Bailey et al v. Livingston et al

Filing 854

MEMORANDUM AND ORDER granting 848 Unopposed MOTION for Preliminary Injunction entered. TDCJ is hereby ORDERED to propose any changes or clarifications to its plan for compliance, consistent with the foregoing, by February 9, 2018. Plaintiffs shall respond no later than March 23, 2018. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4)

United States District Court
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Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEITH COLE, et al,
Plaintiffs,

vs.
BRYAN COLLIER, eta/,
Defendants.

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October 12, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-CV-01698

MEMORDANUM AND ORDER
Before the Court is Plaintiffs' unopposed motion to extend the preliminary injunction
issued in this case, pending final disposition of this case. (Doc. No. 848.) The history and facts of
this action are set out in greater detail in the Court's prior memorandum and order entered on
July 19, 2017. (Doc. No. 737.) Plaintiffs request that the Court renew the provisions of the
current preliminary injunction (Doc. No. 737) and add dates certain for the heat index restriction
for the heat sensitive subclass. Defendants do not oppose the motion.
Defendants' lack of opposition is conditioned on the parties' agreement that neither party
makes any concession regarding the merits and neither side shall be prejudiced by seeking or
agreeing to any extension of the preliminary relief or any findings required to extend the
preliminary relief. 1 Nevertheless, this Court must analyze the evidence presented to ensure that a
continuing preliminary injunction remains necessary to correct an ongoing constitutional
violation. See 16 U.S.C. § 3626(a). After considering the evidence presented throughout this
matter, the arguments of counsel, and all applicable law, the Court finds and concludes that
Plaintiffs' motion should be granted. The Court finds and concludes as follows:
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Defendants do not concede the merits of Plaintiffs' claims or the Court's preliminary injunction
order. The Court finds that Defendants have not waived any argument or defense.
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I.

THE COURT REAFFIRMS ITS PREVIOUS FINDINGS AND
CONCLUSIONS.

The Court finds that the evidence presented during the hearings in this matter will be
applicable during the summer of 2018, in the absence of an order from this Court. The evidence
shows that temperatures and the heat index at the Wallace Pack Unit are consistently
dangerously hot during summer months, and therefore will be dangerously hot in the summer of
2018. 2 The evidence further shows that a Court order will be necessary to ensure that the same
constitutional violations do not recur in 2018. 3 No intervening precedent since the Court's
preliminary injunction memorandum and order changes the Court's legal analysis.
Accordingly, after considering all of the evidence before the Court, the arguments of
counsel, all applicable filings, and the applicable law, the Court incorporates the findings and
conclusions contained in its July 19, 2017 order. Doc. No. 737. Based on these findings and
conclusions, the Court orders that the preliminary relief set forth in its July 19, 2017 order shall
continue in effect, subject to the clarification set forth below.

II.

THE COURT FINDS THAT THE 88 DEGREE HEAT INDEX
RESTRICTION FOR THE HEAT SENSITIVE SUBCLASS SHOULD BE
IN EFFECT DURING THE PERIOD THROUGH OCTOBER 30, 2017
AND APRIL 15, 2018 THROUGH OCTOBER 30, 2018.

The Court finds that the heat index in the area near the Pack Unit seasonally exceeds safe
levels for prolonged periods of time. Based upon the "Local Climatological Data" data provided
by the National Centers for Environmental Information, an arm of the National Oceanic and

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See, e.g., Plaintiffs' 2017 Hearing Exhibit 5; Doc. Nos. 693 & 693-1; National Centers for
Environmental Information, Local Climatological Data for Brenham Municipal Airport,
available at https://www.ncdc.noaa.gov/cdo-web/datasets/LCD/stations/WBAN:53928/detail
(last accessed Oct. 5, 2017). The Court takes judicial notice of the hourly temperature and
humidity data for Brenham Municipal Airport for the period from January 1, 2006 through
October 4, 2017.
3
See, e.g., Doc. No. 720-11, p. 15, Deposition of C. Ginsel, p. 57:8-15; Doc. No. 720-13, pp. 1012, Deposition ofL. Linthicum, pp. 206:21-208:10; Doc. No. 721.
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Atmospheric Administration, it is evident that the heat index outside of the Wallace Pack Unit
often exceeds 88 degrees Farenheit for prolonged periods of time from approximately April15
through October 30 each year. 4
Accordingly, the Court finds that the 88 degree Farenheit heat index restriction for the
heat sensitive subclass enumerated in its July 19, 2017 order shall be in effect during the annual
period of April 15 through October 30 to protect the subclass from a substantital risk of serious
harm, including violations of their constitutional rights, as discussed in the prior order. The Court
further finds that requiring a specific annual date range for the heat index restriction will assist
TDCJ in its planning for compliance and ease the burdens of compliance, thus protecting the
constitutional rights of the subclass in a manner that is narrrowly drawn, extends no further than
necessary to correct the violation of the Federal right, and is the least intrusive means necessary
to correct the violation of the Federal right.
Plaintiffs' motion to extend the preliminary injunction is GRANTED. TDCJ is hereby
ORDERED to propose any changes or clarifications to its plan for compliance, consistent with
the foregoing, by February 9, 2018. Plaintiffs shall respond no later than March 23, 2018.
IT IS SO ORDERED.
SIGNED at Houston, Texas on October JJ_, 2017.

UNITED STATES DISTRICT JUDGE
4

See National Centers for Environmental Information, Local Climatological Data for Brenham
Municipal Airport, available at https://www.ncdc.noaa.gov/cdoweb/datasets/LCD/stations/WBAN:53928/detail (last accessed Oct. 5, 2017). The local
climatological data includes air temperature and relative humidity, measured every twenty
minutes. The heat index can be calculated from this data by using the National Weather Service
online calculator. See National Weather Service, Heat Index Calculator,
http://www.wpc.ncep.noaa.gov/htmllheatindex.shtml (last accessed Oct. 5, 2017).

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