the department of corrections position in this case is that this court meant what it said on remand the district court failed to comply with the law the case in fact to the douvres a judge released twenty fifteen dissent which read in its entirety i agree with almost all of the opinion but i would affirm the injunction which in principle only orders the heat and in the end goal of death through tears to be maintained below eighty degrees and really the eighty eight degree heat index is what this case is all about it is the central issue from which the parties have fought all other issues are peripheral in june to on june tenth of tw and twenty fifteen this court vacated that injunction and explicitly stated no less than four times that a maximum heat index of idiot degrees cannot be maintained and i will go through each of those four instances in a moment and sixteen the plaintiff filed a motion to modify the injunction their expert had not seen their plaintiffs there's no change of circumstances us to their health the basis of the motion to modify injunction was based in its entirety on the fact that the states planned the second play and did not keep the heat index below eighty eight degrees but the second plane was never designed to keep the heat index  degrees it was designed to implement this court's case from the two thousand and four gates versus cook to provide free and adequate access to ice water cold showers and individual fan there's a stipulation in fact in this record that during the life of this this second plan the gates plan the plaintiffs received those measures and issued no complaints about the heat therefore the district or the district court to fashion an injunction consistent with and as i understand it when the case was back in the district court the district judge ordered i want you to clarify this for  ordered the state to provide a new implementation plan one of a better term which seems to me this is the first now towards the court either through a hearing or through submission of papers was going to conform to our court remain am and mandate i'm not sure what happened here but it seems that this turned more into a new action sammy what happened tell me how this got on the track you know it's interesting judge if you really listen to the district court's quotes in december of two thousand and fifteen he says i cannot order airconditioning the fifth circuit has spoken but if those rulings and remedies are not effective in this case under the facts and i'm paraphrasing here as i have created them and i've given you an exhibit with that exact quote sometime between december fifteenth and march of injunction in order for air condition in order the question i ask you is your notice to us informing us that the yates decision tells us that yates conflicts with ball one and therefore rule of order list doesn't allow leon they send it back and they say judge they interpret their own order to be you've got to try lesser measures and so judge jackson has an extensive amount of hearings and he tries the lesser measures consistent with gates he doesn't order it conditioning but he does say you can't let it get too hot so let me i have a couple of points i want to make to that first he does order air conditioning and the ball decision ball while and i quote this court said based on the constitutional violation the court issued a permanent injunction requiring the state develop a plan to keep the heat index at or below eighty degrees fahrenheit effectively the district court ordered louisiana to install air conditioning and if you read correct if you read the december twenty sixth teen injunction order it requires that louisiana do you see keep a hole in the door of a certain size with the icy breeze coolers and the reason that that we are enjoying to provide those measures is because they keep the heat index below eighty degrees in fact if you read the december twenty sixth in opinions rees cooler is in the air condition or is your position that it is any device that any device to keep the heat index at or below eighty eight degrees because of mechanical cooling i guess became a cool cooling might be a better word which to me is the same as air conditioning so you're saying i see breeze units couldn't be ordered because those are air conditioned yes or no made if they could have been ordered if there if there was a medical reason for them other than more challenging reasonable miss you're seeing the mandate that's the only argument you've made to us the issue is is that the reason why the i c breeze units were ordered and more importantly the hole in the door that allows the guard pod central air unit to shunt top of the panel specifically encouraged diversion  preexisting air conditioning as a lesser included measure you're saying they couldn't he couldn't as a matter of law do either one i'm saying that they couldn't do either one if the point of those measures to keep the heat index at or below eighty eight could he require a swamp cooler at what point could at ninety if if there was some evidence that you know if he was provided a swamp cooler for three hours in the day and that substantially reduced the effects of heat if there was testimony like that the record for example if you look at professor ball some of those test because that's a reasonable in this attack you're telling only argument you've given us is that the ball one panel didn't allow air conditioning now the yates panel you've acknowledged in your filing disagrees with that you tell us ignore gates because you say it can't conflict i don't think legally factually you're correct factually i don't see that he ordered a tradition unless you do what you just did today which is to say a fan aimed at ice equals air conditioning but legally i don't see why you can insist that the ball remain and didn't allow him to look into lesser measures that they specifically encourage he could look into lesser measures what i'm saying is that the only thing that was taken off the table was a maximum heat index  regardless of heat index and time and facility why the pants azeri understandably said those three things judge jackson remained as not said facility why he hasn't said air conditioning you disagree i disagree i think you said air conditioning and i think that on that point calls the entire case well then it turns on that so tell me where in the record we can see what a breezy unit is because i think anybody who's going to sporting events knows what a breeze a unit is it's a swamp cooler it's a fan blowing on an ice which is exactly what our court said in gates you should try to use this cord to find air conditioning as maintaining a maximum heat index so so therefore gates and bowl one i don't in the ninth circuit i haven't found a circuit yet that doesn't say to construct injunctions in the situation you need to know the heat measure are you saying judges can't tell prison officials here's the way to know when you need to divert error or you need to aim a fan at them though we have no problem with monitoring the heat index and let me let me go to the ball opinion the gates court and there's a quote did not mandate a maximum heat index of poll in the mississippi prison gates upheld an injunction providing narrow relief and there is no showing that the constitution mandated more relief for these prisoners the same prison condition in this case not in gates they said specifically if it's over ninety eight measures and we have no problem with the heat index serving as a trigger at which certain remedial measures must be granted our problem is providing a ceiling that the heat says here the trigger is easy so the only issue is what are the legitimate lesser measures and you're seeing the mandy who didn't allow exactly what the panel said he should consider diverted there diverted there would be one thing if for example they required the prisoners to go to say sorry cells see one c two and see three which are closest to the door because there's an inch between the floor and the door and that is about a degree cooler than the back of the er that would be ok here is ok so the verted air is ok the breezy unit is what's not ok the breezy unit is not ok because it is designed to facilitate a maximum heat index because of that reason maximum temperature whatever that might be professor ball samo in the first trial is a plaintiff's expert recommended seven measures one of them being i c pre schoolers ice cold towels shower if that were the district court's order provide a nice seabreeze unit we would have a very different case i don't even know if the d s c would have appealed that's not what happened the d o c was told you must provide an icy breeze unit and more importantly to the deal see major hole in this door and keep it open in order to maintain a maximum heat index it's the central air unit from the guard pod that is facilitating the cool air now although there is not evidence in the record that would prove this didius is taking the position that the main force in cooling these prisoners is not these little i c pre schoolers it's the central air in the guard pod that's going through this big hole in the door to get it back a little bit closer to my to my question is it your view under the mandate rule that it's it's it's all right or it's not all right for the district court to set some sort of a standard in terms of degrees f t it's ok if that standard like gates is a trigger at which ice water fan showers are required it's cold that's fine it's ok for it to be a trigger it can't be a ceiling that the temperature and the purpose of the injunction and the twenty sixteen injunction shows that the purpose of these measures the sole purpose is to keep the heat index below eighty eight degrees what's the differen on to your c on death row because of the measures that were required because it's functionally air conditioning but if it's a trigger i'm just from the off route correct me if i've got it wrong but if it's a trigger then it ninety whatever it is broke into the district court said do gates and give each of these guys an icy breeze cooler i don't think that we would have a mandate we might have an argument as abuse of discretion but it wouldn't be a mandate law the case issue i don't think and you don't object to having the trigger and we know we don't object to the trigger being in eighty eight we were just we we object to it being a ceiling that the measures are are given to us in order to create air conditioning in one form or fashion no it was a trigger it was a trigger at which ice cold showers water and individual fans were required to be a way to look at this is the district judge imposed a thermostat yes i believe he did that so that is our position and because he's ordered air conditioning in a very unusual way granted it was because of the deals he's own actions which should have never got into the record which is a completely different amendment because once the trigger was you brought ice out or wind or whatever whether it works or not we always must respond to the individual circumstances that are on the ground today we're only talking about wide as it pertains to us because we're still required to give to shoot cold air at the inmates until it's less than a few degrees of the heat index it's the same order only it's using different measures to obtain that lesser thermostat the lesser reading on thermostat so the four separate places are the district court's injunction violated the pillory in two ways first the district court ordered a type of relief air condition and what we've said here everybody agrees that this is a creation of a maximum heat index and that they the plaintiffs believe there is no other way to correct this remedy but to lower the second place is that even assuming air conditioning is an acceptable remedy here and it is not it is possible to provide air conditioning solely to these three inmates so there's language in the pinion that says look there's lots of ways to fix this see but we're reminding you with all they do say that again the fourth area the gates core did not match mandate a maximum heat index and then later on in the same paragraph it says there are there is no showing that the constant constitution mandated more relief for these prisoners for the same prison condition in this case so it said gates didn't order maximum heat index there's no showing that the constitution required more for these three ball plaintiffs this gates paragraph on page six hundred of the federal third is our case you it's on this board it's in the exhibit that i sent around the gates court didn't mandate a maximum heat index that is right there that's our case that one that one line i mean granted it says another place is the one i didn't mention because the district courts injunction injunction provides an unnecessary type of relief and applies the on these three plaintiffs it violates the p l o rare so the plaintiffs are going to get up here and they're going to say look the district court said aren't i understand i can't order facility wide relief and he did we all agree that he complied with that piece of the order but there are two problems in that identified in ball one as to the injunction that was issued in two thousand and thirteen and from our point of view the twenty sixteen injunction has the same effect as the two thousand and thirteen injunction and we think for that reason it misreads or misapplies ball one to say that the constitution doesn't require more for both the ball plaintiffs than it did for the gates plaintiffs and then for the court to say throughout the record i don't care about the gates case i'm not going to follow the gates case in this case because unless i find it to be a political just i don't think reads vol one fairly  absolutely and ordering heat trigger but not a ceiling correct that somewhere in the ball one mandie the band aid says reform the injunction with the principle stated in here so mandate and law the case are going to functionally operate to the same extent in this case but but i don't see how this court can look at this line that says that the gates plaintiffs and the ball plaintiffs are constitutionally the same gates plaintiffs didn't have a heat index sealing a requirement of air conditioning but the ball plaintiffs get air conditioning i don't see how that obtains into the peel r s a is it a permissible way two  here on that we're only here on the maximum heat index could you elaborate on your twenty's you know i actually read and really read and read this line again and i guess there are two ways to read it here is the statement from units ball held that air conditioning was not appropriate in that case because other acceptable and less intrusive remedies had yet to be tried not that air conditioning was necessarily  if the court in that case meant air conditioning might be permissible in other situations not at issue and ball i have no problem with that but the way i read it when i first read yates is simply because of these words had yet to be tried which to me implied to me it implied that if the court found that lesser remedies did not satisfactorily remediate the heat that he could order air conditioning again there and i think that the former reading is much is permissible in the latter is not so again assuming again for the sake of argument that the reason their condition summarize for us what the last paragraph of and you would be to judge jackson telling him how to change what it is that he previously judge jackson defense circuit says you may not mordor maxim of heat index if you can if you if you want to order i sea units we have not said one way or the other remain and fix it but you cannot order a max and heat index and we can go back down as much as i hate that thought to have had to go through another eviden hearing but you could theoretically send this case back and say look judge jackson you can order max and he did the extents what we said and ball one if you find that the i c breeziness are required by the peel already that they provide some medical benefit that is so important that's required by the constitution i suppose that would be a permissible way to resolve this case and with that i'll leave my the rest of my time thank you m it please the court my name is new lay for a represent mr ball mr code and mr mcgee this appeal presents the question of whether the district court abused its discretion when it ordered the implementation of some of the remedies that were explicitly required to be considered on remand and that this court found and stated were consistent with both the prison litigation reform act and fifth circuit precedent rule the specific instructions to i was about to get to your honor in determining whether it violated the mandate rule in judge jones as opinion for the majority the district court was specifically ordered as follows at page five hundred ninety nine of the opinion defendants could divert cool air from the guard's pod into the tiers allow inmates access to air conditioned areas during their tear time allowed access to cool showers at least once a day provided ample supply of cold drinking water and ice at all times supply personal ice containers and individual fans and install additional ice machines these are precisely the types of remedies that this court endorsed in gates versus cook and that the prison litigation reform act requires accordingly on remand the district court must limit its relief to these types of measures how do you have that exist with judge jones a statement of paid six hundred of the opinion finally we note the substantial disparity between the relief ordered and gates and the scope of the injunction in this case the gates court did not mandate a maximum heat index of political in the mississippi prison it required particular heat measures including fans ice water ice and showers if the heat index reaches ninety degrees  he injunction here requires really relief is far more extensive it's not true that's that's the problem we have here there is some language in in all one no doubt talking about different types of remedial measures but judge jones center is in on this ordering a maximum heat index and that's that's seems to me the key to this appeal whether or not the district judge in his remains and impose the maximum heat index which he did which is contrary to what judge jones said it pays six hundred of the opinion the rest of that portion of the opinion lot of the part that you didn't quite get to states that the district court must order relief that is quote more closely aligned with gays if the words more closely aligned with gates have any resemblance whatsoever to endorsed in gates versus cook earlier in the opinion that it must be the case  district court cannot have abused its discretion when i'd ordered remedies that were specifically stated to be compliant with a swiss cut reading what judge said i'll read the rest of what she said the injunction here requires a leap that is far more extensive apply even during months when there is no heat risk of the plaintiff covers the entire facility and of course is expensive since gates appealed an injunction providing narrow relief and there is no showing that the constitution requirement that the diversion of cool air occur through the placement of a hole which you can see on page seven of our brief what exactly that hole looks like i want to be clear because mr clarke described it as a major fall you can look at the exact hole that was placed into that door it's not a major hole there is a hole that existed that the defendants chose what size it was that there's extensive evidence in the record as to the nature of the hole that we're in whether it be smaller and that is the extent to which the existing preexisting air conditioning not new in air conditioning but preexisting air conditioning judge jones is opinion let me be honest with you just tell us it was correct that the air conditioning new installation of air conditioning was not in fact required in order to remediate them in violation for these three prisoners we were in a position at the time of trial and the fifth circuit present requires that the prison be provided full self determination in figuring out a remedy to the extreme heat problem at the time of the first injunction the prison suggested that they wanted to air condition the entire facility because they wanted to have the ability to move these three prisoners anywhere in that death row facility subsequent to this court's remand we are now in a position where the fifth where the prison has chosen the consideration of several other potential alternatives to do one of the specific or a combination of some of the specific remedies that were instructed and that were that this court instructed the district court to limit itself on on  we are now in a position where this is not the installation of new air conditioning i agree judge barksdale but if this read requires some sort of it's lation of new air conditioning that that would be problematic and might very well violate mandate but in this situation this is a preexisting air conditioning that was in existence that judge joan specifically stated for the majority for all three judges all the dead really would have upheld the original injunction but just because it uses the preexisting air conditioning it doesn't mean that it violates they're consistent with gates and bo in fact they've been encouraged i see units diverting a preexisting ac as i understand the argument to date is refined down to just you could never impose an exact  country has said there's a distinction between a trigger there i think there are two questions there are i'll try to answer that in order but forgive me if i mix them up because they are related as to the first question i do not believe that there i think there is some distinction between a trigger and a ceiling and i think that in this situation all of this boils down to at the end of the day the adequacy of the remedy and i want to make clear to the court that in this court's opinions in gates are sorry in the long one as well as every decision that has come subsequent to that webb versus note in this record that the defendants the person had all opportunities to present and to come up with at the time of the original proceedings it was three years and right now as we stand here today to help florida half years they have had every opportunity to try to craft any kind of remedy that they would want to do and they have consistently admitted that they have no evidence that the adequacy of their second plan which is to provide the case type remedies of ice a cold shower cold drinking water if you look at i specifically would like to direct the court's attention to record on appeal nine zero two four and record on appeal eight nine zero eight those are two places in discovery where they did the minute they do not have the effectively admit that they do not have any evidence scientific medical or otherwise any evidence that anything else that they have admitted that they have no evidence that anything else would work this is the first time in florida half years today this prison was built in two thousand maximum i believe eighty five degree fahrenheit temperature in that case there was effectively a settlement that required a maximum temperature and then there was a dispute as to the mechanism that would be used but ultimately the seven circuit required that air conditioning be because all of this at the end of the day boils down to how do you address the cause of the eighth amendment violation and does your mechanism for addressing the cause of the eighth amendment violation adequately addressed and remove that substantial risk of serious harm might follow having heard them today besides the fact that no one wants to prolong this what would be wrong on for reaming and to allow judge jackson to say meant trigger or not sealing or even better just injunction states that there is a trigger at eight degrees at which point a serious risk of substantial harm begins to occur and that that point you have to take adequate remedial measures and these are the measures that are specifically requiring that have now been deemed adequate following several evidentiary hearings that's that's the case there is no i can't give a question and i bought us your want to be a good advocate but i'm trying to be polite to you and not interrupt if you cannot have a heat index over eighty eight degrees that's proscribed that's one joint then you have to keep the thermostat but i like to think of as the thermostat in my house once it reaches a degree that air conditioning kicks in air conditioning is required in this mandate they're gonna use the air from the pod which is their conditioning into the unit to keep their temperature are no greater than eighty eight degrees that's what's at stake here the maximum heat index and that's what judge jones said you can not require i do not believe that judge jones i don't see anywhere in the gates or sorry the opinion where judge jones says you may not require an eighty eight degree heat index judge jones states that the district court effectively ordered air conditioning it turns out that installation of air conditioning wasn't necessary to achieve an eighty degree heat index it turns out that you could merely divert air conditioned air from the guards pod or take any other of the other several remedies that would be that would work but even if that were the case judge mark still the question remains and the requirement for this court in all federal courts pursuant to supreme court precedent is to require adequacy of the remedy and there is no evidence that some lesser measure would be adequate let's talk about adequacy of remedy do you accept or not that a remedy could be adequate using all of the means that we've talked about the i c breeze and cold water and and and and the brakes and the showers and all all those sorts of things and the air from the po taking all those things and making them available do you accept that a remedy would be adequate if all of those measures weren't triggered at eighty eight degree heat index but with the reasonable expectation that routinely the actual heat index would rise substantially above that despite the implementation of those measures it's a difficult question to answer judge smith because  i don't know that based on what's occurred so far if those measures are implemented then the present situation is in fact that that there is that this is i'm not sure that i understand the question i was just with because the problem is that acquirement to do all of those items that you just described of the i c breeze units the the diversion of the air conditioning that requirement only happens when the heat index exceeds eighty eight degrees on a tear on which mr or incarcerated and so yes that would be an adequate remedy and we believe that is an adequate remedy and that's actually the remedy that's up here on  narrowly tailored issue is is something that the p l o requires and that was also an important part of judge jones opinion and again in brown versus the narrow tailoring states that what 's required is a fit between the remedies ends and the means chosen by the president to accomplish those and here the ends are ending the high temperature and high humidity this court itself has recognized that when you are in a situation where a prison has consistently had opportunities to remedy an eighth amendment violation it is important to address the causes of that eighth amendment violation and so again to the extent that there is an issue with respect to an eighty degree heat index that issue is because the heat and humidity are too high and therefore the what's required is to address the cause of that i'll give you an example in alberta versus cleve in hag this court found that there was this part of germany at them in violation of excessive amounts of prison violence and they found that the cause of that violation was a lack of supervision by the prison guards the solution that this court affirmed as far as an injunction goes is to increase the amount of supervision in the prison and similarly in brown versus plata there was a finding that the cause of the violation of an inadequate provision of medical care was in fact your argument would have effect but you're here on the question of whether the district court as a basis courts mandate you're here on whether the district court obeyed the law of the case a very serious policy and that's what i'm trying to keep on because there might be better read remedies then what judge jones in the panel ordered but that's what state ordered and that's what we've got to decide did the district court comply with we're here on the mandate route yes your honor we are here on the mandate rule we are here to determine whether there are other alternative narrower remedies that might satisfy the situation other then the that excuse me that one vacated the air conditioning requirement in order to make sure the narrow remedies might be tried i don't know that it's clear from the record because it's so extensive but i would like to direct the court's attention to the fact that there were other remedies that were narrower than this that were considered and ultimately were not adopted by the prison if you look at the record on appeal at nine zero three five to three six there was a consideration of a cool roof coating that would have had the effect of cooling the roof and therefore minimizing the amount of heat load on the prison facility that was rejected there was a potential for moving these prisoners to camp after which is the holding cells prior to the execution chambers because that is a preexisting air condition facility that was rejected that's in the record of appeal at nine eight six and there  these are examples of even more extreme measures that were considered but that were similar to the ones that judge jones in her opinion suggested namely providing these prisoners with some amount of air conditioning per every day  and for that reason just at scale we do not believe that this is some sort of a radical remedy i'd like to also add judge barksdale that the prison always has because of the federal courts obligation to constantly be able to modifications of the injunction if there is another remedy that is narrower than the prison is welcome to present that in the motion to modify the injunctive relief and judge jackson has an obligation under supreme court precedent and this court precedent to modify the injunctive relief if he makes a finding that there is an alternative adequate remedy that provides less of an intrusion and less of a burden on the president but on this record i up this time we are here on in the firm the eighth amendment violation for the first time has been remedied in a manner that was explicitly endorsed by judge jones and by this court's first opinion and therefore i don't believe that there is a violation of the mandate what if the judge if judge jackson ultimately did what the district  would there be common ground if there were a revision to conform to exactly judge jones as words where she writes the gates court did not mandate a maximum heat index of clickable in the mississippi prison it required particular heat measures including france ice water ice showers if the heat index reaches ninety degrees or above would it be some common ground between both of you in your opinion if we were to say the o c except breezy units except diversion but only quote if the heat index reaches eighty eight degrees or above would you have a difficulty with that i don't think they would because that's the exact language judge jones use i believe judging him sin that's also the exact same language that judge jackson uses which is that when it goes above eighty degrees you have to do diversion of air conditioning and engage in these other these other remediated measures that that's exactly the order that we're here on appeal with and  i'm not sure if i understood the quite a bit of the question judge to consider but the subtlety that i'm understanding that's been raised is there's a difference between always stopping it it is eighty eight and the measures that are legitimate and encouraged starting at i think that's the distinction that's being drawn you know and if they're in good faith in the breezy units work it hits eighty eight they get to start they don't just suddenly get in violation right and then then it keeps it in a presumably if those things don't work you'll be back in court at the risk of making the persons case for the the problem in that situation might be that there's that remedy would not be necessary at that point binding again based on expert opinion then extensive evidence in the record as well as public health guidelines and medical research and scientific evidence that eighty degrees is the time at which the relative risk becomes so severe that there is have the airconditioned flowing into this from fire and space through use of these plants to her that means as long as it's eighty eight point one degrees that air conditioning has to be running into base you agree i think so yes well and that's just maintaining air conditioning as long as eighty eight degrees that's the that's the ceiling not the trigger i'd respectfully disagree just barksdale i think that if your going to figure out how to remedy a serious risk of substantial harm that occurs at the level of eighty eight degrees then at eighty eight point one degrees the question is what can we do and what is an adequate remedy to remove that serious risk of substantial harm if it's eighty eight point one degrees and all you need to do is cool it to point one degrees and you can use nice breeze you know to do that if there's another measure that the degrees and there's a measure that they can do to use to do that but for all practical purposes just barksdale if we were required at eighty eight degrees that being the trigger to remediate this to a level that solve the constitutional problem in the prison chose to install it this is a this is a plan that they chose to to do in order to remedy the eighth amendment violation i know there was questions they were experimenting with with the other side in trying to reach a common ground this quote try to settle the case and figure out if there was some sort of a remedy that would be adequate and it turns out that this was in fact adequate and so the question that was presented with respect to it being a settlement discussion if i may address it this court's own precedent lyondell states that that you are not able to put data that is that is covered by a settlement privilege and have that data be privileged pursuit of the settlement privilege even if you're going to experiment remedial measure and so in this situation it can't be the case that the fact that they were experimenting in what they were experimenting with was somehow privileged but even if it were the district court was aware of what the remedial measures were because they sought permission from the district court to engage in precisely these types of experiments so judge marcel i think if i understand your question correctly yes there was an effort to resolve the problem in fact we have resolved the problem and we are here on an appeal from a resolve problem an amendment violation that ate them in violation again has been affirmed to have occurred that the serious risk of substantial harm to the health of mr ball mr code mr mcgee occurs when the heat index rises above eighty degrees and therefore there must be some adequate remedial measure that occurs at that time in this case the adequate remedial measures the diversion of existing cool air i understand are still that you may believe that judge jones barred any form of air conditioning at all but i think that's inconsistent with some of the other enumerated remedies if that were the case then why would judge jones have stated that they could move them from an area they were removed them from their cells and put them into an air conditioned area jury for a few hours per day if that would resolve the violation i think that judge jones's opinion in the first majority opinion in this case states that you have to do something that is adequate to resolve the issue they understood that the cause of the eighth amendment violation was the creams heat and humidity and they had the they were going to require a narrower way of addressing that heat and humidity other than the first class and i think it's important to remember that the first plan was the installation of facility wide air conditioning which was obviously significantly broader than what this plan does which is if you again if you look at the page seven of our brief of the of how these brief it's a hole in the door that they can choose the size of there's extensive evidence in the evidence cherry record for the for the size of the hole that you can change the size of the hole in the door if there's a security concern there's really not a lot of administrative burden here i see that my time is running short and i i just like to end again with with this issue on the modification i understand that there is that there is some concern here that the eighty degree is placing a burden on the president this is the first time since two thousand and six that we have had a remedy to an ongoing firmed eighth amendment violation that could cause a serious risk of heat related illness that could result in paralysis or even death and the modification opportunity for the president is something that this court should consider its remand instructions that judge jackson already has an ongoing obligation to do consistent with brown versus plot and horn versus florida's supreme court precedent that courts must remain open to modification if there is in fact a narrower remedy that could occur the prison is always welcome to come forward with evidence that there was another in the airwork adequate remedy but at this stage having had four evidentiary hearings having been litigating this case four and a half years now is the time to uphold and affirm this injunction with instructions to judge jackson to the extent that there are going to be remand structures to continue to remain open to alternative adequate readies while at the same time maintaining the federal court it's duties to make sure that whatever remedies are all to believe implemented are in fact adequate consistent brown vs plot as a statement congress did not and could not in the prison litigation reform act leave prisoners without a i heard mr boras say that the twenty sixteen injunction does not require a maximum heat index if i heard him correctly that would be inaccurate i would refer the court to pages one two six nine four and one two six nine five for the record but more importantly one two seven one seven and in that page what it says is that there might be a mold problem in the guard pot and if there's a mole problem in the guard pod court to seal the door of that and in that case and i'm going to read verbatim defendants are enjoined to seal the air vent and provide a sufficient number of additional i seabreeze units to each plaintiff in order to maintain the heat index of the portion of tear c in which the plaintiffs are confined promote eighty degrees fahrenheit it's very clear that he ordered the maximum heat and and judge hogan said i want to be clear i'm not saying that the do you see is agreeing that the i c breeze units are required by the p l o right what i'm saying is that an order of i c bree's units is not necessarily prohibited under law of the case that there could theoretically be an order of i c breeziness the problem of law the case is that the fact that the icy breeze units are used in order to maintain a maximum heat index so on remained if there was evidence to suggest that  requires one i c breeze unit per plaintiff that's not covered by law the case and we may object to that at that time but that's not our issue here so while you identify the position between both parties i don't know if that's really common ground our just repeating the language from judge jones's opinion about what could and could not be done and i think i heard mr morris say would not have a problem with that i'll ask you the same question would you have a problem with that no not at all but more importantly the d o c and there is evidence in the record to suggest we have something like thirty nine thousand prisoners the c cares quite a bit about this court's decisions issues upon which hiring decisions budget issues and any vast majority of issues are made when this court tells us to do something it's very important we do it and we absolutely understand it so this court is telling me we're going to say the same thing again we welcome we welcome it because that is what we maintain what we try and do is to follow this court's precedent because we care about now as to federal rule of evidence for await my opposing counsel rep a reference to lyondell case which we cite on page seventeen of our reply brief that case dealt with a chemical spill and two chemical companies who had liability there was something called the smyth report which one company said this number of chemicals dumped was hours and this number of chemicals was yours or other parts this might report was prohibited from entry as a matter of federal rule of evidence for a way so the fact that my opposing counsel said that lyondell somehow stands for the fact that data cannot be prohibited from entry under for a weight is not true under the very case my opposing counsel also said that there's no evidence in the record to begin with to maintain what was said in ball one and what doctor of a solid the plaintiff expert said in two thousand and thirteen was that unabated access to ice and cold showers would appropriately decrease the risk of worsening medical conditions but what she said is that they don't go far enough they don't go far enough and what judge jones said in her ball one opinion is that look we understand that there's always going to be some risk it's dealing with what is the appropriate amount of risk in this court determined what the appropriate amount of risk was asked of these plaintiffs in this case and so that risk was told to us as to follow gates and whatever other measures are medically necessary under the peel are a and that's not what happened here we were told to follow gates and measures somewhat similar to it the court veered way off into the ether to order a maximum heat index the very thing we appealed the first time around so we asked that this court to reissue the ball one opinion to us we welcome it and i think th