attorneys’ fees, the Fifth Circuit had not yet ruled. Since that time, the Fifth Circuit dismissed the
appeal as moot, since the injunction was no longer in place. (Doc. No. 594.) §
Litigation as to the underlying issue in this case—the high temperatures in Texas prisons
during the summer months—is ongoing. Indeed, on May 1, 2017, Plaintiffs filed a Motion for
Preliminary and Permanent Injunction, this time with regard to the hot temperatures experienced
by the plaintiffs in Pack Unit. An evidentiary hearing is set on that motion for the week of June
Rule 54(b) allows a court to revise an interlocutory order any time prior to the entry of
judgment adjudicating all the claims and all the parties’ rights and liabilities. The Federal Rules
reconsideration. See Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n. 1 (5th Cir. 2004). Motions
for reconsideration from interlocutory orders are generally governed by the standards for Rule
59(e) motions. Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir. 1998);
Thakkar v. Balasuriya, No. H-09-0841, 2009 WL 2996727, at *1 (S.D. Tex. Sept. 9, 2009).
A motion under Rule 59(e) must “clearly establish either a manifest error of law or fact or
must present newly discovered evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.
2005) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Relief is also
appropriate where there has been an intervening change in the controlling law. See Schiller v.
Physicians Resource Group Inc., 342 F.3d 563, 567 (5th Cir. 2003). Motions under Rule 59(e)
“cannot be used to raise arguments which could, and should, have been made before the
judgment issued.” Id. In considering a motion for reconsideration, a court “must strike the proper
balance between two competing imperatives: (1) finality, and (2) the need to render just
decisions on the basis of all the facts.” Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355
(5th Cir. 1993). While a district court has “considerable discretion” to grant or deny a motion
under Rule 59(e), id., the Fifth Circuit cautions that reconsideration under Rule 59(e) is an
extraordinary remedy that courts should use sparingly. Templet v. HydroChem Inc., 367 F.3d
473, 479 (5th Cir. 2004); see also In re Goff, No. 13–41148, 2014 WL 4160444, *4 (5th Cir.
2014) (“A motion for reconsideration should only be granted in extraordinary circumstances”).
In Plaintiffs’ first motion for attorneys’ fees, they contended that, because the Court
entered a preliminary injunction with regard to the arsenic-laden water, they were “prevailing
parties” under 42 U.S.C. § 1988(b) and were entitled to attorney’s fees. The Court denied the
motion, holding that it was premature. Plaintiffs’ motion for reconsideration contends that
because the Fifth Circuit has since dismissed Defendants’ appeal as moot, Plaintiffs are
prevailing parties and are entitled to attorneys’ fees.
The governing statute, 42 U.S.C. § 1988(b), provides that “the court, in its discretion,
may allow the prevailing party, other than the United States, a reasonable attorney’s fee.…” In
Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human
Resources, the Supreme Court stated that a prevailing party exists when there is a “judicially
sanctioned change in the legal relationships of the parties.” 532 U.S. 598, 605 (2001). Since
Buckhannon, the Fifth Circuit has not decided under what circumstances a preliminary injunction
may meet the prevailing party standard and support an award of attorney’s fees. However, a
number of circuit courts have addressed the issue, and the Fifth Circuit reviewed the varying
analyses in Planned Parenthood of Houston and Southeast Texas v. Sanchez, 480 F.3d 734
For example, the Eleventh Circuit has stated that “a preliminary injunction on the merits,
as opposed to a merely temporary order which decides no substantive issues but merely
maintains the status quo, entitles one to prevailing party status and an award of attorney’s fees.”
Taylor v. City of Fort Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987). However, attorneys’
fees will not be awarded if it is later determined that the preliminary injunction was granted as a
result of a “mistake in law.” Id. The Seventh Circuit has held that a preliminary injunction may
lead to prevailing party status if the plaintiff obtains “substantive relief that is not defeasible by
further proceedings” and the case is mooted after the preliminary injunction is granted. Dupuy v.
Samuels, 423 F.3d 714, 719 (7th Cir. 2005). The D.C. Circuit determined that a preliminary
injunction suffices for prevailing party status if the plaintiff obtains substantial relief and the
defendant does not appeal the injunction. Select Milk Producers, Inc. v. Johanns, 400 F.3d 939,
945 (D.C.Cir. 2005). And the Ninth Circuit has found that a preliminary injunction “carries all
the ‘judicial imprimatur’ necessary to satisfy Buckhannon.” Watson v. County of Riverside, 300
F.3d 1092, 1096 (9th Cir. 2002). The Ninth Circuit noted, however, that if a plaintiff secures a
preliminary injunction but subsequently loses on the merits, the plaintiff would not be a
prevailing party. Id. at 1096.
The Fifth Circuit did not select an approach from those outlined in Planned Parenthood
because it found that the plaintiffs did not qualify as prevailing parties under any of the existing
tests. Id. at 741.
Plaintiffs correctly point out that the Court denied Plaintiffs’ motion for attorneys’ fees in
part because it was unknown whether the preliminary injunction would be upheld on appeal. But
the fact that the appeal was dismissed as moot does not change the Court’s finding that the
motion for attorneys’ fees is premature.1 This is because “[s]everal of the tests described above
look to information that is not yet available in this case”—most importantly, whether Plaintiffs
will ultimately prevail on the merits of their case: the hot temperatures in Pack Unit. (Doc. No.
Defendants maintain that the Fifth Circuit’s dismissal of the appeal for mootness, and
subsequent vacatur of the injunction because Plaintiffs’ conduct mooted the issue, negates
Plaintiffs’ contention that they are a prevailing party. (Doc. No. 602 at 3-4.) The Court does not
address this issue at this time, as it finds that the motion is still premature.
484 at 3.) “Other tests require showings that are directly contradicted in this case, such as the
case having been mooted or the defendants having failed to appeal the injunction.” (Id.) Because
the Court has not yet ruled on Plaintiffs’ underlying claim for relief, it is not able to find, at this
time, that Plaintiffs are prevailing parties. Accordingly, Plaintiffs’ Motion for Reconsideration of
Plaintiffs’ Amended First Motion for Attorneys’ Fees is DENIED.
IT IS SO ORDERED.
SIGNED at Houston, Texas on the 16th of May, 2017.
HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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