Texas Inmates’ Class Certified for Heat Claims

           HOUSTON (CN) – Texas prisoners who claim the state exposes them to life-threatening heat by refusing to air condition their cells can proceed with a class action, a federal judge ruled.
     The seven named plaintiffs are inmates at the Wallace Pack Unit, a minimum-security prison in Navasota that houses disabled, sick and elderly prisoners serving sentences for non-violent crimes. Navasota is 80 miles northwest of Houston.
     Lead plaintiff David Bailey is incarcerated there for a drug crime and is expected to be released in 2020, according to his class action.
     Bailey is in his early 50s and suffers tremors, seizures and muscle cramps from a brain injury. He takes the anti-tremor medicine benztropine, which is prescribed to those with Parkinson’s disease, and is at particular risk for heat stroke because the drug decreases the body’s ability to sweat, he says.
     The inmate also takes a diuretic for his high-blood pressure and a daily antihistamine to treat allergies that make his asthma flair up, which further interfere with his body’s heat regulation, according to the complaint.
     Bailey sued the Texas Department of Criminal Justice (TDCJ), its executive director Brad Livingston and Pack Unit Warden Roberto Herrera in June 2014, seeking class certification and an injunction forcing prison officials to “maintain a heat index of 88 degrees or lower inside each of the Pack Unit’s housing areas.”
     Livingston has admitted the TDCJ doesn’t have a written policy on high temperatures in prisoner housing areas, though 20 prisoners have died from heat stroke since 1998, according to the lawsuit.
     “But, of course, Warden Herrera’s office is air conditioned, as are all the administrative offices in the prison,” the 36-page complaint states.
     In fact, Bailey claims, the TDCJ has a policy requiring that pigs it raises for slaughter be kept in climate-controlled barns, which have water misters that kick on when temperatures exceed 74 degrees Fahrenheit.
     On summer days, the prison becomes oppressively hot, Bailey says. Its metal exterior walls trap heat like a parked car, and metal tables in the inmate dorms get so heated that prisoners have to lay towels on them to rest their elbows on. Inmates often sleep on the floor because it’s somewhat cooler than their metal bunks, he adds.
     “The windows in some of the inmate dormitories, including the one plaintiff Bailey is housed in, are sealed shut. In the dorms where the windows do open, the temperature is not cooler when the windows are open in the summer,” the lawsuit states.
     U.S. District Judge Keith Ellison sided with the prisoners on Friday. He certified a class action of all inmates who are, or will be, housed in the Pack Unit. He also approved two subclasses.
     The first is a “heat-sensitive subclass” comprised of inmates who either suffer from a medical condition that puts them at increased risk of heat-related illness, injury or death-like obesity, diabetes, heart disease or mental-health issues; take medications that can decrease their bodies’ ability to cool down; or are over age 65.
     The second is a “disability subclass” of inmates who suffer from a disability that raises their risk of heat-related health problems.
     Livingston, Herrera and the TDCJ urged Ellison to deny class certification, claiming the Prison Litigation Reform Act precludes the prisoners’ request for “across the board air conditioning.”
     But Ellison said, at this early stage of the case, it’s not up to him to decide if universal air conditioning is the only remedy for Pack Unit prisoners, if an alternative cooling method would suffice, or if the prisoners can even prove the substance of their lawsuit: The lack of air conditioning violates their Eighth Amendment right against cruel and unusual punishment and their Fourteenth Amendment equal protection rights.
     The judge cited Fifth Circuit precedent from Gates v. Cook, a prisoner class action against the Mississippi Department of Corrections, in which the appeals court upheld an injunction ordering the prison system to give prisoners “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.”
     “To deny class certification based on the speculative availability or unavailability of a remedy-to the class as a whole-would be unfounded,” Ellison wrote in the 20-page ruling.
     The Texas defendants made another threshold argument against class certification. They claimed that Bailey and his co-plaintiffs did not meet the standard of “commonality,” one of four criteria needed to qualify for a class action. The doctrine requires a showing that all members of a class have a common claim.
     Texas cited experts in contending Bailey couldn’t prove his proposed class pertains to all Pack Unit inmates because he failed to show that even the healthiest of inmates are at risk of heat-caused illness at the prison where, according to the TDCJ’s own records, the outdoor temperatures were above 100 degrees for 73 days in 2013.
     But Ellison chided Texas’ experts for only viewing heat health risks in terms of individual inmates and not the inmate population at large.
     “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 judge wrote. “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.”
     A spokeswoman for the Texas attorney general’s office said they are considering their appeal options.
     The University of Texas School of Law Human Rights Clinic issued a report in April 2015 that urged the TDCJ and Texas lawmakers to set temperature limits at the state’s prisons, allocate funding for prison air conditioners, and establish a protocol for monitoring inmates with heat-related illnesses.
     The report also rebuked Texas officials for turning a blind eye to the 14 inmates who have allegedly died from ailments caused by extreme heat since 2007.
     “I think it’s extremely important because any determination the court makes in the case will transcend the Pack Unit and impact all 109 units run by TDCJ,” the clinic’s director, Ariel Dulitzky, said in an interview about the ruling.

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